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Dean Riano: The test of jurisdiction is whether the court has the
power to enter into the inquiry and not whether the decision is right
or wrong. The fact that the decision is erroneous does not divest the
court that rendered it of the jurisdiction conferred by law to try the
case.
When it appears that the court has no jurisdiction over the subject
matter of a complaint filed before it, the court has the duty to dismiss
the claim and can do so motu proprio (citing Rule 9, Section 1, p. 6263).
This work was completed in haste. Please indulge the compiler if you
find grammar, spelling, and formatting mistakes.
This is version two and does not contain half the book of Dean Riano
and the entire book of Dean Regalado as envisioned. It does contain
the 2004, 2013, 2014 and 2015 lectures of Dean Jara, the Survey of
SC Decisions by Dean Albano from 2011 to 2014, and some more
case updates from browsing thelawyerspost.net.
BP 129 does not mention anything about the SC. It begins with the
CA downwards, up to the MTC and the Sharia Courts. Supreme
Court exercises its authority from the Constitution. In the
Constitution, the SC exercises original jurisdiction and appellate
jurisdiction. But the Constitution does not say that original
jurisdiction of the SC is exclusive, nor about the appellate jurisdiction
being exclusive. The basis for this is in the old Judiciary Act of 1948
where SC jurisdiction is delineated in a very thorough manner,
providing exclusive original and appellate jurisdiction of the SC.
Note that BP 129 did not repeal the old Judiciary Act and hence it is
still in force. What BP 129 repealed are provisions of Judiciary Act
of 1948 that are inconsistent with BP 129. The best argument to
support this statement is Sec. 9 in BP 129.
Sec. 9 BP 129, paragraph 3, last sentence:
3. Exclusive appellate jurisdiction over all final
judgments, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial
agencies,
instrumentalities,
boards
or
commission, including the Securities and
Exchange Commission, the Social Security
Commission, the Employees Compensation
Commission and the Civil Service Commission,
Except those falling within the appellate
jurisdiction of the Supreme Court in accordance
with the Constitution, the Labor Code of the
Philippines under Presidential Decree No. 442, as
amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and
subparagraph 4 of the fourth paragraph of Section
17 of the Judiciary Act of 1948.
The Constitution provides for a limited number of cases over which
the SC can exercise original jurisdiction and limited number of cases
over which it can exercise appellate jurisdiction. Unlike the old
Judiciary Act, the Constitution did not state that the jurisdiction of the
Supreme Court is exclusive.
See: Art. VIII, Section 5, 1987 Constitution
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2.
3.
4.
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3.
in the Rules. Thus, jurisdiction is vested in the RTC under the Rules
for it to be able to annul judgments rendered by an MTC.
Q: Can we then challenge the jurisdiction of RTC as BP 129, a
special law, should take precedence over a substantive law, as BP
129 does not expressly give the RTC the authority to annul
judgment of an MTC? Why?
A: We cannot. This is because, under BP 129 there is an allocation to
the RTC of jurisdiction to entertain and decide all kinds of actions
which are not especially given to other courts. This is the provision
why an RTC can annul judgments of the MTC as well as the reason
why the RTC is considered as the real court of general jurisdiction in
our justice system. Since no substantive law has allocated to other
courts the jurisdiction to annul judgments of an MTC, it follows now
that the RTC is the proper court to decide on the matter as provided
under BP 129 for an RTC to entertain and decide all kinds of actions
not especially given to other courts.
See: Islamic Da'wah Case
Q: Can an RTC entertain and decide on cases of annulment of
judgments of another RTC prior to BP 129? Why?
A: Before BP 129, SC held yes, because the RTC is a court of general
jurisdiction. This is the reason why in BP 129, Congress deemed it
necessary to incorporate a provision giving exclusive authority to the
CA to annul a judgment rendered by the RTC to do away with the
anomalous situation where an RTC is able to annul judgments
rendered by another RTC, as there was no specific substantive law
prior to BP 129 which allocated to other courts the authority to annul
judgments of the RTC.
Q: Can the SC annul the judgment of the CA?
No. The Constitution and BP 129 does not provide authority for the
SC to annul judgments rendered by the CA. There is no substantive
law or special law authorizing SC to annul judgments rendered by the
CA.
It does not mean that the decisions of the CA are immune from
annulment. The SC could still exercise its equity jurisdiction, most
likely under Rule 65, in order to annul a judgment of the CA, based
on the same grounds given under Rule 47, extrinsic fraud and lack of
jurisdiction.
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No. The award is more than the jurisdictional amount granted by law
to inferior courts. The court cannot award the entire P700,000.
Q: What should the plaintiff do in this case?
He may waive the excess, but if he insists he should be awarded the
entire P700,000, the decision of the MTC is null and void.
Q: What if its in the reverse? What if there is a complaint for a
sum of money worth P700,000 but during trial the plaintiff was
only able to prove he is only entitled to P150,000? May the RTC
award P150,000?
Yes, applying the principle of adherence to jurisdiction.
RTC: RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only in the
case of real properties. Personal property values have no bearing in
jurisdiction. The value as stated in the complaint shall be
determinative (whether the figure is true or not).
Q: Plaintiff sought recovery of the car through replevin, claiming
that it is worth 800k. If the defendant challenges the value,
stating that the car is 30 years old, and willing to submit evidence
to show true value, will the court entertain the defendants
motion?
A: No. The court shall rely only on the allegations in the complaint.
Once the court acquires jurisdiction, it cannot be ousted; the court
proceeds with the case until finally adjudicated.
Q: Is there any exception to the rule that the court will not look
further the allegations in the complaint?
Dean Riano: Yes, in ejectment cases in which the defendant averred
the defense of the existence of a tenancy relationship between the
parties. However, there must first be a reception of evidence and, if
after hearing, tenancy had in fact been shown to be the real issue, the
court should dismiss the case for lack of jurisdiction (citing Ignacio v.
CFI of Bulacan and Hilado v. Chavez, p. 74-75).
Dean Albano: Although respondent averred tenancy as an affirmative
/ special defense in his answer, this did not automatically divest the
MTC of jurisdiction over the complaint. It continued to have the
authority to hear the case precisely to determine whether it had
jurisdiction to dispose of the ejectment suit on its merits (citing
Mendoza v. Geronimo, November 2010)
RESIDUAL JURISDICTION
Take note that the trial court still has residual jurisdiction to act on
certain matters even if the case is already on appeal. See Rules 41 and
42. It is not correct to assume that if a case has been decided by the
trial court, after an appeal is perfected, the case is now under the
jurisdiction of the appellate court. Do not assume that the case is
entirely divested from the jurisdiction of the trial court, even if there
is a perfected appeal. The trial court continues to exercise jurisdiction
over certain matters for a limited period of time in its residual
jurisdiction. After the expiration of that period, absolute jurisdiction
will now be exercised by the appellate court.
PRIMARY JURISDICTION
In primary jurisdiction, this involves quasi-judicial bodies. What
happens in primary jurisdiction is that Congress enacts a law which
vests jurisdiction unto a quasi-judicial body to try and decide cases
which are cognizable by regular courts under BP 129. The reason
why Congress enacts these laws is that Congress feels that the quasijudicial body is better equipped to decide disputes of litigants in
certain cases than the regular courts.
For example, the HLURB has exclusive original jurisdiction to
adjudicate disputes between subdivision buyer/s and the subdivision
developers. In cases of breach of contract under the NCC on matters
pertaining to the jurisdiction of quasi-judicial bodies, the trial court
cannot take cognizance of these matters, although BP 129 gives
jurisdiction to regular courts over such matters, given the fact that
there is a substantive law vesting jurisdiction to the HLURB to
decide on such disputes. This is because it is presumed that the
HLURB is better equipped than a regular court to decide on such
cases due to its expertise.
Q: What if the subdivision developer filed in the MTC a
complaint for ejectment of a subdivision buyer who allegedly
violated the terms of the contract? The subdivision developer
sought to recover the property from the buyer, among other
prayers. The subdivision buyer challenged that MTC has no
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ends of justice, to carry out the duty of the SC under the limitations
given under the Constitution.
DOCKET FEES
Q: Are docket fees jurisdictional?
A: Yes. This is known as the Manchester rule, after the ruling in
Manchester Development Corporation v. Court of Appeals.
If you look at Rule 141, that is the rule prescribing docket fees, you
will see that docket fees are not only limited to complaints but all
claim pleadings.
Q: Are docket fees required for compulsory counterclaims?
A: Although the Rules of Court state that there should be docket fees
for compulsory counterclaims, the Supreme Court relaxed the rule
and stated that compulsory counterclaims do not require docket fees
to be filed.
Q: When are docket fees not required to be paid?
A: If you take a look at the last section of Rule 141, that is, Section
22 of that rule, you will see that the Government is exempt from
paying docket fees. Also, if you take a look at A.M. 09-6-8-SC, or the
Rules of Procedure for Environmental Cases, you will see that a Writ
of Kalikasan and a Petition for Continuing Mandamus do not require
docket fees.
Dean Albano: The rule on docket fees, and its exception where the
party does not deliberately intend to defraud the court in payment of
RULE 1, SECTION 5
A civil action is always commenced with the filing of a complaint.
This is the general rule. Some cases are commenced by a petition,
most notably in special civil actions. The filing of a complaint has
given rise to the action that when the case is filed, the court acquires
jurisdiction over the action. The court will then have to gain
jurisdiction over the person of the defendant. Service of summons
will gain jurisdiction over the defendant.
A recent decision of the SC held that if the person filing the case is
not authorized to file the case, then the court does not acquire
jurisdiction over the person of the plaintiff, and will not acquire even
the jurisdiction to decide the case. The court can examine whether or
not the person who filed the case is authorized. If not so authorized,
the court will not acquire jurisdiction over the person of the accused
and it will not acquire the authority to decide the case. The court will
be absolutely without jurisdiction to try and decide the case.
In complaints properly filed by the plaintiff, the plaintiff can amend
the complaint as a matter of right under Rule 10, provided an answer
has not yet been filed. If amendment is to implead a new defendant,
the court will accept such amended complaint as it is a matter of
right. As to the new defendant, the period to file an answer will relate
to the filing of the original complaint (Relating Back Doctrine).
But, if a new cause of action is introduced along with the new
defendant, it is not an amendment, as a new cause of action is being
included.
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Under Rule 1, a civil action is one by which a party sues another for
the enforcement or protection of a right, or the prevention or redress
of a wrong.
Civil action does not require prior violation of a right before
right holder can proceed to court. A plaintiff need not have his
right actually violated before a case can be filed. Even a threat to
violate a right gives rise to a cause of action.
Premise: All civil actions require a cause of action.
This is not correct. Read the Rules. All ordinary civil actions require
a cause of action. There are at least two special civil actions that do
not require a cause of action. The first is a complaint for impleader.
The second is a petition for declaratory relief. In interpleader and
declaratory relief, there is no cause of action that is alleged in the
complaint.
Q: Should the plaintiff allege that he suffered damages before he
may file an ordinary civil case in court?
No. Cause of action accrues when there is an allegation of a right and
an allegation of a violation of or a threat to violate that right. There is
no need to allege that he suffered damages.
Conceivably, one owner can file his case in the RTC if he claims the
damages suffered by him amounted to more than 500k. Another
owner can file his case in the MTC if he claims that his car incurred
damages amounting to 200k. The filing of these complaints by 3
different owners will depend on the amount of damages each will
respectively claim in their respective complaints. The fact that there
are 3 different causes of action does not mean that they should go to
the same court in order to recover the damages suffered by them.
Q: Using the first example where the owner of the 3 cars can only
file one complaint for recovery of damages, can he properly and
rightfully go to court right away?
No. If we rely solely on substantive law alone, it would seemingly be
yes. But if we apply other procedural principles, the owner may be
precluded from filing a complaint right away. The owner has to first
satisfy certain conditions precedent before cause of action could
accrue. If these conditions precedent are not satisfied, the filing of the
complaint shall be premature and shall cause the dismissal of his
complaint.
Q: What are some examples of condition precedents?
Conditions precedent given under procedural rules and substantive
law are as follows:
1. Prior barangay conciliation
2. Arbitration clause
3. Certification on non-forum shopping
4. Exhaustion of administrative remedies
5. Earnest efforts towards a compromise
Prior Barangay Conciliation
Even if a right has been violated and a cause of action indeed
accrued, if the action is covered under the circular on prior barangay
conciliation, the trial court can dismiss or not entertain the case and
order the parties to undergo barangay conciliation first.
Arbitration Clause
Invariably provides that in case of breach of contract, the parties must
first undergo arbitration before a complaint can be filed by the
innocent party.
Certification on Non-Forum Shopping
The complaint/initiatory pleading must have Certification on NonForum Shopping. The effect of a complaint/initiatory pleading
without Certification on Non-Forum Shopping is that the court
acquires jurisdiction over the case, but the court can order the
dismissal of the case for non-observance of Certification on NonForum Shopping as a condition precedent.
Q: Is there forum shopping if there is a variation of the causes of
action but founded on same facts and evidence?
Dean Albano: Yes. Forum shopping can be committed in three ways:
1. Filing multiple cases based on the same cause of action and
with the same prayer, the previous not having been
resolved yet (litis pendencia)
2. Filing multiple cases based on the same cause of action and
the same prayer, the previous case having been finally
resolved (res judicata); or
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3.
For example, a creditor filed one civil action for the recovery of the
principal and another action for the interest earned by the principal.
Even if there are two different courts where these complaints are
filed, there is still splitting a cause of actions.
Q: What are the sanctions for splitting a cause of action?
1. Filing of one could be used to dismiss the other due to litis
pendencia
2. If one of the case has been decided, the other case can be
dismissed due to res judicata
3. Both cases can be dismissed on the ground of forum
shopping.
It is now settled that if the party is guilty of splitting his cause of
action, he is also guilty of forum shopping. There is no need to
elaborate as to whether there is forum shopping as long as it can be
shown that there is splitting causes of action.
Q: Why do the Rules prohibit splitting?
It is because the effect of splitting a cause of action could be harmful
to the integrity of our courts. If splitting is allowed, and one case each
will be filed for example in the RTC and MTC, there is the possibility
that one court will decide differently from the other and would result
in the courts looking funny, even if the same facts, the same parties
and the same pieces of evidence were presented therein. The rule on
splitting is designed more for protecting the integrity of our courts.
The likelihood that different courts will render conflicting decisions
involving the same issue, the same parties and the same pieces of
evidence and thus destroy the credibility of the judicial system is
sought to be prevented.
Q: Suppose the plaintiff filed 2 complaints arising from the same
cause of action, but the defendant ignores this. Defendant did not
act on the fact. Can the court motu propio dismiss the cases?
Yes. Res judicata and litis pendencia are both non-waivable offenses
under Rule 9. Even if the defendant did not waive these, the court
motu propio can order dismissal of these cases once these becomes
clear during trial. But if the ground for dismissal is litis pendencia,
only one of the cases will be dismissed. If the ground for dismissal is
res judicata, all cases filed will be dismissed.
In litis pendencia, movant cannot move for dismissal of all cases,
only one can be dismissed.
(Tip: If you are counsel for the defendant, if cases are filed in 2
different courts [RTC and MTC], move for the dismissal of the case
in the RTC as the amount involved in the MTC is smaller. Hence, if
the amount involved in total should have been 2.2M, and the amount
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If the court does not motu propio order the severance, the defendant
cannot blame the court for it. It is the burden of the defendant to raise
this as an issue before the trial court.
Q: On the same facts above, the defendant did not notice the
misjoinder and did nothing, whereas the court did nothing also.
The judge most likely waited for the defendant to move to split
the misjoinder causes. But since nothing was done by defendant,
the judge proceeded to try the two misjoined cases.
Under the rules, can a court, motu propio, order the severance of
one of the misjoined causes of action?
Yes. The court can do so. Under the Rules, there is no need for a
motion from the defendant if the court finds out that causes of action
are misjoined. It can motu propio order the severance of cases. This is
done for the benefit of the court, because if the court will wait for the
defendant to make a motion, to raise the misjoinder of causes, the
court will find himself confused with the procedure he will follow.
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NECESSARY PARTIES
Q: How do we distinguish whether a debtor or creditor is
necessary or indispensable?
The rule to guide us in this fact is the NCC on liability of debtors.
Yes, applying the provisions of the NCC, the creditor can go after A,
but recovery can be had only to the extent of the amount owed by A.
In this example, debtor A is an indispensible party.
Q: How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not indispensible.
The court may require B be impleaded to complete the determination
the subject matter.
Q: If the liability of the debtors is joint and several, i.e., solidary,
do we consider all of them indispensable or necessary parties?
A: Under the NCC, if the debtors are solidary liable, the creditor may
sue one, or some, or all of them. Each of the debtors, therefore, is an
indispensable party to the entire share. If there are remaining debtors
not impleaded to the complaint, they are neither considered necessary
or indispensable parties.
Q: What is the duty of the plaintiff if a necessary party is not
impleaded?
The only duty of the plaintiff is to tell the court that he has left out a
necessary party. He is not compelled to include such party. The court
will have to determine if it is essential for the court to order requiring
that necessary party to be impleaded.
Q: If plaintiff ignored the court order to implead the necessary
party, is Rule 17 applicable?
No, Rule 3 should apply, which provides for the sanction if plaintiff
refuses to obey an order to implead necessary party. The case will
continue. But the plaintiff would be deemed to have waived any right
of action against necessary party. If later on, the plaintiff decides to
file a complaint against such necessary party, the complaint will not
prosper, as the necessary party can claim that the right to file a claim
against him has been paid, waived, abandoned or otherwise
extinguished under Rule 16.
REPRESENTATIVE PARTIES
If there are two parties to the contract of loan, one creditor and one
debtor, if in case there is a violation of the contract, both the creditor
and debtor are of course indispensible parties.
If there are two or more debtors, plaintiff should evaluate whether
debtors liabilities are solidary or joint. In the NCC, in the absence of
any other stipulations/factors, when there are two debtors of the same
indebtedness, the assumption will be that they are joint creditors. If
there are stipulations referring to the debt as solidary, then they are
solidary debtors. The provisions of the NCC will be the guide in this
situation.
Q: If we apply the provisions of the NCC, and the creditor filed a
case to recover the entire debt, and debtor A and B are joint
debtors, do we consider both debtors to be indispensible parties?
Yes. If the purpose of the creditor is to recover the entire obligation,
then both debtors should be impleaded in the complaint.
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court, the court may dismiss the case under Rule 17 for failure to
comply with an order of the court. This dismissal is with prejudice.
ASSIGNMENT/TRANSFER OF INTEREST
Q: What is interest in real party in interest?
Dean Albano: Interest within the meaning of the Rules means
material interest or an interest in issue to be affected by the decree or
judgment of the case, as distinguished from mere curiosity about the
question involved. One having no material interest to protect cannot
invoke the jurisdiction of the court as the plaintiff in an action. When
the plaintiff is not the real party in interest, the case is dismissible on
the ground of lack of cause of action.
UNWILLING CO-PLAINTIFF
Q: Who is an unwilling co-plaintiff?
An unwilling co-plaintiff is a person who has done no wrong in so far
as the plaintiff is concerned but refuses to file a complaint even if he
and the plaintiff have a common interest over the claim.
Q: May the court compel a person to file a complaint?
No. Under our system, the filing of a complaint is left entirely to the
discretion of the plaintiff. If a plaintiff does not want to go to court to
protect his rights or to enforce his rights there is nothing which the
State or which the law could do.
Q: What if the original creditor has not assigned his credit for
1M. He files a case against debtor. While the case was pending in
the RTC, the plaintiff/creditor assigned his claim to another for
700K. Will the assignee be considered as indispensable party?
No. Under Rule 3, assignee pendente lite, though may be a real party
in interest, is not considered an indispensable party and the court may
ignore such party.
The debtor may exercise his right within thirty days from
the date the assignee demands payment from him.
Q: Will Art. 1634 apply if the credit was assigned before the
complaint is filed?
No. In such case the debtor has to pay the assignee the amount of the
credit in full, not only the amount the assignee paid for such credit.
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Q: If the assignee pendelite lite wishes to join the case, what will
he do?
He may file a motion for substitution or joinder. He need not file a
motion for intervention.
SPOUSES AS PARTIES
Q: What is the general rule regarding spouses as parties?
Husband and wife shall sue or be sued jointly.
Q: What are the exceptions?
Section 4, Rule 3, states that the exception is that provided by law.
SC held that the law contemplated in the exemption is the Family
Code or NCC as the case may be. This is pertinent on the rule of
partnership and co-ownership in case of husband and wife. It is
impertinent to compel a husband to implead the wife as co-plaintiff.
In case of co-owner, a partner can file a complaint without
impleading the co-owners. The same would be applicable to husband
and wife. The wife may file a case without impleading her husband.
There is a caveat: If the husband as a co-owner files a complaint
against another, he should indicate in the complaint that he is filing
such case as co-owner. But if he claims sole ownership, he should
implead the wife. The law authorizes either spouse alone to file a
complaint. The spouse left behind is not considered a necessary party
as a complete determination of the case could be had even with just
one spouse as a party.
Other exceptions:
1. When the husband and wife are judicially declared legally
separated from each other, the other party must be
impleaded; and
2. If the husband and wife are separated in fact for at least one
year.
CLASS SUIT
Q: When is class suit proper?
There is a common interest among persons so numerous that it would
be impracticable to bring them all to court. It is not required that all
be presented in court, but only enough to represent the rest of those
who are party to the same suit.
For example, Oposa vs. Factoran is now enshrined in the Writ of
Kalikasan through the Citizens Suit on behalf of persons yet unborn.
This is effectively a class suit.
Q: Do we consider the members of the class as indispensable or
necessary parties?
SC held that all members of the class involved in the litigation are
considered indispensable parties.
Q: Should they all be identified?
DECEASED LITIGANT
A contract of agency is present when a lawyer is engaged by his
client, an agency which exists until the client dies. The lawyer has to
inform the court about the death of his client. The court may then
cause substitution of the representatives of the estate of the deceased.
A distinction should be made if it is the plaintiff or the defendant who
died.
If the plaintiff dies, the court would require the lawyer to submit the
names of the heirs in order to act as substitute plaintiff.
If all heirs refused to act as substitute parties, the court can require
the defendant to seek the appointment of an administrator or executor
of the estate. This may be done by settlement of estate under special
proceedings.
If the executor or administrator has been chosen, he will be tasked to
represent the estate until final judgment.
If there is an appeal on the decision of the trial court, the
executor/administrator shall represent the estate. Their representative
capacity ends upon final entry of judgment.
If it is the defendant who died, and his death did not extinguish the
obligation, there is a transfer of interest from the debtor to his estate.
There will have to be proper substitution of parties similar to that
stated with the deceased plaintiff above.
Q: What criterion do we use to determine if the action survives
the death of the petitioner?
Dean Albano: If the action affects primarily and principally property
or property rights, then it survives the death of the plaintiff.
A Petition for Declaration of Nullity of Deed of Sale of Real Property
for instance, is one relating to property and property rights, and thus
survives the death of the petitioner (citing Bonilla v. Barcena, Torres
v. Rodellas, Sumaljag v. Literato)
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ALTERNATIVE DEFENDANTS
The situation is simply one where the plaintiff has the right that has
been violated but at the time of filing of the complaint he is not sure
as to who, between two or more persons, has violated the right and
who should be held liable for the violation.
Q: If there are alternative defendants, are there alternative
causes of action?
Yes. See Rule 2, Section 5. It says in the alternative. If you take a
look at Rule 8, Section 2, it also says two or more statements of a
claim alternatively.
Q: How about alternative defenses?
Yes. See Rule 8, Section 2, it says defense alternatively or
hypothetically.
Q: How about an alternative judgment?
Yes. If you take a look at Rule 60, Section 9, it says shall render
judgment in the alternative.
UNKNOWN DEFENDANT
This usually happens in a case of replevin, or recovery of possession
of personal property.
Usually personal properties are transferred from one hand to another,
so the problem of the creditor who tries to recover the property is if
he files a complaint for replevin against the person who bought the
personal property from him, there is a chance that when the sheriff
goes to this defendant, the defendant is no longer in possession of the
property, so the sheriff will not be able to confiscate the property. It
is possible that the first possessor of the property has transferred the
possession in the meantime to another person.
In order to avoid this situation, the plaintiff in a case of replevin will
usually implead at least two defendants: the first possessor of the
property or the second possessor if known to the plaintiff, and then a
third defendant called John Doe. John Doe here is impleaded as an
unknown defendant; whoever is in possession of the personal
property will be the John Doe who is impleaded in that complaint.
Q: Is there an unknown plaintiff?
No. Since it is the plaintiff himself who institutes the action, it is the
duty of the plaintiff to identify himself to the court.
INDIGENT PARTY
The general rule on motions is that a motion should not be heard ex
parte. When it comes to an indigent litigant, the rule expressly allows
that a motion presented by a litigant to be allowed to try the case as
an indigent could be submitted to the court through an ex parte
motion.
The motion to declare oneself as an indigent party may be submitted
to the court even before filing a complaint. This is the only motion
that may be filed before filing a complaint.
The fact that a person is salaried, is gainfully employed, does not
mean to say he could not become an indigent party. The only
qualification now is that the litigant can prove that he cannot support
himself and his family, even if he is a salaried employee.
VENUE OF ACTIONS
The Supreme Court, under the Constitution, may disregard the rules
on venue. All other courts cannot disregard the rules on venue. The
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3.
Q: What are the remedies of the defendant and the court if prior
barangay conciliation was not done?
The defendant can file a motion for dismissal for lack of cause of
action while the court can compel, on motion or motu proprio, both
the plaintiff and defendant to submit to barangay conciliation while
the case is being held in suspension. The court can hold the case in
abeyance until conciliation was had or had failed.
The rule on venue does not apply to CA, CTA and SC. It is only
applicable to trial courts and other lower courts.
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the fault of the judgment debtor, the judgment creditor cannot enforce
his original claim anymore. He may only enforce the judgment based
on a compromise through Rule 39.
Q: Why is there a difference between a settlement agreement
filed in a court of law, and a settlement agreement being enforced
with the barangay court?
Barangay courts do not have any power to render a judgment to
confirm the settlement or compromise agreement. They are a part of
the executive, not the judiciary. Thus, the most they can do is only to
enforce the settlement agreement.
The parties may also agree in writing to convert the barangay court to
an arbitral tribunal. In such case, the barangay court becomes a quasijudicial body. This written agreement may be repudiated within five
days from filing said agreement.
The barangay court, as an arbitration court, can make arbitral awards.
This award may not be appealed. The aggrieved party, however, may
file a petition to nullify the arbitral award, similar to annulment of
judgment, with the MTC.
If this award is not annulled, it becomes final and executory and like
the settlement agreement may be enforced by the barangay court. If
there is no satisfaction of the claim, the remedy for the creditor is to
enforce the award with the MTC.
Q: The claim of the creditor was 500k. The creditor and the
debtor submitted the matter for conciliation in the barangay
court. The claim of 500k was reduced substantially in the
proceedings, i.e., 250k paid in installments. The debtor failed to
comply. The agreement was not repudiated. The creditor filed a
complaint in the regular court for recovery of the 500k. CA held
that the only recourse of the creditor was to enforce the
compromise agreement as provided in LGC and the
implementing circulars, the creditor having lost the right to claim
the 500k. Decide.
SC held that failure to comply with the compromise agreement is
considered as a repudiation of that compromise agreement. SC cited
Art. 2041 of the NCC which states that when a party fails to comply
with the compromise agreement, the agreement is rescinded by
operation of law, and thus the creditor is entitled to recover the
original claim in the courts of justice.
There is no need to file rescission of the compromise agreement
in this instance. The effect is that the creditor who has agreed to the
compromise agreement will be reverted to his original position as a
creditor claiming the amount in his original claim before the
compromise agreement.
Mere refusal or failure to comply with compromise agreement is
tantamount to repudiation of the compromise agreement.
Read: Montaez vs. Miguel
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SUMMARY PROCEEDINGS
Summary Proceedings refers to the summary procedure followed by
lower courts in unlawful detainer, forcible entry and money claims up
to P200,000, exclusive of interests and costs.
Q: Is it correct to say that only MTC follow summary procedure?
No. There are some cases which follow summary procedure that is
cognizable by the RTC. However, these cases involve family-related
cases. They are not civil actions involving summary procedures under
the rules. If you take a look under your Family Code, there are cases
there that involve summary procedure and they must be filed either in
the RTC or Family Courts as the case may be.
Under Section 3 of the circular governing summary procedure, there
are only four pleadings that may be filed in court:
1. Complaint
2. Answer
3. Compulsory Counterclaim
4. Cross-Claims
Q: Are permissive counterclaims allowed?
No, permissive counterclaims are not allowed, unlike in small claims
proceedings.
Under Section 19, there is a list of prohibited pleadings and motions.
This list is similar with the list in small claims proceedings.
One of the motions prohibited by the circular is a Motion to Dismiss,
except on the grounds of lack of jurisdiction over the subject matter,
or failure to comply with a condition precedent, i.e., prior barangay
conciliation.
Q: May the court summarily dismiss the case without a Motion to
Dismiss from the defendant?
Yes. The court itself will examine the contents of the complaint. If
the court finds the case should be dismissed under Rule 16, it can do
so motu propio, without a correlative motion to dismiss filed by the
defendant.
Ordinarily, under ordinary procedures, a court cannot simply dismiss
the case without a correlative motion to dismiss.
The defendant is given time to file a responsive pleading for a shorter
period than in ordinary procedure, i.e., 10 days. The period is nonextendible.
If defendant ignores the period, but files a motion for extension of 5
days to file an answer, the court can ignore it, considering it as if it
was not filed. If such a motion was filed, and there was failure of the
defendant to file an answer within 10 days, plaintiff can move for
judgment on the pleadings.
Q: The circular does not state that the 10 days is non-extendible.
What is the basis for this argument?
It is stated in Section 19. One of the prohibited motions is a motion
for extension of time to file pleadings, affidavits or any other paper.
This is also the reason why the court may ignore the motion and
consider it as not filed.
Q: If the defendant is prohibited from filing a motion to dismiss,
but the defendant, after evaluating the complaint that the case
should be dismissed based on any ground in Rule 16, can he still
make use of these grounds to cause dismissal eventually?
Yes. The defendant should follow Rule 16 by making use of the
grounds as an affirmative defense in his answer, and later on raise
these issues.
One of the prohibited motions also in Summary Procedure, and this is
also true with Small Claims, is the motion to declare the defendant in
default.
If defendant failed to answer on time, the plaintiff can move for
judgment on the pleadings.
In ordinary proceedings, a motion to declare defendant in default
must be initiated by plaintiff before the court can declare defendant in
default. Unless such motion is made, the court can do nothing.
The reason why the rules on summary procedure do not allow the
court to declare defendant in default is because the rules under Rule 9
cannot be allowed in summary proceedings. It will be tantamount to
allowing a defendant in default to ask for lifting the order of default,
defeating the purpose of the rule on summary proceedings. It will not
be summary anymore.
Motion for new trial, motion for reconsideration and petition for
relief from judgment are prohibited in summary proceedings. This
does not mean the defendant has no remedy after judgment. The only
remedy available for a defendant is to appeal the judgment.
Annulment of judgment under Rule 47 can also be had under these
proceedings. But before he can avail of Rule 47, he must comply with
the strict requirements under Rule 47. Thus the aggrieved party must
first appeal if that is available to him.
One important aspect of Summary Procedure is the presence of a
preliminary conference. This is similar to pre-trial under civil actions
in ordinary procedure.
Q: Is it correct to say that there is no trial or hearing in summary
procedure?
No A trial is not absolutely prohibited in summary proceedings, as
certain criminal cases are governed by summary proceedings. A trial
has to be conducted because the court cannot deprive the accused of
his constitutional right of confrontation and from cross-examining the
witnesses.
Q: Why did not the SC adopt a common summary procedure for
civil and criminal cases? Why disallow trial in civil cases under
summary proceedings?
This is because SC cannot violate the rights of an accused in a
criminal case. The same right is not availing to a defendant in a civil
case under summary procedures.
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Q: If the aggrieved party appeals the case to the RTC, will RTC
follow the rules of summary procedure as well?
No. Summary procedure applies only to inferior courts. Once the case
is elevated to the RTC in appeal, the appellate court has to comply
with the ordinary rules of procedure under the Rules of Court.
Read: Rule 70 of the Rules of Court
Yes, he may. The claim for P50,000 is within the jurisdiction of the
Small Claims Court.
Q: Using the above problem, may he foreclose the mortgage if the
claim is not satisfied?
No, he may not. Small Claims Court only has jurisdiction to enforce
money claims. Once the mortgagee-creditor has enforced his claim in
a Small Claims Court, the mortgage is automatically cancelled by
operation of law.
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COMPLAINT
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Ultimate Facts
In ordinary civil cases, ultimate facts should be alleged in the
complaint. The plaintiff, however, is not sanctioned if evidentiary
facts are included therein. They will only be considered as surplusage
by the court.
In several circulars, in certain proceedings, a complaint need not state
just ultimate facts. In a complaint filed under Summary Proceedings,
plaintiff is encouraged to include in his complaint evidentiary facts
and to attach his evidence in the document. In Kalikasan proceedings,
the plaintiff is required to attach to his complaints all the evidence
that are in the possession of the plaintiff (documentary, testamentary
or object). Also in Kalikasan cases, the defendant should include his
evidence in the answer, aside from specific denials.
The ultimate facts are those that constitute the cause of action, an
allegation that the plaintiff has a right, an allegation that the
defendant has violated that right, or an allegation of compliance with
conditions precedent that gave rise to accrual of the cause of action.
COUNTERCLAIMS
ANSWER
It is a claim made by the defendant against the plaintiff.
Insofar as the answer is concerned, it is the pleading in response to a
complaint. It may contain positive or negative defenses or both along
with evidentiary facts. The defendant, however, cannot move for the
court to order the plaintiff to present evidentiary facts in his
complaint as the statement of the ultimate facts alone is sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part of the
answer. A negative defense must always be in the form of a specific
denial.
Q: What is the standard to follow that a denial is specific?
It is found in Section 10, Rule 8. There are three modes, three ways,
in which a denial may be considered specific. These are:
1. Total denial of the allegations in the complaint with
accompanying statements upon which he relies to support
his denial;
2. Part denial and part admission; and
3. Just a statement by defendant that he has no knowledge
or information about the truth of the allegation.
Theoretically, the defendant can make use of any mode of denial
right away.
The court, however, has in several cases discouraged the 3rd mode of
specific denial, and imposed some sanctions if a defendant insists in
using the 3rd mode as the only mode contained in his answer.
SC held that if the defendant had no knowledge or information on the
matter, defendant should explain why. If he fails to do so, such denial
Permissive Counterclaim
Must be accompanied by a
certification against forum
shopping and whenever required
by law, also a certificate to file
action by the Lupong
Tagapamayapa (Santo Tomas
University v. Surla, G.R. No.
129718, Aug. 17, 1998) (2007
Bar Question).
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REPLY
The filing of a reply is generally not necessary. It is in fact next to
useless.
Why is it useless? If the plaintiff does not reply, still, the matters not
answered in the reply are deemed controverted. In a complaint, if the
allegations therein are not specifically denied or were not dealt with
in the answer, they are deemed admitted. If the defendant does not
specifically deny or does not set up proper affirmative defenses in the
answer, the defendant is sanctioned by law. This will lead the court to
conclude that the defendant has admitted all allegations in the
complaint, and thus will lead to a judgment on the pleadings.
Q: The defendant includes in his answer an affirmative defense,
and the new matter asserts a positive defense of extinguishment,
for example, full payment of the loan. The plaintiff does not file a
reply. Is the plaintiff deemed to have admitted the new matter?
THIRD-PARTY COMPLAINT
There can potentially be no end to the number of parties in the
complaint as long as the allegations in the pleadings have something
to do with the claim of the plaintiff in his complaint. If you would
notice among the pleadings, it is only the third/fourth party complaint
that requires leave of court.
The third/fourth party complaint must allege that the third/fourth
party defendant is liable to said third/fourth party plaintiff, by reason
of contribution, subrogation or any other relief in relation to the
subject matter of the claim in the complaint. The third/fourth party
complaint is always connected to the subject matter of the complaint.
If a complaint for instance is for the recovery of an unpaid loan, a
third party complaint cannot contain a claim for the recovery of
ownership of a piece of land. The subject of the third party complaint
should always be related to the subject of the complaint.
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Yes. The court has authority to do so even without motion from the
adverse party.
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Supplemental Pleading
Amendment must be
appropriately marked.
DEFAULT
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Partial Default
There is partial default when one of several defendants, sued under a
common cause of action, is declared in default, while the others can
still participate in the case.
Rule 18
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Aside from appeal, the defendant may also file a motion for new trial
or a motion for reconsideration. If the judgment has become final and
executory, he may even file a petition for relief from judgment.
Q: In summary procedure and small claims proceedings, may the
plaintiff declare the non-answering defendant in default?
No. A Motion to Dismiss is prohibited in summary procedure and
small claims proceedings. The court will not declare the defendant in
default.
In summary procedure, if the defendant does not answer, the court
shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein
In small claims proceedings, if the defendant fails to file his response
AND fails to appear at the date set for hearing, the court shall render
judgment on the same day.
If he fails to file his response but appears at the date set for hearing,
the court shall ascertain what defense he had to offer as if a Response
has been filed.
Q: What is the remedy of the defendant in summary procedure
and small claims proceedings if there is a judgment by default?
The defendant cannot assail the judgment by default through a
motion for new trial or a motion for reconsideration. These are
prohibited pleadings in summary procedure and small claims
proceedings. The defendant also cannot file a petition for relief from
judgment because that is prohibited as well.
BILL OF PARTICULARS
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SUMMONS
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the action
brought against him. An important part of that notice is a direction to
the defendant that he must answer the complaint within a specified
period, and that unless he so answers, plaintiff will take judgment by
default and may be granted the relief applied for.
Q: What are the purposes of summons?
For actions in personam:
a. To acquire jurisdiction over the person of the defendant;
and
b. To give notice to the defendant that an action has been
commenced against him.
For actions in rem and quasi in rem - not to acquire jurisdiction over
the defendant but mainly to satisfy the constitutional requirement of
due process.
Q: What is the effect of voluntary appearance before the court?
As a general rule, the defendants voluntary appearance shall be
equivalent to service of summons and the consequent submission of
ones person to the jurisdiction of the court. If there are defects in the
summons, voluntary appearance cures such defects.
As an exception, if there is a special appearance in court to challenge
its jurisdiction over his person, it shall not be deemed as a voluntary
appearance. This is true even if the defendant includes in his Motion
to Dismiss several other grounds aside from lack of jurisdiction over
his own person.
Q: What are several instances when appearance of defendant is
not tantamount to voluntary submission to the jurisdiction of the
court?
(a) When defendant files the necessary pleading;
(b) When defendant files a motion for reconsideration of the
judgment by default;
(c) When defendant files a petition to set aside the judgment of
default;
(d) When the parties jointly submit a compromise agreement for
approval of the court;
(e) When defendant files an answer to the contempt charge;
(f) When defendant files a petition for certiorari without
questioning the courts jurisdiction over his person.
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MOTIONS
MOTION TO DISMISS
Q: What is a motion?
A: It is an application for relief other than by a pleading.
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With respect to lack of jurisdiction over the subject matter or over the
nature of the case, this ground is dealt with in Tijam vs. Sibonghanoy.
In this case, the trial court did not have jurisdiction over the subject
matter of the case, but the defendant kept silent about the issue of
absence of jurisdiction and allowed the case to proceed up to the CA.
Upon receipt of the adverse decision in the CA, the appellee
challenged the validity of the decision of the RTC and the CA, stating
that the court lacked jurisdiction from the start.
SC held that there was estoppel by laches. The case has been pending
for 15 years up to the appeal, the defendant appearing in the case for
all those years. SC said that although the decision may be challenged
by lack of jurisdiction over the subject matter even for the first time
on appeal, the defendant is guilty of estoppel by laches, by his
negligence to raise this issue as promptly as possible. He can no
longer challenge the decision of the court.
The Tijam Doctrine is incorporated in Rule 47, Section 2 before it
is barred by laches or estoppel. Estoppel by laches may be a defense
against lack of jurisdiction over the subject matter.
Estoppel in Pais
In other cases, the SC also used another kind of estoppel in order to
bar the party from raising the issue of jurisdiction, although the trial
court really did not have jurisdiction over the subject matter. Take a
look at Soliven v. Fast Forms.
The aggregate sum to be recovered was P800K. A complaint for
collection of money was filed in the RTC. The amount to be actually
collected was less than the jurisdictional amount of the RTC based on
BP 129 (the P800K includes IDALEC, hence the confusion).
There was an answer by defendant with a counterclaim. The court,
unaware it lacked jurisdiction over the case, as nobody brought it up.
rendered a judgment in favor of the plaintiff. The counsel for the
defendant found that the court had no jurisdiction. The defendant
filed a motion for reconsideration and raised lack of jurisdiction,
praying for dismissal of the case. RTC denied the motion, as the
defendant was now in estoppel to challenge the courts jurisdiction
just because an adverse result was had.
The Supreme Court held that the defendant cannot challenge any
more the jurisdiction of the court. SC stated that estoppel in pais
has set in. While jurisdiction may be assailed at any stage, a litigants
participation in all stages of the case before the trial court, including
the invocation of its authority in asking for affirmative relief, bars
such party from challenging the courts jurisdiction. A party cannot
invoke the jurisdiction of a court to secure affirmative relief
against his opponent and after obtaining or failing to obtain such
relief, repudiate or question that same jurisdiction. The Court
frowns upon the undesirable practice of a party participating in the
proceedings and submitting his case for decision and then accepting
judgment, only if favorable, and attacking it for lack of jurisdiction,
when adverse.
Q: Is the Soliven case applicable to criminal cases?
that the court has not acquired any jurisdiction over his person, when
he adds another ground found in Rule 16, the SC then held that when
another ground is added in the motion to dismiss aside from lack of
jurisdiction over the person of the defendant, he waives the ground of
lack of jurisdiction over his person. This has been changed in the
present Rules.
Under the Omnibus Motion Rule, the defendant who files a motion to
dismiss on the ground of lack of jurisdiction over his person plus any
other ground in Rule 16 does not anymore waive the ground of lack
of jurisdiction over his person.
Let us say the defendant who claims that the court has not acquired
jurisdiction over his person does not respond to the summons, as
filing of an answer is a waiver of his defense of lack of jurisdiction
over his person. He received a copy of the order of the court, and then
following the Rules, the defaulting defendant files a motion to lift the
order of default. The filing of a motion to lift the order of default is
acceptance by the defendant of jurisdiction of the court over his
person.
In another instance, the defendant receives the copy of the judgment
of default and the defendant files a motion for reconsideration and a
motion for new trial. The motion for reconsideration or new trial is a
submission of the defendant to the jurisdiction of the court over his
person. This is the reason why in Palma vs. Galvez, the defendant
claims that the court did not acquire jurisdiction over his person, and
when he filed a motion for new trial, he must qualify the motion must
not be treated as a voluntary submission to the jurisdiction of the
court over his person. He must always qualify his motion with that
ground.
Third Ground: Improper Venue
This has already been taken up in Rule 4.
Fourth Ground: Lack of Capacity to Sue on the Part of Plaintiff
Q: Suppose it is the defendant who lacks the capacity to be sued,
may he still dismiss the case?
Yes, but not under this ground but under another ground, i.e., failure
to state a cause of action.
Fifth Ground: Litis Pendencia
Q: When is there litis pendencia?
To answer this question, we need to take a look at Hongkong and
Shanghai Bank v. Aldecoa.
A property was mortgaged to the bank. The mortgagor filed a case
against the bank for the annulment of the mortgage. During the
pendency of that case, the debt became due and the mortgagor failed
to pay the obligation. The bank filed a complaint for the foreclosure
of the same mortgage. The mortgagor upon receipt of the summons
issued in the second case filed a motion to dismiss founded on litis
pendencia.
The Supreme Court held that in litis pendencia, the essential requisite
is that the outcome of anyone of the cases will be res judicata as to
Raised in a demurrer to
evidence under Rule 33 after
the plaintiff has rested his case
Determination
Determined only from the
allegations of the pleading and
not from evidentiary matters
(h) That the claim or demand set forth in the plaintiffs pleading
has been paid, waived, abandoned, or otherwise extinguished;
and
(i) That the claim on which the action is founded is
unenforceable under the provisions of the statute of frauds.
Q: Why is it necessary to relate a motion to dismiss under Rule
16 with Rule 41, which is a rule on appeal?
If you read Section 1 of Rule 41, there is an enumeration of orders
where no appeal can be had, although they are final in character.
In the enumeration under Section 1 of Rule 41, the last item is closely
related to Rule 16, that it is a dismissal is without prejudice. In Rule
16, what the Rule tells us is that under items f, h and i of Sec. 5 Rule
16 are subject to appeal. That means the dismissal is with prejudice
as the remedy thereof is to appeal.
But when the dismissal on other grounds other than items f, h and i
under Section 5, Rule 16, they are without prejudice. And Section
1(h), Rule 41 tells the plaintiff that one of the recourses available to
him when the dismissal is without prejudice. Appeal is not a remedy
available to him. Since the order is not appealable, the plaintiff must
file an appropriate petition under Rule 65. The plaintiff may file a
petition for certiorari or prohibition with the CA or SC as the case
may be.
Q: Why do we allow the plaintiff to file a petition under Rule 65
challenging the dismissal of his complaint for lack of jurisdiction,
although the order of dismissal has already been entered after the
lapse of 15 day period?
Because under Rule 65, the period for filing the petition under this
rule is 60 days, not 15 days. So if the 15-day period for entry of
judgment has lapsed, the plaintiff has 45 days more to file a petition
under Rule 65.
But because the dismissal is without prejudice, the plaintiff can forget
about going to a higher court. If the dismissal of his complaint was
without prejudice, he has another alternative: He can just file a new
complaint in the same court involving the same party with the
complaint impleading the necessary allegations.
If we compare this dismissal under Rule 16 based on lack of
jurisdiction on the ground of f, h and i, we can understand why they
are not appealable. The order of dismissal based on these items will
be a judgment on the merits. If the claim of the plaintiff alleged in the
complaint has really been paid, waived, abandoned or otherwise
extinguished as provided in the NCC, then it would seem that he
really has no claim at all with the defendant, and thus the complaint is
dismissed with prejudice. If the allegation of the defendant is that the
claim has been paid, waived, abandoned or otherwise extinguished,
that motion presents a factual issue. During the hearing of that
motion, the defendant will be given an opportunity to prove that the
claim has really been paid, waived, abandoned or otherwise
extinguished. The hearing will be as if the court was actually trying
the case, the defendant being allowed to present witnesses, or present
evidence of his allegation that the claim has been paid, waived,
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DISMISSAL OF ACTIONS
Lets attempt to summarize.
If a dismissal is found under Rule 16, we have to determine if it is
with prejudice or without prejudice. The dismissal is with prejudice if
it was dismissed under grounds (f), (h) and (i). The proper remedy is
to appeal.
If it was dismissed on any other ground aside from (f), (h) and (i), the
dismissal is without prejudice and the plaintiff may either just file
another complaint or, if the dismissal is marked with grave abuse of
discretion amounting to lack or excess of jurisdiction, he may just file
a petition under Rule 65.
Q: Using the above scenario - Can the defendant, after filing his
answer with his affirmative defense move for a preliminary
hearing on his affirmative defense?
No, the court will not allow such a hearing anymore as there had been
a prior hearing for the same issue in the prior motion to dismiss that
was denied. Thus, although a defendant is all owed to use his ground
under Rule 16 in a motion to dismiss that was denied as an
affirmative defense, he is not allowed to have another preliminary
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Under the second instance, the likelihood is that the defendant will
not object. If the defendant does not object, and the court dismisses
the case without prejudice, the plaintiff is allowed to file another case
against the same defendant based on the same cause.
The defendant can insist that the dismissal be one with prejudice.
This is allowed because the dismissal is upon the initiative of the
plaintiff, and the defendant is given the opportunity to object. If you
were the defendants counsel, advise the defendant to object, and
state that the dismissal should be one with prejudice. It will preclude
the plaintiff from filing another case with the same claims against the
same defendant.
Q: What if the defendant has a counterclaim?
There will still be dismissal, but the defendant can ask that the court
to continue hearing on the counterclaim set up by defendant in his
answer. In the alternative, the defendant can ask the court to try the
counterclaim in a separate case.
Q: Will this apply even if the counterclaim is compulsory?
Yes. This is one of rare instances where a compulsory counterclaim
could survive without the principal action.
Section 3
Q: What are the grounds for dismissal under Section 3, Rule 17?
1. The plaintiff fails to appear on the date of the presentation of
his evidence in chief on the complaint;
2. Failure to prosecute his action for an unreasonable length of
time, or nolle prosequi;
3. Failure to comply with these Rules; and
4. Failure to comply with any order of the court
Under this section, the initiative for the dismissal of the case comes
from the defendant or the court itself.
Q: What if the plaintiff failed to appear during the trial set for
the presentation of rebuttal evidence? Will there be dismissal?
No. The plaintiff has already presented his evidence in chief. There is
a difference between evidence in chief and rebuttal evidence.
Q: How can the court order a dismissal under Section 3 of Rule
17 upon the ground that the plaintiff failed to obey the provisions
of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In Rule 18, it
is provided expressly that after the last pleading is filed, it is the duty
of the plaintiff to set his complaint for pre-trial. He must file a motion
to have the complaint set for pre-trial. When the plaintiff fails to set
the hearing for pre-trial for, let us say, one year ago up to the present,
and there is a finding that the plaintiff failed to do so, the court can
dismiss the case on the ground that the plaintiff failed to follow the
provision set upon in the Rules. This has been affirmed by the SC.
So, if it is the duty of the plaintiff to set the case for pre-trial, and he
neglects to do so for an unreasonable length of time, there is every
reason for the court to make use of Rule 17, to order the dismissal of
the case under Section 3. This is a dismissal with prejudice unless the
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PRE-TRIAL
Pre-trial is mandatory in all cases, even in summary procedure, where
it is called a preliminary conference. It is present even in small claims
procedure, where there is a semblance of pre-trial in the preliminary
conference called a Judicial Dispute Resolution.
It is the duty of the plaintiff to schedule his complaint for pre-trial
after the last pleading has been filed. If he fails to do so, the case may
be dismissed with prejudice under Rule 17. Again, following the rule
in Shimizu, the order of dismissal should explain how the court has
arrived at the conclusion that the plaintiff has not obeyed the Rules of
Court.
Q: When is pre-trial not mandatory?
It is not mandatory if all the defendants have been declared in default.
The reason is obvious there is no defendant to have pre-trial with.
Mediation and Conciliation
This rule on pre-trial has been modified by the SC, applying the rules
of mediation and conciliation.
The Trial Court calls the parties to pre-trial. The parties are told to
attend a mediation/conciliation process. The case might be terminated
while in this process. The mediator/conciliator usually issues notices
to the parties as to the schedule of the mediation/conciliation
conference. If the plaintiff does not appear, he repeatedly ignores the
notices, the mediator/conciliator will submit a report to the trial court
and the court may dismiss the case with prejudice. If the court orders
that the parties should attend a mediation/conciliation conference, the
conference is deemed part of the pre-trial process. It is tantamount to
the plaintiff absenting himself from a hearing in the trial, and thus a
violation of an order of the court. Thus, such disobedience by the
plaintiff shall be a ground for dismissal with prejudice.
If the mediator/conciliator fails to mediate or to settle the case, they
will file an official report to the trial court. The case will proceed to
pre-trial proper. Parties will be ordered to submit a pre-trial brief and
attend the pre-trial conference.
Pre-Trial Proper
If any one of them fails to submit a pre-trial brief, there are serious
sanctions imposed. Also, even if the parties have timely submitted
their pre-trial brief but a party was absent in the pre-trial conference,
there are serious consequences.
If the plaintiff failed to file a pre-trial brief or attend the pre-trial
conference, the case will be dismissed and the dismissal is with
prejudice.
If it is the defendant who failed to file a pre-trial brief or attend the
pre-trial conference, the plaintiff is allowed to present his evidence ex
parte. The decision of the court will be based on such evidence.
Do you still remember the difference between ex parte presentation
of evidence under Rule 9 and Rule 18?
Under Rule 18, if the defendant filed an answer but fails to submit a
pre-trial brief or did not attend pre-trial conference, the plaintiff can
present evidence ex parte and the court will make an award according
with the evidence presented by plaintiff (application of amendment to
pleadings in order to conform to evidence).
Under Rule 9, the defendant is in default, ex parte evidence can be
presented, and the court will only award those reliefs prayed for in
the complaint.
Q: May a third party such as his counsel appear for the party?
Yes, but the third party must be armed by a power of attorney, and in
writing, that will empower him to enter into stipulations, to submit to
arbitration or other ADR, or to enter into a compromise agreement.
Q: What if there are two preliminary conferences; the defendant
attended the first but did not attend the second one? Will he be
sanctioned?
No. After the termination of the first pre-trial conference, it is
arbitrary and capricious on the part of the trial court to schedule
a second conference. But it is essential that the first one must have
been terminated.
Q: What are the differences between a criminal case and a civil
case when it comes to pre-trial?
In a civil case, stipulations of facts can be had; joint stipulation of
facts can be had; parties are encouraged to agree on the existence of
certain facts, making them part of the records of the case; and verbal
stipulations of facts can be allowed and considered valid. These
stipulations need not be presented in evidence, as the court will take
judicial notice of these stipulations, and will be considered as judicial
admissions.
The rules in a criminal case are much stricter. Stipulation of facts
should be reduced into writing, signed by the counsel of the accused
and accused himself, and approved in court. Otherwise, it will be
inadmissible in court.
Q: One of the purposes for pre-trial is the advisability or
necessity of suspending the proceedings. What are the grounds
for suspending the proceedings?
The grounds are not in the Rules of Court. It is in the NCC. Read Art.
2030 under Title XIV, or Compromises and Arbitrations:
Art. 2030. Every civil action or proceeding shall
be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or
both parties; or
2. If it appears that one of the parties,
before the commencement of the action
or proceeding, offered to discuss a
possible compromise but the other
refused the offer
Pre-Trial Order
The court is required to issue a pre-trial order after the termination of
the pre-trial conference, stating therein the matters to be taken up and
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Rule 65
As for the remedy under Rule 65, the Supreme Court stressed that it
will not hesitate to review a voluntary arbitrators award where there
is a showing of grave abuse of authority or discretion amounting to
lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy remedy in the course of law.
It should be noted that the Philippine Alternative Dispute Resolution
Act of 2004 (ADR Law) adopted and incorporated the provisions
of the UNCITRAL Model Law on International Commercial
Arbitration (Model Law), which limits recourse against an
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There arises a policy of judicial restraint, such that the finding of the
court on the jurisdiction of the arbitral tribunal is at best prima facie.
The RTC has the authority to entertain a petition to declare void or
unenforceable an arbitration clause. The decision of the RTC,
however, is merely prima facie.
Q: Does the prima facie finding of the court mean that the
arbitral tribunal can still be formed?
Yes. If the court finds that the arbitration agreement is null and void,
inoperative or incapable of being performed, a party may
nevertheless commence arbitration and constitute the arbitral tribunal.
The Supreme Court has inserted in the rules remedies available to the
parties in ordinary cases.
If the local court or an arbitral body makes a finding that the
arbitration clause is really valid and binding, it is inappealable.
If the arbitral body makes a finding that the clause is invalid, the
decision is appealable to a trial court. If there is a finding that the
arbitrator is qualified, a motion for reconsideration, appeal, or a
petition under Rule 65 against such finding are all prohibited. This is
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Q: Since the Rules only allow these two pleadings to be filed, does
that mean the intervenor may not file a cross-claim or a thirdparty complaint, among others?
The filing of these pleadings does not preclude the intervenor from
availing of the other pleadings allowed in a civil case (counter-claim,
cross-claim, third-party complaint, etc.)
INTERVENTION
There are four kinds of intervention in our Rules of Court and various
circulars by the Supreme Court:
Under Rule 39, when the court issues a writ of execution and the
properties of the losing party have been levied upon, the sheriff may
issue an ancillary writ of garnishment. When the properties of a
judgment debtor in the possession of a third person are subjected to a
writ of garnishment, that third person becomes a forced intervenor in
the proceedings. That person will have to obey the orders of the court
issued in relation to the execution, whether the third person likes it or
not.
Under Rule 57, if there is a writ of preliminary attachment issued by
the court, and following a supplemental writ of garnishment is issued,
and the writs were enforced by the sheriff upon a third person, that
third person becomes a forced intervenor in the proceedings.
(4) Court-encouraged intervention
Under environmental cases, it is encouraged by the courts for NGOs
and other parties to intervene whenever there is a petition filed under
the environmental laws. The court cannot compel the intervention of
these bodies, only to encourage them.
There are some cases whose positions it appears to be in conflict with
one another in reference to the intervention under Rule 19.
Q: Before the court was able to grant a motion for intervention,
the principal case was dismissed. What happens to the motion for
intervention?
It will render the motion academic. The motion presupposes the
presence of a principal action. There can be no intervention if there is
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A motion for intervention was filed while the case was pending. The
court granted the intervention. After receipt of the order allowing him
to intervene, the party filed a complaint-in-intervention against all the
parties in the case. Intervenor did not realize that the parties of the
case were settling. The parties did arrive at an amicable settlement.
The parties sought for the dismissal of the case, which was allowed.
The intervenor objected to the idea of having his petition dismissed.
The principal parties told the court that it is axiomatic in intervention
that once the principal action has been terminated, the subsidiary
action is dismissed also.
The Supreme Court held that the intervention was already allowed.
The principle that the contention of the parties was applicable only in
the instance the motion to intervene was not yet granted. In this case,
the court has already granted the motion to intervene. The interest of
intervenor was not common with the interest against the other
parties, having filed a complaint-in-intervention against both
parties. Thus, the intervention should be allowed to stand, the
standing of which, the intervention is considered a separate case
against the parties. Here, the intervention survived.
The Metrobank case involves a situation where the intervention will
survive the dismissal of the main complaint. But for the intervention
to survive, the pleading to be filed must be a complaint-inintervention against both parties to the case. This will not be
applicable if the intervention was in the form of a complaint-inintervention where the intervenor sides with the plaintiff or if the
intervention was via an answer-in-intervention.
CALENDAR OF CASES
The Rules of Court have adopted the Civil Code principle that in
computing periods, exclude the first day and include the last.
Read: Metrobank v. CA
In the first instance where the court will allow an intervention, even
on appeal, is when the intervenor is an indispensible party. If an
intervenor attempts to intervene if the case is already on appeal, that
will save the trial court, CA and SC from another procedural
problem. We learned that if the trial court renders a decision in a case
where an indispensable party is not impleaded, that decision will
never be final and executory. So, if on appeal, if the indispensable
party intervenes, then he should be allowed to do so, because if he is
allowed, that will cure all the procedural effects that will be present
in this particular case. That will solve the problem of whether or not
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MODES OF DISCOVERY
The modes of discovery that we have in civil procedure are also
available in a criminal case.
The Supreme Court in the WEBB CASE came out with the principle
that the Modes of Discovery available in civil cases are also available
in criminal cases. The only difference is that the use of the modes of
discovery in a criminal case should not violate or derogate the
constitutional rights of the accused.
For instance, in a civil case, there is nothing wrong if the plaintiff
takes the deposition of the defendant or the other way around. But in
a criminal case, there is something wrong if the prosecutor takes the
deposition of the accused. The prosecutor cannot take the deposition
of the accused in a criminal case since this is a violation of the
constitutional rights of the accused. The prosecutor, however, can
take the deposition of a witness whom the accused wants to present in
court, so long as the witness is not the spouse of the accused (due to
marital privilege, or the rule on evidence precluding a spouse being a
witness against the other spouse).
But in a civil case, there is nothing irregular about either the plaintiff
or defendant being subject to deposition. This is even encouraged by
the rules found in civil procedure.
Q: Do the rules compel litigants to avail modes of discovery?
In Rule 18, the plaintiff is asked to indicate if he desires to make use
modes of discovery or to use ADR. They are required to manifest that
to the court.
Q: Let us say that the plaintiff asked for leave to use modes of
discovery, but he failed to do so. Can the court compel the
plaintiff to avail it?
No, the court cannot compel, merely encourage the use of modes of
discovery. Modes of discovery are always voluntary, not mandatory,
although indirectly, the Rules have instances where the law compels
litigant to use modes of discovery or otherwise he will suffer some
sanctions given in the Rules.
Take, for example, Rule 25 and Rule 26.
In interrogatories to parties, the last section of Rule 25 (Section 6)
provides that while the plaintiff can compel the defendant, an adverse
party, to testify during the trial of the case as a witness for the
plaintiff, and at the same time, the defendant can compel the plaintiff
to testify as a witness during the trial, this cannot be done unless the
plaintiff or defendant has previously served upon the party concerned
an interrogatory. If the plaintiff serves a subpoena ad testificandum to
the defendant, requiring the defendant to appear and testify in court
on behalf of the plaintiff, the defendant can ask for that subpoena to
be quashed for failure of the plaintiff to comply with requirements
contained in Rule 25 Section 6.
Where the adverse party is a corporation, the bar on being compelled
to testify extends to the corporations officers.
The same sanction under Rule 25 Section 6 is practically the same for
admissions under Rule 26. The sanction under Rule 26 is also similar
to the rule on actionable documents. If the other party fails to make a
response to a request for admission of any document, the genuineness
and due execution of that document shall be deemed admitted. And
the admission, just like the rule in actionable documents, will be
considered as a judicial admission.
Q: Is there a conflict between Rule 26, or admission of adverse
party, and the rule on actionable documents?
No. Rule 26 involves only evidentiary matters, not documents which
form basis of the cause of action or defense. In other words, Rule 26
involves non-actionable documents.
Other than these two rules, there is nothing in our Rules that requires
a party to avail of the modes of discovery. Availment of a mode of
discovery, as a general rule, is purely voluntary on the part of an
interested party.
Q: Do modes of discovery require leave of court?
It depends. Another basic principle in discovery measures is that after
an answer has been filed by the defendant, availment of the modes of
discovery does not require permission of the court. The plaintiff or
defendant is given the prerogative to avail of the modes like taking of
depositions or interrogatories to parties or admissions to parties. The
other modes of discovery will ALWAYS require leave of court. Thus
production and inspection of documents or things in court will always
require leave of court, as does physical and mental examination of a
person. But in the case of depositions pending trial, interrogatories or
admissions, we do not need leave of court so long as the defendant
has already filed an answer.
Q: If it does not require permission from the court, who will take
the deposition?
According to the Rules, the taking of depositions may be taken before
a notary public or any person who can administer oaths.
Deposition Before an Action or on Appeal
This is called in the past as perpetuation of testimonies. Strictly, it
is not a mode of discovery, as modes of discovery assume that there
is a pending case in court. A deposition before an action does not
require an action to be pending, and is thus treated as an independent
action by itself. This is availed of by filing a Petition for Perpetuation
of Testimony, as there is no action filed yet.
Q: Since this is an independent proceeding, with what court
should we file the petition?
RTC. If we follow BP 129, that petition would be cognizable under
the Regional Trial Court since it is an independent action incapable
of pecuniary estimation. Regardless of the contemplated action which
we are going to file, the petition is always cognizable by an RTC.
Q: Will the court issue summons?
No. There is no respondent. The court will simply issue a notice that
will inform potential adversaries of the request for the perpetuation of
testimony.
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RTC Manila may not compel the witness to go to Manila even if the
interested party is willing to pay for his transportation. The reason is
that the witness may invoke his viatory right.
Where the witness resides more than one hundred (100) kilometers
from his residence to the place where he is to testify by the ordinary
course of travel, the witness may invoke that he be not allowed to
testify. This is known as invoking his viatory right.
Q: What is the remedy of the interested party if he really wishes
to obtain the deposition of the Cebu or Davao resident?
The interested party may ask any RTC in Cebu or Davao to issue a
subpoena. The interested party, therefore, and his counsel, must go to
Cebu or Davao to take the deposition of the faraway resident.
Q: What if the potential witness is in Ikebukuro, Japan?
The interested party has to make use of a commission or letters
rogatory.
Q: What is a commission?
A commission is a request to the consulate of the Philippines in the
foreign country to take the deposition of the person residing in that
foreign country.
Q: What is a letter rogatory?
It is a request issued by a local court addressed to a foreign court
requesting the latter to take the deposition of a person who is within
the territorial jurisdiction of that foreign country.
The letter rogatory will be passed to the DFA, who will in turn pass
the letter to our consulate in that foreign country, and who (meaning,
the consul) will in turn deliver the letter to the foreign court.
Q: After the potential witness has given his deposition, and later
on, this witness receives a subpoena requiring him to give
testimony in open court, can the potential witness file a motion to
quash subpoena as he had given a deposition of his testimony?
No, as the giving of a deposition cannot take the place of giving
testimony in open court. The deponent can always be compelled to
give his testimony in open court. Though his testimony may be a
repetition of his deposition, it still does not matter. He still has to give
his testimony in open court.
Q: If the witness has given testimony in open court, what is the
use of the deposition he had previously given?
Deposition previously given can be used to impeach the witness or
corroborate the witness statements in the testimony. This is the
principle of evidence called laying the predicate.
Q: What is laying the predicate?
This refers to statements, oral or documentary, made by the witness
sought to be impeached on occasions other than the trial in which he
is testifying.
Q: What are the elements of laying the predicate?
Dean Riano:
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1.
2.
transcript as evidence when the trial court can rule on the objections
that were noted by the presiding officer. This time the trial court will
have the authority to rule on the objections because the trial court is
the one that is actually trying the case.
Production and Inspection of Documents and Things
Q: What is the difference between a subpoena duces tecum and
this mode of discovery?
First, in a subpoena duces tecum, the process may be directed either
to a party to the case or a plain witness to the case. When it comes to
production of documents as a mode of discovery, it could only be
addressed to a party.
Second, they differ in purpose. In a subpoena duces tecum, there is an
assumption that the interested party will introduce these documents
as evidence. On the other hand, in production of documents, the only
purpose is for discovery.
Third, the scope of production and inspection of documents and
things are broader. It may involve real estate, it may involve entry
into or inspection of land. Since land is incapable of manual delivery,
it cannot be subject to a subpoena duces tecum.
Q: What if the party refuses to obey the order of production and
inspection of documents?
Dean Albano: He will be cited in contempt. A person guilty of
disobedience of or resistance to a lawful order of a court or commits
any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice may be punished for
indirect contempt.
TRIAL
Q: Can a trial court decide a case properly and validly if the
court does not conduct a pre-trial or a trial for that matter?
Yes. Although pre-trial is mandatory and though trial must be had
due to triable issues, the court can just skip these stages and render
judgment.
For example, in a judgment by default, there is no trial and no pretrial. Under Rule 9, if the court declares defendant in default since he
did not file an answer, one of the options is to immediately render a
judgment without requiring plaintiff to present his evidence ex parte.
In effect the trial court has skipped from the filing of pleadings to the
judgment phase immediately.
Q: Supposedly the defendant filed his answer, can we still do
away with the trial?
Yes, we follow the special kinds of judgments whenever an answer is
filed as found under the rules.
There can be a judgment on the pleadings if the answer does not
raise any issue at all, or even admits the allegations in the pleadings.
There is no pre-trial and trial in this case. The plaintiff can move right
away for a judgment on the pleadings.
side, the plaintiff, will first present his side, then the negative side,
the defendant, will set forth his defenses. Once the defendant is done
presenting his evidence, then the court may allow parties to submit
rebuttal evidence or even sur-rebuttal evidence. But if the court does
not allow presentation of rebuttal evidence or sur-rebuttal evidence,
the trial will end after the defendant has rest his case.
Q: Can the court terminate the case after the defendant rests?
Rule 30 gives an option to the judge to require the parties to submit
their respective memoranda to help the court in arriving at a decision.
Q: Does failure to submit memoranda when required to do so
result in dismissal of the case?
Yes, under Rule 17, for failure to obey lawful court orders.
Q: May the order of trial be reversed?
The order of trial can be changed. If the court requires defendant to
present evidence ahead, then there is a reverse order of trial. If the
defendant set up affirmative defenses like for example, payment, then
the order of trial is reversed. Under our Rules, if the defendant sets up
only an affirmative defense, there is no negative defense, then that
constitutes a hypothetical admission of the allegations contained in
the complaint.
If the defendant hypothetically admits, for purposes of trial, that he
incurred a loan, then there really is no need for the plaintiff to prove
the existence of the loan. It is now the duty of the defendant to show
that the loan had been paid, so the order of trial is changed. Thus, the
defendant is allowed to present his evidence first. Thereafter, if the
plaintiff does not find it necessary to file rebuttal evidence, the court
will consider the case as submitted for decision.
Q: Who will receive the evidence? Is it always the judge?
Generally, when a trial is conducted by the court, it is the judge
appointed in that sala that should sit in the proceedings. But there are
certain instances when the judge may excuse himself from presiding
the case.
The first one is when the parties so agree; second, when the parties
appoints a commissioner for the presentation of evidence; and third,
when the branch clerk of court, upon delegation of the judge, may sit
in ex parte presentation of evidence. However, in these instances, it is
still the judge who will have to write and sign the decision.
Q: When may the branch clerk of court accept evidence in lieu of
the judge?
1. In default proceedings;
2. In ex parte proceedings; and
3. If the parties agree that it is the branch clerk of court who
should preside when the evidence is presented by them.
Consolidation of Cases
Q: Distinguish consolidation of cases from severance.
A:
Consolidation
Severance
Reshaping of the
cases by amending
the pleading,
dismissing some
cases and retaining
only one case. There
must be joinder of
causes of action and
of parties.
Consolidation
Proper
Test-Case
Method
By hearing only
the principal case
and suspending the
hearing on the
other cases until
judgment has been
rendered in the
principal case. The
cases retain their
original docket
numbers (Riano,
Civil Procedure, p.
96, 2009 ed.).
If one case is in RTC Manila, and the other is in RTC Bulacan, then
the Supreme Court may order consolidation. Only the Supreme Court
has the power to consolidate these cases. Even if the parties agree, or
the judges agree, they cannot consolidate the cases on their own.
The opposite of consolidation is severance of several issues contained
in one complaint. A trial court is given the authority to tell the parties
that the trial to be conducted is only for the purpose of hearing a third
party complaint, a counterclaim, or a cross-claim, depending upon the
discretion of the court
Trial by Commissioners
The language used in the Rule is not mandatory. This is discretionary
on the court.
There are, however, exceptional circumstances under the Rules where
there is mandatory appointment of commissioners. These are:
1. In expropriation proceedings, for determining the value of
just compensation;
2. In partition cases, if there is a need to determine how the
property will be divided between the co-owners;
3. Under Rule 39, Sections 36 and 37, when the judgment was
not executed fully or no execution was had; and
4. In the settlement of estates of deceased persons, money
claims have to be submitted to the settlement court within
the statute of non-claims, and have to be responded to by
the executor or administrator. If administrator of the estate
contests the validity of these claims, then these claims will
become contested claims, and the court may appoint a
commissioner to determine these contested claims.
Q: What is the statute of non-claims?
It is a period fixed by the courts for the filing of claims against the
estate for examination and allowance.
Q: When should claims be filed?
As a general rule, within the time fixed in the notice which shall not
be more than 12 months nor less than 6 months after the date of the
first publication. Such period once fixed by the court is mandatory.
Otherwise, the claims are barred forever.
to file his claim within the time fixed by the court in the notice, then
the claim is barred forever. However, both statute of non-claims and
statute of limitations must concur in order for a creditor to collect.
Q: What is the difference between trial by commissioners and the
delegation to the clerk of court under Rule 30?
The power of a commissioner is much broader than the clerk of court.
Furthermore, the clerk of court has to be a lawyer. A commissioner
need not be one. A commissioner must in fact have a profession that
corresponds to the issue. If the issue calls for knowledge on mining,
for example, the commissioner must be at least a mining engineer or
a geologist.
A commissioner has the power to rule on objections while the clerk
of court cannot.
Finally, a commissioner may be appointed to try issues that arise
even after the judgment has become final and executory. This is
possible in Rule 39. Since the clerk of court is limited to reception to
evidence, then this prerogative does not pertain to them.
JUDGMENTS
Under Rule 36, Section 1, judgment or final orders should have these
four formal requisites in order to be valid:
3. It must be written personally and directly by the judge;
4. It must be signed by the judge;
5. Must be given to the branch clerk of court; and
6. Should include basis from factual findings and conclusions
of law
Q: What are the other requirements of a valid judgment?
1. The court must have authority to hear and determine the
case;
2. The court must obtain jurisdiction over the parties or the
res;
3. The parties must have been given an opportunity to adduce
evidence; and
4. The evidence must have been considered by the tribunal in
deciding the case.
If the former judge makes the decision and turned it over to the clerk
of court, who then promulgates it and sends the said decision by mail,
that judgment is void.
Q: What if Judge A is transferred from RTC Davao to RTC
Manila, can he pen the decision and send it to his former sala?
Under the old Judiciary Act, that is a valid judgment. If the judge
who tried the case is subsequently transferred, he retains authority to
try the case and render a valid judgment thereon.
Q: Do we still follow the old Judiciary Act in this regard?
Yes. It is still in force insofar as its provisions are not in conflict with
BP 129. Since this situation is not covered by BP 129, then it is still a
valid provision.
Q: What if Judge A is promoted to become a Justice of the CA,
can he validly pen the judgment?
No. He can no longer decide the case. It is only when the trial judge
who has heard the case is given a new assignment to a coordinate
court shall the Judiciary Act of 1948 will give him authority to render
a valid decision.
Q: Is it possible to have a final judgment even if there is strictly
no adjudication on the merits?
Yes. The two-dismissal rule is with prejudice even if there is strictly
no adjudication on the merits. The same with nolle prosequi; the fact
that the plaintiff did not present his evidence in chief; the fact that the
party disobeyed the court; or even in pre-trial, where the plaintiff did
not appear during the conference. These are several instances where
there is a dismissal with prejudice even if strictly speaking the merits
of the case were not adjudicated by the court.
Entry of Judgment
We have a new concept of entry of judgment. Under Rule 36, entry
of judgment takes place by operation of law. Even if there is no
physical or actual entry of
judgment, under Rule 36, the
judgment is deemed entered upon the expiration of the period to
appeal if no appeal is perfected. Hence, if no appeal is perfected,
right after the expiration of the 15/30-day period as the case may be,
that judgment is AUTOMATICALLY entered, and becomes final
and executory. Even if the clerk of court enters that in the records a
year later, it is not the physical entry on the record by the clerk of
court that will reckon the entry of judgment.
Q: Why do we consider entry of judgment as a very important
procedural principle?
In Rule 39, if a judgment has become final and executory, then the
court has the ministerial duty to grant a motion for execution and to
order execution of the judgment. In Rule 39 also, there is a period
fixed for that judgment to be executed. The first five years from entry
is the period to execute the judgment via a motion, and the second 5year period is for the revival of the judgment. We are more interested
in the first 5-year period within which to execute the judgment
through a motion.
If we reckon period under Rule 39, insofar as the first 5-year period is
concerned, it is 5 years from entry of judgment. This is why the
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The need for this classification of judgment stems from the principle
of civil actions that encourage joinder of courses of action. If there
are several causes of action embodied in a complaint, it is proper for
the court after the trial of a particular cause of action, that it
should render a judgment for that particular cause of action. If
there is joinder of parties, the court has also the prerogative to
render a separate decision concerning a particular party if his
claim has already been terminated when the presentation of
evidence on his claim is finished.
These are decisions that are exceptional, in the sense that we expect a
trial court to make only one judgment in one particular case. It is
unusual for the court to render several decisions involving one
particular case. That is why, even if Rule 36 authorizes the court to
promulgate separate or several decisions, if you will go to Rule 41,
Appeal From The RTCs, in Section 2, it is mentioned that if the
court renders separate or several judgments, although we call
these as judgments, they are not appealable.
These parties will have to wait until the court finally decides the case
in its entirety, unless the court allows the appeal to continue. Usually,
the court does not allow it, because that will lead to a situation where
several appeals emanate from one case, which is also frowned upon
by the SC. There should only be one decision in a particular case, and
there should be one appeal if a party decides to appeal.
This is also the reason why these decisions are sometimes referred to
as interlocutory judgments, because like interlocutory orders they
cannot be appealed by express provision of Rule 41, although they
can be validly rendered by the court.
So if you come across that term in your examinations, interlocutory
judgments, and you find the use of interlocutory and judgment to
be in conflict with one another, you apply the following view: A
judgment, technically, cannot be interlocutory. It is an adjudication of
the merits. If you characterize a judgment as interlocutory, it is only
to emphasize that the judgment, although it resolves the merits of the
case, cannot be appealed without the permission of the trial judge.
Q: May the plaintiff raise on certiorari under Rule 65 the
granting of a motion to dismiss of one defendant, if there are two
or more of them defendants?
Yes. Since a several judgment is unappealable (unless it is allowed by
the court), under Rule 41 it may be subject to Rule 65.
Judgment by confession
4.
Clarificatory judgment
It is rendered to clarify an ambiguous judgment or one
difficult to comply with.
5.
6.
7.
Judgment by default
Rendered by the court following a default order or after it
received, ex parte, plaintiffs evidence.
8.
9.
Summary judgment
One granted by the court for the prompt disposition of civil
actions wherein it clearly appears that there are no genuine
issue or controversy as to any material fact.
Usually, if the trial court is the RTC, it will be brought to the CA. So,
it is brought to the CA. The CA will have to review the case based
solely on the records transferred to it by the RTC. The records will
show that the defendant has not presented any evidence at all. Right
away, the defendant will be at a disadvantage when the case is
reviewed by an appellate court. The court will review only the
evidence presented by the plaintiff. There is a great possibility that
the CA will not agree with the trial court, and will reverse the
dismissal of the case.
If the CA reverses the order of dismissal by demurrer to evidence and
the CA tells the parties that the evidence submitted is adequate, CA
simply render its own decision on the merits of the case, relying
solely on the evidence submitted by the plaintiff.
The defendant cannot ask the CA to present his evidence. It is not
proper since the evidence should have been presented in the trial
court. The CA, as a reviewing court, will only rely on the records
transmitted to it by the RTC.
Q: May the defendant argue that under BP 129, the CA is
expressly authorized to receive evidence?
No. The defendant cannot argue that the CA is authorized to receive
evidence under the provisions of BP 129. Under BP 129, the CA is
allowed to receive evidence if it acts in exercise of its original
jurisdiction, which is not the case in this instance as the CA is acting
under its appellate jurisdiction.
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After the prosecution has rested its case, the accused can also file a
motion for judgment on demurrer to evidence. But there is one
requirement in a criminal case not found in a civil case: the accused
should get leave of court if the accused wants to preserve his right to
present evidence once the motion is denied by the trial court.
If the accused fails to get leave of court before filing the motion, and
the motion is subsequently denied, then the accused has waived his
right to present his evidence in the trial court. The trial court will not
allow the accused to present his evidence, and the next phase will be
a judgment of conviction, meaning that the evidence presented by the
prosecution is adequate to convict the accused, that the evidence has
met the quantum of evidence, i.e., proof beyond reasonable doubt. No
leave of court is required in demurrer to evidence in civil cases.
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SUMMARY JUDGMENTS
Q: What is a summary judgment?
A 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, of 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 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
movants 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.
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Aside from the special kinds of judgments provided for in the Rules,
there is a special kind of judgment provided for in the NCC. There
are several provisions in the NCC which encourage the parties to
enter into an amicable settlement or compromise. The NCC considers
a compromise as a contract between the parties, and therefore, if the
parties entered into a contract where they signed a compromise
agreement, they do not have to submit that agreement to a court for
approval.
According to the SC, if there is a compromise agreement signed by
the parties, since that is a contract, then that is the law binding
between the parties (mutuality of contracts). There is no need for
court approval to validate the compromise agreement. For purposes
of validity, we follow the provisions of the NCC. It will be treated
like any other contract. As long as the parties give their consent
freely, i.e., their consent is not vitiated, and their signatures appear in
the agreement, then that will be the contract between them,that will
be the law between the parties.
There is a case for recovery of P2M loan filed by the creditor
against the debtor. They both agreed to settle their differences.
They signed a compromise agreement to the effect that the debtor
fully recognizes his obligation to the creditor, but they converted
the payment of the loan to that of payment in installments while
fixing the amount of installments at the same time. They did not
submit the compromise agreement for court approval but instead
moved for the dismissal of the case, which the court complied.
The debtor subsequently commits a breach in the payment of
installments.
Q: After the breach, can the creditor go back to the court and ask
for revival of the case?
No.
Q: Can the creditor file a new case for collection against the
debtor for recovery of the installment or of the whole account if
in case there is an acceleration clause?
Yes. It is not barred, as the cause of action of the creditor is now
different from the previous case filed. His claim is now based on a
compromise agreement, not a loan.
In order to enforce payment as provided in the written compromise
agreement, the creditor has to file a complaint against the defendant
debtor. They will have to undergo the same process when the first
case was filed concerning the loan. But this is a case of a compromise
agreement which does not carry with it the approval of the court.
The opposite is when there is a compromise agreement signed by the
parties, but this time, the parties do not jointly move for the dismissal
of the complaint, but instead submitted the compromise agreement to
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the court for approval. The court renders what we call as a decision
based on a compromise agreement. If the debtor commits a breach in
the payment as agreed upon, what the creditor can do is to simply file
a motion for execution in the court. The judgment based upon a
compromise is a judgment on the merits. And under the NCC, a
judgment based upon a compromise is immediately executory. There
is no appeal.
Q: May the court cite the party in contempt if he does not comply
with the writ of execution of the judgment based on a
compromise?
Dean Albano: Yes (citing Gadrinab v. Salamanca).
this very clear. Rule 47 applies only to a civil case. It cannot apply to
a criminal case. The equivalent remedy in a criminal case is a petition
for habeas corpus. The SC in the exercise of its equity jurisdiction
cold also entertain a Petition for Certiorari under Rule 65 even if the
judgment of conviction has become final and executory
Q: May a petition for certiorari under Rule 65 be entertained
even if the judgment of conviction has long been final?
It can be had when the petition is applied in order for the judiciary to
rectify a wrong under its equity jurisdiction. A situation that calls for
a special remedy will always be answered by a petition for certiorari.
Certiorari is a remedy in both a civil or criminal case in order to
challenge a final and executory judgment if the situation calls for the
SC to exercise its equity jurisdiction. That is why in the enumeration
of remedies, in either criminal or civil case, we include certiorari
under Rule 65.
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The grounds for motion for new trial are completely different from
grounds for a motion for reconsideration. These motions are distinct
and different from one another.
not need an affidavit of merit, merely the affidavit of the new witness
who will give testimony, or an authentic copy of document or object
evidence to be presented.
Extrinsic Fraud
The principle in new trial in the case of fraud, the fraud committed
must always be extrinsic fraud. It cannot be intrinsic fraud. If the
fraud alleged in the motion is intrinsic, the motion will be denied.
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The fresh period rule does not refer to the period within which to
appeal from the order denying the motion for reconsideration, but the
period within which to appeal from the judgment itself because an
order denying a motion for reconsideration is not appealable.
APPEAL
Appeal can be a matter of right or a matter of discretion.
Q: What is the remedy if the motion for new trial or
reconsideration is denied?
A: The remedy is to appeal from the judgment or final order itself
subject of the motion for reconsideration or new trial. The movant
has a fresh period of fifteen days from receipt or notice of the order
denying or dismissing the motion for reconsideration within which to
file a notice of appeal. It is no longer assailable by certiorari.
This fresh period rule, also known as the Neypes ruling, is derived
from Neypes v. Court of Appeals.
Read: Neypes v. Court of Appeals
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 Appeals from MTC to RTC
2. Rule 41 Appeals to RTC
3. Rule 42 Petition for Review from RTC to CA
4. Rule 43 Appeals from quasi-judicial agencies to CA
5. Rule 45 Appeals by certiorari to the SC
Ordinary appeal
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However, if you take a look at Rule 40, Section 7 (c), it says the RTC
shall decide the case on the basis of the entire record of the
proceedings. The rule under Rule 51, Section 8, i.e., the rule that the
appellate court will only decide questions raised on the assignment of
errors, will therefore not apply to appeals from the MTC to the RTC.
For example, under the rules, the correct mode is ordinary appeal, but
the mode used was petition for review. This is an erroneous appeal.
Petition for Review to the CA
If the court of origin is an MTC, the mode of appeal is an
ordinary appeal via a notice of appeal or a record on appeal (in
certain cases) to the RTC. From the RTC, as an appellate court,
there could be a second appeal in the CA, but this time, the mode
of appeal is a petition for review.
Q: From the MTC to the RTC, supposing the mode of appeal
used by the aggrieved party was a petition for review, can the
appeal be dismissed by the RTC on the ground that the appellant
has chosen the wrong mode of appeal?
SC held that if the appellate court is an RTC, and appellant has
chosen the mode of petition for review, RTC should disregard the
error committed by the appellant. The SC reasoned that the contents
of a petition for review meets, and even exceeds, the requirements of
a notice of appeal. A petition for review is a very lengthy document,
there is the application of the material data rule, there are errors that
are assigned and there are arguments embodied in the petition for
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1.
2.
3.
4.
5.
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There may be only one motion for reconsideration before the CA, as
it is in the trial courts.
Since the CA adopts the presumption that the RTC decided on the
case correctly, the appellant must overwhelm that presumption by
convincing the CA that serious errors were committed by the RTC.
Since the appellant cannot be allowed to present evidence thereon,
since reception of evidence should have been done in the trial court,
appellant will have to rely on the records submitted from the RTC.
As a general rule, only questions of law can be raised before the SC.
However, raising questions of law with questions of fact before the
SC does not necessarily disallow the appeal. The Rules say that if the
issues raised in under Rule 45 are factual and legal, the SC has the
discretion to remand the case to the CA. When the SC sends the case
to the CA because the issues raised are both factual and legal, the CA
now has the duty to review the case and render its own decision.
The opposite, however, does not apply, such as when the CA is the
appellate court. If the court of origin is the RTC acting in its original
jurisdiction, and it involves pure questions of fact or mixed questions
The only way by which appellant can possibly convince that the RTC
committed serious errors is through the assignment of errors. If the
appellant cannot make an assignment of errors in the brief, it means
the appellant finds nothing wrong with the decision of the RTC.
Therefore, the disputable presumption stays, and this will be used by
the CA. That is why the assignment of errors is essential to the brief
of the appellant. Absence thereof is fatal to the appeal, and will cause
the appeals dismissal.
Q: Distinguish a brief from a memorandum.
A:
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Brief
Memorandum
5.
6.
Ordinary appeals
Certiorari, prohibition,
mandamus, quo
warranto and habeas
corpus cases
Q: Can the appellant assign as the only error in the brief that the
RTC committed an error in deciding the case against the
appellant?
That is not an assignment of error expected by the CA. Assignment
of errors should specify particular acts done by the RTC which could
have affected his substantial rights.
Q: Reiterate the rule on harmless errors.
The trial court must have committed errors in the proceedings; it is
expressly provided in Rule 51 that only errors of the court in
admission of evidence and issuance of orders that affects
substantially the rights of the appellant could be considered by the
appellate court. Otherwise, the court will disregard that error, even if
made a part of the assignment of errors.
Q: What issues will be resolved on appeal?
In civil cases brought on appeal, the appellate court will resolve only
issues raised in the assignment of errors. No other issue, generally,
will be resolved by the court. The only exception is if the issue not
raised in the assignment is closely related to the issue raised in the
assignment of errors of the appellant.
Q: Is the rule above applicable to criminal cases?
No. In a criminal case, if there is an error committed by the trial
court, whether mentioned or not in the assignment of errors, the CA
or SC can take cognizance of such errors in resolving the appeal. The
appellate courts are very flexible in a criminal case whose decision
from the trial court was brought before it on appeal.
As a general rule, only errors assigned in the brief may be considered
on appeal. These are the exceptions:
1. Grounds not assigned as errors but affecting the jurisdiction
over the subject matter
2. Matters not assigned as errors on appeal but are evidently
plain or clerical errors within the contemplation of law;
3. Matters not assigned as errors on appeal but consideration
of which is necessary in arriving at a just decision and
complete resolution of the case or to serve the interest of
justice or to avoid dispensing piecemeal justice;
4. Matters not specifically assigned as errors on appeal but
raised in the trial court and are matters of record having
some bearing on the issue submitted which the parties
failed to raise or which the lower court ignored;
Rule 64
Rule 65
Certiorari against
COMELEC and
COA
Certiorari,
Prohibition, and
Mandamus
Mode of Appeal
Mode of Appeal
Independent Action
COMELEC or
COA should be
impleaded as
respondent
The court or QJ
should be
impleaded
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15 days
30 days
60 days
Question of Law
Question of Law
Question of Law
and limited to
Questions of
Jurisdiction
The order or
decision cannot be
executed.
SC
SC
SC, CA or RTC
Summary:
If the RTC is acting in its original jurisdiction, appeal may be had to
the CA or SC.
If the issues involve pure questions of fact or mixed questions of law
and fact, then appeal may be had by going up to the CA by ordinary
appeal. Ordinary appeal may take in the form of a notice of appeal or
record of appeal as the case may be. This is a matter of right.
If the issues involve pure questions of law, the appellant may proceed
to the SC directly by petition for review on certiorari under Rule 45.
This appeal is a matter of discretion.
In the case of quasi-judicial bodies, whether or not it involves factual
or legal issues or both, there may be appeal to the CA. The appeal is
in the form of a petition for review under Rule 43.
From the CA as an appellate court, the appellant may further appeal
to the SC by using a petition for review on certiorari under Rule 45.
This appeal is still a matter of discretion.
Motion for Reconsideration before the SC
It is possible.
Motion for New Trial before the SC
This is not possible. The SC will not entertain a motion for new trial
even if the ground is based on NDE. The Supreme Court is not a trier
of facts.
Further Appeal
The decision of a division of the SC is a decision of the SC. Thus, it
is not possible to appeal the decision of a division of the SC with the
SC en banc.
ANNULMENT OF JUDGMENT
Q: What is annulment of judgment?
A: It is a remedy in law independent of the case where the judgment
sought to be annulled was rendered. The purpose of such action is to
have the final and executor judgment set aside so that there will be
renewal of litigation.
Judgments of MTC
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What a lawyer for the judgment creditor should do is to wait for the
records to be returned from the SC or CA to the court of origin. It
could take time for the records to be returned to the court of origin.
So, if a motion for execution was filed by the judgment creditor in the
court of origin before the records are returned, there is likelihood that
the court of origin will tell him they have not yet received the records
so they cannot act on the motion until the records reach the court of
origin. This is although the issuance of an order granting the motion
for execution is a ministerial duty of the court.
Rule 39, however, has provided for a remedy in this situation. The
appellate court will simply issue a certified true copy of the entry of
judgment. The certified true copy of the judgment will be submitted
to the court of origin in order to be a basis of the granting of the order
of a motion for execution. That is enough proof that there really is a
final and executory decision.
Q: Is there a need for the judgment creditor to file a motion for
execution, or will the issuance of a writ of execution come as a
matter of course?
There is always a need to file a motion for execution. If the judgment
creditor has not filed a motion for execution, the court has no
business to issue a writ of execution, because the court will not know
whether there was voluntary satisfaction of judgment.
Q: May a motion of execution be heard ex parte?
Since the judgment has become final and executory and it has now
become a ministerial duty of the court of origin to issue a writ of
execution, then the motion for execution will be heard ex parte,
without notice to the judgment debtor.
Although this issue has been the subject of conflicting decisions by
the SC, the latest jurisprudence said that a motion for execution of a
judgment that has become final and executory can be heard ex parte
by the trial court. Under the old doctrine, the judgment debtor should
also be given a copy of the motion for execution because the latter
may have grounds to oppose the issuance of the writ of for execution.
Q: What is the period granted by the Rules to file a motion for
execution?
Within the Rules, there is a period fixed within which the court can
grant a motion for execution as a ministerial duty. It is 5 years from
the entry of judgment. After the 5 years from entry, there can be
revival of judgment, no longer a motion, since this is an independent
action to revive the judgment. But the independent action to revive
judgment must be filed within the second 5-year period after the
entry of judgment.
Q: The Rules assume that the prescription period for the
execution of a judgment is the 10-year period. Is this a correct
assumption?
This is correct, as this is also provided under the NCC. A prescriptive
period of a final and executory judgment is really 10 years under the
NCC.
But what Rule 39 has provided was to divide the 10 years into two
parts; the first five years, and the second five years. Meaning, the first
five years, we can execute the judgment via a motion for execution.
After the lapse of the first five year period, the judgment creditor
cannot file a motion for execution. If he does so, the court will deny
the motion since the court will no longer have the authority to grant
the motion of execution. The second 5-year period is designed to
force the judgment creditor to file a separate independent action to
revive the judgment. So the motion for execution should be filed
within the first five years of the 10-year period.
Q: Is the first 5-year period strictly implemented by the rules?
It is not. It can be extended according to the Rules. The SC has
decided that if the institution of the judgment within the first five
years is delayed, and the delays are equitable or are attributable solely
to the conduct of the judgment debtor, then the 5-year period will be
correspondingly be extended, that is equal the delay caused by the
conduct of the judgment debtor.
For example, the judgment creditor filed a motion for execution of
the judgment on the third year of the first 5-year period. The court of
origin is an RTC. The judgment debtor received a copy of the motion.
After receiving the copy of the motion, the judgment debtor files a
petition for the annulment of judgment before the CA under Rule 47
with prayer for a preliminary injunction. CA granted the preliminary
injunction. Because of the preliminary injunction issued by the CA,
we cannot expect the RTC to order the execution of the judgment. It
took the CA two years to decide upon the petition of the judgment
debtor. In the end, CA ordered the dismissal of the petition for
annulment of judgment. There is now a delay of two years. If the 5year period has already lapsed due to the delay, another two years
will be added, the 5-year period will be automatically extended up to
seven years within which the judgment can be executed through the
filing of a motion for execution of judgment. That is how the SC
described how the first 5-year period and the second 5-year period
should be interpreted. It is not a fixed period.
Q: What does delay caused by the conduct of the judgment
debtor mean?
This simply means that the judgment debtor can legally delay the
execution of the final judgment. In fact, he is given two remedies
under the Rules to prevent the execution of a final judgment. Rule 38
is one means of delaying the execution of judgment. In Rule 38, the
court that decided the case can issue an injunction against the
enforcement of the judgment. Rule 47, or annulment of judgment, is
another remedy, but there should be a corresponding preliminary
injunction that is issued by the higher court. In annulment of
judgment, the court that will try the case will always be a higher
court. Thus, if the higher court hearing the petition issues an order to
stop the execution of the judgment, there is no way for the court of
origin to disobey such order.
Q: If the motion for execution is granted, which is expected, as
the judgment has become final and executory, can the judgment
debtor file an appeal against the order granting the motion for
execution?
No. Under Section 1 Rule 41, an order granting motion for execution
is not appealable. The order will be treated as a final order. The
remedy is to file a petition under Rule 65, a petition for prohibition.
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In a writ of execution, the writ will be directed to the sheriff. The writ
will contain verbatim the dispositive portion of the decision. The writ
of execution directs the sheriff to carry out the duty of executing the
dispositive portion of the judgment of execution.
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The sheriff shall not be liable for damages for the taking or keeping
of the property to any third-party claimant if there is a bond filed by
the winning party. If there is no bond, the sale cannot proceed.
However, the judgment obligee can claim damages against a thirdparty claimant who filed a frivolous or plainly spurious claim, and
such judgment obligee can institute proceedings therefor in the same
or separate action.
Replevin is also a remedy of the true owner of the personal property
if it was improperly levied and sold
If the property is a real property, the true owner/third-party claimant
can file an independent action to prevent the sheriff from selling the
property.
The easiest and most practical remedy available right away to the true
owner is a Third Party Claim. It does not require the filing of a
complaint, just the submission of an affidavit to the sheriff and to the
court, setting forth his ownership and entitlement to the possession,
and that the property should not be levied upon because this is not a
property of the judgment debtor. Evidence appurtenant thereto must
be attached.
Q: Can the court render a judgment that will tell the sheriff that
the property is not the third party claimants but that of the
judgment debtor?
No. The third party claim is an incident to the execution process, the
trial proceedings are over insofar the court is concerned. The court
has no power to resolve an issue of ownership involving the property
levied upon. It should be threshed out in a separate complaint.
Regardless of a finding by the execution court that the true owner is
the judgment debtor, that will have no bearing on the third party
claimant. That order will not be entered, it will not be considered a
judgment on the merits and will not constitute res judicata insofar as
a third-party claimant. If at all, the consequence of the finding of the
court is that the sheriff can go ahead with the sale of the property.
Q: If the sheriff schedules the sale, can third party file an
independent action to stop the sale of real property?
Yes, he can file the complaint in another court, RTC, for injunction
with claims for damages, if any.
Q: If the property levied upon is a personal property of a thirdparty claimant, can the third-party file a complaint for replevin?
Yes. The claimant must implead the sheriff and the judgment creditor
/ judgment obligee.
Q: If the executing court is an RTC, and third party claimant
files a case for replevin, can he file it in the MTC?
Yes, as replevin is cognizable by the MTC depending upon the value
of the thing subject to the auction sale.
Q: Is this interference with the other court? Can the sheriff in the
other court claim that the seizure is interfering with the
proceedings of the other court?
No. The sheriff of the MTC can seize the personal property from the
sheriff of the other court.
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The right of the first levy holder to redeem is a distinct right from the
second levy holder to redeem the property. If it is the second holder
who redeems the property, there could be another redemption by the
judgment debtor. Under Rule 39, when it is the judgment debtor who
redeems the property from the highest bidder, other rights of
redemption are cut off by virtue of the redemption by the judgment
debtor. There are successive redemptions only if the redemptioner is
not the judgment debtor himself. If the one who redeems the property
is another lien holder, we can apply the rule of successive redemption
which says that another redemption can be had within 60 days from
the efficacy of the first redemption, even if the one-year period for
redemption has already expired.
For example, there are three redemptioners, one being the judgment
debtor. If the redemption is carried out by the judgment debtor, the
rights of redemption of the other two are cut off. Redemption for all
of them is one year from the registration of the sale in the certificate
of title. So we have to assume that redemption should be within one
year from the registration of the certificate of sale in the certificate of
title. If the second levy holder redeems the property, then the third
levy holder can further redeem the property within 60 days from the
last redemption. But within the one-year period, the judgment debtor
can redeem the property, who upon his exercise of his right of
redemption, the rights of the others to redeem will be cut off.
Q: Will this not cause prejudice to the other levy holders if we cut
off their right to redemption?
No, it will not. The levy holders will simply enforce their levy since
the property is in the hands of the judgment debtor. They can have
another public auction sale of that levied property.
In civil law, as well as in Rule 39, the SC has accepted the principle
that whenever there is a doubt in the interpretation of redemption
rules and laws, the interpretation should always be in favor of the
redemptioner, the judgment debtor.
Rule 39 is also very clear in saying that right of redemption will exist
only when the property sold at public auction is real property. When
the property levied upon and sold at public auction is a personal
property, there is no right of redemption.
Q: Why is there no right of redemption in the auction sale of
personal properties?
1. If personal property is sold in auction, and the price
generated is inequitably low, the sale is void. The highest
bidder does not acquire ownership of the property. The
court will issue an order declaring the sale as ineffectual.
Sheriff must schedule another auction sale until the price
generated is not inequitably low.
2.
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Due to the above principles, the price generated during the auction
sale will be insufficient to pay the lien of the judgment creditor.
Q: Let us say that the judgment creditor has a lien of 1M, and a
piece of land owned by the judgment debtor was sold at public
auction, but generated only 500K. It is not enough to pay in full
the award given to the judgment creditor. The 500k will go to the
judgment creditor, but there is still a balance of 500k. When the
judgment debtor redeems the property, should he deliver to the
sheriff 500k or 1M?
The judgment debtor should deliver only 500k. He need not deliver
1M because the price paid by the highest bidder was only 500k.
Q: So, if the judgment debtor was able to redeem the property by
producing 500k, but the judgment creditor was not yet fully paid,
the judgment creditor will be tempted to have another levy on the
property. The judgment creditor could really entertain that idea
because he has not yet been fully paid. In Rule 39, there must be
full satisfaction of the award to put an end to the litigation. If the
judgment creditor decides to have another levy on the same
property previously levied upon, but the property had been
redeemed by the judgment debtor, can the same levying creditor
carry out another levy on the same property?
SC held that the same levying creditor cannot impose another levy on
the same property.
If the levying creditor wants to have full satisfaction of his lien, he
should make another lien on another property owned by the judgment
debtor. He could also avail of the other remedies provided for in Rule
39 if he cannot get full satisfaction of the judgment.
But this principle does not prevent other creditors from levying the
property that was already redeemed.
Q: Lets do a little backtrack. Who may redeem the property?
The judgment debtor, other creditors who has a lien subsequent to the
attaching creditor, and the assignee of the judgment debtors right to
redeem may all redeem the property.
Q: May the right of redemption be levied?
Yes. It could be a subject of a levy of execution, but not by the same
attaching creditor. For example, if A attaches Bs property where it is
eventually sold in an auction sale, another creditor, C, may attach Bs
right to redeem his property from A. But A may not attach the same
right of redemption because this would negate the idea of giving the
right of redemption to the debtor in the first place.
Q: The period of redemption is one year from the date of
registration of the certificate of sale. May the parties agree that
the period will be three years instead of one?
Yes. This shows the conversion of a legal redemption to conventional
redemption and is allowed by the NCC.
Q: How about they agree to reduce it to six months?
This is not possible. They may also extend the period, not reduce it.
Fruits
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Under subparagraph (a) the law says the judgment is conclusive upon
the title to the thing, the will or administration, or the condition,
status or relationship of the person.
This is the reason why a cadastral proceeding is considered as an
action in rem. The judgment in that litigation is conclusive upon the
title and is not conclusive upon the plaintiff or defendant. Since the
judgment in a cadastral proceeding is conclusive upon the title of the
property, that judgment will have to be binding against the litigants as
well as anybody who has an interest over the property, although these
persons might have not been involved in the litigation.
In the probate of a will, which is another procedure in rem, when
there is a decision of the court admitting the will to probate, it is
conclusive upon the will or administration. Therefore, anybody who
has an interest in the will must respect the decision of the court.
But you will notice that there is a caveat when it comes to a probate
of a will: It is not conclusive as to the fact that the testator is dead.
There is only a disputable presumption, unless proof thereof is
presented. The reason for this is that in civil law as well as in the
Rules, it is possible that probate may be commenced even when the
testator is still alive, provided that the probate of the will is initiated
by the testator himself.
If a person has been issued a decree of adoption of a child named
Juan dela Cruz, the decree is conclusive upon the personal status of
that adoptee. Therefore, anyone who meets the adoptee and transacts
with him shall be bound by the issued decree of adoption.
Judgment In Personam
Under subparagraph (b), the law says the judgment is conclusive
between the parties and their successors in interest by title subsequent
to the commencement of the action or special proceeding, litigating
for the same thing and under the same title and in the same capacity.
In letter b, when the law says that judgment is conclusive upon the
parties and their successors in interest as to matters directly adjudged
or as to matters that could have been adjudged, that phrase litigating
for the same thing and under the same title and in the same capacity
will refer, for instance, to a compulsory counterclaim or a crossclaim. This is because we learned that a compulsory counterclaim or
a cross-claim that is not raised in the same action shall be barred. The
reason they will be barred is because they are matters that could have
been raised in relation to the principal action.
An example of an action in personam is reconveyance of property. If
the action is an accion reinvindicatoria, it is an action in personam.
Although real property is involved, still it is an action in personam. It
is an example of a real action that is still in personam.
Q: Plaintiff won the case for reconveyance of property. Judgment
is entered. The plaintiff is now the owner of the property insofar
as the judgment is concerned. However, X, the true owner of the
property, filed a case for recovery of the property. Is there res
judicata?
No. There is no identity of parties between the first and second case.
There is therefore no res judicata.
Q: If there is identity in the subject matter, does it not follow that
there will be identity in the causes of action?
No. There could be identity as to the subject matter, but the causes of
action could still be different.
For instance, in accion reinvindicatoria, the subject matter involves a
piece of land. The case involves title to a piece of land. If there was
another complaint filed involving the same piece of land, the cause of
action could be different, although they are referring to the same
land. For instance, there could be a case for unlawful detainer filed
involving the same property. Though involving the same property,
the same subject matter, the causes of action are different. Accion
reinvindicatoria involves recovery of title to property, while unlawful
detainer involves recovery of physical possession of the property.
The second case cannot be dismissed by reason of res judicata since
there is no identity of causes of action.
Q: What is the essential difference between a judgment in rem
and a judgment in personam?
The big difference is to whom the binding effect of res judicata shall
attach. If it is a judgment in rem, the judgment shall be binding to the
world. If it is a judgment in personam, it is only binding between the
parties and their successors in interest.
Conclusiveness of Judgment
Subparagraph (c) of Section 47 is a kind of res judicata with limited
application. There could be identity of parties and subject matter, but
there is no identity of causes of action. Thus, subsequent cases may
prosper due to absence of res judicata.
Q: The debt based on a promissory note was 1M payable in two
installments. The debtor defaulted in the first installment. The
creditor filed a case where creditor stated that the PNs signature
was forged. The court held that the signature on the note was
genuine. Then, the second installment became due. Can another
complaint be had?
Yes. Each installment gives rise to a separate cause of action.
Q: Can forgery be raised again on the promissory note?
No. The judgment on the first case is conclusive insofar as the
genuineness of the note is concerned.
Q: Lets have another example. A filed a case against B where the
issue is ownership of a certain building. It was settled that A is
the owner. B, however, filed another case against A, but this time
its possession of said building. Will the case be dismissed under
subparagraphs (a) or (b) of Rule 39?
No. Although there is identity of parties (A and B) and identity of the
subject matter (the building), there are no identity of causes of action.
The question in the first case is ownership. In the second case, its
possession.
Q: May B raise the question of ownership in the second case?
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Yes, the remedy is found in Section 48 (b) of Rule 39. The judgment
from the Japanese court is a presumptive evidence of the judgment
creditors right against the judgment debtor.
Q: How does the judgment creditor make use of that rule that the
decision of the Japan court is presumptive evidence of his right
against the judgment debtor?
The judgment creditor should file an independent complaint for the
enforcement of decision of the Japan court. The only evidence that he
needs to convince the court is to present a certified true copy of the
decision rendered by the Japan court. If he is able to present a
certified true copy of the decision to the Philippine court, the court
will then apply the presumption given under Section 48(b) Rule 39.
In Section 48, there is a last paragraph talking about repelling of a
foreign judgment. A judgment of a foreign court can be repelled by:
1. Evidence of want of jurisdiction
2. Want of notice to the party
3. Collusion
4. Fraud
5. Clear mistake of law or fact committed by the foreign court
Hence, if the creditor files a case for the enforcement of the decision
of the Japan court, the judgment debtor can present evidence that will
repel the foreign decision, such as want of jurisdiction.
Q: Can all these grounds repel a local judgment?
No. The defenses available for repelling the execution of a foreign
judgment are not availing to repel a local judgment.
Q: Why cannot the defendant oppose the execution of a local
judgment using the grounds to repel a foreign judgment?
We do not allow a motion for execution to be denied on the argument
based on want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact committed by the court because
that will be a collateral attack on the judgment, which is generally not
allowed under the Rules.
We can only allow a direct attack on the judgment by filing a petition
to annul that judgment, on the ground of lack of jurisdiction over the
subject matter, lack of jurisdiction over the person of the defendant or
extrinsic fraud. We cannot use these grounds to collaterally attack the
judgment in our system.
When we say collateral attack, the person attacking the judgment
does not file a separate complaint for the purpose of having that
judgment set aside. If he only opposes a motion for execution, and
the ground is that of lack of jurisdiction over the case, it is not
allowed since that is a collateral attack on the judgment.
Section 48 allows collateral attacks only against a foreign judgment,
which cannot be allowed insofar as local judgments are concerned.
With respect to collusion and fraud, they are also grounds to attack
directly the judgment under Rule 47 (Annulment of Judgments), and
under Rule 38 (Petition for Relief from Judgments). What cannot be
done is a collateral attack against a final and executory judgment.
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For example, a creditor cannot file a case solely for the purpose of
obtaining a preliminary attachment. Preliminary attachment should be
a relief prayed for in an independent case.
Support pendente lite cannot be a principal action, but there can be a
principal action called a complaint for support, with application of
the provisional remedy of support pendente lite.
PROVISIONAL REMEDIES
Provisional remedies are also called interim reliefs or provisional
orders. They are called provisional because they are only temporary,
auxiliary. It is not possible for the plaintiff to file a complaint solely
for the purpose of obtaining any of these provisional remedies.
5.
Order
PRELIMINARY ATTACHMENT
You will notice in Section 1 that there are six (6) instances where one
can file for the relief of preliminary attachment. In the first five, there
is a common denominator, intent to defraud the applicant.
The last is closely related to Rule 14, i.e., summons. The applicant is
moving for an interim relief in order to enable him to secure for
himself a judgment in court by attaching the properties of the party
who otherwise could not be served with summons in any manner,
including publication. When property of the absent party is attached,
the action in personam will be converted to an action in rem or quasi
in rem by virtue of a preliminary attachment issued by the court and
actually implemented by the sheriff.
Except for the last part of Section 1, the only purpose of the applicant
in moving for the issuance of a writ of preliminary attachment is to
obtain a security for any judgment that may be rendered later on by
the trial court in his favor.
If we will note the cases enumerated in Section 1, the conduct of the
adverse party is criminal in character. The fraud committed could be
a criminal fraud or a civil fraud. The conduct should fall in any one
of the instances under Section 1 of Rule 57.
Thus, the issuance of a bouncing check can cause the filing of an
information and an application for attachment of properties of the
drawer. There is fraud in the performance of an obligation. Under the
with. To carry out the writ, the sheriff must first serve the summons
and then the notice of attachment, or serve them contemporaneously.
This will remedy the lack of jurisdiction by the court over the person
of the defendant.
This principle is applicable to all provisional remedies that may be
granted ex parte even before the court has gained jurisdiction over
the person of the defendant. This can be applied, for instance, in
preliminary injunction and the preliminary relief of replevin.
Q: Why is preliminary attachment allowed to be heard ex parte,
even before the defendant may answer?
The plaintiff is contending before the court that the defendant is truly
a dishonest person. If the defendant be allowed to know about the
application for preliminary attachment, and he truly is dishonest,
there is great danger, a great possibility, that he will continue his acts
of dishonesty and hide all of his properties from the court.
This is true for all the grounds under Section 1, except the last. Under
the last ground, where the defendant is not a resident and is not found
in the Philippines, the purpose is to obtain jurisdiction over the case.
Q: What happens if the summons is not delivered?
The attachment is void, except if:
1. The summons cannot be delivered personally or by
substituted service despite diligent efforts;
2. the defendant is a resident of the Philippines temporarily
absent therefrom;
3. the defendant is a non-resident of the Philippines; or
4. the action is one in rem or quasi in rem.
Q: Who takes possession of the attached property?
It depends.
If properties of the defendant are going to be subject to attachment,
and these properties are those capable of delivery, like a car, they will
be seized in custodia legis so long as the preliminary attachment is
not lifted. But the property will not be delivered to the plaintiff, nor
used by the defendant. It will be in the custody of the court. If the
court takes three years to decide the case, the property will be under
custody of the court for three years.
In case of real property, the title will be annotated with a lien. The
owner will not lose ownership or possession. He can sell it, but the
buyer will be notified via the annotation on the title that there is a lien
and it is possible that the property can be subject to auction sale later
on. The buyer could stand to lose his title on the property. The buyer
cannot be considered a buyer in good faith. He will always be a buyer
with notice of the existence of the preliminary attachment.
If the defendant has a sizable bank account, the sheriff will simply
prepare a writ of garnishment and serve it upon the bank. When the
bank receives the writ, the bank will freeze the account up to the
amount of the claim. And if the bank account is frozen, the defendant
cannot use these funds anymore. The bank will not allow him to
withdraw. If it is a checking account and the defendant issued checks
thereon, the bank will dishonor the checks that are presented to it.
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the time the case is decided, the car may already be in bad condition.
That is the role of a writ of replevin. If the plaintiff files a complaint
today for the recovery of a car, if he wants to gain possession of the
car right away, he should file an application for a writ of replevin in
order for him to immediately gain possession of the car.
The value of the bond required is different than the other provisional
remedies. The bond is double the value of the property subject to
seizure as alleged in the complaint. The trial court has no authority
to increase or decrease the bond. It will be based solely on the value
of the property as alleged in the complaint.
It is not possible for the defendant who has won the case to file a
separate complaint for recovery of damages arising out of a wrongful
attachment. If he did so, that independent case will be dismissed,
even motu propio. due to res judicata.
Under Section 20, Rule 57, it is very clear that the extent of damages
to be recovered need not be equivalent to the attachment bond filed in
court. If the attachment bond is insufficient, the defendant may avail
of a levy of execution under Rule 39.
Remember that Section 20 of Rule 57 is applicable to preliminary
injunction, receivership, and replevin.
Also, if the sheriff finds that the property is not in possession of the
defendant but a third person who is not a litigant, and said person
claims ownership of the property, the sheriff has no authority to seize
the property.
REPLEVIN
Replevin is accepted as a main action and as a provisional remedy at
the same time. Recovery of possession of property capable of manual
delivery is termed a complaint for replevin. It automatically rules out
a real action.
Although the Rules state that any member of the CA may issue a writ
of preliminary injunction, the internal rules of the CA state that when
there is a motion filed to lift or set aside the PI, the member who
caused the issuance of the writ must consult the other members of the
division. He may not unilaterally decide the case alone. The reason is
that the member himself issued the writ. If he alone decides whether
or not it is effective, he of course will decide the case in his favor.
Q: What is the difference between PI and PMI?
PI is prohibitive, while PMI seeks the performance of a particular act
or acts. PMI applies where the act sought to be prevented has already
been done but the applicant wishes to restore the status quo. Whether
or not the case is PI or PMI, the rest of Rule 58 shall equally apply.
There are two provisional remedies contemplated under this Rule:
1. Temporary Restraining Order (TRO)
2. Writ of Preliminary Injunction
PRELIMINARY INJUNCTION
The principal action could be any action coupled with an application
for a TRO or a writ of preliminary injunction. A special action for
certiorari under Rule 65 is usually accompanied by a verified
application for TRO and writ for PI. The relief usually asked for in
Rule 65 is for a writ to prevent or prohibit the respondent court from
going ahead with the case pending before the court, or in case of
certiorari, to set aside the decision or interlocutory order of the
respondent court. Preliminary injunction and TRO can be availed of
in any civil proceeding where the principal relief sought by the
applicant or petitioner is to prevent an act or compel performance of
an act. PI can also be had in criminal cases or special proceedings, as
long the principal relief is to compel or to prevent the performance of
an act.
Q: Who issues injunctive relief?
It may be granted b the court where the action is pending. If the
action or proceeding is pending in the CA or the SC, it may be issued
by the court or any member thereof.
1.
2.
3.
4.
5.
6.
RECEIVERSHIP
Receivership has a feature not present in other provisional remedies.
Provisional remedies are contemplated to be used during the
pendency of the case. In receivership, the court can appoint a receiver
not only during the pendency of a case but also after the judgment
has been issued or in the process of execution of said judgment. This
feature makes this remedy unique. There is no fixed time in which a
court can appoint a receiver.
Relate this to the remedies of a judgment creditor in Rule 39 when he
is unable to recover full satisfaction of his account. Under Rule 39,
the judgment creditor can ask for examination of the judgment debtor
for any properties. If there are still properties present, the judgment
creditor can apply that such properties be placed in receivership.
There always has to be a summary hearing. No ex parte appointment
of a receiver is allowed.
The grounds for appointment of receiver are quite broad. Whenever
the court feels that there is a need for the appointment of a receiver to
preserve the property in litigation, it shall do so.
The property, however, has to be in litigation. The court should not
appoint a receiver if the effect would be to dispossess the parties. The
remedy of receivership is not intended to dispossess the possessor of
the property during the pendency of the case.
The Rules also provide in foreclosure of a mortgage, the mortgagee
can move for the court to have the mortgaged property placed under
receivership, even if there is no proof that the collateral will be lost or
deteriorate. This can be done when the deed of mortgage contains a
stipulation authorizing the mortgagee to move for the appointment of
a receiver. But generally, the purpose of receivership is to preserve
the property under litigation from loss or deterioration.
Q: Who does the receiver represent?
SC held that the receiver is not a representative of either party. It
classified the receiver as a representative and an officer of the court.
As a result, the receiver cannot file a case as a receiver without the
consent of the court. If a receiver needs to file a case to recover
certain properties under receivership, he needs permission from the
court to do so. On the other hand, if a third person has a grievance
against the receiver in his capacity as a receiver, the third person
cannot simply file a case against such receiver because that third
person must seek permission of the court first. We find here a
situation where the filing of a case will need permission of the court.
If not granted, that action will fail.
Practically every issue is left to the court. The court determines how
much compensation to give to the receiver, the qualifications of a
receiver, how many receivers may be needed. If the court can appoint
a receiver, it can also fire him and appoint a new one, whenever there
is a need to preserve the property.
There is another feature in receivership that is not found in the other
provisional remedies. In receivership, there are two bonds:
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1.
2.
The applicant should manifest that he is able to post bond. Once the
court appoints the receiver, the receiver shall also post a bond. The
receivers bond is designed to protect the parties to the litigation from
any abuse or mischief by the receiver in the performance of his duty.
If you are asked why the Family Court can order support without a
hearing, just state that there is no need to determine the needs of the
spouse or of the minor children, there is no need for the court to
determine the financial ability of the defendant, because in familyrelated cases, there is a need for an inventory of properties submitted
to the Family Court by the petitioner. Based on the inventory, the
court can conclude how much the spouse is entitled and how much
the minors are entitled to support.
ENVIRONMENTAL CASES
There are in fact three remedies in case of violation against giving of
support under substantive law:
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against the violator under
Rule 39
Of particular interest is the third remedy. Although Rule 39 generally
applies only to final judgments, a writ of execution may be used to
enforce support pendente lite.
Under the Rules, you will notice that the principle in Section 20, Rule
57 is not followed at all. As a general rule, the remedy to recover
damages in wrongful issuance of provisional remedies should be in
the same case. There must be no separate action to recover damages.
But if you read the provisions for support pendente lite, it is expressly
provided that there could be an independent action for recovery of
money given as support in compliance with an order of the court.
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