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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 quasi-judicial 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 quasijudicial 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.
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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 docket fees, and manifest its willingness
to abide by the rules by paying additional docket fees when
required by the court may be found in a 2014 case, Gipa v.
Southern Luzon Institute.
RULE 1, SECTION 5
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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 interpleader. 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.
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The court went ahead and tried the case, until a decision was
finally issued by the court. Only then did the defendant raised,
on appeal to the SC, the misjoinder of causes of action.
MISJOINDER
JURISDICTION
DUE
TO
INCOMPATIBLE
may have. The court cannot force him to do so. But there is a
Q: rule against misjoinder of parties.
Note:
Dean Jara, in his lecture this year (2015), states that when the
action involves a case of unlawful detainer and a case for
collection of sum of money worth P1 million excluding
IDALEC, although there is in reality misjoinder since they
pertain to different jurisdictions (MTC and RTC respectively),
if the case is filed in the RTC, under Rule 2, Section 5(b), the
joinder will be held valid.
Q: Is there such thing as non-joinder of causes of action?
No. It is purely voluntary in the part of the plaintiff if he
wishes to join his causes of action. There may misjoinder of
causes of action, misjoinder of parties, and non-joinder of
parties, but there is no non-joinder of causes of action.
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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.
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.
Q: Can the creditor file a case against only debtor A?
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.
REPRESENTATIVE PARTIES
Q: In the enumeration of representatives under Rule 3,
Section 3, why is it that only trustees of an express trust
included? Why not the trustees of an implied trust?
It might be possible, it might be highly likely, that the trustee
in an implied trust is unaware that he is the trustee of the
beneficiary or the trustor. Implied trusts are created by
operation of law.
Q: What is the duty of the plaintiff if the defendant is
represented by another party?
The plaintiff should identify not only the representative but
also the real party-in-interest.
Q: May the court compel the plaintiff to identify the real
party in interest?
Yes. The defendant may move to dismiss the case for failure
to state a cause of action and the court may compel the
plaintiff to amend the complaint. If the plaintiff still does not
comply with the order of the 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.
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?
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ASSIGNMENT/TRANSFER OF INTEREST
There is a creditor who lent 1M to the debtor. The debtor
defaults in payment. But before the creditor filed a
complaint, the creditor felt the need for money. He
assigned his claim to another for a certain value. Such
person now stands in the shoes of the creditor, and may
file a claim against the debtor. The creditor sold his rights
to X for 700K.
Q: Can the assignor/original creditor, file a claim for 1M
against creditor?
No, he is no longer a real party in interest, as he has assigned
his rights to another.
Q: What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against debtor,
so the case will prosper.
Q: How much may the assignee recover?
He is entitled to recover 1M. The assignee steps into the shoes
of the creditor who sold his right to the assignor for 1M.
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.
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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?
SC held that there is no need. Only a representative number
can be impleaded as they represent all of the class.
Determination made on such representative class is
tantamount to determination for all of the members of the
class.
Q: Why did SC hold that all such members of the class are
deemed indispensable?
SC pointed to the last sentence of Sec. 12 Rule 3 which states
that Any party in interest shall have the right to intervene to
protect his individual interest. This effectively means that
each member of the class is an indispensable party.
Generally, under Rule 19, intervention is subject to the
discretion of the trial court. As an exception, the court cannot
deny intervention of a member of the class in a class suit.
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.
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.
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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.
He who knows others is wise. He who knows himself is
enlightened. Lao Tzu.
Believe in Lao Tzu who believes in you. - Transcriber
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.
The declaration by a court that a litigant may be considered as
an indigent litigant is purely interlocutory. It could be assailed
later on in the course of the trial as an adverse party.
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 trial courts, however, can incorporate in their
decision an advisory to the defeated party to appeal the matter
to the SC.
In purely civil actions, venue can be subject to stipulation of
parties.
Elements:
1. It must be in writing,
2. It must be contracted before the case is filed, and
3. It must contain features of exclusivity.
If the stipulation will cause undue inconvenience to parties,
then such stipulation can be dispensed with by parties. Rule 4
is designed for the convenience of complaining parties, not for
the benefit of defendants.
Read: Sweet Lines v. Teves
In a real action, the venue, in absence of any stipulation
designating a specific venue, is the place where the property or
a part thereof is located.
In a mixed action action is both real and personal the
venue in absence of stipulation is the same as that of the rule
in real actions.
Dean Riano: Examples of words with restrictive meanings are:
only, solely, exclusively in th si court, in no other court save -,
particularly, nowhere else but / except -, or words of equal
import (p. 172).
Q: What is the venue if it is a personal action and the
defendant does not reside and is not found in the
Philippines?
We normally cannot file a case against someone who does not
reside and is not found in the Philippines. There are only two
instances where a civil case can be filed against them when
the civil action pertains to the civil status of the plaintiff, or if
it involves a property of the non-resident defendant in the
Philippines. In these instances there is a res from which the
court may have jurisdiction.
Q: What if it is the plaintiff who is a non-resident and
cannot be found in the Philippines?
There is no problem. He voluntarily submits to the jurisdiction
of the court once he filed the complaint.
Q: Will rules on venue apply to the SC or CA?
It is not possible to state a rule of venue that applies to the
Supreme Court or the Court of Appeals because unlike trial
courts which are distributed throughout the country, we only
have one Supreme Court based in Manila and the Court of
Appeals that is likewise based in Manila. So the features of
trial courts in different regions do not apply when it comes to
the SC and the CA.
Q: May the parties agree to a change of venue which has
the feature of exclusivity but which is entered after the
case is filed in court?
Yes. The court, however, cannot be forced to enforce this
agreement. Once a case is filed in court, the court will
continue to have authority to try the case notwithstanding any
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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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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 non-extendible.
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 nonextendible. 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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COMPLAINT
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.
ANSWER
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Must be answered,:
Otherwise, default
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).
COUNTERCLAIMS
It is a claim made by the defendant against the plaintiff.
Q: What is the difference between a compulsory and
permissive counterclaim?
Compulsory Counterclaim
Permissive Counterclaim
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?
No. The new matter alleged in the answer is deemed
controverted even without a reply. The plaintiff need not
submit a reply as the rules itself state that the new allegation
or matter is deemed controverted.
Exception to Uselessness of a Reply
There is only one exception to the rule, and that is where the
defense in the answer is based on an actionable document. A
reply under oath Rule 8 must be made. Otherwise, the
genuineness and due execution of the document shall be
deemed admitted, and that admission is considered as a
judicial admission.
Q: How about allegations of usury? Is it an exception?
No. Under our present rules, allegations of usury MUST be
contained in a complaint or similar pleadings. The law is not
specific, but given the liberal interpretation of the rules, it
leads to the conclusion that as long as the allegations of usury
are contained in a complaint or similar pleading like counterclaim or cross-claim, there is a need for specific denial. The
responsive pleading would be an answer, not a reply. If the
allegation of usury is contained in a counterclaim/cross-claim,
the responsive pleading is an answer to the
counterclaim/cross-claim. If the allegation of usury is
contained in an answer, there is no need to specifically deny in
the reply.
Q: What is an actionable document?
It is the document relied upon by the plaintiff and the
defendant for his action or defense (Araneta, Inc. vs. Lyric
Factor Exchange, Inc. 58 Phil 736)
THIRD-PARTY COMPLAINT
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OR
MATTER
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Supplemental Pleading
Amendment must be
appropriately marked.
There is no such
requirement in supplemental
pleadings (Herrera, Vol. I,
p. 854, 2007 ed.)
DEFAULT
Q: When is a declaration of default proper?
A: If the defending party fails to answer within the time
allowed therefor, the court shall upon motion of the claiming
party with notice to the defending party, and proof of such
failure, declare the defending party in default.
Q: In what situations where declaration of default is
proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive
pleading despite valid service of summons;
2. Defendant filed an answer or responsive pleading but
beyond the reglementary period; and
3. Defendant filed an answer to the court but failed to
serve the plaintiff a copy as required by the Rules.
Q: Will the plaintiff be in default if he fails to file an
answer with respect to the compulsory counterclaim filed
by the defendant?
No. The compulsory counterclaim is an exception to the
general rule that all claim pleadings may lead to default if
unanswered.
Q: How about a cross-claim?
In one case decided in 1999, the SC held that if a cross-claim
is not answered, the cross-plaintiff or cross-claimant can file a
motion to declare the cross-defendant in default. But the SC
said that court may or may not grant the order of default.
Q: What are the effects of an order of default?
A:
1. The party declared in default loses his standing in
court. The loss of such standing prevents him from
taking part in the trial.
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings. He may, however, still be a witness for his
co-defendants in case of partial default.
3. A declaration of default is not an admission of the truth
or the validity of the plaintiffs claims.
Under Rule 9, if all the defendants are declared in default, the
court is given two choices:
1. To render a judgment of default based on the
complaint (judgment on the pleadings); or
2. To order the complainant to present evidence exparte in support of his allegations and render a
judgment based on that evidence.
Q: If a defendant is in default, does that mean he
automatically loses the case?
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Rule 18
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65 can be had, i.e., certiorari, the appellant must show that the
court acted with lack or in excess of jurisdiction
If the court has already rendered judgment by default (after
motion to life order of default has been denied), the defendant
can appeal. A judgment by default is adjudication on the
merits, hence appealable. Since appeal is available, Rule 65 is
not available. Rule 65 is only available if there is no remedy
under the Rules or under law.
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.
If the case is governed by summary procedure, the defendant
may appeal. It is not prohibited under summary procedure.
If the case, however, is governed by small claims proceedings,
appeal is not available because the decision of the small
claims court is final and executory. It is unappealable. The
aggrieved party, however, may use Rule 65, but only when he
can prove there is lack of jurisdiction or in excess of its
jurisdiction in the part of the court.
BILL OF PARTICULARS
Q: What is a bill of particulars?
Motion for leave to file bill of particulars is proper if there is
inadequacy of the allegations contained in the complaint.
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FILING
AND
SERVICE
OF
JUDGMENTS, AND OTHER PAPERS
PLEADINGS,
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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
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MOTIONS
Q: What is a motion?
A: It is an application for relief other than by a pleading.
Q: In what form should a motion be?
As a general rule, if it is not made in open court, the motion
must be reduced into writing. It must satisfy all the
requirements in the Rules concerning motions.
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MOTION TO DISMISS
Motion to dismiss is prohibited in certain proceedings, as set
down by the Rules or based on circulars issued by the SC.
As a general rule, summary procedure, small claims
proceedings, and some special proceedings prohibit the filing
of a motion to dismiss. But under ordinary procedure, a
motion to dismiss is allowed in civil cases. A Motion to
Dismiss under Rule 16 should be filed as a matter of general
practice before an answer can be filed by defendant.
Q: Can the defendant properly file an answer and a
motion to dismiss at the same time?
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Insufficiency in the
allegations of the complaint
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
Yes. The plaintiff or his counsel can still amend his complaint
to incorporate in the allegation the assessed value of the
property. This is because the order of dismissal will not be
entered until after the lapse of 15 days, and the plaintiff can
still amend and rectify the error committed by inserting the
assessed value of the property. He can do so as a matter of
right, because, according to SC, a motion to dismiss is not a
responsive pleading, and as long as the amendment is the first
amendment, under Rule 10, it is an amendment is a matter of
right. The defendant will have to file an answer to the
amended complaint.
:Q: Based on the above problem, if the dismissal became
final and executory, what can the plaintiff do?
Under Sec. 5 Rule 16, the rule makes a distinction between an
Order of Dismissal under Rule 16, letters (f), (h) and (i) - in
addition to laches under the NCC and an order under other
grounds. If it is the former, the dismissal is subject to the right
of appeal. The remedy of the plaintiff is to appeal the order of
dismissal.
If the case was dismissed on other grounds not letters (f), (h)
and (i), it means we should not treat Rule 16 alone. We must
look at other Rules to arrive at the correct remedy. We consult
Sec. 1 under Rule 41. Since the dismissal is without prejudice,
the dismissal should not be appealed.
Q: What are grounds under letters (f), (h), and (i)?
(f) That the cause of action is barred by a prior judgment
or by the statute of limitations;
(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.
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Yes. Under Section 1, Rule 41, the aggrieved party may file an
appropriate special civil action as provided in Rule 65.
Q: The defendant files an answer after his Motion to
Dismiss was denied. Can he incorporate the ground in the
motion to dismiss that was denied as an affirmative
defense?
Yes, the defendant is allowed to do that. Under our rules, if
there are objections or grounds not raised in the pleadings,
these grounds are deemed waived.
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 hearing as the said defenses had
been already subject to a hearing when the said defenses were
contained as a ground for dismissal in the prior motion that
was denied.
So, during the trial of the case, the defendant may be able to
present to the court additional evidence in order to prove such
ground under Rule 16 that he has relied upon.
Seventh Ground: Res Judicata, Prescription
Eight Ground: Extinguished Claim
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.
If a dismissal is found under Rule 17, we follow the same
principle. Rule 17 also states if a dismissal is with and without
prejudice. We follow the principle of dismissal under Rule 41
in relation to Rule 16.
A dismissal under Rule 18, under pre-trial, is always with
prejudice, and the plaintiff must appeal.
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set it for pre-trial because the further steps is not his, but for
the clerk of court, to take. Within five days from date of filing
of the reply, the plaintiff must move ex parte that the case be
set for pre-trial conference. If the plaintiff fails to file said
motion within the given period, the Branch Clerk of Court
shall file a notice of pre-trial.
Dean Jara, continuing: In most courts (RTC or MTC), if the
court calls the case for trial on the merits, and plaintiff does
not appear during trial, the lawyer for the defendant may ask
for the dismissal under Section 3, Rule 17 for failure of the
plaintiff to prosecute for an unreasonable length of time or for
failure of the plaintiff to appear on the date of the presentation
of his evidence in chief on the complaint. And usually, the
trial court accommodates the defendants move because if a
trial court dismisses the case, that is one case where the judge
can present that he has been resolving speedily the cases that
are assigned to him.
The Supreme Court came out with a resolution concerning this
particular provision in relation to Shimizu vs. Magsalin. Study
this case as it would be a good problem in the bar.
In Shimizu, the Court held that an order of dismissal with
prejudice should always comply with Rule 36 and the
Constitution. Otherwise, it shall be open to collateral and
direct attack. A trial court should always specify the reasons
why the complaint was dismissed so that on appeal, the
reviewing court can readily determine the prima facie
justification for the dismissal.
Shimizu involves a case of nolle prosequi, or failure to
prosecute. The court failed to substantiate its judgment aside
from a short sentence the case was dismissed for failure to
prosecute.
A valid judgment must contain factual findings and it must
have conclusions as to the law available. If the court simply
says that the dismissal was for failure to prosecute for an
unreasonable length of time, that is not a factual finding nor a
conclusion based on law. It is just a conclusion of the court.
The SC said that for a trial court to render a valid judgment,
the court should explain why and how the court came to the
conclusion that the plaintiff is guilty of nolle prosequi. The
court should give instances pertaining to the records of the
case that enabled the court to conclude that the plaintiff has
failed to prosecute for an unreasonable length of time. Without
such explanation, even if the judgment is entered, it can be
subjected to direct or collateral attack.
An order of dismissal with prejudice under Rules 16, 17, 33 or
even under any rule allowing dismissal of the action must
comply with the requirements of Section 1, Rule 36.
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 pretrial after the last pleading has been filed. If he fails to do so,
the case may be dismissed with prejudice under Rule 17.
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INTERVENTION
There are four kinds of intervention in our Rules of Court and
various circulars by the Supreme Court:
(1) Intervention under Rule 19
Under Rule 19, intervention is upon courts discretion. A
stranger to a case voluntarily introduces himself as a party to
the case, but must seek court permission to do so through a
Motion for Intervention.
The Motion for Intervention should show:
1. The intervenor has direct interest;
2. He has a grievance against both parties in the pending
case;
3. He wants to side with one of the parties; or
4. He is situated in a very unfortunate position wherein
the judgment of the court could adversely affect his
properties.
As a general rule, intervention is not a matter of right because
the intervenor is required to file a motion subject to the courts
decision. In the resolution of the motion, the court has the
discretion to grant or deny the motion. If the motion is denied,
the intervenor can file a separate case against any one, or both,
of the parties. If his case is already filed, he can seek to have
the cases consolidated, in instances where consolidation is
proper.
If the motion is granted, intervenor is required to file a
pleading in the form of a complaint-in-intervention or answerin-intervention.
Q: What is a complaint-in-intervention?
A complaint-in-intervention is filed if the intervenor wants to
side with the complainant or is against both complainant and
defendant in the main complaint.
Q: What is an answer-in-intervention?
An answer-in-intervention is filed if the intervenor wants to
side with the defendant.
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.
Also, in computing periods, include Saturdays and Sundays.
Q: What is pretermission of holidays?
If the last day falls on a Saturday, Sunday, or a holiday, the
period will be extended until the next working day.
Q: What if it is a holiday in Manila but not Makati?
Take note of the phrase in the place where the court sits.
Thus, if it is a holiday in Manila but not Makati, and the case
is pending with RTC Manila, then there will be pretermission
of holidays. However, if the case is pending in RTC Makati,
even if the complainant or the defendant lives in Manila
(provided it is a real action), pretermission will not apply.
Q: What if the party sought to extend the period to file a
pleading and the due date of that period falls on a holiday?
Dean Albano: Pretermission will still apply. If it was
otherwise, that would unjustly deprive the party of the full
benefit of that extension (citing Reinier Pacific International
Shipping, Inc. v. Capt. Francisco Gueverra).
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
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A party may give his deposition, but it does not mean that he
is excused from testifying in court. In fact, the Rules require
that if the party has already given his deposition, he is still
required to testify in court. His deposition will not take the
place of his the testimony in court. This is because the taking
of his deposition is only a discovery measure. The deponent
does not appear before the trial court to testify. He gives his
deposition not before a trial judge, but before another person
who is simply authorized to administer oaths.
Yes. If the witness or any of the parties can convince the court
that the taking of deposition is designed to primarily annoy or
embarrass the witness, they may ask the court of origin to
issue an order to terminate the taking of the deposition.
Q: What happens if the deposition is over?
The presiding officer will send the transcript of the
proceedings to the court of origin under seal.
Q: Will this transcript be considered evidence?
No. In order that the transcript will be considered as evidence,
it should be submitted, it should be offered as documentary
evidence by anyone of the interested parties. And it is during
this offer of the 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
pre-trial. 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?
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Severance
Contemplates a single
action having a number of
claims, counterclaims,
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cross-claims, third-party
complaints, or issues which
may be separately tried.
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
It is a joint trial
with joint
decision, the cases
retaining their
original docket
numbers.
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.).
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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.
Do not forget the ruling in Shimizu v. Magsalin. We discussed
this in Rule 17. A final order of dismissal under Rule 17,
which is generally a dismissal with prejudice, is void if there
is no explanation how and why the case was dismissed by
failure to prosecute.
Also, you should take note; these requisites under Rule 30,
Section 1 apply only to judgments or final orders. It does not
apply if the order is not with prejudice.
Q: A case is pending in RTC Davao under Judge A. He
presided during the presentation of evidence by both
parties. After presentation of evidence, Judge A retires.
Who will decide the case?
The successor judge takes over and decides 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.
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 5-year period is for the
revival of the judgment. We are more interested in the first 5year 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 principle of entry of judgment is very important in
implementing the succeeding procedural principles relating to
execution of judgment, and also in determining if a particular
remedy has been availed of on time.
Let us take another example aside from Rule 39. If you recall,
relief of judgments has two periods to be taken into account;
60 days from notice and 6 months from ENTRY of judgment.
Q: What are those which are not considered as decisions?
1. Resolutions of the Supreme Court denying the
petitions to review decisions of Court of Appeals.
2. Minute Resolutions if issued by SC denying or
dismissing a petition or a motion for reconsideration
for lack of merit, it is understood that the challenged
decision or order is deemed sustained.
3. Interlocutory Orders those that determine incidental
matters that do not touch on the merits of the case or
put an end to the proceedings, e.g. Order denying a
motion to dismiss, granting an extension of time or
authorizing an amendment.
Dean Albano: Minute resolutions are considered as res
judicata with respect to the same subject matter and the same
issues concerning the same parties. It is not binding precedent
if it involves other parties or another subject matter (citing
Nationwide Security and Allied Services v. Valderama).
Q: What is a judgment without trial?
The theory of a summary judgment is that although an answer
may on its face appear to tender issuesrequiring trialyet if
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2.
Judgment by confession
It is one rendered by the court when a party expressly
agrees to the other partys claim or acknowledges the
validity of the claim against him. Do not confuse this
with confession of judgment. This is also known as a
judgment relicta verificationem, cognovit actionem,
or even cognovit actionem relictu verificetione.
3.
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.
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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.
Q: What are the requisites of summary judgments?
1. There must be no genuine issue as to any material
fact, except for the amount of damages; and
2. The party presenting the motion for summary
judgment must be entitled to a judgment as a matter
of law.
Q: When is a claimant allowed to file for summary
judgment?
A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a
summary judgment in his favor upon all or any part thereof.
Q: When is a defendant allowed to file for summary
judgment?
A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits, depositions or admissions for
a summary judgment in his favor as to all or any part thereof.
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Unlike a motion for new trial, the Rule allows a party to file a
second motion for new trial if found on a ground different
from the one used in the first motion for new trial.
should be filed with the MTC. It even uses the same docket
number used by the court in deciding the case.
Furthermore, there is no issuance of summons under Rule 38.
If the trial court finds the petition to be sufficient in form and
substance, the court may issue an order directing the
respondent to file a comment. It will not issue summons. The
respondent who fails or refuses to comment will not be
declared in default. The court will simply proceed with the
hearing of the motion.
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
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.
The last paragraph is really important. Read it again.
Q: Will the fresh period apply to a motion to dismiss under
Rule 16 and a motion for a bill of particulars under Rule
11?
No. These periods will interrupt the period to file an answer
but will not grant a fresh period of 15/30/60 days as the case
may be if denied by the court. If these motions are denied, the
defendant is given the remaining period within which to
respond or file an answer, but this remaining period should not
be less than five days.
Q: What does appeal as a matter of right mean?
It means when he has perfected the appeal within the period to
do so, the appellate court has no other choice but entertain the
appeal, review the decision and render its own decision.
Q: What does appeal as a matter of discretion mean?
When we say that appeal is a matter of discretion, the
appellate court will determine whether the appeal should be
entertained or not. If that discretion is given to the appellate
court, it simply denies to the party the right to appeal to that
court.
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If it is the appellant case who does not submit his brief, the
appeal is dismissed. If it is the appellee who does not submit
his brief, then the court will simply decide the appeal without
a brief coming from the appellee. The appellee can choose not
to submit a brief. It is the brief of the appellant whose
submission or non-submission could lead to the dismissal of
the appeal.
Q: Why is the CA very much interested in the assignment
of errors that must be contained in the brief, without
which the appeal will have to be dismissed?
The assignment of errors is essential in an ordinary appeal
because insofar as the CA is concerned, the decision of the
trial court is a correct decision. Remember that in our Rules of
Evidence, there is a presumption that a decision of a trial court
is correct, i.e., there is a presumption of regularity in the
performance of official duties. The CA will always apply that
disputable presumption whenever there is an appeal in the CA.
That same attitude is also adopted by the SC. Whenever an
appeal under Rule 45 is raised to the SC, the SC adopts the
disputable presumption that the decision of the CA is correct.
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.
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:
Brief
Memorandum
Ordinary appeals
Certiorari,
prohibition,
mandamus, quo
warranto and habeas
corpus cases
Contents specified by
rules
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Q: What are the differences between Rule 45, 64, and 65?
Rule 45
Rule 64
Rule 65
Petition for
Review on
Certiorari
Certiorari against
COMELEC and
COA
Certiorari,
Prohibition, and
Mandamus
Mode of Appeal
Mode of Appeal
Independent
Action
Cannot implead
the court as a
party
COMELEC or
COA should be
impleaded as
respondent
The court or QJ
should be
impleaded
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.
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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
Extrinsic Fraud
Fraud is regarded as extrinsic when it prevents a party from
having a trial or from preventing a party from having a trial or
from presenting his entire case to the court, or where it
operates upon matters pertaining not to the judgment itself but
to the manner in which it is procured (Alaban v. CA, GR No.
156021, September 23, 2005).
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sheriff has the duty to carry out the dispositive portion of the
judgment.
Q: Can there be contempt in collection of money cases by
way of exception?
Generally, no, but it is possible in support. Failure to give
support can result with the disobeying person being cited in
contempt, as well as being subjected to a criminal case for
failure to give support.
Levy of Property
As a general rule, therefore, a judgment debtor who refuses to
obey the writ of execution cannot be cited in contempt. There
are other more effective remedies under Rule 39 in order to
carry out the possible satisfaction of the judgment. The more
effective remedy under Rule 39 is to levy the properties of the
judgment debtor, seizure thereof and sell them at public
auction.
Q: Who possesses a property under levy on execution?
It depends.
Levy of properties under Rule 39 does not automatically mean
that possession of the levied properties will be in the hands of
the sheriff or the court. If properties of the judgment debtor
that are levied upon are real properties, the judgment debtor
will continue to possess the property and he will not be ousted.
The court will simply submit a copy of the levy of execution
to the Register of Deeds and ask the latter to annotate such
fact. What is important to know in the levy of real properties is
that the judgment debtor will not be ousted from his physical
possession of the real property. He will continue to be in
possession of the real property although it is already subject of
a levy.
But when the property levied upon is personal property, the
physical possession of the property will be turned over to the
sheriff. In fact, the properties will literally be placed in
custodia legis.
Q: What happens after the levy is implemented by the
court?
Levy of properties under Rule 39 should always be followed
by sale by public auction. We will not have execution if we
stop at levying of properties. The levy must always be
accompanied by a sale by auction. If there is only levy without
a sale by auction, then that levy can be nullified by the court.
It is the duty of the court to see to it that an actual levy of
properties should be followed by a public auction sale.
Under Rule 39 and under certain special laws, there are certain
properties of a judgment debtor that is exempt from levy. If
the property of the debtor that is exempt from execution is
levied upon, the levy is void, and the sale thereof is also be
void. The validity of an auction sale shall always stem from
the validity of a prior levy. Even if there is valid levy, but if
there are requirements not complied with before, during or
after auction sale, the sale will be void, and the buyer will not
acquire title to the property sold.
Terceria / Third-Party Claim
The principles in Rule 39 and Rule 16 are practically identical.
Terceria is predicated on the premise that the property levied
upon by the sheriff for the purpose of executing of the duly
entered judgment does not belong to the judgment debtor. If
the property levied upon belongs to another person, the levy is
not valid. Rule 39 expects that the property levied upon by the
sheriff belongs to a judgment debtor. If the sheriff makes a
levy on properties which do not belong to the judgment
debtor, you can expect the true owner to complain. The true
owner can file a complaint for the recovery of the real
property from the sheriff. The filing of such complaint of the
owner is just one of the several remedies which the owner can
avail of. In Rule 39, the remedy refers to the filing of a third
party claim.
Terceria, however, is not the only remedy available to the true
owner. He may have other remedies.
Q: What are the remedies available to a third-party
claimant in levy of real property?
A:
1. Summary hearing before the court which authorized
the execution;
2. Terceria or third party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment
creditors; or
4. Independent reinvindicatory action.
The remedies are cumulative and may be resorted to
independently of or separately from the others.
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 third-party 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?
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Yes. The levy only creates a lien. The judgment obligor only
loses ownership if there was a public auction sale thereon. But
ownership shall not immediately be lost, so long as judgment
debtor still has the right of redemption.
Right of Redemption
If in cases where there are two different levies over the same
piece of land of the judgment debtor, usually, the property will
be sold as a result of the first levy of the property. If the
property is later on sold at public auction, and since the law
gives to the judgment obligor the right of redemption, this
right of redemption will also be enjoyed by the buyer.
Q: What is the rule on successive redemption?
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.
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2.
5.
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.
Q: What are the Provisional Remedies under the Rules of
Court?
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
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5.
PRELIMINARY ATTACHMENT
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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 NCC, there is fraud either in the
performance of an obligation (dolo incidente), or in
contracting (dolo causante, a deception employed by one party
prior to or simultaneous to the contract in order to secure the
consent of the other). In both instances, they are justification
for the issuance of preliminary relief.
Q: A borrower obtains a loan from a bank and later on the
borrower became addicted to gambling. He loses tons of
money and he defaults in the payment of the loan. The
bank naturally filed a complaint for the recovery of the
loan. May the bank ask to levy the properties on the
ground that the borrower is a gambling addict?
No. This is not one of the grounds enumerated in Section 1,
Rule 57.
Q: Supposing the plaintiff has a creditor that holds
collateral. If there is default in payment of indebtedness,
and there is a case of collection with allegation of intent to
defraud, can the creditor move for preliminary attachment
over properties other than the collateral?
Yes. Although applicant may already have a security or a
collateral in hand, the court may still grant preliminary
attachment if the applicant proves such collateral/security is
insufficient to satisfy the debt. Thus, creditor can look for
other properties of the debtor sufficient to secure the
obligation due once the court grants preliminary attachment.
Q: When may preliminary attachment be asked and
issued?
It may be issued from the commencement of the action until
the judgment is entered. It is quite long and may even be
applied for even during appeal.
Q: What should the application for preliminary
attachment say?
The application should be verified and contain the following:
1. A sufficient cause of action exists;
2.
3.
4.
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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.
In replevin cases, without an application of a provisional
remedy of a writ of replevin, the plaintiff recovers possession
of a personal property only after the case has been decided in
his favor. So, if the plaintiff filed the case today for recovery
of a car without an application for the provisional remedy of a
writ of replevin, and the case was decided five years later, the
car shall remain under the possession of the defendant during
those five years. Chances are, by 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.
Writ of replevin is tilted always in favor of the applicant. The
court can grant the motion or application ex parte. This is one
provisional remedy which cannot be granted by an appellate
court. Only the court of original jurisdiction can grant it
because this can be granted only before the defendant answers.
But, like preliminary attachment (PA) in some circumstances,
there must be prior/contemporaneous service of summons to
cure the defect in jurisdiction over the person of the defendant.
Once served, the sheriff will seize the personal property.
To repeat, replevin is only available as a provisional remedy
before the defendant answers.
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.
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.
The solution to this is to advise the plaintiff to implead 2
defendants, one who was known by the plaintiff to possess the
thing subject to the complaint and an unknown defendant. As
a result, the sheriff can rightfully seize the car from anybody
who might be in possession, as long as the unknown defendant
is impleaded in the complaint.
The sheriff has a five-day holding period after seizure. If there
is no challenge on the sufficiency of the replevin bond, the
sheriff shall turn over possession to the plaintiff. This is the
advantage of replevin, it immediately enables the plaintiff to
recover possession of the personal property that is the subject
of litigation.
Within the holding period of 5 days, the defendant can file a
motion to challenge the sufficiency of the bond.
If a 3rd person claims to be a true owner of the thing (like in
Rule 57 and Rule 39), he must file a third-party claim with the
sheriff. But in replevin, the third party claim must be filed
within the 5-day holding period; otherwise, the third party
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?
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1.
3.
2.
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
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ENVIRONMENTAL CASES
Do not confuse an environmental case from a writ of
Kalikasan and a writ of Continuing Mandamus.
An environmental case may be civil or criminal. The
jurisdiction and venue shall be governed by the respective law
violated. For example, if it is the Clean Air Act which is
violated, the provisions of such law where to file the case shall
govern.
A writ of Kalikasan may be commenced in SC or CA. A writ
of Continuing Mandamus may be commenced in RTC, SC, or
CA.
Whether it is an environmental case (except criminal cases), a
writ of Kalikasan, or a writ of Continuing Mandamus, the
complainant and respondent must attach in his complaint or
answer, as the case may be, documentary and/or object
evidence available to him.
In a civil environmental case, should the defendant fail to
answer the complaint within 15 days from receipt of summons
(10 days if it is an answer to a compulsory counterclaim or
cross-claim), the court shall declare the defendant in default
motu proprio. This is an exception to the general rule.
A motion to declare the defendant in default is prohibited
in civil environmental cases. Upon motion of the plaintiff,
the court shall receive evidence ex parte.
The judge shall exert best efforts to persuade the parties to
arrive at a settlement of the dispute. The judge may issue a
consent decree approving the agreement between the parties.
Q: What is a consent decree?
This is similar to a judgment based upon a compromise. Under
the Rules, it is defined as a judicially-approved settlement
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e.
f.
g.
h.
i.
Mandamus
Quo Warranto
Contempt
Petition for Writ of Kalikasan
Petition for Continuing Mandamus
INTERPLEADER
Q: What is an interpleader?
A: It is a special civil action filed by a person against whom
two conflicting claims are made upon the same subject matter
and over which he claims no interest, to compel the claimants
to interplead and to litigate their conflicting claims among
themselves.
Q: Who has jurisdiction over interpleader cases?
The MTC or RTC, as the case may be, following BP 129.
Q: What is so special about interpleader?
One of the features of interpleader which is not possessed by
ordinary civil actions is the absence of a cause of action.
In ordinary civil actions, if there is no cause of action, the
complaint will be dismissed. In a complaint for interpleader or
a counterclaim for interpleader, the plaintiff does not aver a
cause of action. The plaintiff in interpleader cannot say that he
has a cause of action because it is an essential requirements in
an action for interpleader that the plaintiff does not allege a
right at all; or if he alleges a right, nobody has violated the
right, the defendants agree he has a right or does not contest
the right.
Second, another special feature is that in interpleader cases,
we need two or more defendants. Since the plaintiff is being
threatened by an impending threat from two or more claims,
then it naturally means there are two or more claimants. The
plaintiff must implead all the claimants to the property.
Third, aside from the grounds under Rule 16, there is another
ground to dismiss the case in interpleader cases. The
defendant may move to dismiss based on the impropriety of
the filing of the complaint.
For example, a warehouseman in possession of some goods
have two conflicting claims from A and B. Before the
warehouseman may file an interpleader case, however, B filed
a case for replevin against the warehouseman for the
possession of the goods. The warehouseman still filed a
complaint for interpleader. B may dismiss the case on the
ground that the complaint is improper. This is a good ground
for the dismissal of the case.
In this case, what the warehouseman should have done is to
file an answer with a counterclaim asking for an interpleader.
This is one of the instances where Section 12 of Rule 3 takes
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These are:
1. Reformation of Instrument
2. Quieting of Title
3. Consolidation of Title
Although they are contained in the same Rule, they are
governed by different procedures.
Q: What is special in declaratory relief?
The nature of declaratory relief, which makes it a special civil
action, is that the petition must be filed before a breach or
violation of a right. If we follow ordinary rules of procedure,
the complaint would have been dismissed outright because of
lack of a cause of action. In declaratory relief, there is no
allegation that there is a right violated by another. If there is
such an allegation, then the action ceases to be a special civil
action for declaratory relief, it becomes an ordinary action.
The second procedural rule that we apply to declaratory relief
which is not followed in other special civil actions or in other
ordinary civil actions is the authority of the court not to
entertain a petition for declaratory relief. The court can refuse
to make a declaration of the rights of petitioner and
respondents on a deed or a contract on the ground that the
judgment will not bind the parties not impleaded in the
petition for declaratory relief. This shows that declaratory
relief is not in rem. It is purely a petition in personam. It
cannot bind other parties who had not been impleaded,
although these parties not so impleaded may be parties to the
contract or matter under litigation.
Declaratory relief is a preventive mechanism to prevent parties
from getting involved in an ordinary civil case. In declaratory
relief, the petitioner does not allege he has a right, or if he has,
it has not been violated. There is really no cause of action. The
petitioner seeks from the court a determination of what his
rights are. The petitioner is not absolutely certain if he has
rights under a certain instrument, so he asks the court to
declare what his rights are.
Q: What is the competent court in a petition for
declaratory relief?
Since declaratory relief is incapable of pecuniary estimation,
the RTC is the competent court. However, as to who is the
competent court in other similar remedies, take into account
the provisions under BP 129:
Reformation of instrument is cognizable solely by
RTC as it is incapable of pecuniary estimation.
Quieting of Title is not necessarily under the RTC.
Actions involving title to property will depend on the
value of the property. Under BP 129, actions
involving title to or possession of the property may
be cognizable by an RTC or MTC depending upon
the assessed value of the property involved.
Since consolidation of title involves property, the
assessed value must be alleged to vest jurisdiction.
Q: May the plaintiff ask for damages?
No. If the remedy is the declaration of rights of the petitioner,
then a prayer for damages negates the nature of such special
civil action. Damages connote that a breach or violation of a
right has occurred.
There is an enumeration under Rule 63 what instruments could
be the subject of a petition for declaratory relief. This may be
a deed, a will, contract or other written instrument; also a
statute, executive order or regulation, ordinance, or other
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ORDINARY
JUDGMENT
Ordinary judgment
involves executory or
coercive relief
Intended to remedy or
compensate injuries already
suffered
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Rule 65
Q: What are the grounds for the filing of a petition for
certiorari?
That a tribunal, board or officer exercising judicial or quasijudicial functions acted:
1. Without or in excess of jurisdiction; or
2. In grave abuse of discretion amounting to lack or
excess of jurisdiction
Q: How is a petition for certiorari commenced?
It is commenced by the filing of a verified petition
accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn
certification of non-forum shopping.
Q: When is certiorari under Rule 65 unavailable?
It is unavailable under the following proceedings:
1. Summary procedure
2. Writ of Amparo
3. Writ of Habeas Data
4. Small claims proceedings
Q: When is prohibition issued?
As a general rule, prohibition does not ordinarily lie to restrain
an act which is already fait accompli.
If you read Tan v. COMELEC, the SC held that prohibition
will lie to prevent the creation of a new province by those in
the corridors of power who could avoid judicial intervention
and review by merely speedily and stealthily completing the
commission of such illegality.
Q: Is it fatal to file a petition for certiorari, although the
true remedy is a petition for prohibition?
Prohibition and not mandamus is the remedy where a motion
to dismiss is wrongfully denied.
Rule 64
Rule 65
Petition for
Review on
Certiorari
Certiorari against
COMELEC and
COA
Certiorari,
Prohibition, and
Mandamus
Mode of Appeal
Mode of Appeal
Independent
Action
Cannot implead
the court as a
party
COMELEC or
COA should be
impleaded as
respondent
The court or QJ
should be
impleaded
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
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CERTIORARI
PROHIBITION
MANDAMUS
The petition is
directed against a
tribunal,
corporation, board
or person
exercising judicial,
quasi-judicial, or
ministerial
functions;
The tribunal,
board or officer
has acted without,
or in excess of
jurisdiction or
with abuse of
discretion
amounting to lack
or excess or
jurisdiction
The tribunal,
corporation, board
or person must
have acted without
or in excess of
jurisdiction or
with grave abuse
of discretion
amounting to lack
of jurisdiction;
It must be the
duty of the
defendant to
perform the act,
which is
ministerial and
not discretionary,
because the same
is mandated by
law;
There is no appeal
or any plain,
speedy and
adequate remedy
in the ordinary
course of law.
There is no appeal
or any plain,
speedy and
adequate remedy
in the ordinary
course of law.
The defendant
unlawfully
neglects the
performance of
the duty enjoined
by law;
Accompanied by a
certified true copy
of the judgment or
order subject of
the petition, copies
of all pleadings
and documents
relevant and
pertinent thereto,
and sworn
certification of
non-forum
shopping under
Rule 46.
Accompanied by a
certified true copy
of the judgment or
order subject of
the petition, copies
of all pleadings
and documents
relevant and
pertinent thereto,
and sworn
certification of
non-forum
shopping under
Rule 46.
There is no
appeal or any
plain, speedy and
adequate remedy
in the ordinary
course of law.
Prohibition is an
extraordinary writ
commanding a
tribunal,
corporation, board
or person, whether
exercising judicial,
quasi-judicial or
ministerial
functions, to desist
from further
proceedings when
said proceedings
are without or in
excess of its
jurisdiction, or
with abuse of its
discretion, there
being no appeal or
any other plain,
speedy and
adequate remedy
in the ordinary
course of law (Sec.
Mandamus is an
extraordinary writ
commanding a
tribunal,
corporation, board
or person, to do an
act required to be
done:
(a) When he
unlawfully
neglects the
performance of an
act which the law
specifically
enjoins as a duty,
and there is no
other plain, speedy
and adequate
remedy in the
ordinary course of
law; or
(b) When one
unlawfully
excludes another
2, Rule 65).
pendency of an
action.
Special civil
action
Special civil
action
Ordinary civil
action
To prevent an
encroachment,
excess, usurpation
or assumption of
jurisdiction;
To compel the
performance of a
ministerial and
legal duty;
May be directed
against entities
exercising judicial
or quasi-judicial,
or ministerial
functions
May be directed
against judicial
and non-judicial
entities
Directed against
a party
Extends to
discretionary
functions
Extends only to
ministerial
functions
Does not
necessarily
extend to
ministerial,
discretionary or
legal functions;
May be brought in
the Supreme
Court, Court of
Appeals,
Sandiganbayan, or
in the Regional
Trial Court which
has jurisdiction
over the territorial
area where
respondent
resides.
May be brought in
the Supreme
Court, Court of
Appeals,
Sandiganbayan, or
in the Regional
Trial Court which
has jurisdiction
over the territorial
area where
respondent
resides.
May be brought
in the Regional
Trial Court
which has
jurisdiction over
the territorial
area where
respondent
resides.
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Appeal
In a special civil action for a writ of Kalikasan, an appeal
under Rule 45 is filed with the SC. Although Rule 45 states
that only questions of law may be raised before the SC,
appeals under the writ of Kalikasan may include questions of
fact.
Effect
The judgment in favor of petitioner, aside from being
immediately executory, partakes of a permanent prohibitory
injunction and at the same time a permanent mandatory
injunction.
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QUO WARRANTO
Quo warranto is under the concurrent original jurisdiction of
SC, CA and RTC under BP 129; and COMELEC under the
Omnibus Election Code. MTC, on the other hand, has limited
quo warranto jurisdiction as to proceedings at the barangay
level.
Q: What is quo warranto?
A proceeding or writ issued by the court to determine the right
to use an office, position or franchise and to oust the person
holding or exercising such office, position or franchise if his
right is unfounded or if a person performed acts considered as
grounds for forfeiture of said exercise of position, office or
franchise.
It is commenced by a verified petition brought in the name of
the Republic of the Philippines or in the name of the person
claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another.
Q: What are the classifications of quo warranto
proceedings?
1. Mandatory brought by the Solicitor General or
public prosecutor when:
a. directed by the President; or
b. upon complaint or when he has reason to believe
that the case for quo warranto can be established
by proof;
2.
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EXPROPRIATION
Q: What is expropriation?
It is the procedure for enforcing the right of eminent domain.
Q: What are the requisites of a valid expropriation?
1. Private property must be taken.
2. There should be payment of just compensation.
3. The taking must be for public use.
Sometimes the first requisite is replaced with due process.
Q: What is the power of eminent domain?
It is the right of the State to acquire private property for public
use upon the payment of just compensation.
Q: When is expropriation proper?
A: It is proper only when the owner refuses to sell, or if the
latter agrees to sell, agreement as to the price cannot be
reached.
Q: What court hears expropriation cases?
It is exclusively cognizable by the RTC. The issue to be
resolved first by the court is the right of the plaintiff to
expropriate. Only in the second stage is the fixing of just
compensation resolved. A court cannot simply decide the issue
of just compensation first, as it should assess first the right to
expropriate, which is incapable of pecuniary estimation.
The nature of the action as a real action has nothing to do with
the jurisdiction of the court, but it has something to do only
with respect to the venue. The nature of the property is not
determinative of jurisdiction in expropriation proceedings
because expropriation is one not capable of pecuniary
estimation.
HOWEVER, and you should take note of this, under the latest
case on the matter, the Supreme Court held in Barrido v.
Norato, G.R. No. 176492, October 20, 2014, that the MTCC
has jurisdiction to take cognizance of real actions or those
affecting title to real property, or for the recovery of
possession, or for the partition or condemnation of, or
foreclosure of a mortgage on real property. Although the
main issue involved in the case is partition, it is unknown if
the same rule may be applied to expropriation and foreclosure
proceedings.
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DEFAULT
Supposing the defendant does not answer within the period of
default, the court, upon motion of the plaintiff, may declare
the defendant in default. But in the default order issued in
expropriation proceedings, the defendant is in default only
during the first stage of the proceedings, and is lifted
automatically in the 2nd stage. The defendant, if declared in
default, will not be able to participate during the first stage of
the proceedings where the right of the plaintiff to expropriate
will be determined by the court. The first stage ends, if
favorable to plaintiff, with the court issuing an order for
condemnation or order of expropriation. Once that order is
entered, or even if there is an appeal from that order, the
expropriation court will now go to the second stage, the fixing
of just compensation. During the 2nd stage, the defendant is
allowed again to participate in the proceedings the fixing of
just compensation. Unlike in ordinary civil actions, if the
defendant is in default, the defendant will not be able to
participate during the entire proceedings, unless the order of
default is lifted or the order of default is set aside.
SECOND STAGE
The fixing of just compensation is not solely the discretion of
the court. Court MUST appoint commissioners to determine
such compensation. If the court has not followed this
procedure, there is ground to question the decision of just
compensation by said court. Commissioners must be
appointed in order to help the court in fixing the just
compensation to be paid. This is another deviation from
ordinary procedures. Note in ordinary procedure, trial by
commissioners is discretionary; unlike in expropriation, the
appointment of commissioners in the second stage is
mandatory. The judgment rendered by the expropriation court
will be void if the court does not follow the mandatory
requirement of appointing of commissioners.
Q: May the court dispense with the assistance of
commissioners in the determination of just compensation
in expropriation proceedings?
A: No. The appointment of commissioners in expropriation
proceedings is indispensable. In such cases, trial with the aid
of commissioners is a substantial right that may not be done
away with capriciously or for no reason at all (MERALCO v.
Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be filed
within 10 days from service of the order and shall be resolved
within 30 days after all the commissioners received the copies
of the objections (Sec. 5)
Q: What is just compensation?
A: Just compensation is equivalent to the fair market value of
the property at the time of its taking or filing of complaint
whichever comes first. It is the fair and full equivalent for the
loss sustained by the defendant.
Q: What is the formula for the determination of just
compensation?
JC = FMV + CD CB
If CB is more than CD then,
JC = FMV
Where:
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits
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Extra-judicial Foreclosure
Governed by Rule 68
No court intervention
necessary
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Right of Redemption
Governed by Rule 68
persons shall have the right to redeem the property until, but
not after, the registration of the certificate of foreclosure sale
which in no case shall be more than 3 months after
foreclosure, whichever is earlier.
The pendency of the action stops the running of the right of
redemption. Said right continues after perfection of an appeal
until the decision of the appeal. (Consolidated Bank and Trust
Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)
A mortgagee can only foreclose extra-judicially under the
Real Mortgage Law if he is given an SPA to do so by the
mortgagor. Otherwise, he must make use of judicial
foreclosure of mortgage. If mortgagee files a complaint for
judicial foreclosure, the first problem is jurisdiction.
SC held that foreclosure of REM is always cognizable under
the RTC. It is not capable of pecuniary estimation.
Notwithstanding the nature of foreclosure of a real estate, the
SC used the reasons in expropriation. SC held that a judicial
foreclosure of a real estate mortgage is incapable of pecuniary
estimation since in the first stage, the court determines the
right of plaintiff to foreclose, which is incapable of pecuniary
estimation.
Rule 68 already tells who should be the plaintiff as well as
who to implead defendant. The defendants should be the
debtor and the mortgagor. The debtor is different from
mortgagor. And debtor must also implead as co-defendants
persons who might have interests or liens subsequent to the
mortgagee. By implication, the owner of a piece of land can
validly mortgage his land more than once. He can mortgage
the land to A, then to B, and then C.
If the mortgage loans are all defaulted, the defendant, if he has
not given any authority to foreclose the mortgage, is sure to be
impleaded as a defendant in the complaint for judicial
foreclosure of a real estate mortgage. It is the first mortgagee
who judicially forecloses the mortgage and if he follows the
Rules, the first mortgagee should implead the debtor, the
mortgagor and the subsequent mortgagees.
Does it mean to say that the debtor is an indispensible
party?
Yes. The mortgagor is an indispensable party, whose property
is sought to be foreclosed. Remember that a mortgage is a
collateral contract. There must always be a principal contract
coupled with a contract of real estate mortgage. Thus, we
should always implead the mortgagor, who is an indispensable
party in the recovery of the indebtedness.
How about the mortgagor, is he an indispensible party?
Yes. He is also an indispensible party as it is his property that
will be foreclosed. He might lose his property if it is
foreclosed to satisfy the obligation incurred by the debtor.
Supposing the mortgagor files an answer and sets up the
defense that the mortgage insofar as he is concerned is
void due to lack of consideration thereto, is this a valid
argument against the foreclosure?
It is untenable. In civil law, where there is a collateral under
an accessory contract, the consideration under the principal
contract serves automatically as the consideration for the
accessory contract. The mortgagor only has himself to blame,
setting up his property as security for the benefit of the debtor
without compensation.
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THIRD STAGE
Deficiency Judgment
If the proceeds of the auction sale are not enough to pay off
the indebtedness, the court will be determining if there is any
deficiency and issue another final order authorizing the
recovery of the deficiency.
The recovery of the deficiency will be governed by Rule 39,
because the property/collateral has already been sold at public
auction. We are going to apply, for purposes of recovery of
deficiency, execution of judgment. The recovery of deficiency
is the third final order. If there is no satisfaction of the
deficiency through voluntary payment, the foreclosing
mortgagee will have to avail of Rule 39. He can move for the
issuance of a writ of execution.
But in that 3rd stage, do not forget that the only one who is
liable now is the debtor. The mortgagor will not be liable for
any deficiency, because the mortgagor is not the debtor. The
mortgagor is liable only to the extent of the value of his
collateral. He cannot be held personally liable for the value of
the deficiency, unless he makes himself solidarily liable
together with the debtor. So in the recovery of deficiency, only
the principal debtor is held liable, but not the mortgagor of the
property.
FIRST STAGE
In the first stage, the court determines the liability of the
debtor, and the court will order the debtor to pay his
indebtedness within a 90- to 120-day period from entry of
judgment. The mortgagor is not the one ordered to pay the
secured indebtedness, it is the debtor who must pay.
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right given him by substantive law. Nobody can stop him from
leaving the co-ownership.
In one recent case, the SC said that here could be a good
defense in a complaint for partition. Even if the court finds
property is co-owned, and one co-owner decides to leave, the
court cannot simply issue a decision in favor of the
plaintiff/co-owner that will lead to the dissolution of the coownership. SC cited the provision in the Family Code citing
Article 159, which substantially says that if there are coowners of a property by reason of their right to inheritance
from a predecessor in interest, and one of them is a minor
residing in the property, the court cannot subject the property
to partition and the co-ownership cannot be dissolved until the
minor shall be capacitated. That would be a good defense in a
complaint for partition.
FC Art. 159. The family home shall continue despite the
death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there
is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the property
or constituted the family home.
Art. 1078. Where there are two or more heirs, the whole estate
of the decedent is, before its partition, owned in common by
such heirs, subject to the payment of debts of the deceased. (n)
Art. 1081. A person may, by an act inter vivos or mortis causa,
entrust the mere power to make the partition after his death to
any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or a
person subject to guardianship; but the mandatory, in such
case, shall make an inventory of the property of the estate,
after notifying the co-heirs, the creditors, and the legatees or
devisees.
Art. 1082. Every act which is intended to put an end to
indivision among co-heirs and legatees or devisees is deemed
to be a partition, although it should purport to be a sale, and
exchange, a compromise, or any other transaction.
Art. 1083. Every co-heir has a right to demand the division of
the estate unless the testator should have expressly forbidden
its partition, in which case the period of indivision shall not
exceed twenty years as provided in article 494. This power
of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one
of the co-heirs.
Art. 1084. Voluntary heirs upon whom some condition has
been imposed cannot demand a partition until the
condition has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights which
the former may have in case the condition should be
complied with, and until it is known that the condition has
not been fulfilled or can never be complied with, the
partition shall be understood to be provisional.
FC Art. 159. The family home shall continue despite the death
of one or both spouses or of the unmarried head of the family
for a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless the
court finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted the
family home.
LEASE
Art. 1669. If the lease was made for a determinate time, it
ceases upon the day fixed, without the need of a demand.
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1. Perfect an appeal;
2. File a supersideas bond to pay for the rents, damages and
costs accruing down to the time of the judgment appealed
from; and
3. Deposit periodically with the RTC, during the pendency of
the appeal, the adjudged amount of rent due under the contract
or if there be no contract, the reasonable value of the use and
occupation of the premises (Sec. 19, Rule 70).
Q: When is demand necessary?
A: Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only after the
demand to pay or comply with the conditions of the lease and
to vacate is made upon the lessee (Sec. 2). The requirement for
a demand implies that the mere failure of the occupant to pay
rentals or his failure to comply with the conditions of the lease
does not ipso facto render his possession of the premises
unlawful. It is the failure to comply with the demand that vests
upon the lessor a cause of action.
Q: In what form should the demand be made?
A: The demand may be in the form of a written notice served
upon the person found in the premises. The demand may also
be made by posting a written notice on the premises if no
person can be found thereon (Sec. 2). It has been ruled,
however, that the demand upon a tenant may be oral (Jakihaca
vs. Aquino, 181 SCRA 67). Sufficient evidence must be
adduced to show that there was indeed a demand like
testimonies from disinterested and unbiased witnesses.
The RTC is the appellate court in FE and UD cases. If the
RTC decides against appellant/tenant and the tenant
appealed in the CA, what can be done to prevent eviction
on appeal to the CA under Rule 65?
The filing of a supersideas bond cannot be applicable this
time. This process will apply if the decision appealed upon is a
decision of the MTC. If the RTC decides in favor of the land
lord, the judgment will still be executed as a matter of right,
and eviction can be had. The only way to prevent the
immediate eviction of the defendant tenant on appeal to
the CA is to apply for a TRO or writ of preliminary
injunction in the CA against the eviction of the tenant,
subject to filing of a bond if required by the CA.
There are mechanisms resorted to by a tenant in order to delay
an action to recover possession of property
What can the tenant file to protect his right to possess?
~In case of UD, the tenant can file a case for reconveyance or
reversion of tenanted property in the RTC
~He can also file a case for Quieting of Title in the RTC
~Complaint for Recovery of Possession in the RTC
The tenant filed a case for reconveyance of the property
subject to the lease in the RTC. During the pendency of the
case, the land lord filed a case for FE or UD to recover of
possession of the property subject to the lease. The tenant
asked the RTC to issue a writ of injunction or TRO against
the MTC, in order to prevent it from trying the case for
FE or UD. Is this allowed?
No. This is a settled issue. The tenant shall not be allowed to
cause the injunction of the case in the MTC. Although these 2
cases filed in different courts involve the same property, they
do not involve the same issue. FE and UD involve the issue of
physical possession of the property. In reconveyance or
quieting of title, the issue is also possession, but it is what is
called in the NCC as a real right of possession, not mere
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SEC. 17. Judgment.If after trial the court finds that the
allegations of the complaint are true, it shall render judgment
in favor of the plaintiff for the restitution of the premises, the
sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises,
attorneys fees and costs. If it finds that said allegations are
not true, it shall render judgment for the defendant to recover
his costs. If a counterclaim is established, the court shall
render judgment for the sum found in arrears from either party
and award costs as justice requires.
There is a decision by the SC which held that Section 1 should
be implemented if fully proven in court. Moral damages,
temperate damages, as well as other forms of damages may be
awarded beside interest and the actual rent.
The greater number of SC decisions adhere to Section 17 Rule
70. There is a limit as to the award of damages that could be
had in MTC, and the MTC had always followed strictly the
provisions of Section 17. The award of damages is based on
the amount stated in the contract as rentals or if none, a
reasonable amount for the use of the property during the
tenantship.
In what instances may the court resolve issue of
ownership?
A: When the defendant raises the issue of ownership, the court
may resolve the issue of ownership only under the following
conditions:
(a) When the issue of possession cannot be resolved without
resolving the issue of ownership; and
(b) The issue of ownership shall be resolved only to determine
the issue of possession (Sec. 16).
Note: The assertion by the defendant of ownership over the
disputed property does not serve to divest the inferior court of
its jurisdiction. The defendant cannot deprive the court of
jurisdiction by merely claiming ownership of the property
involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401
SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant
raises the question of ownership and the issue of possession
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Rule 71 CONTEMPT
What is contempt?
A: It is a defiance of the authority, justice or dignity of the
court; such conduct as tends to bring the authority and
administration of the law into disrespect or to interfere with, or
prejudice litigant or their witnesses during litigation (Halili v.
CIR, G.R. No. L-24864, Nov. 19, 1985)
Note: It is commenced by a verified petition with supporting
particulars and certified true copies of documents or papers
involved therein (Sec. 4).
Q: What are the kinds of contempt?
A:
1. Direct or indirect, according to the manner of commission.
2. Civil or Criminal, depending on the nature and effect of the
contemptuous act.
Q: Distinguish direct from indirect contempt?
A:
Direct Contempt
Indirect Contempt
Committed in the presence of Not committed in the
or so near a court.
presence of the court.
Summary in nature
Punished after being charged
and heard
If committed against:
IF COMMITTED AGAINST:
1. RTC fine not exceeding 1. RTC FINE NOT
P2,000 or imprisonment not EXCEEDING P30,000 OR
exceeding 10 days or both.
IMPRISONMENT
NOT
2. MTC fine not exceeding EXCEEDING 6 MONTHS
P200 or imprisonment not OR BOTH
exceeding 1 day, or both.
2. MTC fine not exceeding
P5,000 or imprisonment not
exceeding 1 month or both.
Remedy:
Certiorari
or Remedy: Appeal (by notice of
prohibition (or you could appeal)
follow the old jurisprudence,
file a petition for habeas
corpus on the ground that the
confinement is illegal. Dean
Jara)
AKA Contempt in facie AKA Constructive contempt
curiae (in front of the judge)
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Ordinary Action
To protect or
enforce a right or
prevent or redress
a wrong
Involve 2 or more
parties plaintiff
and defendant
Governed
by
ordinary
rules,
supplemented by
special rules
Initiated by a
complaint,
and
parties
respond
through an answer
Heard by courts of
general
jurisdiction
Issues or disputes
are stated in the
pleadings of the
parties
Adversarial
Based on a cause
of action
Special
Proceeding
Involves
the
establishment of a
right, status, or
fact
May involve only
one party only
petitioner
Governed
by
special
rules,
supplemented by
ordinary rules
Initiated by a
petition and parties
respond through
an opposition
Special
Civil
Action
Civil
Action
subject to specific
rules.
Involves two or
more parties
Ordinary
rules
apply
primarily
but subject to
specific rules
Some are initiated
by
complaint,
while some are
initiated
by
petition
Heard by courts of
limited jurisdiction
Issues
are
determined by law
Not adversarial
Not based on a
cause of action
(except
habeas
Corpus)
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