CIVIL PROCEDURE

Professor: Judge Myra B. Quiambao

Source: Riano, Willard B. (2009). CIVIL PROCEDURE (A RESTATEMENT FOR THE BAR) RULES 1-71. Quezon City: Rex Printing Company, Inc.

Contents D. Appeal by Certiorari to the Supreme Court (Rule 45) 63

Chapter I - Fundamental Concepts .............................................2 II. Remedies After a Judgment Becomes Final and Executory
I. The Basics of the Civil Litigation Process .............................2 ............................................................................................. 66
II. Powers of the Supreme Court ............................................4 A. Petition for Relief or Relief from Judgments, Orders or
III. The Rules of Court .............................................................4 Other Proceedings (Rule 38) ........................................... 66
IV. Nature of Philippine Courts ..............................................5 B. Annulment of Judgments or Final Orders or Resolutions
V. Pleadings in Civil Cases ......................................................8 (Rule 47).......................................................................... 67
VI. Filing and Service of Pleadings, Judgments and Other C. Certiorari (Rule 65) ..................................................... 69
Papers in Civil Cases .............................................................11 D. Collateral Attack of a Judgment ................................. 69
VII. Motions in Civil Cases ....................................................12 Chapter XI Execution of Judgments ....................................... 69
Chapter II Cause of Action and Actions ..................................13
I. Cause of Action (Rule 2) ....................................................13
II. Actions .............................................................................16
Chapter III Jurisdiction, Venue and Parties ............................17
I. Jurisdiction ........................................................................17
II. Venue (Rule 4) ..................................................................26
III. Parties .............................................................................27
Chapter IV Filing, Amendment and Dismissal by the Plaintiff 31
A. Filing of the Complaint (Rules 1 & 13).........................31
B. Amendment of Complaint (Rule 10) ...........................31
C. Dismissal by the Plaintiff (Rule 17) ..............................33
Chapter V Summons ..............................................................34
Chapter VI Proceedings After Service of Summons ...............37
A. Motion for Bill of Particulars .......................................37
B. Motion to Dismiss .......................................................38
Chapter VII Answer, Other Pleadings, Default, Judgment on
the Pleadings, Summary Judgment ...........................................40
A. Answer ........................................................................40
B. Counterclaim ...............................................................41
C. Cross-Claim..................................................................42
D. Third (Fourth, Etc.) Party Complaint .........................42
E. Intervention.................................................................42
F. Reply ............................................................................43
G. Default ........................................................................43
H. Judgment on the Pleadings .........................................44
I. Summary Judgment......................................................45
Chapter VIII Pre-Trial and Modes of Discovery ......................45
A. Pre-Trial.......................................................................45
B. Modes of Discovery.....................................................47
Interrogatories to Parties (Rule 25) .................................49
Admission by Adverse Party (Rule 26).............................49
Production or Inspection of Documents or Things (Rule
27) ...................................................................................50
Physical and Mental Examination of Persons (Rule 28) ..51
Chapter IX Trial, Demurrer to Evidence and Judgment ..........52
A. Trial .............................................................................52
B. Demurrer to Evidence .................................................53
C. Judgment.....................................................................54
Chapter X Post Judgment Remedies ......................................57
I. Remedies Before a Judgment Becomes Final and Executory
.............................................................................................57
A. Motion for Reconsideration (Rule 37) ........................57
B. Motion for New Trial (Rule 37) ...................................58
APPEALS ...............................................................................59
A. Appeal from Municipal Trial Courts to the Regional
Trial Courts (Rule 40) .......................................................61
B. Appeal from the Regional Trial Courts to the Court of
Appeals (Rule 41) ............................................................61
C. Petition for Review from the Regional Trial Courts to
the Court of Appeals (Rule 42) ........................................62
 Chapter I - Fundamental Concepts
I. The Basics of the Civil Litigation Process
I. Complaint
The complaint is the first pleading filed with the court
by a party called a plaintiff. The primary purpose of
this pleading is to apprise the adverse party, called
the defendant of the nature and the basis of the
claim.
II. Right of Action and Cause of Action
A cause of action involves a right of the plaintiff and a
violation of this right by the defendant. Without a
right and a violation of this right, there can be no
cause of action there would be no right to file a suit
against the defendant.
The right to file a suit is called right of action. The
right of action which is procedural in character is the
consequence of the violation of the right of the
plaintiff.
Hence, the rule: There is no right of action where
there is no cause of action.
III. Jurisdiction, Venue and Parties, Prescription and
Conditions Precedent
a. Specify the relief sought
b. Must be dated and signed by the party or the
counsel representing him. An unsigned pleading
produces no legal effect.
If the counsel signs the pleading, this signature
constitutes a certificate by him that he has read
the pleading, that to the best of his knowledge,
information and belief, that there are good
grounds to support it and that it is not
interposed for delay.
c. Designate the address of the party or his
counsel. The address should not be a post-office
box.
d. A pleading need not be verified unless a
verification is specifically mandated by law or by
a particular rule.
e. Must contain or be accompanied by a
certification against forum shopping, where the
plaintiff or principal party certifies, among
others, that he has not commenced any action of
filed any claim involving the same issues in any
other tribunal. Failure to comply with this
requirement is a ground for the dismissal of the
complaint upon motion and after a hearing.
f. Depending upon the nature of the action, the
plaintiff may avail of any of the provisional
remedies.
V. Filing of the Complaint

The plaintiff is, as a fundamental principle, obligated
to file his complaint in the court upon which the law
has conferred jurisdiction over the subject natter of
the action. Filing the complaint in the wrong court is a
ground for motu proprio dismissal of the same.
The place where the action is to be filed is called the
venue of the action. A complaint filed even in the
court with the appropriate jurisdiction runs the risk of
being dismissed on motion if lodged in the wrong
venue.
The plaintiff must be a real party in interest. A
plaintiff who claims to be one must sufficiently allege
ownership of a right violated by the adverse party. A
suit can be commenced only against one averred to
have violated the plaintiffs rights.
If the action requires the performance of conditions
precedent, then compliance with these conditions is
imperative and such compliance cannot be
conveniently ignored. The compliance must likewise
be alleged in the complaint.
NOTE: The condition precedent can be waived if not
timely objected.
VI.
IV. Preparation of the Complaint
The complaint or any other pleading must state only
of the ultimate facts which constitute a partys claim
or defense and which must be set forth in a
methodical and logical form.
The filing of the complaint is the act of presenting the
same before the clerk of court.
The rule is that when an action is filed, the filing must
be accompanied by the payment of the requisite
docket and filing fees. Without payment, the general
rule is that the complaint is not considered filed. This
rule however, is relaxed by the Supreme Court in
some cases in which payment of the fee within a
reasonable time but not beyond the prescriptive
period was permitted. The court acquires jurisdiction
only upon full payment of the fees within a
reasonable time as the court may grant.
Even on appeal, the general rule is that payment of
docket fees within the prescribed period is
mandatory for the perfection of the appeal although
there were instances when the rule had been applied
with liberality.
When the complaint is filed and the prescribed fees
are paid, the action is deemed commenced, the court
then acquires jurisdiction over the person of the
plaintiff and the running of the prescription period is
tolled.
Dismissal of the Action by the Plaintiff
The plaintiff may have reasons of dismissing his own
complaint. If the dismissal is to be made before the
adverse party has served an answer or a motion for
summary judgment, he may have his own complaint
dismissed by the mere filing of a notice of dismissal.

The complaint must:

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 The dismissal by notice of dismissal is without
prejudice to its being refiled later, unless otherwise
stated in the notice of dismissal or when the refilling
is barred by the two-dismissal rule. A class suit
however, shall not be dismissed or even
compromised without the approval of the court.
After service of the answer or a motion for summary
judgment, the plaintiff now has to file motion to
dismiss. The granting or the denial of the motion to
dismiss is now matter of sound judicial discretion
because this type of dismissal is no longer a matter of
right.
VII. Amendment of the Complaint
Amendment of the pleading by the plaintiff is a
matter of right as long as the amendment is made
before the other party has served a responsive
pleading. Note that an amendment made as a matter
of right may be made only once.
An amendment may also arise by implication when
issues not raised in the pleadings are tried with the
express or implied consent of the parties as when no
objection is interjected on the evidence offered on a
matter not raised in the pleadings.
When this occurs, the issues tried with the consent of
the parties shall be treated as if they had been raised
in the pleadings. The pleadings may then be amended
to conform to the evidence although an actual
amendment need not be made because failure to so
amend the pleadings will not affect the result if the
trial on said issues.
VIII. Summons
Upon the filing of the complaint and the payment of
the requisite legal fees, the clerk of court shall issue
the corresponding summons to the defendant
directing him to file an answer to the complaint or
the court may render judgment against him by
default, Attached to the summons is a copy of the
complaint.
The summons and a copy of the complaint are to be
served upon the defendant in person but if the
defendant cannot be served despite efforts to serve
him in person, summons may be served by an
alternative mode called substituted service.
This consists in serving the summons at the residence
of the defendant or his regular place of business with
a person qualified to so receive the summons in
accordance with the Rules. Subject to certain
exceptions, the long standing rule is that summons by
publication is not a recognized mode of service for
the purpose of acquiring jurisdiction over the person
of the defendant.
The summons is a coercive process which places the
person, even of the unwilling defendant, under the
jurisdiction of the court.
IX. Answer
The answer is the pleading which is considered as the
responsive pleading to the complaint. It gives notice
to the plaintiff as to which allegations in the
complaint he decides to contest and thus, put in
issue. The answer contains both the negative and
affirmative defenses of the defendant.
Failure of the defendant to file an answer will entitle
the plaintiff to file a motion to declare the defendant
in default.
The answer to the complaint must specifically deny
the material averments of the complaint because
material averments not specifically denied are
deemed admitted. If the answer admits the material
averments of the complaint, the answer is deemed to
have failed to tender an issue.
X. Pre-Trial
After the last pleading has been served and filed, it is
the duty of the plaintiff to promptly move ex parte
that the case be set for pre-trial.
A pre-trial is mandatory and failure to appear by
either party will result in adverse consequences.
During the pre-trial stage and generally at any time
before trial, the parties may obtain information from
each other through the employment of devices
collectively known as discovery procedures.
XI. Trial
During the trial, the parties present their evidences
on their claims and defenses. However, if the
defendant believes that upon facts and law, the
plaintiff is not entitled to relief, he may instead of
presenting his own evidence, move for dismissal of
the case. He does so by way of a demurrer to
evidence. If the demurrer is denied, the defendant
still has the right to present his evidence. If the
demurrer is granted but on appeal the order of
dismissal is reversed, the defendant is deemed to
have waived his right to present evidence.
XII. Judgment
A judgment is rendered after the submission of the
evidences of the parties has been concluded.
It has to be in writing personally and directly
prepared by the judge, stating clearly the facts and
the law on which t is based, signed by him, and filed
with the clerk of court.
XIII. Post Judgment Remedies
The judgment is not the end for the losing party
because he is afforded remedies against the adverse
judgment. These remedies may be categorized into:
a) remedies before the judgment becomes final
and executory, and
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 b) remedies after the judgment becomes final and
executor.
XIV. Execution
When all the remedies available to a party have been
exhausted and the case is finally decided, the
judgment o f the court shall then be subject to
execution. This is the remedy afforded by procedural
rules for the enforcement of the judgment.
II. Powers of the Supreme Court
Rule-Making Power of the Supreme Court
The Supreme Court has the constitutional power to promulgate
concerning pleading, practice and procedure. (Sec. 5[5], Art.
VIII, Constitution of the Philippines)
Limitations on the Rule-Making Power of the Supreme Court
The following limitations are imposed by the Constitution on
the rule-making power of the Supreme Court:
a) The rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases;
b) The rules shall be uniform for courts of the same
grade;
c) The rules shall not be diminish, increase, or modify
substantive rights.
(Sec. 5[5], Art. VIII, Constitution of the Philippines)
Legislative Power and the Rule-Making Power of the Supreme
Court
OLD RULE: The power to promulgate rules of procedure is not
intended by the fundamental law to be the sole prerogative of
the Supreme Court but is a power shared with Congress.
NEW RULE: The Supreme Court has the sole prerogative to
amend, repeal, or even establish new rules for a more
simplified and inexpensive process, and the speedy disposition
of cases.
Liberal Construction of the Rules of Court
The Rules of Court are to be liberally construed in order to
promote their objective of securing a just, speedy, and
inexpensive disposition of every action or proceeding. (Sec. 6,
Rule 1, Rules of Court)
Liberal construction of the rules has been allowed by the
Supreme Court in cases:
1) Where a rigid application will result in a manifest
failure or miscarriage of justice
2) Where the interest of substantial justice will be
served
3) Where the resolution of the motion is addressed
solely to the sound and judicious discretion o f the
court; and
4) Where the injustice to the adverse party is not
commensurate to the degree of his thoughtlessness
in not complying with the procedures prescribed
However, such liberality may not be invoked if it would result in
the wanton disregard of the rules, and cause needless delay.
Power of the Supreme Court to Suspends its Own Rules
The courts have the power to relax or suspend technical or
procedural rules or to except a case from their operation when
compelling reasons so warrant or when the purpose of justice
requires it. What constitutes good and sufficient cause that
would merit suspension of the rules is discretionary upon the
courts (Commissioner of Internal Revenue vs. Migrant Pagbilao
Corporation; Redena vs. Court of Appeals)
Reasons which would warrant the suspension of the Rules:
a) The existence of special or compelling circumstances;
b) The merits of the case;
c) A cause not entirely attributable to the fault or negligence
of the party favored by the suspension of rules;
d) A lack of any showing that the review sought is merely
frivolous and dilatory; and
e) The other party will not be unjustly prejudiced thereby
Power to Amend the Rules
The Supreme Court has the power to amend, repeal or even
establish new rules for a more simplified and inexpensive
process, and the speedy disposition of cases. (Neypes vs. Court
of Appeals)
Power to Stay Proceedings and Control its Processes
The power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the cases
on its dockets, considering its time and effort, and that of
counsel and the litigants. But if the proceedings must be
stayed, it must be done in order to avoid multiplicity of suits
and prevent vexatious litigations, conflicting judgments,
confusion between litigants and courts. (Security Bank Corp vs.
Judge Manuel Victorio)
III. The Rules of Court
The Procedural Rules Under the Rules of Court Are Not Laws
The Rules of Court as a whole, constitutes the body of rules
governing pleading, practice and procedure. As they do not
originate from the legislature, they cannot be called laws in the
strict sense of the word. However, since they are promulgated
by authority of law, they have the force and effect of law if not
in conflict with positive law. The Rules are subordinate to
statute, and in case of conflict, the statute will prevail.
Substantive Law Distinguished from Remedial Law
Substantive law creates, defines and regulates rights and duties
concerning life, liberty or property which when violated gives
rise to a cause of action.
Remedial law prescribes the methods of enforcing those rights
and obligations created by substantive law by providing a
procedural system for obtaining redress for the invasion of
rights and violations of duties and by prescribing rules as to
how suits are filed, tried and decided upon the courts.
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Prospective Effect of the Rules of Court
The Rules of Court are not penal laws and are not to be given
retroactive effect and are to govern cases brought after they
take effect, except to the extent that in the opinion of the court
their application would not be feasible or would work injustice,
in which event the former rule shall apply.
Applicability to Pending Actions; Retroactivity
Rules of procedure however, may be applicable to actions
pending and undetermined at the time of their passage, and
are deemed retroactive in that sense and to that extent. As a
general rule, the retroactive application of procedural laws
cannot be considered violative of any personal rights because
no vested right may attach to nor arise therefrom.
When Procedural Rules Do Not Apply to Pending Actions
While a procedural rule may be made applicable to actions
pending and undetermined at the time of their passage and is
retroactive in that sense, the rule does not apply:
a) Where the statute itself or by necessary implication
provides that pending actions are excepted from its
operation;
b) If applying the rule to pending proceedings would
impair vested rights;
c) When to do so would not be feasible or would work
injustice; or
d) If doing so would involve intricate problems of due
process or impair the independence of the courts
Applicable Actions or Proceedings
The Rules apply to civil actions, criminal actions and special
proceedings. The Rules shall also apply in all courts, except as
otherwise provided by the Supreme Court.
Scope of Civil Procedure
Civil procedure includes:
a) Ordinary civil actions
b) Provisional remedies
c) Special civil actions
IV. Nature of Philippine Courts
Courts of Law and Equity
Philippine courts are both courts of law and equity. Hence, both
legal and equitable jurisdiction is dispensed with in the same
tribunal.
Application of Equity; Equity Jurisdiction
Equity administers justice according to the basic tenets of
fairness. Equity denotes a concept of fairness, justness and
right dealing among men.
Equity however, is not be applied in all cases. For all its
conceded merits, equity is available only in the absence of law
and not as replacement.
The various rulings of the court seem to suggest that the term
equity of jurisdiction is used to describe the power of the court
to resolve issues presented in a case in accordance with the
natural rules of fairness and justice in the absence of a clear,
positive law governing such issues.
Principle of Hierarchy
The judicial system follows a ladderized scheme which in
essence requires that lower courts initially decide on a case
before it is considered by a higher court. Specifically, under a
judicial policy recognizing policy recognizing the hierarchy of
courts, a higher court will not entertain direct resort to it unless
the redress cannot be obtained in the appropriate courts.
The Supreme Court is a court of last resort. It cannot and
should not be burdened with the task of deciding cases in the
first instance. Its jurisdiction to issue extraordinary writs should
be exercised only where absolutely necessary or where serious
and important reasons exist.
When the Doctrine of Hierarchy of Courts May be Disregarded
The Supreme Court however, may disregard the principle of
hierarchy or courts if warranted by the nature and importance
of the issues raised in the interest of speedy justice and to
avoid future litigations.
Doctrine of Non-Interference or Doctrine of Judicial Stability
The principle holds that courts of equal and coordinate
jurisdiction cannot interfere with each others orders. The
principle also bars a court from reviewing or interfering with
the judgment of a co-equal court over which it has no appellate
jurisdiction or power of review.
The doctrine of non-interference applies with equal force to
administrative bodies. When the law provides for an appeal
from the decision of an administrative body to the Supreme
Court of Court of Appeals, it means that such body is co-equal
with the Regional Trial Court in terms of rank and stature, and
logically beyond the control of the latter.
Constitutional and Statutory Courts
A constitutional court is one created by a direct Constitutional
provision. Example of this court is the Supreme Court of the
Philippines. It owes its creation from the Constitution itself. In
the Philippines, only the Supreme Court is a constitutional
court.
A statutory court is one created by a law other than the
Constitution. All courts in the Philippines except the Supreme
Court, are statutory courts.
Civil and Criminal Courts
Civil courts are those which determine controversies between
private persons. Criminal courts are those which adjudicate
offenses alleged to have been committed against the state.
Philippine courts exercise both civil and criminal jurisdictions.
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Courts of Record and Courts Not of Record
Courts of record are those which keep a written account of its
proceedings. Those courts which are not bound to keep such
records are courts not of record.
One attribute of a court of record is the strong presumption as
to the veracity of its records that cannot be collaterally
attacked except for fraud.
Superior and Inferior Courts
A superior court is one with controlling authority over other
courts, and with an original jurisdiction of its own.
An inferior court is one which is subordinate to another court
the judgment of which may be reviewed by a higher tribunal.
Courts of General and Special Jurisdiction
Courts of general jurisdiction are those with competence to
decide on their own jurisdiction and to take cognizance of all
cases, civil and criminal, of a particular nature.
Courts of special (limited) jurisdiction are those which have only
a special jurisdiction for a particular purpose or are clothed
with special powers for the performance of specified duties
beyond which they have no authority of any kind.
A court may also be considered general if it has the
competence to exercise jurisdiction over cases not falling within
the jurisdiction of any court, tribunal, person or body exercising
judicial or quasi-judicial functions.
Courts of Original and Appellate Jurisdiction
A court is one with original jurisdiction when actions or
proceedings are originally filed with it.
A court is one with appellate jurisdiction when it has the power
or review over the decisions or orders of a lower court.
Original and Exclusive Jurisdiction Distinguished
Original jurisdiction means jurisdiction to take cognizance of a
case at its inception, try it and pass judgment upon law and
facts, while exclusive jurisdiction precludes the idea of co-
existence and refers to jurisdiction possessed to the exclusion
of others.
Concurrent Jurisdiction
This type of jurisdiction also called coordinate jurisdiction, is
the power of different courts to take cognizance of the same
subject matter.
Meaning of Court
A court is an organ of government belonging to the judicial
department the function of which is the application of the laws
to controversies brought before it as well as the public
administration of justice.
Court Distinguished From a Judge
a) A court is a tribunal officially assembled under authority of
law; a judge is simply an officer of such tribunal.
b) A court is an organ of the government with a personality
separate and distinct from the person or judge who sits on
it.
c) A court is a being in imagination comparable to a
corporation, whereas a judge is a physical person.
d) A judge is a public officer while a court is an office.
e) The circumstances of the court are not affected by the
circumstance that would affect the judge. The continuity
of a court and the efficacy of its proceedings are not
affected by the death, resignation, or cessation from the
service of the judge presiding over it. In other words, the
judge may resign, become incapacitated, or be disqualified
to hold office, but the court remains. The death of the
judge does not mean the death of the court.
Katarungang Pambarangay Law (Secs. 399-422, Chapter 7,
Title One, Book III, R.A. No. 7160)
1. The proceeding before the Lupong Tagapamayapa or
the Pangkat ng Tagapagkasundo of the Barangay are
not judicial proceedings. The Lupon and the Pangkat
do not have inherent adjudicatory powers. They
resolve disputes or attempt to do so through
mediation and conciliation. Any adjudicatory power
exercised by any of these bodies must be agreed
upon by the parties in writing.
2. The primordial aim of the Katarungang Pambarangay
Law is to reduce the number of court litigations and
prevent the deterioration of the quality of justice
which has been brought about by the indiscriminate
filing of cases in the courts.
Initiation of proceedings
1. Upon payment of the appropriate filing fee, any
individual who has a cause of action against another
individual involving any matter within the authority of
the Lupon may complain, orally or in writing to the
chairman of the Lupon (Punong Barangay).
2. Upon receipt of the complaint, the chairman shall
summon the respondents within the next working
day to appear. If the chairman fails in his mediation
efforts within fifteen (15) days from the first meeting,
he shall set a date to constitute the Pangkat
Tagapagkasundo.
Personal appearance of parties
The parties must appear in person and without the assistance
of counsel or representatives, except for minors and
incompetents who may be assisted by their next-of-kin who are
not lawyers.
Parties to the proceedings
No complaint by or against corporations, partnerships or other
juridical entities shall be filed, received or acted upon.
Subject matters for settlement
GR: All disputes may be the subject of the barangay
proceedings for amicable settlement.
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XPN:
a. Where one party is the government, or any
subdivision or instrumentality thereof;
b. Where one party is a public officer or employee, and
the dispute relates to the performance of his official
functions;
c. Offenses punishable by imprisonment exceeding one
(1) year or a fine exceeding Five thousand pesos
(P5,000.00);
Importance of barangay conciliation proceedings
d. Offenses where there is no private offended party;
e. Where the dispute involves real properties located in
different cities or municipalities unless the parties
thereto agree to submit their differences to amicable
settlement by an appropriate lupon;
f. Disputes involving parties who actually reside in
barangays of different cities or municipalities, except
where such barangay units adjoin each other and the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon. Note:
Where the parties are not actual residents in the
same city of municipality or adjoining Barangays,
there is no mandatory requirement for them to
submit their dispute to the Lupon;
g. Such other classes of disputes which the President
may determine in the interest of Justice or upon the
recommendation of the Secretary of Justice.
Referral to the Lupon by the court
The court in which non-criminal case is filed may motu proprio
refer the case, at any time before trial, to the Lupon concerned
for amicable settlement, the foregoing rules notwithstanding
and even if the case does not fall within the authority of the
Lupon.
Form of settlement
All amicable settlements shall be in writing, in a language or
dialect known to the parties, signed by them, and attested to
by the lupon chairman or the pangkat chairman, as the case
may be.
Effect of amicable settlement and award
1. The amicable settlement and arbitration award shall
have the effect of a final judgment of a court upon
the expiration of ten (10) days from the date thereof,
unless repudiation of the settlement has been made
or a petition to nullify the award has been filed
before the proper city or municipal court.
2. Any party to the dispute may, within ten (10) days
from the date of the settlement, repudiate the same
by filing with the lupon chairman a statement to that
effect sworn to before him, where the consent is
vitiated by fraud, violence or intimidation. Failure
shall be deemed a waiver of the right to challenge the
settlement on said grounds.
Execution of award or settlement
1. Execution shall issue upon the expiration of ten (10)
days from date of settlement or receipt of award.
2. The amicable settlement or award may be enforced
by the Lupon within six (6) months from date of
settlement or date of receipt of the award or from
the date the obligation stipulated or adjudged in the
settlement becomes due and demandable. After the
lapse of such time, the settlement or award may be
enforced by the appropriate local court pursuant to
the applicable provisions of the Rules of Court.
1. No complaint, petition, action, or proceeding
involving any matter within the authority of the lupon
shall be filed or instituted directly in court or any
other government office for adjudication, unless
there has been a confrontation between the parties
before the lupon chairman or the pangkat, and that
no conciliation or settlement has been reached as
certified by the lupon secretary or pangkat secretary
as attested to by the lupon or pangkat chairman or
unless the settlement has been repudiated by the
parties thereto.
The repudiation shall be sufficient basis for the
issuance of the certification for filing a complaint
2. Under the Rules on Summary Procedure:
Sec. 18. Referral to Lupon. Cases requiring referral to the
Lupon for conciliation under the provisions of Presidential Decree
No. 1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice and may be
revived only after such requirement shall have been complied
with. This provision shall not apply to criminal cases where the
accused was arrested without a warrant.
Sec. 19. Prohibited pleadings and motions. The following
pleadings, motions or petitions shall not be allowed in the cases
covered by this Rule: (a) Motion to dismiss the complaint or to
quash the complaint or information except on the ground of lack
of jurisdiction over the subject matter, or failure to comply with
the preceding section;
3. Under Sec. 1(j) of Rule 16, a motion to dismiss a civil
complaint may be filed if a condition precedent to the
filing of an action is not complied with. Failure to
undergo the barangay conciliation proceedings is
non-compliance of a condition precedent.
4. The court may not motu proprio dismiss a case on the
ground of failure to comply with the requirement for
barangay conciliation, the ground not being among
those mentioned for the dismissal of a complaint on
the initiative of the court.
5. The conciliation proceedings required is not a
jurisdictional requirement because the failure to have
prior recourse to it does not deprive the court of its
jurisdiction.
6. It is well-settled that the non-referral of a case for
barangay conciliation when so required under the law
is not jurisdictional in nature and may therefore be
deemed waived if not raised seasonably in a motion
to dismiss.
7|P L A T O N
 V. Pleadings in Civil Cases
Nature of pleadings
Pleadings are written statements of the respective claims and
defenses of the parties submitted to the court for appropriate
judgment. Pleadings cannot be oral because they are clearly
described as written statements.
Necessity and purpose of pleadings
1. Pleadings are necessary to invoke the jurisdiction of
the court. It is necessary, in order to confer
jurisdiction on a court, that the subject matter be
presented for its consideration in a mode sanctioned
by law and this is done by filing of a complaint or
other pleading.
2. Pleadings are intended to secure a method by which
the issues may be properly laid before the court.
Pleadings are designed to present, define and narrow
the issues, to limit the proof to be submitted in the
trial, to advise the court and the adverse party of the
issues and what are relied upon as the causes of
action or defense.
Construction of pleadings
1. In this jurisdiction, all pleadings shall be liberally
construed so as to do substantial justice. The
intention of the pleader is controlling factor in
construing a pleading ad should be read in
accordance with its substance, not its form.
2. It has also been ruled that a party is strictly bound by
the allegations, statements or admissions made in his
pleadings and cannot be permitted to take a
contradictory position.
Construction of ambiguous allegations in pleadings
In case there are ambiguities in the pleadings, the same must
be construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in.
System of pleading in the Philippines
The system of pleading used in the Philippines is the Code
Pleading following the system observed in some states of the
United States like California and New York.
Pleadings allowed by the Rules of Court
a) Complaint;
b) Answer;
c) Counterclaim;
d) Cross-claim;
e) Third (fourth, etc.) party complaint;
f) Complaint-in-intervention; and
g) Reply
Pleadings allowed under the Rules on Summary Procedure
a) Complaint;
b) Compulsory counterclaim;
c) Cross-claim; pleaded in the answer; and
d) Answers thereto
Pleadings not allowed in a petition for a writ of amparo or
habeas data
In addition to certain prohibited motions, the following
pleadings are not allowed:
a) Counter-claim;
b) Cross-claim;
c) Third-party complaint;
d) Reply; and
e) Pleadings in intervention.
The same provisions prohibit the filing of a petition for
certiorari, mandamus or prohibition against any interlocutory
order.
Caption of the pleading
The caption contains the following: (a) the name of the court;
(b) the title of the action; and (c) the docket number, if
assigned.
Title of the action
The title of the action contains the names of the parties whose
participation in the case shall be indicated. This means the
parties shall be indicated as either plaintiff or defendant. They
shall be all named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the name of the
first party on each side be stated with an appropriate indication
whether there are other parties. E.g.: Pedro Reyes, et al.
Variance between caption and allegations in the pleading
1. It is not the caption of the pleading but the
allegations therein which determine the nature of the
action and the court shall grant relief warranted by
the allegations and proof even if no such relief is
prayed for.
2. The allegations of the pleading determine the cause
of action and not the title of the pleading.
Body of the pleading
1. The body of the pleading sets forth its designation,
the allegations of the partys claims or defenses, the
relief prayed for, and the date of the pleading.
2. The allegations in the body of the pleading shall be
divided into paragraphs and shall be so numbered for
ready identification. This numbering scheme is
significant because in subsequent pleadings, a
paragraph may be referred to only by its number
without need for repeating the entire allegations in
the paragraph. Each paragraph shall contain a
statement of a single set of circumstances so far as
that can be done with convenience.
Designation of causes of actions joined in one complaint
When two or more causes of action are joined, the first cause
of action shall be prefaced with the words, first cause of
action, or the second cause of action by the words, second
cause of action, and so on for the others.
Allegations ultimate facts
1. Every pleading, including the complaint, is not
supposed to allege conclusions. A pleading must only
aver facts because conclusions are for the courts to
make.
8|P L A T O N
 2. Not all facts may be allowed as averments in a
pleading. Under Sec. 1 of Rule 6, every pleading shall
omit from its allegations statements of mere
evidentiary facts.
3. Ultimate facts i.e., the facts essential to a partys
cause of action or defense or such facts as are so
essential that they cannot be stricken out without
leaving the statement of the cause of action
inadequate.
Relief
1. Following the averments of the cause of action of the
plaintiff, the complaint must contain a statement of
the relief sought from the court and to which he
believes he is entitled (prayer or wherefore). The XPN: A pleading will be verified only when a verification is
Rules of Court requires that the relief sought be
specified, although the statement may include a
general prayer for such further or other relief as may
be deemed just or equitable.
2. The relief or prayer, although part of the complaint,
does not constitute a part of the statement of the
cause of action.
3. It is important to remember that the court may grant
a relief not prayed for as long as the relief is
warranted by the allegations of the complaint and the
proof.
Signature and address
1. The complaint must be signed by the plaintiff or
counsel representing him indicating his address. This
address should not be a post office box.
2. In the absence of a proper notice to the court of a
change of address, service upon the parties must be
made at the last address of their counsel of record.
3. A signed pleading is one that is signed either by the
party himself or his counsel.
Effect of an unsigned pleading
The signature in a pleading is important for it to have a legal
effect. Under the Rules of Court, an unsigned pleading
produces no legal effect. The court however, is authorized to
allow the pleader to correct the deficiency if the pleader shows
to the satisfaction of the court, that the failure to sign the
pleading was due to mere inadvertence and not to delay the
proceedings.
Significance of the signature of counsel
1. The signature of a counsel in a pleading is significant.
His signature constitutes a certificate by him that (a)
he has read the pleading, (b) that to the best of his
knowledge, information and belief there is good
ground to support it, and (c) that it is not interposed
for delay.
2. A counsel who deliberately files an unsigned pleading
shall be subject to an appropriate disciplinary action.
A disciplinary action will likewise be taken against him
if he signs a pleading in violation of the Rules, when
he alleges scandalous or indecent matter in his
pleading, or when he fails to promptly report to the
court a change in his address.
3. It has been held that counsels authority and duty to
sign a pleading are personal to him.
When counsel is subject to disciplinary action in connection
with pleadings
a) When he deliberately files an unsigned pleading;
b) When he signs a pleading in violation of the Rules;
c) When he alleges in the pleading scandalous or
indecent matter; or
d) When he fails to promptly report to the court a
change of his address.
Verification in a pleading
GR: The pleading need not be under oath. This means that a
pleading need not be verified.
required by a law or by a rule.
How a pleading is verified
A pleading is verified by an affidavit. This affidavit declares that:
(a) the affiant has read the pleading, and (b) that the
allegations therein are true and correct of his personal
knowledge or based on authentic records.
Significance of a verification
The verification requirement is significant, as it is intended to
secure an assurance that the allegations in a pleading are true
and correct and not the product of the imagination or a matter
of speculation, and that the pleading is filed in good faith. The
absence of a proper verification is cause to treat he pleading as
unsigned and dismissible.
Effect of lack of a verification
1. A pleading required to be verified but lacks the
proper verification shall be treated as an unsigned
pleading. Hence, it produces no legal effect.
2. It is only a formal and not a jurisdictional
requirement.
3. The absence of a verification may be corrected by
requiring an oath.
Other requirements
1. All pleadings, motions and papers filed in court by
counsel shall bear in addition to counsels current
Professional Tax Receipt Number (PTR), counsels
current IBP Official Receipt Number indicating its date
of issue.
2. To indicate their Roll of Attorneys Number in all
papers and pleadings filed in judicial and quasi-
judicial bodies.
3. All practicing members of the bar are required to
indicate in all pleadings filed before the courts or
quasi-judicial bodies, the number and date of issue of
their MCLE Certificate of Compliance or Certificate of
Exemption.
Certification against forum shopping
1. The certification against forum shopping is a sworn
statement certifying to the following matters:
a. That the party has not commenced or filed
any claim involving the same issues in any
court, tribunal, or quasi0judicial agency
and, to the best of his knowledge, no such
other action or claim is pending;
9|P L A T O N
 b. That if there is such other pending action or
claim, a complete statement of the present
status thereof; and
c. That if he should therefore learn that the
same, or similar action or claim has been
filed or is pending, he shall report that fact
within five (5) days therefrom to the court
wherein his aforesaid complaint or
initiatory pleading has been filed.
2. The certification is mandatory but not jurisdictional.
Meaning of forum shopping
There is forum shopping when, as a result of an adverse opinion
in one forum, a party seeks a favorable opinion, other than by
appeal or certiorari in another. There can also be forum
shopping when a party institutes two or more suits in different
courts, either simultaneously or successively, in order to ask the
courts to rule on the same or related causes and/or to grant the
same or substantially the same reliefs on the supposition that
one or the other court would make a favorable disposition or
increase a partys chances of obtaining a favorable decision or
action.
Rationale against forum shopping
The rationale against forum shopping is that a party should not
be allowed to pursue simultaneous remedies in two different
fora. Filing multiple petitions or complaints constitutes abuse
of court processes, which tends to degrade the administration
of justice, wreaks havoc upon orderly judicial procedure, and
adds to the congestion of the heavily burdened dockets of the
courts. Thus, the rule proscribing forum shopping seeks to
promote candor and transparency among lawyers and their
clients in the pursuit of their cases before the courts to
promote the orderly administration of justice, prevent undue
inconvenience upon the other party, and save the precious
time of the courts. It also aims to prevent the embarrassing
situation of two or more courts or agencies rendering
conflicting resolutions or decisions upon the same issue.
How to determine existence of forum shopping
1. To determine whether a party violated the rule
against forum shopping, the most important question
to ask is whether the elements of litis pendentia are
present or whether a final judgment in one case will
result to res judicata in another. Otherwise stated, to
determine forum shopping, the test is to see whether
in the two or more cases pending, there is identity of
parties, rights or causes of action, and reliefs sought.
2. Forum-shopping exists when the elements of litis
pendentia are present or where a final judgment in
one case will amount to res judicata in another. Litis
pendentia requires the concurrence of the following
requisites: (1) identity of parties, or at least such
parties as those representing the same interests in
both actions; (2) identity of rights asserted and reliefs
prayed for, the reliefs being founded on the same
facts; and (3) identity with respect to the two
preceding particulars in the two cases, such that any
judgment that may be rendered in the pending case,
regardless of which party is successful would amount
to res adjudicata in the other case.
3. What is pivotal in determining whether forum-
shopping exists or not is the vexation caused the
courts and parties-litigants by a party who asks
different courts and/or administrative agencies to
rule on the same or related causes and/or grant the
same or substantially the same reliefs, in the process
creating possibility of conflicting decisions being
rendered by the different courts and/or
administrative agencies upon the same issues.
4. At its most basic, however, prohibited forum
shopping refers to actions involving the same
issues.
Who executes the certification against forum shopping
It is the plaintiff or principal party who executes the
certification under oath. The certification must be executed by
the party, not the attorney.
It is the petitioner and not the counsel who is in the best
position to know whether he or it actually filed or caused the
filing of a petition. A certification signed by counsel is a
defective certification and is a valid cause for dismissal.
Liberal interpretation of the rules in the signing of the
certification against forum shopping
It has also been held that the rules on forum shopping which
were precisely designed to promote and facilitate the orderly
administration of justice, should not be interpreted with such
absolute liberalness as to subvert its own ultimate and
legitimate objective which is the goal of all rules of procedure
that is, to achieve substantial justice as expeditiously as
possible. The rule is subject to the power of the Supreme Court
to suspend procedural rules and to lay down exceptions to the
same.
Signing the certification when the plaintiff is a juridical entity
A juridical entity, unlike a natural person, can only perform
physical acts through properly delegated individuals. The
certification against forum shopping where the plaintiff or a
principal party is a juridical entity like a corporation, may be
executed by properly authorized persons. This person may be
the lawyer of a corporation. As long as he is duly authorized by
the corporation and has personal knowledge of the facts
required to be disclosed in the certification against forum
shopping, the certification may be signed by the authorized
lawyer.
Pleadings requiring a certification against forum shopping
The certification against forum shopping applies to the
complaint and other initiatory pleadings asserting a claim.
These initiatory pleadings include not only the original
complaint but also a permissive counterclaim, cross-claim, third
(fourth, etc.)party complaint, complaint-in-intervention,
petition or any application in which a party asserts his claim for
relief. The rule does not require a certification for a compulsory
counterclaim because it cannot be the subject of a separate
and independent adjudication. It is therefore, not an initiatory
pleading.
Effects of non-compliance with the rule on certification
against non-forum shopping
10 | P L A T O N
 1. The failure to comply with the required certification is
not curable by a mere amendment and shall be a
cause for the dismissal of the action.
The dismissal for failure to comply with the
certification requirement is not to be done by the
court motu proprio. The rule requires that the
dismissal be upon motion and after hearing.
2. If the case is dismissed for failure to comply with the
certification requirement, the dismissal is, as a rule,
without prejudice, unless the order of dismissal
otherwise provides.
3. The failure to submit a certification against forum
shopping is a ground for dismissal, separate and
distinct from forum shopping as a ground for
dismissal.
No appeal from an order of dismissal
This is because an order dismissing an action without prejudice
is not appealable. The remedy provided for under Sec. 1 of Rule
41 is to avail of the appropriate special civil action under Rule
65.
Effect of willful and deliberate forum shopping
If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be a ground for
summary dismissal. Hence, no motion to dismiss and hearing
are required. The dismissal in this case with prejudice and shall
constitute direct contempt, as well as cause for administrative
sanctions.
Effect of submission of a false certification
Under the Rules, it shall constitute indirect contempt of court
without prejudice to the corresponding administrative and
criminal sanctions.
Effect of non-compliance with the undertakings
It has the same effect as the submission of a false certification.
VI. Filing and Service of Pleadings, Judgments and Other
Papers in Civil Cases
Meaning of filing
Filing is the act of presenting the pleading or other papers to
the clerk of court.
Meaning of service
Service is the act of providing a party with a copy of the
pleading or paper concerned.
Upon whom service shall be made
1. If a party has not appeared by counsel, then common
reason suggests that service must be made upon him.
2. If a party has appeared by counsel, then service upon
said party shall be made upon his counsel or one of
them, unless service upon the party himself is
ordered by the court.
3. It has been held that notice or service made upon a
party who is represented by counsel is a nullity. XPN:
Ordered by the court.
4. The reason is simplethe parties, generally, have no
formal education or knowledge of the rules of
procedure, specifically, the mechanics of an appeal or
availment of legal remedies; thus, they may also be
unaware of the rights and duties of a litigant relative
to the receipt of a decision.
5. Where one counsel appears for several parties,
service shall be made upon said counsel but he shall
be entitled only to one copy of any paper served
upon him by the opposite side.
Manner of filing
1. There are two modes of filing, to wit:
a. By presenting the original copy of the
pleading, notice, appearance, motion, order
or judgment personally to the clerk of court;
or
b. By registered mail.
2. In the first mode, the clerk of court shall indicate or
endorse on the pleading or paper filed, the date and
hour of filing.
3. In the second mode, the date of mailing as shown by
the post office stamp on the envelope or registry
receipt shall be considered as the date of filing.
How to prove filing
The filing of a pleading or paper shall be proved by its existence
in the record of the case. If it is not in the record:
1. If filed personally, the filing shall be proved by the
written or stamped acknowledgment of its filing by
the clerk of court in a copy of the same.
2. If filed by registered mail, proof of filing is by the
registry receipt and by the affidavit of the person who
did the mailing, containing a full statement of the
date and place of depositing the mail in the post
office in a sealed envelope addressed to the court,
with postage fully prepaid, and with instructions to
the postmaster to return the mail to the sender after
10 days if not delivered.
Papers required to be filed and served
a) Judgments,
b) Resolutions,
c) Orders,
d) Pleadings subsequent to the complaint,
e) Written motion,
f) Notices,
g) Appearances,
h) Demands,
i) Offers of judgment, or
j) Similar papers
Modes of service
a) Personally, or
b) By mail
c) Otherwise, by substituted service
Personal service
1. The preferred mode of service; If another mode is
used, the service must be accompanied by a written
explanation why the service was not done personally,
otherwise, the paper may be considered as not
having been filed. XPN: Papers emanating from the
court.
11 | P L A T O N
 2. Under Section 11, Rule 13 of the Rules, personal
service of pleadings and other papers is the general
rule while resort to the other modes of service and
filing is the exception. When recourse is made to the
other modes, a written explanation why service or
filing was not done personally becomes
indispensable. If no explanation is offered to justify
resorting to the other modes, the discretionary power
of the court to expunge the pleading comes into play.
3. Personal service is made by: (a) delivering a copy of
the papers served personally to the party or his
counsel, or (b) by leaving the papers in his office with
his clerk or a person having charge thereof. If no
person is found in the office, or his office is not
known or he has no office, then by leaving a copy of
the papers at the partys or counsels residence, if
known, with a person of sufficient age and discretion
residing therein between 8am and 6pm.
When personal service is deemed complete
Upon actual delivery following the above procedure, personal
service is deemed complete.
Service by mail
1. The preferred service by mail is by registered mail.
Service by ordinary mail may be done only if no
registry service is available in the locality of either the
sender of the addressee.
2. By depositing the copy in the post office, in a sealed
envelope, plainly addressed to the party or his
counsel at his office, if known, or otherwise at his
residence, if known, with postage fully prepaid, and
with instructions to the postmaster to return the mail
to the sender after 10 days if not delivered.
When service by mail is deemed complete
1. By ordinary mail, upon expiration of 10 days after
mailing, unless the court otherwise provides.
2. By registered mail, upon actual receipt by the
addressee, or after 5 days from the date he received
the first notice of the postmaster, whichever is
earlier.
Substituted service
1. Availed only when there is a failure to effect service
personally or by mail (i.e., when the office and
residence of the party or counsel is unknown).
2. Effected by delivering the copy to the clerk of court,
with proof of failure of both personal service and
service by mail.
When substituted service is complete
Complete at the time of delivery of the copy of the clerk of
court.
How to prove service
1. Personal service: the written admission of the party
served; by the official return of the server, or the
affidavit of the party serving, containing full
information of the date, place and manner of service.
2. Ordinary mail: the affidavit of the person mailing of
the facts showing compliance with Sec. 7 of Rule 13.
3. Registered mail: such affidavit and the registry receipt
issued by the mailing office. The registry return card is
to be filed immediately upon its receipt by the
sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the
notice given by the postmaster to the addressee.
VII. Motions in Civil Cases
Definition of a motion
A motion is an application for relief other than by a pleading.
Form of motions
1. All motions must be in writing. Excepted from this
written requirement are those motions (a) made in
open court, and (b) motions made in the course of a
hearing or trial.
2. The Rules that apply to pleadings shall also apply to
written motions so far as concerns caption,
designation, signature, and other matters of form.
Contents of a motion
Motions are to contain the following:
a) A statement of the relief sought to be obtained;
b) The grounds upon which the motion is based; and
c) The supporting affidavits and other papers. Note: The
last requirement applies only when so mandated by
the Rules or when necessary to prove facts stated in
the motion.
Hearing of the motion
1. As a rule, every written motion shall be set for
hearing by the applicant.
2. Every written motion is deemed a litigated motion,
i.e., one which requires the parties to be heard before
a ruling on the motion is made by the court because it
affects the substantial rights of the parties.
3. An ex parte motion, on the contrary, is one which
does not require that the parties be heard and which
the court may act upon without prejudicing the rights
of the other party. This kind of motion is not covered
by the hearing requirement of the Rules.
4. An example of an ex parte motion is that one filed by
the plaintiff pursuant to Sec. 1 of Rule 18 in which he
moves promptly that the case be set for pre-trial. On
the other hand, a motion to dismiss (Rule 16), a
motion for judgment on the pleadings (Rule 34) and a
summary judgment (Rule 35), on the other hand, are
litigated motions.
5. A motion for extension of time is not a litigated
motion. It has been said that "ex parte motions are
frequently permissible in procedural matters, and
also in situations and under circumstances of
emergency; and an exception to a rule requiring
notice is sometimes made where notice or the
resulting delay might tend to defeat the objective of
the motion."
Notice of the motion
1. The motion contains the notice of hearing shall be
served in such a manner as to ensure its receipt by
the other party at least three (3) days before the date
12 | P L A T O N
 of hearing, unless the court for good cause sets the
hearing on shorter notice.
2. The notice of hearing shall be addressed to all the
parties concerned.
3. The notice of hearing shall specify the time and date
of the hearing which shall not be later than ten (10)
days after the filing of the motion.
Service of the motion
The motion must be served upon the other party. A motion set
for hearing shall not be acted upon by the court without proof
of service thereof.
Motion day
All hearings shall be scheduled for hearing in Friday afternoon,
or if Friday is a non-working holiday, in the afternoon of the
next working day. This rule does not apply to motions requiring
immediate attention.
Effect of failure to set the motion for hearing, to include a
notice of hearing and to serve the motion (Secs. 4, 5, 6 of Rule
15)
The well-settled rule is that a motion which fails to comply with
the requirements under Secs. 4, 5 and 6 of Rules 15, is a useless
price of paper.
A motion which does not comply with the rules on motion is
considered pro forma and thus, will be treated as one filed
merely to delay the proceedings.
The omnibus motion rule
1. The rule is a procedural principle which requires that
every motion that attacks a pleading, judgment, order
or proceeding shall include all grounds then available,
and all objections not so included shall be deemed
waived.
2. XPN:
a. that the court has no jurisdiction over the
subject matter;
b. litis pendencia;
c. res judicata; and
d. prescription (Sec.1, Rule 9).
3. A motion to dismiss is a typical example of a motion
subject to the omnibus motion rule, since a motion to
dismiss attacks a complaint which is a pleading.
Following the omnibus motion rule, if a motion to
dismiss is filed, then the motion must invoke all
objections which are available at the time of the filing
of said motion. If the objection which is available at
the time is not included in the motion, that ground is
deemed waived. It can no longer be invoked as an
affirmative defense in the answer which the movant
may file following the denial of his motion to dismiss.
Chapter II Cause of Action and Actions
I. Cause of Action (Rule 2)
Meaning
A cause of action is the act or omission by which a party
violates the rights of another.
Elements of a cause of action
1. A right in favor of the plaintiff by whatever means
and under whatever law it arises or is created;
2. An obligation on the part of the named defendant to
respect or not to violate such right; and
3. Act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the
plaintiff for which the latter may maintain an action
for recovery of damages or other appropriate relief.
Cause of action as applied to administrative cases
The issue is not whether the complainant has a cause of action
against the respondent, but whether the respondent has
breached the norms and standards of the office.
Cause of action in specific cases
1. Breach of Contract
A cause of action based on breach of contract merely
requires the following elements: (a) the existence of a
contract, and (b) the breach of contract.
Ex. If a carrier (public or private) is sued based on a
breach of contract of carriage, negligence need not be
proved since it is not an element of the cause of action of
a suit predicated upon a breach of contract. However, if
the defendant is a common carrier, there is an additional
reason for dispensing with proof of negligence, i.e.,
negligence of the common carrier is presumed
2. Quasi-delict
Negligence as an element of quasi-delict must be alleged
and proved, although the negligence of those persons
described under Art. 2180 of the Civil Code, although
based on a quasi-delict, is presumed.
3. Promissory Note
A person cannot be charged before the due date unless
he loses the right to make use of the period.
4. Unlawful detainer
The cause of action cannot accrue unless there is a
demand to vacate and is not complied with. However, if
the suit is based on expiration of the lease, notice and
demand are not required.
If the case is predicated upon the defendants failure to
pay the rentals, the demand should not be pay or
vacate it must be pay and vacate.
5. Malicious prosecution
The plaintiff must prove the following:
a. The prosecution did occur, and the defendant was
himself the prosecutor or that he instigated its
commencement
b. The criminal action finally ended with an acquittal
c. In bringing the action, the prosecutor acted
without probable cause; and
13 | P L A T O N
 d. The prosecution was impelled by legal malice an
improper or a sinister motive
Action distinguished from cause of action
An action is the suit filed in court for the enforcement or
protection of a right or the prevention or redress of a wrong. A
cause of action is the basis of the action filed.
Failure to state a cause of action
1. The cause of action must be unmistakably be stated
or alleged in the complaint or that all the elements of
the cause of action required by substantive law must
clearly appear from the mere reading of the
complaint.
2. Where there is a defect or an insufficiency in the
statement of the cause of action, a complaint may be
dismissed not because of an absence or a lack of a
cause of action but because the complaint states no
cause of action. The dismissal will therefore, be
anchored on a failure to state a cause of action.
Failure to state a cause of action and lack of a cause of action;
Failure to establish a cause of action
1. A failure to state a cause of action is not the same as
an absence or a lack of a cause of action. The former
refers to an insufficiency in the allegations of the
complaint while the latter refers to the failure to
prove or to establish by evidence ones stated cause
of action. Note: Under Rule 16, the ground is that
the pleading asserting the claim states no cause of
action.
2. The ground for dismissal based on the fact that the
pleading asserting the claim states no cause of action
(raised in a motion under Rule 16) is different from
the ground that the case of the claimant should be
dismissed for lack of cause of action (raised in a
demurrer to evidence under Rule 33).
3. There is a failure to state a cause of action if
allegations in the complaint taken together, do not
completely spell out the elements of a particular
cause of action.
4. Only the facts alleged in the complaint, and no other
should be considered to determine the sufficiency of
the cause of action.
Test of sufficiency of the statement of a cause of action
Whether or not admitting the facts alleged, the court could
render a valid verdict in accordance with the prayer of the
complaint.
Allegations of the complaint determine whether or not the
complaint states a cause of action
1. Current jurisprudence establishes the rule that the
court ought not to consider matters outside of the
complaint in determining whether or not a complaint
states a cause of action.
2. The sufficiency of the statement of the cause of
action must appear on the face of the complaint and
its existence may be determined only by the
allegations of the complaint, consideration of other
facts being proscribed and any attempt to prove
extraneous circumstances not being allowed.
Allegations of the complaint also determine the nature of the
cause of action
The cause of action in a complaint is not what the designation
of the complaint states, but what the allegations in the body of
the complaint define and describe.
How to state the cause of action
1. The pleading asserting the claim or the cause of
action must contain only the ultimate facts. These
facts must be stated in a plain, concise, and
methodical and logical form. Evidentiary facts must
be omitted.
2. The ultimate facts refer to the essential facts of the
claim. A fact is essential if it cannot be stricken out
without leaving the statement of the cause of action
insufficient. The ultimate facts are the important and
substantial facts which form the basis of the primary
right of the plaintiff and which make up the wrongful
act or omission of the defendant. The ultimate facts
do not refer to the details of probative matter or to
the particulars of evidence by which the material
elements are to be established. They are the
principal, determinate, constitutive facts, upon the
existence of which, the entire cause of action rests.
3. The complaint, in stating the cause of action, should
not contain sham, false, redundant, immaterial,
impertinent, or scandalous matters. These matters
may be stricken out upon motion by a party within
twenty (20) days after service of the pleading upon
him or upon the courts own initiative at any time.
Conditions precedent
1. Matters which must be complied with before a cause
of action arises. When a claim is subject to a
condition precedent, the compliance of the same
must be alleged in the pleading.
2. Examples:
a. A tender of payment is required before
making a consignation (Art. 1256, CC).
b. Exhaustion of administrative remedies is
required in certain cases before resorting to
judicial action.
c. Prior resort to barangay conciliation
proceedings is necessary in certain cases.
d. Earnest efforts toward a compromise must
be undertaken when the suit is between
members of the same family and if no
efforts were in fact made, the case must be
dismissed (Art. 151).
e. Arbitration may be a condition precedent
when the contract between the parties
provides for arbitration first before
recourse to judicial remedies.
3. The failure to comply with a condition precedent is an
independent ground for a motion to dismiss: that a
condition precedent for filing the claim has not been
complied with.
Pleading a judgment
1. It is sufficient to aver the judgment or decision. There
is no need to allege matters showing the jurisdiction
to render the judgment or decision.
2. Under Sec. 3(n) of Rule 131, there is a presumption,
though disputable, that a court or judge acting as
14 | P L A T O N
 such, whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction.
Pleading an official document or act
In pleading a document or an act, it is sufficient to aver that the
document was issued in compliance with law. With respect to
an act, it is likewise sufficient to allege that the act was done
also in compliance with law.
Pleading capacity to sue or be sued
Facts showing the capacity of a party to sue or be sued must be
averred. If a party is suing or sued in a representative capacity,
the same must also be averred. If a party is an organized
association of persons, its legal existence must likewise be
averred.
Pleading fraud, mistake or condition of the mind
1. When making averments of fraud or mistake, the
circumstances constituting such fraud or mistake
must be stated with particularity. These particulars
would necessarily include the time, place and specific
acts of fraud committed against him.
2. Malice, intent, knowledge or other conditions of the
mind of a person may be averred generally.
Pleading alternative causes of actions or defenses
1. A party must set forth two or more statements of a
claim or defense, alternatively or hypothetically,
either in one cause of action or defense or in separate
causes of action or defenses.
2. This provision recognizes that the liability of the
defendant may possibly be based on either one of
two possible causes of action. (See La Mallorca v. CA,
17 SCRA 729)
3. The same provision has affinity to the rule (Section 13
of Rule 3) which authorizes suing two or more
defendants in the alternative.
4. Pleading alternative causes of action normally leads
to inconsistent claims.
5. The rule does not require that all of the alternative
causes of action be sufficient for the plaintiff to be
entitled to relief. It is enough that one of them if
made independently would be sufficient to support a
cause of action. (See Section 2 of Rule 8).
6. A party may set forth two or more defenses
alternatively or hypothetically.
The rule allowing alternative defenses is consistent
with the omnibus motion rule which requires that all
motions attacking a pleading shall include all
objections then available, and all objections not so
included shall be deemed waived.
Pleading actionable documents
1. Actionable document is referred to as the
document relied upon by either the plaintiff and the
defendant.
2. Whenever an actionable document is the basis of a
pleading, the rule specifically directs the pleader to
(a) set forth in the pleading the substance of the
instrument or the document, and to attach the
original or the copy of the document to the pleading
as an exhibit and which shall form part of the
pleading; or (b) with like effect, to set forth in the
pleading said copy of the instrument or document.
How to contest an actionable document; oath required
1. When the action is founded upon a document
pleaded in the manner required by Sec. 7 of Rule 8,
the party who has no intent of admitting the
genuineness and due execution of the document,
must contest the same by (a) specifically denying the
genuineness and due execution of the document
under oath; and (b) setting forth what he claims to be
the facts.
2. A mere specific denial of the actionable document is
insufficient. The denial must be coupled with an oath
(must be verified). The absence of an oath will result
in the implied admission of the due execution and
genuineness of the document.
When oath is not required
a) When the adverse party does not appear to be a
party to the document; or
b) When compliance with an order for an inspection of
the original instrument is refused.
Defenses cut-off by the admission of genuineness and due
execution
When a party is deemed to have admitted the genuineness and
due execution of an actionable document, defenses that are
implied from said admission are necessarily waived like the
defenses of forgery of the document, lack of authority to
execute the document, that the party charged signed the
document in some other capacity than that alleged in the
pleading, or that the document was never delivered. Also cut-
off by the admission is the defense that the document was not
in words and figures as set out in the pleadings.
Defenses not cut-off by the admission of genuineness and due
execution
a) Payment;
b) Want of consideration;
c) Illegality of consideration;
d) Usury; and
e) Fraud.
These defenses are not inconsistent with the admission and are
not therefore, barred.
Splitting a single cause of action
Splitting a single cause of action is the act of instituting two or
more suits for the same cause of action. In splitting a cause of
action, the pleader divides a single cause of action, claim or
demand into two or more parts, brings a suit for one of such
parts with the intent to reserve the rest for another separate
action.
Prohibition against splitting a single cause of action
1. Splitting a cause of action is not allowed by the Rules
of Court. A party may not institute more than one
suit for a single cause of action.
2. The practice of splitting a single cause of action is
discourage because it breeds multiplicity of suits,
clogs the court dockets, leads to vexatious litigation,
15 | P L A T O N
 operates as an instrument of harassment, and
generates unnecessary expenses to the parties.
3. The rule against splitting a single cause of action
applies not only to complaints but also to
counterclaims and cross-claims.
4. A single act may sometimes violate several rights of a
person. Nevertheless the plaintiff has only one cause
of action regardless of the number of rights violated.
Anticipatory Breach
This is an unqualified and positive refusal to perform a contract
even if assuming that the performance thereof is not yet due,
the renunciation goes to the whole contract and shall be
treated as a complete breach that will entitle the injured party
to bring his action at once.
Effect of splitting a single cause of action
1. If two or more suits are instituted for a single cause of
action, the filing of one or a judgment upon the
merits in ay of one is available as a ground for
dismissal of the others. The remedy then of the
defendant is to file a motion to dismiss.
Hence, if the first action is pending when the second
action is filed, the latter may be dismissed based on
litis pendencia. If a final judgment had been rendered
in the first action when the second action is filed, the
latter may be dismissed based on res judicata.
2. Note that it need not be the second action filed that
should be dismissed. The phraseology of the present
rule no longer confines the dismissal to the second
action. As to which action should be dismissed would
depend upon judicial discretion and the prevailing
circumstances of the case.
Joinder of causes of action
1. Joinder of causes of action is the assertion of as many
causes of action as a party may have against another
in one pleading alone.
2. When the claims in all the causes of action are
principally for the recovery of money, the aggregate
amount claimed shall be the test of jurisdiction. This
situation follows the so-called totality test for
purposes of jurisdiction.
3. The joinder does not include special civil actions or
those actions governed by special rules.
4. Before there can be proper joinder of parties when
there are two or more defendants, or one or more
plaintiffs, the right to relief should arise out of the
same transaction or series of transactions and that
there exists a common question of law or fact.
Remedy in case of misjoinder of actions
When there is a misjoinder of causes of action, the erroneously
joined cause of action can be severed and proceeded with
separately upon motion by a party or upon the courts own
initiative. Misjoinder is not a ground for the dismissal of an
action.
II. Actions
Definition
1. An action is the legal and formal demand of ones
right from another person made and insisted upon in
a court of justice.
2. In this jurisdiction, it is settled that the terms action:
and suit are synonymous.
Civil actions and criminal actions
1. A civil action is one by which a party sues another for
the enforcement or protection of a right, or the
prevention or redress of a wrong.
2. A criminal action is one by s=which the State
prosecutes a person for an act or omission punishable
by law.
3. It has been held that proceedings are to be regarded
as criminal when the purpose is primarily
punishment, and civil when the purpose is primarily
compensatory.
Actions distinguished from special proceedings
The purpose of a special proceeding is to establish a status, a
right or a particular fact.
Real and personal actions
1. An action is real when it affects title to or possession
of real property, or an interest therein. All other
actions are personal actions.
2. An action is real when it is founded upon the privity
of real estate. That means that realty, or an interest
therein is the subject matter of the action (issues:
title to, ownership, possession, partition, foreclosure
of mortgage or any interest in real property).
Significance of the distinction between a personal and real
action
The distinction is important to determine whether or not
jurisdiction over the person of the defendant is required and
consequently to determine the type of summons to be
employed.
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide
the case. In a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a pre-requisite to
confer jurisdiction on the court provided that the court
acquires jurisdiction over the res.
Jurisdiction over the res is acquired either (1) seizure of the
property; or (2) as a result of the institution of legal
proceedings.
In personam and in rem actions
1. A proceeding in personam is a proceeding to enforce
personal rights and obligations brought against the
person and is based on the jurisdiction of the person,
although it may involve his right to, or the exercise of
ownership of, specific property, or seek to compel
him to control or dispose of it in accordance with the
mandate of the court. The purpose of a proceeding in
personam is to impose through the judgment of a
court, some responsibility or liability directly upon the
person of the defendant.
2. A proceeding quasi in rem is one brought against
persons seeking to subject the property of such
persons to the discharge of the claims assailed.
16 | P L A T O N
 Actions quasi in rem deal with the status, ownership
or liability of a particular property but which are
intended to operate on these questions only as
between the particular parties to the proceedings and
not to ascertain or cut-off the rights or interests of all
possible claimants.
3. An action in personam is not necessarily a personal
action. Nor is a real action necessarily and action in
rem.
Quasi in rem actions
An action quasi in rem is one wherein an individual is named as
defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the
property.
Examples of actions quasi in rem: (a) action for partition (b)
action for accounting (c) attachment (d) foreclosure of
mortgage.
Significance of distinction between actions in rem, in
personam and quasi in rem
The question of whether the trial court has jurisdiction depends on the
nature of the action, i.e., whether the action is in personam, in rem, or
quasi in rem. The rules on service of summons under Rule 14 of the
Rules of Court likewise apply according to the nature of the action.
An action in personam is an action against a person on the basis of his
personal liability. An action in rem is an action against the thing itself
instead of against the person. An action quasi in rem is one wherein an
individual is named as defendant and the purpose of the proceeding is
to subject his interest therein to the obligation or lien burdening the
property.
In an action in personam, jurisdiction over the person of the defendant
is necessary for the court to validly try and decide the case. In a
proceeding in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over the res. Jurisdiction
over the res is acquired either (1) by the seizure of the property under
legal process, whereby it is brought into actual custody of the law; or
(2) as a result of the institution of legal proceedings, in which the power
of the court is recognized and made effective.
Nonetheless, summons must be served upon the defendant not for the
purpose of vesting the court with jurisdiction but merely for satisfying
the due process requirements.
A resident defendant who does not voluntarily appear in court, such as
petitioner in this case, must be personally served with summons as
provided under Sec. 6, Rule 14 of the Rules of Court. If she cannot be
personally served with summons within a reasonable time, substituted
service may be effected (1) by leaving copies of the summons at the
defendants residence with some person of suitable age and discretion
then residing therein, or (2) by leaving the copies at defendants office
or regular place of business with some competent person in charge
thereof in accordance with Sec. 7, Rule 14 of the Rules of Court.
Jurisdiction over the res
Jurisdiction over the res refers to the courts jurisdiction over
the thing or the property which is the subject of the action.
Jurisdiction over the res may be acquired by the court by
placing the property or thing under its custody.
Extraterritorial service; Other Rules on Summons
When the defendant is (a) a non-resident, and (b) he is not
found in the country, summons may be served upon him
extraterritorially in accordance with Rule 14, Sec. 15. Under this
rule, extraterritorial service of summons is proper, namely:
a) When the action affects the personal status of the
plaintiff;
b) When the action relates too, or the subject of which is
property within the Philippines, in which the defendant
claims a lien or interest, actual or contingent;
c) When the relief demanded in such action consists,
wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; and
d) When the defendant non-residents property has been
attached within the Philippines.
Application of Principles
If the defendant is a non-resident, personal service of summons
within the state is essential to the acquisition of jurisdiction
over the person of the defendant and this is not possible if the
defendant is not within the country.
In an action for the recovery of a sum of money against the
non-resident defendant, the summons by publication is
ineffective for the trail court to acquire jurisdiction over the
person of the defendant. Any judgment against him is
therefore, null and void.
In attachment and foreclosure proceedings, both are actions
quasi in rem, jurisdiction over the person of the non-resident
defendant is not essential.
A proceeding for the probate of a will is one in rem, such that
the corresponding publication of the petition brought the
whole world a party in the case the vests jurisdiction with the
court to hear and decide it.
Chapter III Jurisdiction, Venue and Parties
I. Jurisdiction
Meaning of jurisdiction
1. Jurisdiction is the power and authority of the court to
hear, try and decide a case.
2. It is not only the power to hear and determine a case,
but also the power to enforce its determination, as
the judgment or decree is the end for which the
jurisdiction is exercised, and it is only through the
judgment and its execution that the power of the
court is made efficacious and its jurisdiction
complete.
Power of the court
Jurisdiction is not the power of the judge but of the court.
Neither is it the decision rendered.
Test of jurisdiction
Whether the court has the power to enter into the inquiry and
not whether the decision is right or wrong.
17 | P L A T O N
Matter of substantive law
Jurisdiction is a matter of substantive law because it is
conferred by law.
Not subject to waiver or stipulation
Jurisdiction over the subject matter cannot be waived, enlarged
or diminished by stipulation of the parties.
Duty of the court to determine its jurisdiction
When it appears that the court has no jurisdiction over the
subject matter of a complaint filed before it, the court shall
dismiss the claim and can do so motu proprio.
Jurisdiction versus the exercise of jurisdiction
1. Jurisdiction is the power or authority of the court. The
exercise of this power or authority is the exercise of
jurisdiction.
2. Where there is jurisdiction over the subject matter,
the decision on all other questions arising in the case
is but an exercise of jurisdiction.
Error of judgment and error of jurisdiction; distinctions
1. An error of judgment is one which the court may
commit in the exercise of its jurisdiction. As long as
the court acts within its jurisdiction, any alleged
errors committed in the exercise of its discretion will
amount to nothing more than mere errors of
judgment.
2. An error of jurisdiction is one where the act
complained of was issued by the court without or in
excess of jurisdiction. Errors of jurisdiction occur
when the court exercises a jurisdiction not conferred
upon it by law. It may also occur when the court or
tribunal although with jurisdiction, acts in excess of
its jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction.
3. Errors of judgment are correctible by appeal. Errors of
jurisdiction are correctible only by the extraordinary
writ of certiorari.
4. Where a court has jurisdiction, a wrong decision is
not void. Any judgment rendered without jurisdiction
is a total nullity and may be struck down at any time,
even on appeal; the only exception is when the party
raising the issue is barred by estoppel.
Lack of jurisdiction and excess of jurisdiction
LACK OF JURISDICTION EXCESS OF JURISDICTION
The legal power to determine Being clothed with the power
the case is not present to determine the case,
oversteps its authority as
determined by law
Jurisdiction and cause of action
JURISDICTION CAUSE OF ACTION
An authority The act or omission violative
of the rights of others
Conferred by law Exists because of a violation
of a right
Jurisdiction over the subject matter
The term, subject matter refers to the item with respect to
which the controversy has arisen, or concerning which the
wrong has been done, and it is ordinarily the right, the thing, or
the contract under dispute.
How jurisdiction over the subject matter is conferred
1. It is conferred by law which may be either the
Constitution or a statute.
2. The law that confers jurisdiction refers to a
substantive law, not a procedural law. It likewise does
not refer to an administrative order or a circular.
3. Since jurisdiction is conferred by law, jurisdiction:
a. Cannot be conferred by the administrative
policy of any court;
b. Cannot be conferred by a courts unilateral
assumption of jurisdiction;
c. Cannot be conferred by an erroneous belief
by the court that it has jurisdiction;
d. Cannot also be conferred by the parties or
by contract;
e. Cannot be granted by agreement of the
parties, acquired through, or waived,
enlarged or diminished by, any act or
omission of the parties. Neither can it be
conferred by acquiescence of the court;
f. Cannot be conferred by the parties silence,
acquiescence or consent.
How jurisdiction over the subject matter is determined
It is a settled rule that jurisdiction over the subject matter is
determined by the allegations of the complaint regardless of
whether or not the plaintiff is entitled to his claims asserted
therein.
Jurisdiction is not determined either by the defenses or by
evidence in the trial
The settled rule is that jurisdiction is based on the allegations in
the initiatory pleading and the defenses in the answer are
deemed irrelevant and immaterial in its determination.
The jurisdiction of the court or tribunal over the nature of the
action cannot be made to depend upon the defenses set up in
the court or upon a motion to dismiss, for otherwise, the
question of jurisdiction would depend almost entirely on the
defendant.
Applicability to criminal actions
In order to determine the jurisdiction of the court in criminal
cases, the complaint or information must be examined for the
purpose of ascertaining whether or not the facts set out therein
and the punishment provided for by law for such acts fall within
the jurisdiction of the court in which the criminal action is filed.
Exception to the rule that jurisdiction is determined by the
allegations of the complaint
The rule holds that what determines the nature of the action
and the court has jurisdiction over the case are the allegations
in the complaint. The general rule, however, has not been
applied with rigidity in ejectment cases in which the defendant
18 | P L A T O N
averred the defense of the existence of a tenancy relationship
between the parties.
In Ignacio vs CFI of Bulacan and other ejectment cases, where
tenancy was the defense, the court went beyond the
allegations of the complaint in determining jurisdiction over the
subject matter and required the presentation of evidence to
prove or disprove the defense of tenancy. After finding that the
real issue is tenancy, the cases were dismissed for lack of
jurisdiction.
It must be borne, however, that the MTC does not
automatically lose its jurisdiction over the ejectment case by
the mere allegation of tenancy relationship between the
parties. There must be reception of evidence and if after
hearing, tenancy had in fact been shown the real issue, the
court should dismiss the case for lack of jurisdiction.
Doctrine of primary jurisdiction
Courts will not resolve a controversy involving a question which
is within the jurisdiction of an administrative tribunal especially
where the question demands the exercise of sound
administrative discretion requiring the special knowledge,
experience and service of the administrative tribunal to
determine technical and intricate matters of fact.
Doctrine of continuity of jurisdiction (adherence of
jurisdiction)
1. Once a court has acquired jurisdiction, that
jurisdiction continues until the court has done all that
it can do in the exercise of that jurisdiction or until it
finally disposes of the case.
2. As a consequence of this principle, jurisdiction is not
affected by a new law placing a proceeding under the
jurisdiction of another tribunal except when
otherwise provided in the statute or if the statute is
clearly intended to apply to actions pending even
before its enactment.
Law which governs jurisdiction
Jurisdiction being a matter of substantive law, the established
rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of the
court.
Objections to jurisdiction over the subject matter
a) The court may on its own initiative object to an
erroneous jurisdiction and may ex mero motu take
cognizance of lack of jurisdiction at any point in the
case and has a clearly recognized right to determine it
own jurisdiction.
b) The earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed before
the filing or service of an answer. If no motion to
dismiss is filed, the defense of lack of jurisdiction may
be raised as an affirmative defense in the answer.
Effect of estoppels on objections to jurisdiction
1. While it is true that jurisdiction over the subject
matter may be raised at any stage of the proceedings
since it is conferred by law, it is nevertheless settled
that a party may be barred from raising it on the
ground of estoppel.
2. The doctrine of estoppel by laches in relation to
objections to jurisdiction first appeared in the
landmark case of Tijam v. Sibonghanoy. The doctrine
is based upon grounds of public policy and is
principally a question of the inequity or unfairness of
permitting a right or claim to be enforced or asserted.
3. In Lao v. Republic, a party who has invoked the
jurisdiction of the court over a particular matter to
secure affirmative relief cannot be permitted to
afterwards deny that same jurisdiction to escape
liability.
Tijam ruling, an exception rather than the rule
The general rule remains: a courts lack of jurisdiction may be
raised at any stage of the proceedings even on appeal.
Jurisdiction over the parties
1. The manner by which the court acquires jurisdiction
over the parties depends on whether the party is the
plaintiff or the defendant.
2. Jurisdiction over the plaintiff is acquired by his filing
of the complaint or petition. By doing so, he submits
himself to the jurisdiction of the court. XPN: If no
juridical capacity, it will not confer jurisdiction (Merryl
Lynch Inc. v. CA). XPN to the XPN: When equitable
justice demands or when barred by estoppel.
3. Jurisdiction over the person of the defendant is
obtained either by a valid service of summons upon
him or by his voluntary submission to the courts
authority.
When jurisdiction over the person of the defendant is
required
Jurisdiction over the person of the defendant is required only in
an action in personam. Jurisdiction over the person of the
defendant is not a prerequisite in an action in rem and quasi in
rem.
Voluntary appearance of the defendant
As a rule, an appearance in whatever form without expressly
objecting to the jurisdiction of the court over the person, is a
submission to the jurisdiction of the court. When the
appearance is precisely to object to the jurisdiction of the court
over his person, it is not considered an appearance in court and
should not be construed as a submission by the defendant of
his person to the jurisdiction of the court.
Objections to jurisdiction over the person of the defendant
An objection to the jurisdiction over the person of the
defendant may be raised as a ground for a motion to dismiss. If
no motion to dismiss has been filed, the objection may be
pleaded as an affirmative defense in the answer. (Rule 16, Rules
of Court)
If a motion to dismiss has been filed, the objection to the lack
of jurisdiction over the person of the defendant must be
pleaded in the same motion where such ground is available at
the time the motion is filed, otherwise it is deemed waived,
pursuant to the omnibus motion rule.
19 | P L A T O N

Effect of pleading additional defenses aside from lack of
jurisdiction over the person of the defendant
If a plaintiff may assert two or more causes of action, a
defendant should also be allowed under the Rules of Court to
put up his own defenses alternatively or hypothetically.
The Court stressed that that it should not be the invocation of
available additional defenses that should be construed as a
waiver of the defense of lack of jurisdiction over the person of
the defendant, but the failure to raise the defense. (La Naval
Drug Corp. vs. Court of Appeals)
Jurisdiction over the issue
An issue is a disputed point or question to which parties to an
action have narrowed down their several allegations and upon
which they are desirous of obtaining a decision.
How jurisdiction over the issue is conferred and determined
1. Generally, jurisdiction over the issues is conferred
and determined by the pleadings of the parties.
2. Jurisdiction over the issues may also be conferred by
waiver or failure to object to the presentation of
evidence on a matter not raised in the pleadings.
Distinction between a question of law and a question of fact
QUESTION OF LAW QUESTION OF FACT
When the doubt or difference When the doubt or difference
arises as to what the law is on arises as to the truth or
a certain set of facts falsehood of the alleged facts.
The test of whether a question is one of law or of fact is not the
appellation given to such question by the party raising the
same; rather, it is whether the appellate court can determine
the issue raised without reviewing or evaluating the evidence,
in which case, it is a question of law; otherwise it is a question
of fact.
When an issue arises even if not raised in the pleadings
While it is a rule that an issue arises from the pleadings of the
parties, an issue may arise in the case without it having been
raised in the pleadings. This occurs when the parties try an
issue with their consent. The consent of the parties may be
inferred from the failure to interpose an objection to the
presentation of evidence on a matter not alleged in the
pleadings.
Jurisdiction of Municipal Trial Courts, Metropolitan Trial Court
and Municipal Circuit Trial Court (Under B.P. 129 as amended
by R.A. 7691)
Sec. 5 of R.A. No. 7691, that the jurisdictional amount of the
MTC for courts outside Metro Manila, shall be P200,000 and
the amount for Metro Manila shall be P400,00. It further
provided that the jurisdictional amount of P200,000 outside
Metro Manila shall be further adjusted to P300,000 five years
thereafter. At present, the jurisdictional amount of an MTC
outside Metro Manila is one not exceeding P300,000.
Actions for Forcible Entry and Unlawful Detainer
The MTC has exclusive original jurisdiction over forcible entry
and unlawful detainer cases. These are both ejectment cases
known as accion interdictal
All ejectment cases are within the jurisdiction of the MTC
regardless of whether said cases involve questions of
ownership or if the issue of possession cannot be determined
without resolving the question of ownership.
Real Actions Other than Forcible Entry and Unlawful Detainer
The MTC also has exclusive original jurisdiction over civil actions
involving title to or possession of real property, or any interest
therein, where the assessed value does not exceed P20,000
(outside Metro Manila) or P50,000 (Metro Manila)
The jurisdiction of the court under R.A. 7691, over an action
involving title to or possession of land is now determined by the
assessed value of the said property and not the market value
thereof. The assessed value of real property is the fair market
value of the real property multiplied by the assessment level.
The fair market value is the price at which a property may be
sold by a seller, who is not compelled to sell, and bought by a
buyer, who is not compelled to buy.
This rule excludes the real actions of forcible entry and unlawful
detainer cases which are within the exclusively original
jurisdiction of the MTC regardless of the assessed value of the
property involved.
Demand not Exceeding P300,000.00 or P400,000.00
MTC exercises exclusive original jurisdiction over civil actions
where the demand does not exceed P300,000 (outside Metro
Manila) or not more than P400,000 (Metro Manila).
The jurisdictional amount does not include the following:
a. Interest
b. Damages of whatever kind
c. Attorneys fees
d. Litigation expenses
e. Costs
Actions Involving Personal Property
The MTC has exclusive original jurisdiction over actions
involving personal property valued at not more than P300,000
(outside Metro Manila), or not more than P400,000 (Metro
Manila).
Admiralty and Maritime Cases
These cases were traditionally under the jurisdiction of the RTC
but may be under the jurisdiction of the MTC under R.A. 7691
where the demand or claim does not exceed P300,000 (outside
Metro Manila), or does not exceed P400,000 (Metro Manila).
Probate Proceedings; Provisional Remedies
Exclusive original jurisdiction over the probate proceedings,
testate and intestate, where the gross value of the estate does
not exceed P300,000 (outside Metro Manila), or does not
exceed P400,000 (Metro Manila).
20 | P L A T O N
A petition for probate of a will involving an estate valued at
P200,000 falls under the jurisdiction of the MTC (Bar 1997).
The MTC has exclusive original jurisdiction to grant or dent
provisional remedies in cases where the principal action is
within its jurisdiction.
Delegated Jurisdiction
The MTC also exercises delegated jurisdiction over cadastral
and land registration cases covering lots where there is no
controversy or opposition or contested lots the value of which
does not exceed P100,000, as may be delegated by the
Supreme Court.
The MTC acting under its delegated jurisdiction is acting as a
RTC. The decision of the MTC in cadastral and registration cases
therefore, shall be appealable to the Court of Appeals.
Special Jurisdiction
The MTC has also been conferred by law a special jurisdiction
over petitions for habeas corpus in the absence of all the RTC
judges in the province or city.
Cases subject to summary procedure
The civil cases subject to summary procedure are:
a) Forcible entry and unlawful detainer cases; and
b) All other cases where the total claim does not exceed
P100,000.00 (outside Metro Manila), or does not
exceed P200,000.00 (Metro Manila), exclusive of
interest and costs. Probate proceedings are not
covered by the rule on summary procedure even if
the gross value of the estate does not exceed
P100,000 or P200,000.
Certain basic principles need be remembered in civil cases
subject to a summary procedure:
a) Not all pleadings in an ordinary civil action are
allowed in a summary procedure. The only pleadings
allowed are: (a) complaint, (b) compulsory
counterclaims, (c) cross-claims pleaded in the answer,
and (d) answers thereto. (Sec. 3)
b) The court in a summary procedure may dismiss the
case outright on any of the grounds for the dismissal
of a civil action. (Sec. 4)
c) Should the defendant fail to answer the complaint
within the period of ten (10) days from service of
summons, the court may, motu proprio, or on motion
of the plaintiff, render judgment (not an order
declaring the defendant in default) as may be
warranted by the facts alleged and limited to what is
prayed for. (Sec. 6)
d) There shall be a preliminary conference held but
there shall be no trial. Instead the parties shall submit
affidavits and position papers. (See Secs. 7, 8 and 9)
e) Within thirty (30) days after receipt of the last
affidavits and position papers, or the expiration of the
period for filing the same, the court shall render
judgment. (Sec. 10)
f) As a rule a motion to dismiss is not allowed except on
either of two grounds (i) lack of jurisdiction over the
subject matter, or (ii) failure to comply with the
barangay conciliation proceedings (Sec. 19[a])
g) Sec. 19. Prohibited pleadings and motions. The
following pleadings, motions or petitions shall not be
allowed in the cases covered by this Rule:
1) Motion to dismiss the complaint or to
quash the complaint or information except
on the ground of lack of jurisdiction over
the subject matter, or failure to comply
with the preceding section;
2) Motion for a bill of particulars;
3) Motion for new trial, or for reconsideration
of a judgment, or for opening of trial;
4) Petition for relief from judgment;
5) Motion for extension of time to file
pleadings, affidavits or any other paper;
6) Memoranda;
7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8) Motion to declare the defendant in default;
9) Dilatory motions for postponement;
10) Reply;
11) Third party complaints;
12) Interventions.
h) It must be emphasized that in a civil case governed by
the Rules on Summary Procedure, no hearing is
conducted. Instead, the parties are required to
submit their respective position papers.
Determination of Jurisdictional Amount
Under BP 129 as amended and under R.A. 7691, the
jurisdictional amount excludes the following:
a. Interest
b. Damages of whatever kind
c. Attorneys fees
d. Litigation expenses and costs
These matters however, shall be included in determining the
filing fees.
The exclusion of the term damages of whatever kind in
determining the jurisdictional amount, applies to cases where
the damages are merely incidental to or consequence of the
main cause of action. Thus, if the main cause of action is the
recovery of damages, the amount of damages should not be
excluded in determining the jurisdictional amount.
Totality Rule
Under this rule, where there are several claims or causes of
actions between the same or different parties, embodied in the
same complaint. The amount of the demand shall be the
totality of the claims in all the causes of action, irrespective of
whether the causes of action arose out of the same or different
transactions.
21 | P L A T O N
Territorial Extent of Court Processes
All processes issued by the Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts, in cases falling
within their jurisdiction, may be served anywhere in the
Philippines without the necessity of certification by the judge of
the Regional Trial Court.
Review of Judgments of the MTC
Judgments of the Municipal Trial Courts, Municipal Circuit Trial
Courts and Metropolitan Trial Courts are appealable to the
Regional Trial Courts.
Jurisdiction over small claims cases
1. By virtue of A.M. No. 08-8-7-SC, the Rules of
Procedure for Small Claims Cases took effect on
October 1, 2008.
The Rules of Civil Procedure apply suppletorily to
small claims cases but only insofar as they are not
inconsistent with A.M. No. 08-8-7-SC. Thus, certain
motions and pleadings normally allowed in civil
actions are prohibited in small claims cases.
The following are not allowed under Sec. 14 of A.M.
No. 08-8-7-SC:
a) Motion to dismiss the compliant except on
the ground of lack of jurisdiction;
b) Motion for a bill of particulars;
c) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
d) Petition for relief from judgment;
e) Motion for extension of time to file
pleadings, affidavits, or any other paper;
f) Memoranda;
g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
h) Motion to declare the defendant in default;
i) Dilatory motions for postponement;
j) Reply;
k) Third-party complaints; and
l) Interventions.
One characteristic of a small claim action is the use of
forms which simply have to be filled up by a party or
the court.
2. The purpose of the small claims process is to provide
an inexpensive and expeditious means to settle
disputes over small amounts.
The small claims process is designed to function
quickly and informally. There are no attorneys, no
formal pleadings and no strict legal rules of evidence.
3. The Rule governs the procedure in actions before the
Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts for the payment of money where the
value of the claim does not exceed One Hundred
Thousand Pesos (P100,000.00) exclusive of interests
and costs.
4. The Rule applies to the following actions: (a) All
actions that are purely civil in nature where the claim
or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money, and (b)
The civil aspect of criminal actions, either filed prior
to the institution of the criminal action, or reserved
upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of
Criminal Procedure.
5. The claims or demands referred to may be for any of
the following:
a) for money owed;
b) for damages; or
c) for enforcement of a barangay amicable
settlement or an arbitration award
involving money claims covered by this Rule
pursuant to Sec. 417 of RA 7160.
If it is for money owed, the claim may arise from a:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage.
If the claim be for damages, said claim may arise
from:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract.
While there are various sources of the claims which
can be the subject of a small claims action, the claims
must be solely for money.
Some of the kinds of cases which are allowed as small
claims include the following:
a) Actual damage caused to vehicles, other
personal property, real property or person;
b) Payment or reimbursement for property,
deposit, or money loaned;
c) Payment for services rendered, insurance
claim, rent, commissions, or for goods sold
and delivered;
d) Money claim pursuant to contact, warranty
or agreement; and
e) Purely civil action for payment of money
covered by bounced or stopped check.
6. The action is commenced by filing Form I-SCC with
the court. Form I-SCC is the Statement of Claim and
which must be duly accomplished and verified. The
claim must be filed in duplicate. No other formal
pleading other than the Statement of Claim is
necessary to initiate a small claims action.
The plaintiff shall pay the docket and other legal fees
unless allowed to litigate as an indigent.
The Statement of Claim must be accompanied by a
Certification of Non-Forum Shopping written in Form
I-A SCC.
22 | P L A T O N
 If the Claim is based on an actionable document, two
(2) duly certified photocopies of the document must
accompany the Statement of claim. Also to be
attached are the affidavits of witnesses and other
evidence to support the claim.
7. The affidavits submitted shall state only facts if direct
personal knowledge of the affiants.
No evidence shall be allowed during the hearing
which was not attached to or submitted together
with the Claim, unless good cause is shown for the
admission of additional evidence.
8. Plaintiff may join in a single statement of claim one or
more separate small claims against a defendant
provided that the total amount claimed, exclusive of
interest and costs, does not exceed P100,00.00.
9. After the court determines that the case falls under
this Rule, it may, from an examination of the
allegations of the Statement of Claim and such
evidence attached thereto, by itself, dismiss the case
outright of any of the grounds apparent from the
Claim for the dismissal of a civil action.
10. If no ground for dismissal is found, the court shall
forthwith issue Summons (Form 2-SCC) on the day of
receipt of the Statement of Claim, directing the
defendant to submit a verified Response.
The court shall also issue a Notice (Form 4-SCC) to
both parties, directing them to appear before it on a
specific date and time for hearing, with a warning
that no unjustified postponement shall be allowed, as
provided in Section 19 of this Rule.
The summons and notice to be served on the
defendant shall be accompanied by a copy of the
Statement of Claim and documents submitted by
plaintiff, and a copy of the Response (Form 3-SCC) to
be accomplished by the defendant. The Notice shall
contain an express prohibition against the filing of a
motion to dismiss or any other motion under Section
14 of this Rule. (except on the ground of lack of
jurisdiction)
11. The defendant shall file with the court and serve on
the plaintiff a duly accomplished and verified
Response within a non - extendible period of ten (10)
days from receipt of summons. The Response shall be
accompanied by certified photocopies of documents,
as well as affidavits of witnesses and other evidence
in support thereof. No evidence shall be allowed
during the hearing which was not attached to or
submitted together with the Response, unless good
cause is shown for the admission of additional
evidence.
12. Should the defendant fail to file his response within
the required period, the court by itself shall render
judgment as may be warranted by the facts alleged in
the Statement of claim limited to what is prayed for.
The court however, may, in its discretion, reduce the
amount of damages for being excessive or
unconscionable.
13. If at the time the action is commenced, the defendant
possesses a claim against the plaintiff that (a) is
within the coverage of this rule, exclusive of interest
and costs; (b) arises out of the same transaction or
event that is the subject matter of the plaintiff's
claim; (c) does not require for its adjudication the
joinder of third parties; and (d) is not the subject of
another pending action, the claim shall be filed as a
counterclaim in the response; otherwise, the
defendant shall be barred from suit on the
counterclaim.
The defendant may also elect to the file a
counterclaim against the plaintiff that does not arise
out of the same transaction or occurrence , provided
that the amount and nature thereof are within the
coverage of this Rule and the prescribed docket and
the other legal fees are paid.
14. The parties shall appear at the designated date of
hearing personally or through a representative
authorized under a Special Power of Attorney (Form
5-SCC ) to enter into an amicable settlement, to
submit of Judicial Dispute Resolution (JDR) and to
enter into stipulations or admissions of facts and of
documentary exhibits.
No attorney shall appear in behalf of or represent a
party at the hearing, unless the attorney is the
plaintiff or defendant.
Failure of the plaintiff to appear shall be cause for the
dismissal of the claim without prejudice. The
defendant who appears shall be entitled to judgment
on a permissive counterclaim.
Failure of the defendant to appear shall have the
same effect as failure to file a Response under Section
12 of this Rule. This shall not apply where one of two
or more defendants who are sued under a common
cause of action and have pleaded a common defense
appears at the hearing.
Failure of both parties to appear shall cause the
dismissal with prejudice of both the claim and
counterclaim.
A request for postponement of a hearing may be
granted only upon proof of the physical inability of
the party to appear before the court on the
scheduled date and time. A party may avail of only
one (1) postponement.
15. At the hearing, the judge shall conduct Judicial
Dispute Resolution (JDR) through mediation,
conciliation, early neutral evaluation, or any other
mode of JDR. Any settlement (Form 7-SCC) or
resolution (Form 8-SCC) of the dispute shall be
reduced into writing, signed by the parties and
submitted to the court for approval (Form 12-SCC).
23 | P L A T O N
 If JDR fails and the parties agree in writing (Form 10-
SCC) that the hearing of the case shall be presided
over by the judge who conducted the JDR, the
hearing shall so proceed in an informal and
expeditious manner and terminated within one (1)
day.
Absent such agreement, (a) in case of a multi-sala
court , the case shall, on the same day, be
transmitted (Form 11-SCC) to the Office of the Clerk
of Court for immediate referral by the Executive
Judge to the pairing judge for hearing and decision
within five (5) working days from referral; and (b) in
case of single sala court, the pairing judge shall hear
and decide the case in the court of origin within five
(5) working days from referral by the JDR judge.
16. After the hearing, the court shall render its decision
on the same day, based on the facts established by
the evidence (Form 13-SCC). The decision shall
immediately be entered by the Clerk of Court in the
court docket for civil cases and a copy thereof
forthwith served on the parties.
17. The decision shall be final and unappealable.
If the decision is rendered in favor of the plaintiff,
execution shall issue upon motion (Form 9-SCC).
Jurisdiction of Regional Trial Courts (Under B.P. 129 as
amended by R.A. 7691)
a) Exclusive original jurisdiction over actions the subject
matter of which is not capable of pecuniary
estimation;
b) Exclusive original jurisdiction over actions involving
title to or possession of real property or an interest
therein, where the assessed value of such property
exceeds P20,000 (outside Metro Manila), or exceeds
P50,000 (Metro Manila);
c) Exclusive original jurisdiction over civil actions the
demand or claim of which exceeds P300,000 (outside
Metro Manila) or exceeds P400,000 (Metro Manila)
d) Exclusive original jurisdiction over actions in admiralty
or maritime jurisdiction where the demand or claim
exceeds P300,000 (outside Metro Manila), or exceeds
P400,000;
e) Exclusive original jurisdiction over matters or probate,
testate, where the gross value of the estate exceeds
P300,000 ((outside Metro Manila), or exceeds
P400,000 (Metro Manila);
f) Exclusive original jurisdiction over actions involving
personal property valued at more than P300,000
(outside Metro Manila) or more than P400,000
(Metro Manila);
g) Original exclusive jurisdiction over cases not falling
within the jurisdiction of any court, tribunal, person
or body exercising or quasi-judicial functions.
h) Concurrent and original jurisdiction with the Supreme
Court in actions affecting ambassadors, other public
ministers and consuls;
i) Concurrent and original jurisdiction with the Supreme
Court and Court of Appeals in petitions for certiorari,
prohibition and mandamus against lower courts and
bodies and in petitions for quo warranto and habeas
corpus;
j) Appellate jurisdiction over cases decided by lower
courts in their respective territorial jurisdictions;
The decisions of the Regional Trial Court in the exercise of its
appellate jurisdiction shall be appealable by petition for review
to the Court of Appeals.
Special Jurisdiction to Try Special Cases
Certain branches of the Regional Trial Court may be designated
by the Supreme Court to handle exclusively criminal cases,
juvenile and domestic relations cases, agrarian cases, urban and
land reform cases which do not fall under the jurisdiction of
quasi-judicial bodies and agencies, and/or such other special
cases as the Supreme Court may determine in the interest of a
speedy and efficient administration of justice.
Jurisdiction Over Intracorporate Controversies
The Securities Regulation Code provides that the Regional Trial
Courts shall exercise original and exclusive jurisdiction to hear
and decide the following cases:
a) Cases involving devises or schemes employed by or any
acts, of the board of directors, business associates, its
officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the
interest of the public and/or of the stockholders, partners,
members of associations or organizations registered with
the Commission.
b) Controversies arising out of intra-corporate or partnership
relations, between and among stockholders, members or
associates; between any or all of them and the
corporation, partnership or association of which they are
stockholders, members or associates, respectively; and
between such corporation, partnership or association and
the state insofar as it concerns their individual franchise or
right to exist as such entity.
c) Controversies in the election or appointments of directors,
trustees, officers or managers of such corporations,
partnerships or associations; and
d) Petitions of corporations, partnerships or associations to
be declared in the state of suspension of payments in
cases where the corporation, partnership or association
possesses sufficient property to cover all its debts but
forsees the impossibility of meeting them when they
respectively fall due or in cases where the corporation,
partnership or association has no sufficient assets to cover
its liabities, but is under the management of a
Rehabilitation Receiver or Management Committee.
The RTC is a Court of General Jurisdiction
Unlike the Municipal Trial Court, which is a court of limited
jurisdiction because it can only take cognizance of cases
expressly provided by law, the Regional Trial Court is a court of
general jurisdiction because all cases, the jurisdiction of which
is not specifically provided by law to be within the jurisdiction
of any other court falls within the jurisdiction of the Regional
Trial Court.
Actions Incapable of Pecuniary Estimation
1) The basic issue in an action incapable of pecuniary
estimation is one other than the recovery of money.
In this kind of action the money claim is merely
incidental. If the action is one primarily for the
24 | P L A T O N
 recovery of money, the claim is considered capable of
pecuniary estimation. Where the issue in the case is
whether or not an assignment of rights is a nullity, the
action is one incapable of pecuniary estimation.
2) A complaint for expropriation is incapable of
pecuniary estimation.
3) An action for specific specific performance is one
generally considered incapable or pecuniary
estimation.
4) An action for a writ of injunction is within the
jurisdiction of the Regional Trial Court. It is an action
incapable of pecuniary estimation.
5) An action for interpleader is capable of pecuniary
estimation. If the subject of interpleader is real
property, then the jurisdictional amount is
determined by the assessed value of the land. If it be
personal property, then the value of the property.
Extent of Trial Court's Jurisdiction When Acting as a Probate
Court
1. A probate court cannot adjudicate or determine the
title to properties claimed to be part of the estate and
also claimed by outside parties. All that the court
could do is to determine whether they should or
should not be included in the inventory , the probate
court may pass upon the title thereto but such
determination is not conclusive and is subject to a
final determination in a separate action.
2. However, if the interested parties are all heirs, or the
parties consent to the assumption of jurisdiction by
the probate court and the third parties are not
prejudiced or injured thereby, the probate court may
decide questions on ownership.
Jurisdiction of the Court of Appeals (Under B.P. 129 as
amended by R.A. 7691)
1. Exclusive original jurisdiction in actions for annulment
of the judgments of the Regional Trial Courts.
2. Concurrent and original jurisdiction with the Supreme
Court to issue writs of certiorari, prohibition and
mandamus against the a) Regional Trial Court, b) Civil
Service Commission, c) Central Board Assessment
Appeals, d) other Quasi-judicial agencies mentioned
in Rule 43 and e) NLRC. Following the doctrine of
hierarch y of courts, the petition for certiorari
against the NLRC must first b filed with the Court of
Appeals.
3. Concurrent and original with the Supreme Court and
the Regional Trial Court to issue writs of certiorari,
prohibition and mandamus against lower courts and
bodies and writs of quo warranto and habeas corpus,
whether or not in aid of its appellate jurisdiction.
Previously the Court of Appeals could issue these
writs only in aid of its appellate jurisdiction, i.e., only
in connection with a case appealed to it.
4. Exclusive appellate jurisdiction by way of ordinary
appeal from the Regional Trial Court and the Family
Courts.
5. Exclusive appellate jurisdiction by way of petition for
review from the Regional Trial Court rendered by the
RTC in the exercise of its appellate jurisdiction.
6. Exclusive appellate jurisdiction by way of petition for
review from the decisions, resolutions orders, or
awards of the Civil Service Commission, Central Board
of Assessment Appeals and other bodies mentioned
in Rule 43 and the Office of the Ombudsman in
administrative disciplinary cases.
7. Exclusive appellate jurisdiction over decisions of the
Municipal Trial Courts in cadastral or land registration
cases pursuant to its delegated jurisdiction. This is
because decisions of Municipal Trial Courts in these
cases are appealable in the same manner as decisions
of Regional Trial Courts.
Power to Try and Conduct Hearings
Even if the Court of Appeals is not a trial court, under the law it
has the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve
factual issues raised in cases falling within its original and
appellate jurisdiction, including the power to grant and conduct
new trials. The Court of Appeals may pass upon factual issues
as when a petition for certiorari is filed before it or in petitions
for writ of amparo or habeas data or in case of actions to annul
the judgment of the over which the Court of Appeals has
original jurisdiction.
Jurisdiction of the Supreme Court
1. Exclusive original jurisdiction in petitions for certiorari,
prohibition and mandamus against the:
a) Court of Appeals
b) COMELEC
c) COA
d) Sandiganbayan
2. Concurrent original jurisdiction with the Court of Appeals in
petitions for certiorari, prohibition and mandamus against
the:
a) RTC
b) CSC
c) Central Board of Assessment Appeals
d) NLRC
e) Quasi-judicial agencies
This jurisdiction is subject to the doctrine of hierarchy of
courts.
3. Concurrent original jurisdiction with the Court o Appeals
and the Regional Trial Court in petitions for certiorari,
prohibition and mandamus against lower courts and
bodies, and in petitions for quo warranto and habeas
corpus. This jurisdiction is subject to the doctrine of
hierarchy of courts.
4. Concurrent original jurisdiction with the Regional Trial
Court in case affecting ambassadors, public ministers and
consuls.
5. Appellate jurisdiction by way of petition for review on
certiorari (appeal by certiorari under Rule 45) against the:
a) Court of Appeals, b) Sandiganbayan, c) Regional Trial
Courts on pure questions of law and in cases involving
constitutionality or validity of a law or treaty, international
or executive agreement, law, presidential decree,
proclamation, order, instruction ordinance, or regulation,
legality of a tax, impost, assessment toll, or penalty,
jurisdiction of a lower court and d) Court of Tax Appeals in
its decisions rendered en banc.
25 | P L A T O N
The Supreme Court is not a Trier of Facts
The Supreme Court is not a trier of facts which means that
passing upon a factual issue is not within the province of the
Supreme Court. The findings of facts or the Court of Appeals,
are not generally reviewable by the Supreme Court.
However, factual issues may be delved into and resolved where
the findings and conclusions of the trial court or the quasi-
judicial bodies are frontally inconsistent with the findings of the
Court of Appeals.
Exceptions
Jurisprudence has, recognized several exceptions in which
factual issues may be resolved by this Court namely:
1. When the findings are grounded entirely on speculation,
surmises or conjectures;
2. When the inference made is manifestly mistaken, absurd
or impossible;
3. When there is grave abuse of discretion;
4. When the judgment is based on misapprehension of facts;
5. When the findings of facts are conflicting.
6. When in making its findings the CA went beyond the issues
of the case, or its findings are contrary to the admissions
of both the appellant and the appellee;
7. When the findings are contrary to the trial court;
8. When the findings are conclusions without citation of
specific evidence on which they are based;
9. When the facts set forth in the petition, as well as in the
petitioners main and reply briefs, are not disputed by the
respondent;
10. When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
11. When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which if
properly considered, could justify a different conclusion.
Cases Which Under the Constitution Must be Heard En Banc
Under the constitution of the Philippines, the following cases
should be heard by the Supreme Court en banc:
a) All cases involving the constitutionality of a treaty,
international and executive agreement, or law;
b) All cases which under the Rules of Court are required
to be heard en banc;
c) All cases involving the constitutionality, application or
operation of presidential decrees, proclamations,
orders, instructions, ordinances and other
regulations.
d) Cases heard by a division when the required majority
in the division is not obtained;
e) Cases involving a modification or reversal of a
doctrine or principle of law laid down previously by
the Supreme Court in a decision rendered en banc or
by a division;
f) Cases involving the discipline of judges of lower
courts;
g) Contests relating to the election, returns, and
qualification of the President or Vice-President.
Jurisdiction of the Family Courts
Under R.A. 8369, the Family Courts shall have exclusive original
jurisdiction over the following cases:
a) Petitions for guardianship, custody of children,
habeas corpus involving children;
b) Petitions for adoption of children and the revocation
thereof;
c) Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to marital status
and property relations of husband and wife or those
living together under different status and
agreements, and petitions for dissolution of conjugal
partnership of gains;
d) Petitions for support and/or acknowledgment;
e) Summary judicial proceedings brought under the
provisions of Executive Order No. 209, otherwise
known as the "Family Code of the Philippines";
f) Petitions for declaration of status of children as
abandoned, dependent o neglected children,
petitions for voluntary or involuntary commitment of
children; the suspension, termination, or restoration
of parental authority and other cases cognizable
under Presidential Decree No. 603, Executive Order
No. 56, (Series of 1986), and other related laws;
g) Petitions for the constitution of the family home;
In areas where there are no Family Courts, the above-
enumerated cases shall be adjudicated by the
Regional Trial Court.
II. Venue (Rule 4)
Meaning of venue
Venue is the place, or the geographical area where an action is
to be filed and tried. In civil cases, it relates only to the place of
the suit and not to the jurisdiction of the court.
Venue is not a matter of substantive law
Venue is procedural and not substantive. In civil cases, venue is
not a matter of jurisdiction. Because it is merely procedural, the
parties can waive the venue of a case.
Dismissal based on improper venue
1. The trial court cannot motu proprio dismiss a case on
the ground of improper venue. The court may dismiss
an action motu proprio in case of lack of jurisdiction
over the subject matter, litis pendencia, res judicata
and prescription, but not for improper venue.
2. Unless and until the defendant objects to the venue
in a motion to dismiss, the venue cannot be truly said
to be improperly laid, because the venue although
technically wrong may be acceptable to the parties
for whose convenience the rules on venue have been
devised.
When court may make a motu proprio dismissal based on
improper venue
The court may, however, effect a motu proprio dismissal of the
complaint based on improper venue in an action covered by the
rules on summary procedure.
26 | P L A T O N
How venue is determined
1. If the action is personal venue is transitory hence,
the venue is the residence of the plaintiff or the
defendant at the option of the plaintiff. If the
defendant is a non-resident, the venue is the
residence of the plaintiff or where the non-resident
defendant may be found, at the election of the
plaintiff.
Improper venue is not jurisdictional
1. If the facts of the problem show that the venue is
improper, it would not be correct to file a motion to
dismiss anchored on lack of jurisdiction because
venue has nothing to do with jurisdiction in a civil
case.
2. In criminal actions venue is jurisdictional it being an
essential element of jurisdiction.

If the action is real, the venue is local hence, the Venue distinguished from jurisdiction
venue is the place where the real property involved,
or any portion thereof, is situated. However, when VENUE JURISDICTION
the defendant is a non-resident and is not found in The place where the case is to The authority to hear and
the Philippines, and the action affects the personal be heard or tried determine a case
status of the plaintiff, or any property of the A matter of procedural law Substantive
defendant located in the Philippines, the venue is the Establishes a relation Establishes a relation
residence of the plaintiff or where the property or between plaintiff and between the court and the
any portion thereof is situated. defendant, or petitioner and subject matter
respondent
2. Actions for damages and actions to collect a sum of May be conferred by the act Fixed by law and cannot be
money must be filed in either the residence of the or agreement of the parties conferred by agreement of
plaintiff or the residence of the defendant at the the parties
election of the plaintiff. Such actions are personal Not a ground for a motu A ground for a motu proprio
actions. proprio dismissal (except in dismissal
cases subject to summary
3. Actions to recover ownership of real property are real procedure (Sec. 4)
actions and must be filed in the place where the real
property is located. Actions for unlawful detainer, III. Parties
forcible entry and accion publiciana are real actions
and must be likewise filed in the place where the
Parties to a civil action
subject property is situated.
1. There are two main categories of parties to a civil
action namely, the plaintiff and the defendant.
Stipulations on venue
2. The plaintiff is the claiming party; the original
1. The parties may agree on specific venue which could
claiming party and is the one who files the complaint.
be in a place where neither of them resides. The
It also applies to a defendant who files a
parties may stipulate on the venue as long as the
counterclaim, a cross-claim or a third party complaint.
agreement is (a) in writing, (b) made before the filing
3. The defendant is the original defending party. It
of the action, and (3) exclusive as to the venue.
refers also to a defendant in a counterclaim, the
2. A stipulation that any suit arising from this contract
cross-defendant, or the third (fourth, etc.)-party-
shall be filed only in Quezon City is exclusive in
defendant.
character and is clear enough to preclude the filing of
the case in any other place.
Who may be parties
3. It must be reiterated and made clear that under
1. Natural persons,
Section 4(b) of Rule 4 of Rules of Court, the general
2. Juridical persons, and
rules on venue of actions shall not apply where the
3. Entities authorized by law.
parties, before the filing of the action, have validly
agreed in writing on an exclusive venue.
Juridical persons as parties (Art. 44, CC)
4. The settled rule on stipulations regarding venue, is
1. The State and its political subdivisions;
that while they are considered valid and enforceable,
2. Other corporations, institutions and entities for public
venue stipulations in a contract do not, as a rule,
interest or purpose, created by law; and
supersede the general rule set forth in Rule 4 of the
3. Corporations, partnerships and associations for
Revised Rules of Court in the absence of qualifying or
private interest or purpose to which the law grants a
restrictive words.
juridical personality, separate and distinct from that
of each shareholder, partner or member.
Denial of a motion to dismiss based on improper venue; no
appeal
Entities authorized by law to be parties
An order denying a motion to dismiss is merely interlocutory. It
One need not be a natural or a juridical person to be a party to
is not final. Only final orders or judgments may be appealed
a civil action. As long as an entity is authorized by law to be a
from. The normal remedy is to file an answer and interpose the
party, such entity may sue or be sued or both.
ground as an affirmative defense, go to trial and appeal from
the adverse judgment. However, if the denial is tainted with
E.g.: The estate of a deceased person may be a party to an
grave abuse of discretion amounting to lack of jurisdiction, the
action.
remedy is certiorari and prohibition.

27 | P L A T O N
Entity without a juridical personality as a defendant (See Sec.
15)
Remedy when a party impleaded is not authorized to be a
party
1. Where the plaintiff is not a natural or a juridical
person or an entity authorized by law, a motion to
dismiss may be filed on the ground that the plaintiff
has no legal capacity to sue.
2. Where it is the defendant who is not any of the
above, the complaint may be dismiss on the ground
that the pleading asserting the claim states no cause
of action or failure to state a cause of action,
because there cannot be a cause of action against
one who cannot be a party to a civil action.
Averment of capacity to sue or be sued
Fact showing the capacity of a party to sue or be sued or the
authority of a party to sue or be sued in a representative
capacity or the legal existence of an organized association of
persons that is made a party must be averred.
A minor or an incompetent as a party
A minor or an incompetent, may sue or be sued. He can be a
party but with the assistance of his father, mother, guardian, or
if he has none, a guardian ad litem.
Real party in interest
1. A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit.
2. The interest must be real, which is a present
substantial interest as distinguished from a mere
expectancy or a future, contingent subordinate or
consequential interest.
3. The determination of who the real party-in-interest
requires going back to the elements of a cause of
action.
Prosecution/defense of an action in the name of the real party
in interest
1. Every action must be prosecuted and defended in the
name of the real party-in-interest.
2. Impleading the beneficiary as a party is mandatory
since said beneficiary is deemed to be the real party-
in-interest.
3. If the action is prosecuted in the name of one who is
not the real party-in-interest, the ground for dismissal
should be that the complaint states no cause of
action of fails to state a cause of action.
Failure to include the name of a party in the pleading
The mere failure to include the name of a party in the title of
the complaint is not fatal because the Rules of Court requires
the courts to pierce the form and go into the substance and not
to be misled by a false or wrong name in the pleadings. The
averments are controlling and not the title.
Rule on standing as distinguished from the concept of real
party-in-interest
1. Locus standi is defined as a right of appearance in a
court of justice on a given question.
2. The question as to who the real party-in-interest
involves only a question on whether a person would
be benefited or injured by the judgment or whether
or not he is entitled to the avails of the suit.
Indispensable parties
1. An indispensable party is a real party-in-interest
without whom no final determination can be had of
an action.
2. An indispensable party is a party who has such an
interest in the controversy or subject matter that a
final adjudication cannot be made, in his absence,
without injuring or affecting that interest, a party
who has not only an interest in the subject matter if
the controversy, but also has an interest of such
nature that a final decree cannot be made without
affecting his interest or leaving the controversy in
such a condition that its final determination may be
wholly inconsistent with equity and good conscience.
When an indispensable party is not before the court,
the action should be dismissed.
The joinder of indispensable parties is mandatory.
3. A person is not an indispensable party, however, if his
interest in the controversy or subject matter is
separable from the interest of the other parties, so
that it will not necessarily be directly or injuriously
affected by a decree which does complete justice
between them; if his presence would merely permit
complete relief; or if he has no interest in the subject
matter of the action.
Compulsory joinder of indispensable parties
1. Although normally, a joinder of parties is permissive,
the joinder of a party becomes compulsory when the
one involved is an indispensable party.
2. The presence of all indispensable parties is a
condition sine qua non for the exercise of judicial
power.
Dismissal for failure to implead an indispensable party
1. The absence of indispensable parties renders all
subsequent actions of the trial court null and void for
want o f authority to act, not only as to the absent
parties but even as to those present.
2. An outright dismissal is not the immediate remedy
authorized by the Rules because under the Rules a
non-joinder (or misjoinder) of parties is not a ground
form dismissal of an action.
Necessary parties
A necessary party is not indispensable to the action. A final
determination of the case can be had among the parties
already impleaded where a necessary party for some justifiable
reason, is not joined. But a necessary party ought to be joined
as a party if complete relief is to be accorded as to those
already parties.
28 | P L A T O N
Distinction between an indispensable and a necessary party
INDISPENSABLE PARTY NECESSARY PARTY
Must be joined under any and Should be joined whenever
all conditions possible
Effect of justified failure to implead a necessary party
The non-inclusion of a necessary party does not prevent the
court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights of
such necessary party.
Duty of pleader when a necessary party is not joined
If a pleader has no intent to implead a necessary party, the
pleader is under obligation to: (a) set forth the name of said
necessary party, if known, and (b) state the reason why the
necessary party is omitted. A reason justifying the non-joinder
of a necessary party is when said party is outside the
jurisdiction of the court.
When court may order joinder of a necessary party
If the reason given for the non-joinder of the necessary party is
found by the court to be unmeritorious, it may order the
pleader to join the omitted party if jurisdiction over his person
may be obtained.
Effect of failure to comply with the order of the court
The failure to comply with the order of the court to include a
necessary party, without justifiable cause, shall be deemed a
waiver of the claim against such party
Unwilling co-plaintiff
An unwilling co-plaintiff is a party who is supposed to be a
plaintiff but whose consent to be joined as a plaintiff cannot be
obtained as when he refuses to be a party to the action. Under
Sec. 10 of Rule 3, said unwilling co-plaintiff (a) may be made a
defendant, and (b) the reason therefor shall be stated in the
complaint.
Alternative defendants
Where the plaintiff cannot definitely identify who among two
or more persons should be impleaded as a defendant, ha may
join all of them as defendants in the alternative. Under Sec. 13
of Rule 3, where the plaintiff is uncertain against who of
several persons he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a right to relief
against one may be inconsistent with a right of relief against
the other.
Misjoinder and non-joinder of parties
1. A party is misjoined when he is made a party to the
action although he should not be impleaded. A party
is not joined when he is supposed to be joined but it
is not impleaded in the action.
2. Under the Rules neither misjoinder nor non-joinder of
parties is a ground for the dismissal of an action.
Parties may be dropped or added by order of the
court on motion of any party or on its own initiative
at any stage of the action and on such terms as are
just.
3. The failure to obey the order of the court to drop or
add a party is a ground for the dismissal of the
complaint under Sec. 3, Rule 17 of the Rules of Court
4. What the rule contemplates is erroneous or mistaken
non-joinder and misjoinder of parties.
Unknown defendant
Whenever the identity or name of the defendant is unknown,
he may be sued as the unknown owner heir, devisee, or by such
other designation as the case may require; when his identity or
true name is discovered, the pleading must be amended
accordingly.
Effect of death of a party on the attorney-client relationship
It divests a counsel of his authority to represent his client;
neither does he become the counsel of the heirs of the
deceased unless his services are engaged by said heirs.
Duty of counsel upon the death of his client
Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to
inform the court within thirty (30) days after such death. The
counsel has also the obligation to give the name and address of
his legal representative or representatives. This duty is
mandatory and Failure of counsel to comply with this duty is a
ground for disciplinary action.
Action of court upon notice of death; effect of death on the
case
1. Upon the receipt of the notice of death, the court
shall forthwith order said legal representative or
representatives to appear and be substituted within a
period of thirty (30) days from notice.
2. Where the deceased has no heirs, the court shall
require the appointment of an executor or
administrator.
3. It is possible that the court may order the opposing
party to procure the appointment of an executor or
administrator for the estate of the deceased. This
may happen in any of the three situations: (a) the
counsel for the deceased does not name a legal
representative, or (b) there is a representative named
but he fails to appear within the specified period.
When there is no need to procure an executor or
administrator
Under the second paragraph of Sec. 16 of Rule 3, The heirs of
the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator
No requirement for service of summons
1. Service of summons is not required to effect a
substitution.
2. It is not the amendment of the pleading, but the
order of substitution and its service that effects the
substitution of the deceased by his representative or
heir.
29 | P L A T O N
Purpose and importance of substitution of the deceased
1. The protection of the right of every party to due
process.
2. Non-compliance with the rules on substitution of a
deceased party renders the proceedings of the trial
court infirm because the court acquired no
jurisdiction over the person of the legal
representative of heirs of the deceased because no
man should be affected by a proceeding to which he
is a stranger.
3. Formal substitution is however, not necessary when
the heirs themselves voluntarily appeared in the
action, participated therein and presented evidence
in defense of deceased defendant.
Examples of action which survived the death of a party
1. Actions and obligations arising from delicts survive.
2. Actions based on the tortuous conduct of the
defendant survive the death of the latter.
3. Actions to recover real and personal property, actions
to enforce a lien thereon, and actions to recover
damages for an injury to person or property and suits
based on the alleged tortuous acts of the defendant
survive.
Note: If the action does not survive (like the purely personal
actions of support, annulment of marriage and legal
separation), the court shall simply dismiss the case.
Actions for the recovery of money on contractual claims
When the action is for recovery of money arising from contract
and the defendant dies before entry of final judgment, the
court shall not dismiss the suit. It shall continue and his legal
representative or legal heir shall substitute the deceased. If the
plaintiff obtains a favorable judgment, said judgment shall be
enforced as a money claim against the estate of the deceased.
Incompetency or incapacity of a party during the pendency of
the action
In case a party becomes incompetent or incapacitated during
the pendency of the action, the court, upon motion, may allow
the action to be continued by or against the incompetent or
incapacitated party with the assistance of his legal guardian or
guardian ad litem.
Transfer of interest
In case of any transfer of interest, the action may be continued
by or against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party.
Indigent parties
1. One who has no money or property sufficient and
available for food, shelter and basic necessities.
2. Includes an exemption from the payment of docket
fees, and of transcripts of stenographic notes.
However, the amount of the docket and other lawful
fees, which the indigent was exempt from paying,
shall be lien on the judgment.
Role of the Solicitor General
1. Only the Solicitor General can bring and defend
actions on behalf of the Republic of the Philippines
and that actions filed in the name of the Republic or
its agencies and instrumentalities, if not initiated by
the Solicitor General will be summarily dismissed.
2. In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules
or regulations, the court, in its discretion, may require
the appearance of the Solicitor General who may be
heard in person or through a representative duly
designated by him.
3. In criminal actions brought before the Court of
Appeals or the Supreme Court, the authority to
represent the State is solely vested in the Solicitor
General.
4. See also Sec. 5 of Rule 110 of the Revised Rules on
Criminal Procedure
Suit by or against spouses
Husband and wife shall sue or be sued jointly except as
provided by law (e.g.: Exclusive property of a spouse).
Class suit; requisites
1. A class suit is an action where one or more may sue
for the benefit of all if the requisites for said action
are complied with.
2. Whether the suit is or is not a class suit depends upon
the attendant facts.
3. Requisites:
a. The subject matter of the controversy must
be of common or general interest to many
persons;
b. The person are so numerous that it is
impracticable to join all as parties;
c. The parties actually before the court are
sufficiently numerous and representatives
as to fully protect the interests of all
concerned; and
d. The representatives sue or defend for the
benefit of all.
Commonality of interest in the subject matter
A class suit does not require a commonality of interest in the
questions involved in the suit. What is required by the Rules us
a common or general interest in the subject matter of the
litigation. The subject matter of the action is meant the
physical, the things real or personal, the money, lands, chattels,
and the like, in relation to the suit which is prosecuted and not
the delict or wrong committed by the defendant.
No Class suit when interests are conflicting
When the interests of the parties in the subject matter are
conflicting, a class suit will not prosper. Hence, an action
brought by 17 residents of a town with a population of 2,460
persons to recover possession of a holy image was held not to
qualify as a class suit because the plaintiffs did not represent
membership of the churches they purport to represent and
that the interests of the plaintiffs conflict with those of the
other inhabitants who were opposed to the recovery. (Ibanes
vs. Roman Catholic Church, 12 Phil 227)
30 | P L A T O N
No Class suit by a corporation, to recover property of its
members
A non-stock corporation may not institute in behalf of its
individual members for the recovery of certain parcels of land
allegedly owned by its members and for the nullification of the
transfer of certificates of title issued in favor of defendants. The
corporation being an entity separate and distinct from its
members has no interest in the individual property of its
members unless transferred to the corporation. Absent any
showing of interests, a corporation has no personality to bring
an action for the purpose of recovering property, which belongs
to the members in their personal capacities. Moreover, a class
suit does not lie in actions for the recovery of property where
several persons claim Partnership of their respective portions of
the property, as each one could alleged and prove his
respective right in a different way for each portion of the land,
so that they cannot all be held to have Identical title through
acquisition prescription (Sulo ng Bayan vs. Araneta)
No Class suit to recover real property individually held
A class suit would not lie where each of the parties has an
interest only in the particular portion of the land he is
occupying and not in the portions individually occupied by the
other defendants. (Ortigas & Company Limited Partnership vs.
Ruiz, 148 SCRA 326)
No Class suit to recover damages for personal reputation
There is no class suit in an action filed by associations of sugar
planters to recover damages in behalf of individual sugar
planters for an allegedly libelous article in an international
magazine. There is no common interest or general interest in
reputation of a specific individual. Each of the sugar planters
has a separate and distinct reputation in the community and
not shared by the others. (Newsweek Inc vs. IAC, 142 SCRA 171)
Common or general interest in the environment and natural
resources
There is a class suit in an action filed by minors represented by
their parents, in behalf of themselves and others who are
equally concerned about the preservation of the countrys
resources, their generation as well as generations yet unborn,
in a suit filed to compel the Secretary of the DENR to 1) cancel
all existing timber license agreements in the country; and 2)
cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements. (Oposa
vs. Factoran, 224 SCRA 792)
Chapter IV Filing, Amendment and Dismissal by the
Plaintiff
A. Filing of the Complaint (Rules 1 & 13)
Meaning of filing
The filing of the complaint is the act of presenting the said
complaint to the clerk of court (Rule 13, ROC). For the purpose
of filing, the original must be presented personally to the clerk
of court or by sending the same by registered mail. (Rule 13,
Rules of Court)
Significance of Filing of the Complaint
The filing of the complaint signifies the commencement of the
civil action. By the filing of the complaint, the court also
acquires jurisdiction over the person of the plaintiff. Submission
to the jurisdiction of the court is implied from the very filing of
the complaint where affirmative relief is prayed for by the
plaintiff. It also has the effect of tolling the running of the
period of prescription pursuant to Art. 1155 of the Civil Code of
the Philippines.
Payment of Docket Fees and Acquisition of Jurisdiction
1. It is not simply the filing of the complaint or appropriate
initiatory pleading but the payment of the prescribed
docket fee, that vests a trial court with jurisdiction over
the subject matter or nature of the action (Proton
Philippines Corporation vs. Banque National de Paris, 460
SCRA 260)
2. The rule on payment of docket fee has, in some instances,
been made subject to the rule on liberal interpretation.
Thus, in a case, it was held that while the payment of the
required docket fee is a jurisdictional requirement, even
its non-payment at the time of filing does not
automatically cause the dismissal of the case, as long as
the fee is paid within the applicable prescriptive or
reglementary period. Also , if the amount of docket fees is
insufficient considering the amount of the claim, the party
filing the case will be required to pay the deficiency, but
jurisdiction is not automatically lost.
Payment of Docket Fees for Cases on Appeal
1. The Rules of Civil Procedure, now requires that appellate
docket and other lawful fees must be paid within the same
period for taking an appeal.
2. The Supreme Court has consistently held that payment of
the docket fee within the prescribed period is mandatory
for the perfection of an appeal. Without such payment,
the appellate court does not acquire jurisdiction over the
subject matter of the action and the decision sought to be
appealed from becomes final and executory. Hence, non-
payment is a valid ground for the dismissal of an appeal.
However, delay in the payment of the docket fees confers
upon the court a discretionary, not a mandatory power to
dismiss an appeal.
B. Amendment of Complaint (Rule 10)
Amendment as a matter of right
1. A plaintiff has the right to amend his complaint once
at any time before a responsive pleading is served by
the other party or in case of a reply there is no
responsive pleading, at any time within ten (10) days
after it is served. Note: Sec. 2 refers to an
amendment made before the trial court, not to
amendments before the Court of Appeals.
2. The subsequent amendment must be with leave of
court.
3. Before the service of a responsive pleading, a party
has the absolute right to amend his pleading,
regardless of whether a new cause of action or
change in theory is introduced.
Applicability of mandamus
The trial courts duty to admit an amended complaint made as
a matter of right is purely ministerial.
31 | P L A T O N

A motion to dismiss is not a responsive pleading
1. Such a motion is not a responsive pleading and its
filing does not preclude the exercise of the plaintiffs
right to amend his complaint.
2. Even if the motion to dismiss is granted by the court,
the plaintiff may still amend his complaint as a matter
of right before the dismissal becomes final as long as
no answer has yet been served.
Amendment by leave of court
1. Leave of court is required for an amendment made
after service of a responsive pleading.
2. After a responsive pleading is filed, an amendment to
the complaint may be substantial and will
correspondingly require a substantial alteration in the
defenses of the adverse party.
3. The clear import of Sec. 3 of Rule 10 is that under the
1997 Rules, an amendment may now be allowed by
the court even if it substantially alters the cause of
action or defense.
Amendment to cure a failure to state a cause of action
Section 5 of Rule 10 likewise applies to situations wherein
evidence not within the issues raised in the pleadings is
presented by the parties during the trial and was not objected
to. The provision also covers situations where, to conform to
evidence not objected to by the adverse party, the pleadings
are sought to be amended on motion of a party.
Amendment where no cause of action exists
Amendments of pleadings are allowed under Rule 10 of the 1997 Rules
of Civil Procedure in order that the actual merits of a case may be
determined in the most expeditious and inexpensive manner without
regard to technicalities, and that all other matters included in the case
may be determined in a single proceeding, thereby avoiding multiplicity
of suits. Section 5 thereof applies to situations wherein evidence not
within the issues raised in the pleadings is presented by the parties
during the trial, and to conform to such evidence the pleadings are
subsequently amended on motion of a party. Thus, a complaint which
fails to state a cause of action may be cured by evidence presented
during the trial.
However, the curing effect under Section 5 is applicable only if a cause
of action in fact exists at the time the complaint is filed, but the
complaint is defective for failure to allege the essential facts. For
example, if a complaint failed to allege the fulfillment of a condition
precedent upon which the cause of action depends, evidence showing
that such condition had already been fulfilled when the complaint was
filed may be presented during the trial, and the complaint may
accordingly be amended thereafter.
It thus follows that a complaint whose cause of action has not yet
accrued cannot be cured or remedied by an amended or supplemental
pleading alleging the existence or accrual of a cause of action while the
case is pending. Such an action is prematurely brought and is,
therefore, a groundless suit, which should be dismissed by the court
upon proper motion seasonably filed by the defendant. The underlying
reason for this rule is that a person should not be summoned before
the public tribunals to answer for complaints which are immature.
Amendment to correct a jurisdictional defect before a
responsive pleading is served
The argument that the court cannot allow such type of
amendment since the court must first possess jurisdiction over
the subject matter of the complaint before it can act on any
amendment has no application upon an amendment that is
made as a matter of right.
Amendment to correct a jurisdictional defect after a
responsive pleading is served
An amendment of the complaint to correct a jurisdictional error
cannot be validly done after a responsive pleading is served.
The amendment this time would require leave of court, a
matter which requires the exercise of sound judicial discretion.
The exercise of this discretion requires performance of a
positive act by the court. If it grants the amendment, it would
be acting on a complaint over which it has no jurisdiction. Its
action would be one performed without jurisdiction.
The situation is vastly different from an amendment as a matter
of right. Here, the court does not act. The admission of the
amendment is a ministerial duty of the court. Since it would not
be acting in this regard, it could not be deemed as acting
without jurisdiction.
Amendment to conform to the evidence
1. In the event that a party presents evidence on a
matter not in issue, the adverse party has a reason to
object.
But when issues not raised in the pleadings are tried
with the express or implied consent of the parties,
such as when no objection is made by either, such
issues not raised shall be treated as if they had been
put in issue by the pleadings.
2. In a situation where issues not raised in the pleadings
are tried with the express or implied consent of the
parties, Sec. 5 of Rule 10 authorizes the amendment
of the pleadings to conform to the evidence upon
motion of a party at any time, even after judgment.
This is because the issues tried shall be treated in all
respects as if they had been raised in the pleadings
even if not actually previously raised in the pleadings.
If the parties fail to amend the pleadings, such failure
will not affect the trial of these issues because such
issues are deemed to have been raised in the
pleadings of the parties. This provision under the
Rules virtually authorizes an implied amendment of
the pleadings.
3. Sec. 5 of Rule 10 envisions two situations: The first is
when evidence is introduced on an issue not alleged
in the pleadings and no objection was interposed by
the other party. The second is when evidence is
offered on an issue not raised in the pleadings but an
objection was interjected. The rule in the second
scenario is that the court may nevertheless admit the
evidence where the objecting party fails to show that
the admission of the evidence would prejudice him in
his defense. The court must however, give him a
continuance to enable him to meet the new situation.
Effect of the amendment on the original pleading
An amended pleading supersedes the original one which it
amends. It has been held however, that the original complaint
is deemed superseded and abandoned by the amendatory
complaint only if the latter introduces a new or different cause
of action.
32 | P L A T O N
Effect of the amendment on admissions made in the original
pleading
Admissions made in the original pleadings cease to be judicial
admissions. They are to be considered as extrajudicial
admissions. However, admissions in superseded pleadings may
be received in evidence against the pleader and in order to be
utilized as extrajudicial admissions, they must, in order to have
such effect, be formally offered in evidence.
When summons not required after complaint is amended
1. Where the defendants have already appeared before
the trial court by virtue of a summons in the original
complaint, the amended complaint may be served
upon them without need of another summons, even
if new causes of action are alleged. Conversely, when
the defendants have not yet appeared in court, new
summons on the amended complaint must be served
on them.
2. Where a new defendant is impleaded, summons must
be served upon him so that the court may acquire
jurisdiction over his person because logically, the new
defendant cannot be deemed to have already
appeared by virtue of summons under the original
complaint in which he was not yet a party.
Supplemental pleadings
1. A supplemental pleading is one which sets forth
transactions, occurrences, or events which have
happened since the date of the pleading sought to be
superseded.
2. The filing of supplemental pleadings requires leave of
court. The court may allow the pleading only upon
such terms as are just. This leave is sought by the
filing of a motion with notice to all parties.
Cause of action in supplemental pleadings
1. When the cause of action in the supplemental
complaint is different from the cause of action
mentioned in the original complaint, the court should
not admit the supplemental complaint.
2. As its very nature denotes, a supplemental pleading
only serves to bolster or add something to the
primary pleading. A supplemental pleading exists side
by side with the original. It does not replace that
which it supplements.
Answer to a supplemental pleading; not mandatory (See Sec.
6, Rule 10 and Sec. 7, Rule 11)
C. Dismissal by the Plaintiff (Rule 17)
Dismissal by Mere Notice of Dismissal
1. Before the service of an answer or the service of a
motion for summary judgment, a complaint may be
dismissed by the plaintiff by filing a notice of
dismissal.
2. Upon the filing of the notice of dismissal, the court
shall issue an order confirming the dismissal.
3. It is not the order confirming the dismissal which
operates to dismiss the complaint. As the name of the
order implies, said order merely confirms a dismissal
already effected by the filing of the notice of
dismissal. Since the order issued by the court merely
confirms the dismissal, it follows that the court does
not have to approve the dismissal because it has no
discretion on the matter. Before an answer or a
motion for summary judgment has been served upon
the plaintiff, the dismissal by the plaintiff by the filing
of a notice is a matter of right. The dismissal occurs as
of the date the notice is filed by the plaintiff and not
the date the court issues the order confirming the
dismissal.
Dismissal without prejudice
GR: A dismissal made by the filing of a notice of dismissal is a
dismissal without prejudice, i.e., the complaint can be refiled.
XPN: The dismissal will be one with prejudice in any of the
following situations:
1. The notice of dismissal by the plaintiff provides that
the dismissal is with prejudice; or
2. The plaintiff has previously dismissed the same case
in a court of competent jurisdiction.
Two-dismissal rule
The two-dismissal rule applies when the plaintiff has (a) twice
dismissed actions, (b) based on or including the same claim, (c)
in a court of competent jurisdiction. The second notice of
dismissal will bar the refiling of the action because it will
operate as an adjudication of the claim upon the merits. In
other words, the claim may only be filed twice, the first being
the claim embodied in the original complaint. Since as a rule,
the dismissal is without prejudice, the same claim may be
refiled. If the refiled claim or complaint is dismissed again
through a second notice of dismissal, that second notice
triggers the application of the two-dismissal rule and the
dismissal is to be deemed one with prejudice because it is
considered as an adjudication upon the merits.
Dismissal by Filing a Motion to Dismiss
Once either an answer or a motion for summary judgment has
been served on the plaintiff, the dismissal is no longer a matter
of right and will require the filing of a motion to dismiss, not a
mere notice of dismissal.
The dismissal under Sec. 2 of Rule 17 is no longer a matter of
right on the part of the plaintiff but a matter of discretion upon
the court.
Effect of dismissal upon a counterclaim already pleaded (Sec.
2, Rule 17)
1. Prior to the service upon the defendant of the
plaintiffs motion to dismiss, and the court grants the
said motion to dismiss, the dismissal shall be limited
to the complaint.
2. The defendant if he so desires may prosecute his
counterclaim either in a separate action or in the
same action. Should he choose to have his
counterclaim resolved in the same action, he must
notify the court of his preference within 15 days from
notice of the plaintiffs motion to dismiss. Should he
opt to prosecute his counterclaim in a separate
action, the court should render the corresponding
order granting and reserving his right to prosecute his
claim in a separate complaint.
33 | P L A T O N
 3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3
of Rule 17, wherein the dismissal of the complaint
does not carry with it the dismissal of the
counterclaim. The same provision also grants the
defendant a choice in the prosecution of his
counterclaim.
Dismissal without prejudice (Sec. 2, Rule 17)
The dismissal authorized under Sec. 2 of Rule 17 is a dismissal
without prejudice except if the order of dismissal specifies that
it is without prejudice.
Dismissal Due to the Fault of Plaintiff
1. A complaint may be dismissed even if the plaintiff has
no desire to have the same dismissed. Sec. 3 of Rule
17 provides the following grounds for dismissal:
a. The failure of the plaintiff, without
justifiable reasons, to appear on the date of
the presentation of his evidence in chief;
b. The failure of the plaintiff to prosecute his
action for an unreasonable length of time;
c. The failure of the plaintiff to comply with
these Rules of Court; or
d. The failure of the plaintiff to obey any order
of the court.
2. The dismissal due to the fault of the plaintiff may be
done by the court on its own motion (motu proprio)
or upon a motion filed by the defendant.
Effect of dismissal on the counterclaim (Sec. 3, Rule 17)
1. Without prejudice to the right of the defendant to
prosecute his counterclaim in the same action or in a
separate action.
2. See Pinga vs. Heirs of Santiago, G.R. No. 170354, June
30, 2006.
Dismissal with prejudice (Sec. 3, Rule 17)
The dismissal shall have the effect of an adjudication on the
merits, unless otherwise declared by the court. Hence, as a
rule, it is a dismissal with prejudice.
Chapter V Summons
Nature of summons
1. The writ by which the defendant is notified of the
action brought against him.
2. The issuance of summons is not discretionary on the
part of the court or the clerk of court but is a
mandatory requirement.
Purpose of summons
1. In an action in personam, the purpose of summons is
not only to notify the defendant of the action against
him but also to acquire jurisdiction over his person.
2. In an action in rem or quasi in rem, jurisdiction over
the defendant is not mandatory and the court
acquires jurisdiction over an action as long as it
acquires jurisdiction over the res. Note: The purpose
is to satisfy the constitutional requirements of due
process.
To whom summons is directed
A writ directed to the defendant, not to the plaintiff. It shall be
signed by the clerk of court and under seal.
Who serves summons
May be served by the sheriff, his deputy, or other proper court
officer, or for justifiable reasons by any suitable person
authorized by the court issuing the summons.
Duty of server upon completion of service
1. Within 5 days, serve a copy of the return, personally
or by registered mail, to the plaintiffs counsel, and
shall return the summons to the clerk who issued it,
accompanied by proof of service.
2. After the completion of the service, a proof of service
is required to be filed by the server of the summons.
3. The proof of service of summons shall be made in
writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers
which have been served with the process and the
name of the person who received the same; and shall
be sworn to when made by a person other than a
sheriff or his deputy.
Uniformity of the rules on summons
The rules on summons apply with equal force in actions before
the Regional Trial Courts, the Municipal Trial Courts, the
Municipal Circuit Trial Courts and the Metropolitan Trial Courts.
(See Sec. 1 of Rule 5)
Contents of the summons
1. The summons shall contain the following matters:
a. The name of the court and the names of the
parties to the action;
b. A direction that the defendant answers
within the time fixed by the Rules; and
c. A notice that unless he defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
prayed for.
2. A copy of the complaint shall be attached to the
original and each copy of the summons.
Service of summons without copy of the complaint defective
Service upon an entity without a juridical personality
1. See Section 15, Rule 3
2. Service may be effected upon all the defendants by
serving summons upon (a) any one of them, or (b)
upon the person in charge of the office or of the place
of business maintained in such name.
Service upon a prisoner
Effected upon him by the officer managing the jail or institution
where said prisoner is confined. For this purpose, the jail
manager is deemed deputized as a special sheriff.
Service upon a minor and an incompetent
Service shall be made (a) upon him personally AND (b) on his
legal guardian if he has one, or if none, upon his guardian ad
litem (applied for by the plaintiff). If a minor, service may be
made also upon his father or mother.
34 | P L A T O N

Service upon a private domestic juridical entity
1. When the defendant is a corporation, partnership or
association organized under the laws of the
Philippines with a juridical personality, service may be
made on the following persons (exclusively):
a. President,
b. Managing partner
c. General manager,
d. Corporate secretary,
e. Treasurer, or
f. In-house counsel
2. A strict compliance with the mode of service is
necessary to confer jurisdiction of the court over a
corporation. The officer upon whom service is made
must be one who is named in the statute; otherwise
the service is insufficient. Purpose: to render it
reasonably certain that the corporation will receive
prompt and proper notice.
Service upon a public corporation
1. When the defendant is the Republic of the
Philippines, service may be effected on the Solicitor
General.
2. When the defendant is a province, city or
municipality, service may be effected on its executive
head, or on such other officer or officers as the law or
the court may direct.
Service upon a defendant whose identity or whereabouts are
unknown despite diligent inquiry
Service may, with prior leave of court, be effected upon the
defendant, by publication in a newspaper of general circulation.
The place and the frequency of the publication is a matter for
the court to determine.
Pursuant to this provision, summons by publication applies in
any action and the rule does not distinguish whether the action
is in personam, in rem or quasi in rem.
Service upon a resident temporarily out of the Philippines
Service may, by leave of court, be effected out of the
Philippines as under the rules on extraterritorial service in Sec.
15 of Rule 14:
a) By personal service as in Sec. 6 of Rule 14;
b) By publication in a newspaper of general circulation
together with a registered mailing of a copy of the
summons and the order of the court to the last
known address of the defendant; or
c) By any manner the court may deem sufficient.
See also substituted service under Sec. 7 of Rule 14
Service upon a foreign private juridical entity which has
transacted business in the Philippines
1. Made on (a) its resident agent designated in
accordance with law, i.e., SEC, BSP, Insurance law,
etc; or if there be no such agent, (b) on the
government official designated by law to that effect,
or (c) on any of its officers or agents within the
Philippines.
2. It has been held that when a foreign corporation has
designated a person to receive summons on its behalf
pursuant to the Corporation Code, that designation is
exclusive and service of summons on any other
person is inefficacious.
Acquisition of jurisdiction over the person of the defendant
1. Courts jurisdiction over a defendant is acquired
either upon a valid service of summons or the
defendants voluntary appearance in court.
2. Under Sec. 20 of Rule 14, the defendants voluntary
appearance in the action shall be equivalent to
service of summons.
3. Service of summons is not only a means of acquiring
jurisdiction over the person of the defendant. It is
also a means of complying with the due process
requirement of notice under the constitution.
A. Service in person on the defendant
1. Only if the suit is one strictly in personam
2. This is done by handing a copy thereof to the
defendant in person. If he refuses to receive and sign
for it, the remedy of the server is to tender the
summons to the defendant.
3. If the defendant cannot be served in person within a
reasonable time, only then may substituted service
under Sec. 7 of Rule 14 be availed of.
B. Substituted service of summons
1. It is necessary to establish the following:
a. The impossibility of service of summons on
person within a reasonable time;
b. The efforts exerted to locate the person to
be served;
c. Service upon a person of sufficient age and
discretion in the same place as the
defendant or some competent person in
charge of his office or regular place of
business.
2. Reasonable time a period of time longer than that
demarcated by the word prompt and presupposes
that a prior attempt at personal service had failed.
3. Reasonable time so much time as is necessary
under the circumstances for a reasonably prudent
and diligent man to do, conveniently, what the
contract or duty requires that should be done.
a. To the plaintiff, no more than 7 days since
an expeditious processing of the complaint
is what the party wants.
b. To the sheriff, 15 to 30 days because at the
end of the month, it is a practice for the
branch clerk to require the sheriff to submit
a return of summons assigned to the sheriff
for service.
4. A mere general claim or statement in the Sheriffs
Return that the server made several attempts to
serve the summons, without making reference to the
details of facts and circumstances surrounding such
attempts, does not comply with the rules on
substituted service. Note: Several attempts means
at least 3 tries, preferably on at least two different
dates. In addition the sheriff must cite why such
efforts were unsuccessful.
5. An ineffective substituted service has certain adverse
effects, i.e., the period to file a motion to dismiss for
lack of jurisdiction over the defendants person does
35 | P L A T O N
 not commence to run; the trial court does not acquire
jurisdiction over the person of the defendant.
How substituted service is made
1. Under Sec. 7 of Rule 14:
a. Leaving copies of the summons at the
defendants residence with a person of
suitable age and discretion residing therein,
or
b. Leaving copies of the summons at the
defendants office or regular place of
business with some competent person in
charge thereof.
2. A person of suitable age and discretion is one who
has attained the full age of full legal capacity (18
years old) and is considered to have enough
discernment to understand the importance of
summons. Note: Discernment is defined as the ability
to make decisions which represent a responsible
choice and for which an understanding of what is
lawful, right or wise may be presupposed. Relation
of confidence
3. A competent person in charge of the office or regular
place of business must be the one managing the
office or business of defendant, such as the president
or manager; and such individual must have sufficient
knowledge to understand the obligation of the
defendant in the summons, its importance, and the
prejudicial effects arising from inaction on the
summons.
4. Where the substituted service has been validly
served, its validity is not affected by the defendants
failure to actually receive the summons from the
person with whom the summons had been left.
When Defendant Prevents Service of Summons
In the case of Robinson vs. Miralles (510 SCRA 678), the plaintiff
files a collection for a sum of money, and the summons cannot
be served on the defendant by the Sheriff due to the fact that
the defendant instructed the security guard not to allow
anyone to proceed to her house when she is not around and
the security guard refused to let the Sheriff go inside the
subdivision despite all the explanation. The Sheriff therefore,
left a copy of the complaint to the security guard so he will be
the one to give the same to the defendant.
A judgment by default was rendered in favor of the respondent.
However, the defendant filed a petition for relief of judgment
claiming that summons was improperly served.
Declare the Supreme Court:
We have ruled that the statutory requirements of substituted
service must be followed strictly, faithfully, and fully and any
substituted service other than that authorized by the Rules is
considered ineffective. However, we frown upon an overly
strict application of the Rules. It is the spirit, rather than the
letter of the procedural rules, that governs.
In his Return, Sheriff Potente declared that he was refused
entry by the security guard in Alabang Hills twice. The latter
informed him that petitioner prohibits him from allowing
anybody to proceed to her residence whenever she is out.
Obviously, it was impossible for the sheriff to effect personal or
substituted service of summons upon petitioner. We note that
she failed to controvert the sheriffs declaration. Nor did she
deny having received the summons through the security guard.
Considering her strict instruction to the security guard, she
must bear its consequences. Thus, we agree with the trial court
that summons has been properly served upon petitioner and
that it has acquired jurisdiction over her.
C. Summons by publication
1. This service always requires permission of the court.
2. As a rule, summons by publication is available only in
actions in rem or quasi in rem. It is not available as a
means of acquiring jurisdiction over the person of the
defendant in an action in personam.
3. Against a resident: service in person (Sec. 6 of Rule
14); if defendant cannot be served within a
reasonable time, substituted service will apply (Sec. 7
of Rule 14) but not summons by publication. XPN:
a. where the identity or whereabouts of the
defendant are unknown (Sec. 14 of Rule
14); and
b. when the defendant is a resident
temporarily out of the Philippines (Sec. 16
of Rule 14).
4. Against a nonresident: service upon his person while
within the Philippines. Summons by publication
against a nonresident in an action in personam is not
proper mode of service.
5. Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any
sort against the right sought to be established.
6. Proof of service is done through the following:
a. Affidavit of the printer, his foreman or
principal clerk, business or advertising
manager, to which affidavit a copy of the
publication shall be attached; and
b. Affidavit showing the deposit of a copy of
the summons and order for publication in
the post office.
Extraterritorial service of summons
1. Requisites under Sec. 15 of Rule 14:
a. the defendant is a nonresident;
b. he is not found in the Philippines; and
c. the action against him is either in rem or
quasi in rem. XPN: Sec. 16 of Rule 14
(Residents temporarily out of the
Philippines)
2. Actions in rem or quasi in rem:
a. Actions that affect the personal status of
the plaintiff;
b. Actions which relate to, or the subject
matter of which is property within the
Philippines, in which the defendant claims a
lien or interest, actual or contingent;
c. Actions in which the relief demanded
consists, wholly or in part, in excluding the
defendant from an interest in property
located in the Philippines; and
d. When the defendants property has been
attached in the Philippines.
36 | P L A T O N
Modes of extraterritorial service
1. The following are alternative modes of extraterritorial
service, all of which require a prior leave of court:
a. By personal service as provided for in Sec. 6
of Rule 14 governing service in person on
defendant;
b. By publication in a newspaper of general
circulation in such places and for such time
as the court may order, in which case a
copy of the summons and the order of the
court shall be sent by registered mail to the
last known address of the defendant; or
c. In any manner the court may deem
sufficient.
2. Compliance with due process is actually the
underlying purpose of all modes of extraterritorial
service.
Summons when complaint is amended
Q: Should another summons be served upon the defendant if
the complaint is amended?
A: It depends on whether or not the defendant has appeared
before the trial court by virtue of a summons on the original
complaint. It is not the change in the cause of action that gives
rise to the need to serve another summons for the amended
complaint, but rather the acquisition of jurisdiction over the
person of the defendant.
Chapter VI Proceedings After Service of Summons
Preliminary Statements
There are three options available to the defendant upon receipt
of the complaint, to wit:
a) Filing of a motion for a bill of particulars;
b) Filing of a motion to dismiss; or
c) Filing of an answer to the complaint.
A. Motion for Bill of Particulars
1. If there are matters in the complaint which are vague
or ambiguous or not averred with sufficient
definiteness, one may file a motion for bill of
particulars.
2. As long as the allegations of a complaint make out a
cause of action, the ambiguity in some allegations of
the complaint or the failure to allege facts with
sufficient particularity does not justify the filing of a
motion to dismiss. The proper remedy is to file a
motion for bill of particulars.
3. It must be made clear that a motion for bill of
particulars is not directed only to a complaint. It is a
motion that applies to any pleading which in the
perception of the movant contains ambiguous
allegations.
When to file the motion
1. To be filed before, not after responding to a pleading.
When directed to a complaint, within 15 days after
the service of summons. When directed to a
counterclaim, within 10 days from service of the
counterclaim. (Sec. 4 of Rule 11)
2. In case of a reply to which no responsive pleading is
provided for by the Rules, the motion must be filed
within 10 days of the service of said reply.
Purpose of the motion
1. To seek an order from the court directing the pleader
to submit a bill of particulars which avers matters
with sufficient definiteness or particularity to
enable the movant to prepare his responsive
pleading, not to enable the movant to prepare for
trial (appropriate remedy: discovery procedures
under Rule 23 to 29 or pre-trial under Rule 18).
2. To clarify the allegations in the pleading so an adverse
party may be informed with certainty of the exact
character of a cause of action or a defense.
3. See also Sec. 1, 5 and 6 of Rule 8 when such motion is
not proper.
Requirements for the motion
Aside from the requirements for a motion as set forth in Rule
15, the motion shall point out the (a) defects complained of, (b)
the paragraph wherein they are contained, and (c) the details
desired.
Action of the court
1. Three possible actions: (a) to deny the motion
outright, (b) to grant the motion outright, or (c) to
hold a hearing on the motion.
2. If the motion for bill of particulars is granted, the
court shall order the pleader to submit a bill of
particulars to the pleading to which the motion is
directed. The compliance shall be effected within 10
days from notice of the order, or within the period
fixed by the court.
3. In complying with the order, the pleader may file the
bill of particulars either in a separate pleading or in
the form of an amended pleading.
4. The bill of particulars submitted becomes part of the
pleading for which it is intended.
Effect of non-compliance with the order of the court or
insufficient compliance
The court has the following options: (a) to order the striking out
of the pleading, (b) to order the striking out of the portions of
the pleading to which the order was directed, or (c) to make
such other order it may deem just.
When the movant shall file his responsive pleading
1. A motion for bill of particulars is not a pleading,
hence, not a responsive pleading. Whether or not his
motion is granted, the movant may file his responsive
pleading. When he files a motion for bill of
particulars, the period to file the responsive pleading
is stayed or interrupted. After service of the bill of
particulars upon him or after notice of the denial of
his motion, he may file his responsive pleading within
the period to which he is entitled to at the time the
motion for bill of particulars is filed.
2. F the movant has less than 5 days to file his
responsive pleading after service of the bill of
particulars or after notice of the denial of his motion,
he nevertheless has 5 days within which to file his
responsive pleading.
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B. Motion to Dismiss
Effective August 26, 2004, within one day from receipt of the
complaint, summons shall contain a reminder to the defendant
to observe restraint in filing a motion to dismiss and instead
allege the grounds thereof as defenses in the answer.
A motion to dismiss is not a pleading
It is merely a motion. Under the Rules, a motion is an
application for relief other than by a pleading. The pleadings
allowed under the Rules are:
a) Complaint,
b) Answer,
c) Counterclaim,
d) Cross-claim,
e) Third (fourthetc.) party complaint,
f) Complaint in intervention, and
g) Reply
Hypothetical admissions of a motion to dismiss
A motion to dismiss hypothetically admits the truth of the
factual allegations of the complaint. The admission extends
only to such matters of fact that have been sufficiently pleaded
and not to mere epithets charging fraud, allegations of legal
conclusions or erroneous statements of law, inferences from
facts not stated, matters of evidence or irrelevant matters.
Omnibus motion
1. When a motion to dismiss is filed, all grounds
available at the time the motion is filed must be
invoked in the motion. Grounds not so invoked are
deemed waived. The grounds not waived however,
are lack of jurisdiction over the subject matter, litis
pendencia, res judicata and prescription (Sec.1, Rule
9).
2. The above rule applies only when a motion to dismiss
is filed. Where no motion to dismiss is filed, the
grounds for a motion to dismiss may be availed of as
affirmative defenses in the answer. No defense is
waived because no motion to dismiss was filed.
Contents and form of the motion
1. The motion to dismiss shall state the relief sought and
the grounds upon which it is based and shall be
accompanied by supporting affidavits and papers.
2. The motion shall be set for hearing by the applicant
and shall contain a notice of hearing addressed to all
parties concerned. Such notice shall specify the time
and date of the hearing which must not be later than
ten (10) days after the filing of the motion.
3. The notice requirement in a motion is mandatory and
its absence renders the motion defective. As a rule, a
motion without a notice of hearing is considered pro
forma and does not affect the reglementary period
for the filing of the requisite pleading.
Time to file the motion
1. Within the time for filing the answer but before filing
said answer, a motion to dismiss may be filed on any
of the grounds mentioned in Rule 16.
2. A motion to dismiss that is filed after the answer has
been filed is considered filed out of time and the
defending party is stopped from filing the motion to
dismiss. This is only a general rule.
3. XPN: Section 1 of Rule 9.
Grounds for motion to dismiss
1. That the court has no jurisdiction over the person of
the defending party;
2. That the court has no jurisdiction over the subject
matter of the claim;
3. That venue is improperly laid;
4. That the plaintiff has no legal capacity to sue;
5. That there is another action pending between the
same parties for the same cause;
6. That the cause of action is barred by a prior judgment
or by the statute of limitations;
7. That the pleading asserting the claim states no cause
of action;
Curable by amendment
8. That the claim or demand set forth in the plaintiff's
pleading has been paid, waived, abandoned, or
otherwise extinguished;
9. That the claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds; and
10. That a condition precedent for filing the claim has not
been complied with.
Not jurisdictional in nature, hence, deemed
waived if not raised.
Laches as a ground for a motion to dismiss under Rule 16
The language of the rule, particularly on the relation of the words
"abandoned" and "otherwise extinguished" to the phrase "claim or
demand deemed set forth in the plaintiffs pleading" is broad enough to
include within its ambit the defense of bar by laches. However, when a
party moves for the dismissal of the complaint based on laches, the trial
court must set a hearing on the motion where the parties shall submit
not only their arguments on the questions of law but also their
evidence on the questions of fact involved. Thus, being factual in
nature, the elements of laches must be proved or disproved through
the presentation of evidence by the parties.
Res judicata as a ground for a motion to dismiss
1. Based on two grounds, namely: (1) public policy and
necessity, which makes it to the interest of the State
that there should be an end to litigationrepublicae
ut sit litium; and (2) the hardship on the individual of
being vexed twice for the same causenemo debet
bis vexari et eadem causa.
2. Accordingly, courts will simply refuse to reopen what
has been decided.
Concept of res judicata
1. Comprehends two distinct concepts: (1) bar by prior
judgment, and (2) conclusiveness of judgment.
2. The first concept bars the prosecution of a second
action upon the same claim, demand or cause of
action.
The second conceptconclusiveness of judgment
states that a fact or question which was in issue in a
former suit and was there judicially passed upon and
determined by a court of competent jurisdiction, is
conclusively settled by the judgment therein as far as
the parties to that action and persons in privity with
them are concerned and cannot be again litigated in
38 | P L A T O N
 any future action between such parties or their
privies, in the same court or any other court of
concurrent jurisdiction on either the same or
different cause of action, while the judgment remains
unreversed by proper authority.
Elements of res judicata
1. The former judgment must be final;
2. The court which rendered it had jurisdiction over the
subject matter and the parties;
3. The judgment must be on the merits; and
4. There must be between the first and the second
actions, identity of parties, subject matter and causes
of action.
Note: The application of the doctrine does not require absolute
identity of parties but merely substantial identity of parties
(when there is community of interest or privity of interest
between a party in the first and a party in the second case even
if the first case did not implead the latter).
Application of res judicata to quasi-judicial proceedings
It has been held that the rule of res judicata which forbids the
reopening of a matter once judicially determined by competent
authority applies as well to the judicial and quasi-judicial acts of
public, executive or administrative officers and boards acting
within their jurisdiction as to the judgments of courts having
general judicial powers. The Director of Lands is a quasi-judicial
officer. As such officer, his decisions and orders rendered
pursuant to his quasi-judicial authority, have upon their finality,
the force and binding effect of a final judgment within the
purview of the doctrine of res judicata. (Wenceslao Tabia vs.
Court of Appeals)
No res judicata in criminal proceedings
Res judicata is a doctrine of civil law and thus has no bearing on
criminal proceedings. Hence, the argument that the dismissal of
a case during preliminary investigation bars a further
reinvestigation because of the doctrine of res judicata is
untenable. Even if the argument were to be expanded to
contemplate res judicata in prison grey or the criminal law
concept of double jeopardy, reinvestigation cannot be barred
by reason of double jeopardy. The dismissal of a case during
preliminary investigation does not constitute double jeopardy,
preliminary investigation not being part of the trial. (Trinidad
vs. Office of the Ombudsman)
Pleading grounds as affirmative defenses
1. If no motion to dismiss has been filed, any of the
grounds provided for dismissal under this Rule may
be pleaded as an affirmative defense in the answer
and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss
has been filed.
2. Implied under Sec. 6 of Rule 16 is the rule that the
grounds for a motion to dismiss are not waived even
if the defendant fails to file a motion to dismiss
because he may still avail of the defenses under Rule
16 as affirmative defenses in his answer.
3. As a rule, a preliminary hearing is not authorized
when a motion to dismiss has been filed. XPN: If the
trial court had not categorically resolved the motion
to dismiss or when it is evident that the action is
barred by res judicata.
4. May a ground previously inoked in a denied motion
to dismiss be invoked anew? Yes.
Remedy of the defendant if the motion is denied
1. The movant shall file his answer within the balance of
the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less
than five (5) days in any event. The order of denial,
being interlocutory is not appealable by express
provision of Sec. 1 (b), Rule 41.
2. The remedy would therefore be certiorari, prohibition
or mandamus under Rule 65. This remedy however, is
predicated upon an allegation and a showing that the
denial of the motion was tainted with grave abuse of
discretion amounting to lack of jurisdiction where the
remedy chosen is either certiorari or prohibition or
both. In case the remedy chosen is mandamus, there
must be a showing that the respondent court
unlawfully neglected the performance of an act which
the law specifically enjoins.
3. An order denying a motion to dismiss is an
interlocutory order which neither terminates nor
finally disposes of a case, as it leaves something to be
done by the court before the case is finally decided
on the merits.
Remedies of the plaintiff if the motion to dismiss is granted
1. Depending on the ground for the dismissal of the
action, the plaintiff may simply refile the complaint.
(E.g., dismissal was anchored on improper venue,
refile the action in the proper venue)
2. He may appeal from the order of dismissal where the
ground relied upon is one which bars the refiling of
the complaint like res judicata, prescription,
extinguishment of the obligation or violation of the
statutes of frauds. Note: Under Section1 (g) of Rule
41, it is an order dismissing an action without
prejudice which cannot be appealed from.
Conversely, where the dismissal is with prejudice, an
appeal from the order of dismissal is not precluded.
3. The plaintiff may also avail of a petition for certiorari
if the court gravely abuses its discretion in a manner
amounting to lack of jurisdiction.
When complaint cannot be refiled
1. The cause of action is barred by a prior judgment;
2. The cause of action is barred by the statute of
limitations;
3. That the claim or demand has been paid, waived,
abandoned, or otherwise extinguished; and
4. That the claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds.
Effect of dismissal of complaint on the counterclaim
The dismissal of a complaint shall be without prejudice to the
prosecution in the same or a separate action of a counterclaim
pleaded in the answer of the defendant.
Under Sec. 6 of Rule 16, the dismissal of the main action does
not carry with it the dismissal of the counterclaim.
39 | P L A T O N
 MOTION TO DISMISS DEMURRER TO EVIDENCE 2. Partial denialthe defendant does not make a total
(Rule 16) (Rule 33) denial of the material allegations in a specific
Grounded on preliminary Based on insufficiency of paragraph. He denies only a part of the averment. If
objections evidence he chooses this type of denial, he specifies that part
May be filed by any defending May be filed only by the the truth of which he admits and denies only the
party against whom a claim is defendant against the remainder.
asserted in the action complaint of the plaintiff 3. Denial by disavowal of knowledgethe defendant
Should be filed within the May be filed only AFTER the alleges that he is without knowledge or information
time but PRIOR to the filing of plaintiff has completed the sufficient to form a belief as to the truth of a material
the answer presentation of his evidence averment made in the complaint.
If DENIED, the defendant If DENIED, defendant may
answers, or else he may be present evidence Negative pregnant
declared in default
A negative pregnant does not qualify as a specific denial. It is
If GRANTED, plaintiff may If GRANTED, but on appeal conceded to be actually an admission.
appeal or if subsequent case the order of dismissal is
is not barred, he may re-file reversed, the defendant loses In a pleading, it is a negative implying also an affirmative and
the case his right to present evidence which although is stated in a negative form really admits the
allegations to which it relates.
Chapter VII Answer, Other Pleadings, Default,
When a specific denial must be coupled with an oath
Judgment on the Pleadings, Summary Judgment
1. A denial of an actionable document
2. A denial of allegations of usury in a complaint to
A. Answer recover usurious interest.
Nature of an answer If the cause of action in the complaint is founded upon a
promissory note, the said note is the basis of the action.
The answer is a pleading in which a defending party sets forth Under the Rules, the substance of the promissory
his defenses note shall be set forth or stated in the pleading and
the original or copy thereof shall be attached to the
Defenses in the answer (negative or affirmative) pleading as an exhibit. When attached as an exhibit
the promissory note shall be deemed a part of the
A defense is negative when the material averments alleged in pleading. The copy of the note may also be set forth
the pleading of the claimant are specifically denied. A negative in the pleading, i.e., it may be copied verbatim.
defense is stated in the form of a specific denial. (actionable document)
If the party desires to deny the genuineness and the
Effect of absence of a specific denial due execution of the document, he must do two
1. Material averments in the complaint (except as to the things: (a) to specifically deny the document, and to
amount of unliquidated damages), not specifically set forth what he claims to be the facts, and (b) deny
denied are deemed admitted. the document under oath. Otherwise, he is deemed
a. Effect: there is no more triable issues. The to have admitted the genuineness and due
plaintiff may file a motion for judgment on execution of the promissory note
the pleadings under Rule 34 Note: The failure to deny the genuineness and due
2. An admission in a pleading cannot be controverted by execution of an actionable document does not
the party making such admission because the preclude a party from arguing against it by evidence
admission is conclusive as to him. of fraud, mistake, compromise, payment, statute of
limitations, estoppel, and want of consideration.
Note: A party who desires to contradict his own
judicial admission may do so only by either of two Allegations of usury will be deemed admitted if not denied
ways: (a) by showing that the admission was made under oath. The allegations of usury which requires a specific
through palpable mistake, or (b) that no such denial under oath must be:
admission was made. a) Allegations of usury in a complaint (not allegations of
usury in the answer), and
Purpose of specific denial b) The complaint is filed to recover usurious interests.
(See Sec. 11, Rule 8)
To make him disclose the matters alleged in the complaint
which he succinctly intends to disprove at the trial, together Matters not deemed admitted by the failure to make a
with the matter which he relied upon to support the denial. specific denial
a) The amount of unliquidated damages
Kinds of specific denials b) Conclusions in a pleading which do not have to be
1. Absolute denialthe defendant specifies each denied at all because only ultimate facts need be
material allegation of fact the truth of which he does alleged in a pleading
not admit and, whenever practicable sets forth the c) Non-material averments or allegations are not
substance of the matters upon which he relies to deemed admitted because only material allegations
support his denial. have to be denied

40 | P L A T O N
Affirmative defenses Tests to determine whether a counterclaim is compulsory or
1. A defense is affirmative when it alleges new matters not:
which, while hypothetically admitting the allegations 1. Are the issues of fact or law raised by the claim and
of the pleading of the claimant, would nevertheless, the counterclaim largely the same?
prevent or bar recovery by the claiming party. 2. Would res judicata bar a subsequent suit on
2. It is one which is not a denial of an essential defendants claims, absent the compulsory
ingredient in the plaintiffs cause of action, but one counterclaim?
which, if established, will be a good defense, i.e., an 3. Will substantially the same evidence support or
avoidance of the claim. refute plaintiffs claim as well as the defendants
a. Fraud counterclaim?
b. Statute of limitations 4. Is there any logical relation between the claim and
c. Release the counterclaim, such that the conduct of separate
d. Payment trials of the respective claims of the parties would
e. Illegality entail a substantial duplication of effort and time by
f. Statute of frauds the parties and the court?
g. Estoppel
h. Former recovery Distinctions between a compulsory and a permissive
i. Discharge in bankruptcy counterclaim
j. Any other matter by way of confession and
avoidance Compulsory Permissive
Must be contained in an May be set up as an
B. Counterclaim answer otherwise, barred independent action and will
not be barred if not contained
Nature of a counterclaim in the answer to the
1. A counterclaim is any claim, which a defending party complaint
may have against an opposing party. It partakes of a Not an initiatory pleading Considered an initiatory
complaint by the defendant against the plaintiff. pleading
2. Any claim may refer to a claim for (a) money, or (b) Does not require the Accompanied by a
some other relief against an opposing party. certificates mentioned certification against forum
3. A counterclaim is not intrinsically a part of an answer shopping and whenever
because it is a separate pleading. It may, however, be required by law, also a
included in the answer. (Answer With A certificate to file action issued
Counterclaim) by the Lupong Tagapamayapa
4. A counterclaim may be compulsory or permissive. Failure to answer a Must be answered by the
compulsory counterclaim is party against whom it is
Compulsory counterclaim not a cause for a default interposed otherwise, he may
1. Elements declaration be declared in default as to he
a. It arises out of, or is necessarily connected with counterclaim
the transaction or occurrence that is the subject
matter of the opposing partys claim; How to set up an omitted compulsory counterclaim
b. It does not require for its adjudication the
presence of third parties over whom the court A compulsory counterclaim not initially set up because of the
cannot acquire jurisdiction; and pleaders oversight, inadvertence, excusable neglect or when
c. The court has jurisdiction to entertain both as to justice requires, may be set up, by leave of court by
the amount and nature. amendment of the pleadings before judgment (Sec. 10, Rule
2. One compelling test of compulsoriness is the logical 11). If not set up in the action, the compulsory counterclaim
relation between the claim alleged in the complaint shall be barred (Sec. 2, Rule 9).
and that in the counterclaim.
How to set up a counterclaim arising after the filing of the
Incompatibility between a compulsory counterclaim and a answer
motion to dismiss
A counterclaim, which either matured or was acquired by a
A party who desires to plead a compulsory counterclaim should party after serving his pleading, may, with the permission of the
not file a motion to dismiss. If he files a motion to dismiss and court, be presented as a counterclaim by supplemental
the complaint is dismissed there will be no chance to invoke the pleading before judgment.
counterclaim.
But if he opts to set up his compulsory counterclaim, Period to answer a counterclaim
he may still plead his ground for dismissal as an
affirmative defense in his answer. Within 10 days. Note: This rule has more relevance to a
permissive counterclaim which has to be answered.
Permissive counterclaim
Effect of dismissal of a complaint on the counterclaim already
Generally, a counterclaim is permissive if any of the elements of set up
a compulsory counterclaim is absent.

41 | P L A T O N
 1. Sec. 6, Rule 16: The dismissal of the complaint under
this section shall be without prejudice to the
prosecution in the same or separate action of a
counterclaim pleaded in the answer.
2. Sec. 2, Rule 17: The dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to
the right of the defendant to prosecute his
counterclaim in a separate action unless within 15
days from notice of the motion he manifests his
preference to have his counterclaim resolved in the
same action.
3. Sec. 3, Rule 17: The dismissal is without prejudice to
the right of the defendant to prosecute his
counterclaim in the same or separate action.
C. Cross-Claim
Nature of cross-claim
1. A cross-claim is any claim by one party against a co-
party arising out of the transaction or occurrence that
is the subject matter either of the original action or of
a counterclaim therein. The cross-claim may include a
claim that the party against whom it is asserted is
liable or maybe liable to the cross-claimant for all or
part of a claim asserted in the action against the
cross-claimant.
2. A cross-claim is asserted by a defending party against
a co-defending party so that the latter may be held
liable for the claim which the claimant seeks to
recover from the cross-claimant.
3. A cross-claim that a party has at the time the answer
is filed shall be contained in said answer.
The cross-claim must be set up in the same action.
If through oversight, inadvertence, or excusable
negligence, it is not asserted, it may still be set up
with leave of court, by amendment of the pleadings.
It has to be set up in the action because if not set up
it shall be barred.
Note however, that the cross-claim that shall be
barred if not asserted is the cross-claim already
existing at the time the answer is filed, not the cross-
claim that may mature or may be acquired after
service of the answer.
As to the latter, Section 9 of Rule 11 declares that it
may, by leave of court, be set up by way of a
supplemental pleading.
Distinctions Between a Counterclaim and a Cross-Claim
a) A cross-claim is a claim against a co-party; a counterclaim
is a claim against an opposing party; and
b) A cross-claim must arise from the transaction or
occurrence that is the subject matter of the original
complaint or counterclaim. A counterclaim may or may
not arise out of the subject matter of the complaint.
Period to answer a cross-claim
A cross-claim must be answered within ten (10) days from
service.
D. Third (Fourth, Etc.) Party Complaint
Nature of a third-party complaint
1. This pleading is a claim which a defending party may,
with leave of court, file against a person who is not
yet a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his
opponents claim.
2. A complaint independent of, and separate and
distinct from the plaintiffs complaint. Note: Trial
courts are not especially enjoined by law to admit a
third-party complaint.
3. It is not proper to file a third-party complaint against
one who is already a party to the action such as
against the plaintiff (must be by way of counterclaim)
or a co-defendant (by way of cross-claim).
Leave of court
The filing of a third party complaint requires leave of court and
hence, its admission is subject to judicial discretion. Leave of
court is not required in filing a counterclaim or a cross-claim.
Answer to a third-party complaint
The time to answer a third-party complaint shall be governed
by the same rule as the answer to the complaint, hence, within
15 days from service of summons.
E. Intervention
Nature of intervention
1. A legal proceeding by which a person who is not a
party to the action is permitted by the court to
become a party by intervening in a pending action
after meeting the conditions and requirements set by
the Rules of Court. This third person who intervenes
is one who is not originally impleaded in the action.
2. It is never an independent proceeding but is ancillary
and supplemental to an existing litigation. Its purpose
is to enable a stranger to an action to become a party
to protect his interest.
3. It cannot alter the nature of the action and the issues
already joined.
4. Intervention in an action is neither compulsory nor
mandatory but only optional and permissive.
5. It is not an absolute right as it can be secured only in
accordance with the terms of the applicable statute
or rule.
Requisites for intervention
1. There must be a motion for intervention filed before
rendition of judgment by the trial court. A motion is
necessary because leave of court is required before a
person may be allowed to intervene.
2. The movant must show in his motion that he has:
a. A legal interest in (a) the matter in
litigation, (b) the success of either of the
parties in the action, or (c) against both
parties;
b. That the movant is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court or of an officer thereof; and
42 | P L A T O N
 c. That the intervention must not unduly delay
or prejudice the adjudication of the rights of
the original parties and that the
intervenors rights may not be fully
protected in a separate proceeding.
Procedure for intervention
1. The intervenor shall file a motion for intervention
attaching thereto his pleading-in-intervention. Note:
The intervenor shall file a complaint-in-intervention if
he asserts a claim against either or all of the original
parties, or an answer-in-intervention if he unites with
the defending party in resisting a claim against the
latter;
2. The motion and the pleading shall be served upon the
original parties;
3. The answer to the complaint-in-intervention shall be
filed within 15 days from notice of the order
admitting the same, unless a different period is fixed
by the courts.
Meaning of legal interest
One that is actual and material, direct and of an immediate
character, not merely contingent or expectant so that the
intervenor will either gain or lose by the direct legal operation
of the judgment.
Time for intervention
The motion may be filed at any time before rendition of
judgment by the trial court. Hence, intervention after trial and
decision can no longer be permitted.
F. Reply
Nature of reply
1. A pleading, the function of which is to deny, or allege
facts in denial or avoidance of new matters alleged by
way of defense in the answer and thereby joins or
makes issue as to such new matters.
2. The responsive pleading to an answer. It is not a
responsive pleading to a counterclaim (the proper
response is an answer to the counterclaim) or a cross-
claim (answer to the cross-claim.
Filing of reply, not mandatory
The gist of the rule is: The material allegations of a complaint
must be specifically denied but the allegations of new matters
or material allegations of the answer need not be denied
because they are deemed denied by the Rules for the plaintiff.
When filing of reply is advisable
When the defense in the answer is based upon a written
instrument or document, said instrument is considered an
actionable document. Hence, the plaintiff has to file a reply
under oath if he desires to deny specifically the genuineness
and due execution of the actionable document of he wants to
avoid an admission of such matters (See Section 8 of Rule 8).
G. Default
Nature of default
1. A procedural concept that occurs when the defending
party fails to file his answer within the reglementary
period. It does not occur from the failure of the
defendant to attend either the pre-trial or the trial.
2. The plaintiff will present his evidence ex parte and
the court will render judgment on the basis thereof.
3. The failure of the defendant to attend hearings for
the presentation of the evidence of the adverse party
amounts not to a default, but to a waiver of the
defendants right to object to the evidence presented
during such hearings and to cross-examine the
witnesses presented.
Requisites before a party may be declared in default
a) There must be a motion to declare the defending
party in default filed by the claiming party; and
b) Summons has been validly and previously served
upon him;
c) The defending party must have failed to file his
answer within the reglementary period or within the
period fixed by the court;
d) There must be proof of the failure to file the answer;
e) The defending party must be notified of the motion
to declare him in default; and
f) There must be a hearing of the motion to declare the
defendant in default.
No motu proprio declaration of default
Before the defending party can be declared in default, (a) the
claiming party must file a motion to declare said defending
party in default; (b) the defending party must be notified of the
motion to declare him in default; and (c) the claiming party
must prove that the defending party has failed to answer within
the period provided by the Rules of Court.
Failure to file an answer under the Rule on Summary
Procedure
1. The defendant who fails to file an answer within the
reglementary period is not supposed to be declared
in default. Instead, the court motu proprio, or on
motion of the plaintiff, shall render judgment (not to
declare the defendant in default) as ay be warranted
by the facts alleged in the complaint and limited to
what is prayed for.
2. The plaintiff is prohibited from filing a motion to
declare the defendant in default.
Effect of a declaration/order of default
1. The party declared in default loses his standing in
court. The loss of such standing prevents him from
taking part in trial.
2. While the defendant can no longer take part in the
trial, he is nevertheless entitled to notices of
subsequent proceedings. It is submitted that he may
participate in the trial, not as a party but as a witness.
3. A declaration of default is not an admission of the
truth or the validity of the plaintiffs claims.
Effect of partial default
The court shall try the case against all the defending parties
based on the answers filed and render judgment upon the
evidence presented where the claim states a common cause of
action against them.
43 | P L A T O N

Action of the court after the declaration/order of default
1. Under the rules, when a party is declared in default,
the court may do either of two things:
a. To proceed to render judgment, or
b. To require the plaintiff to present his
evidence ex parte.
2. The choice of which action to take is a matter of
judicial discretion.
3. The court need not personally receive the evidence if
it decides to hear the evidence of the plaintiff. The
reception of the evidence may be delegated to the
clerk of court.
Judicial discretion to admit answer filed out of time
It is not correct to say that a trial court has no recourse but to
declare a defending party in default when he fails to file an
answer within the required period. In fact, the rule is that the
answer should be admitted where it is filed before a defending
party is declared in default and no prejudice is caused to the
other party and that there is no showing that the defendant
intends to delay the case.
The hornbook rule is that default judgments are generally
disfavored.
Remedies of a defending party declared in default
a) Remedy after notice of order and before judgment
the defendant must file a motion under oath to set
aside the order of default and show that (a) the
failure to answer was due to fraud, mistake, or
excusable negligence, and that (b) the defendant has
a meritorious defense.
b) Remedy after judgment and before judgment
becomes final and executorthe defendant may file a
motion for new trial under Rule 37. He may also
appeal from the judgment as being contrary to the
evidence or the law.
c) Remedy after the judgment becomes final and
executorythe defendant may file a petition for relief
from judgment under Rule 38.
d) Where the defendant has however, been wrongly or
improvidently declared in default, the court can be
considered to have acted with grave abuse of
discretion amounting to lack of jurisdiction and when
the lack of jurisdiction is patent in the face of the
judgment or from the judicial records, he may avail of
the special civil action of certiorari under Rule 65.
Current judicial trend on defaults
1. Courts are enjoined to be liberal in setting aside
orders of default
2. Suits should as much as possible be decided on the
merits and not on technicalities
3. Judgments by default are frowned upon.
Implied lifting of the order of default
May a default order be impliedy lifted? Yes.
While it is true that there was no positive act on the part of
the court to lift the default order because there was no motion
nor order to that effect, the anti-graft court's act of granting
respondent the opportunity to file a responsive pleading meant
the lifting of the default order on terms the court deemed
proper in the interest of justice. It was the operative act lifting
the default order and thereby reinstating the position of the
original defendant whom respondent is representing, founded
on the court's discretionary power to set aside orders of
default. (Republic vs. Sandiganbayan, G.R. 148154, Dec. 17,
2007)
Extent of relief in a judgment by default
A judgment rendered against a party in default shall not exceed
the amount or be different in kind from that prayed for nor
award unliquidated damages.
Cases where a declaration/order of default cannot be made
1. Default is not allowed in the following actions:
a. Annulment of marriage;
b. Declaration of nullity of marriage; and
c. Legal separation
d. Summary proceedings
e. Small claims
2. If no answer is filed in any of the above actions, the
court shall order the prosecuting attorney to
investigate whether or not collusion exists between
the parties. IF there is no collusion, the court shall
order said prosecuting attorney to intervene for the
State in order to see to it that the evidence submitted
is not fabricated.
Judgment by default for refusal to comply with the modes of
discovery
a) If a party refuses to obey an order requiring him to
comply with the various modes of discovery; or
b) If a party or officer or managing agent of a party
willfully fails to appear before the officer who is to
take his deposition or a party fails to serve answers to
interrogatories.
H. Judgment on the Pleadings
Nature of judgment on the pleadings
1. The concept will not apply when no answer is filed. It
will come into operation when an answer is SERVED
and FILED but the same fails to tender an issue or
admits the material allegations of the adverse partys
pleading.
2. An answer fails to tender an issue when the material
allegations of the other party are admitted or not
specifically denied by the pleader. Under the rules,
material allegations of the complaint are deemed
admitted.
Motion required
It cannot be rendered by the court motu proprio. It can be done
only where there is a prior motion to the effect filed by the
appropriate party. XPN: If at the pre-trial the court finds that a
judgment on the pleadings is proper, it may render such
judgment motu proprio.
Cases where judgment on the pleadings will not apply
1. In the following cases, a judgment on the pleadings
will not lie:
44 | P L A T O N
 a. Actions for the declaration of nullity of a JUDGMENT ON THE SUMMARY
marriage; PLEADINGS JUDGMENT
b. Actions for annulment of marriage; and There is an absence of a Involves an issue, but the
c. Actions for legal separation. factual issue in the case issue is not genuine
2. In the above cases, the material facts alleged in the because the answer tenders
complaint shall always be proved. no issue at all
Filed by a claiming party like a Filed by either the claiming or
I. Summary Judgment plaintiff or a counterclaimant defending party
Based on the pleadings alone Based on the pleadings,
Nature of summary judgment affidavits, depositions and
1. Also called accelerated judgment, is proper where, admissions
upon a motion filed after the issues had been joined Only a 3-day notice to the A 10-day notice to the
and on the basis of the pleadings and papers filed, the adverse party is required prior adverse party is required; the
court finds that there is no genuine issue as to any to the date of hearing based adverse party in turn may
material facts except as to the amount of damages. on the regular rules on serve opposing affidavits,
2. What triggers a summary judgment is the absence of motion depositions or admission at
a genuine factual issue. It is not proper where there least 3 days before the
are factual issues to be resolved by the presentation hearing
of evidence.
3. In Asian Development and Construction Corporation v. Chapter VIII Pre-Trial and Modes of Discovery
Philippine Commercial and Industrial Bank, G.R. No.
153827, the Court reiterated the principles governing A. Pre-Trial
summary judgment as follows:
Nature and purpose of a pre-trial
Under the Rules, summary judgment is appropriate when
1. A pre-trial is a procedural device held prior to the trial
there are no genuine issues of fact which call for the
presentation of evidence in a full-blown trial. Even if on their for the court to consider the following purposes:
face the pleadings appear to raise issues, when the a. The possibility of an amicable settlement or
affidavits, depositions and admissions show that such issues of a submission to alternative modes of
are not genuine, then summary judgment as prescribed by dispute resolution;
the Rules must ensue as a matter of law. The determinative b. The simplification of the issues;
factor, therefore, in a motion for summary judgment, is the c. The necessity or desirability of amendments
presence or absence of a genuine issue as to any material to the pleadings;
fact.
d. The possibility of obtaining stipulations or
admissions of facts and of documents to
A genuine issue is an issue of fact which requires the
presentation of evidence as distinguished from a sham, avoid unnecessary proof. Note: essentially
fictitious, contrived or false claim. When the facts as pleaded voluntary;
appear uncontested or undisputed, then there is no real or e. The limitation of the number of witnesses;
genuine issue or question as to the facts, and summary f. The advisability of a preliminary reference
judgment is called for. The party who moves for summary of issues to a commissioner;
judgment has the burden of demonstrating clearly the g. The propriety of rendering judgment on the
absence of any genuine issue of fact, or that the issue posed pleadings, or summary judgment, or of
in the complaint is patently unsubstantial so as not to
dismissing the action should a valid ground
constitute a genuine issue for trial. Trial courts have limited
authority to render summary judgments and may do so only therefor be found to exist;
when there is clearly no genuine issue as to any material h. The advisability or necessity of suspending
fact. When the facts as pleaded by the parties are disputed the proceedings; and
or contested, proceedings for summary judgment cannot i. Such other matters as may aid in the
take the place of trial. prompt disposition of the action.
2. The pre-trial is MANDATORY in civil cases.
4. The trial court cannot motu proprio decide that 3. In all criminal cases cognizable by the Sandiganbayan,
summary judgment on an action is in order. The Regional Trial Court, Metropolitan Trial Court,
defending party or the claimant, as the case may be, Municipal Trial Court in Cities, Municipal Trial Court,
must invoke the rule on summary judgment by filing a and Municipal Circuit Trial Courts, pre-trial is also
MOTION. The adverse party must be NOTIFIED of the mandatory.
motion and furnished with supporting affidavits, 4. A pre-trial conference is likewise mandatory in both
depositions or admissions before hearing is civil and criminal cases under the Rules on Summary
conducted. Procedure.
5. A summary judgment is permitted only if there is NO 5. The courts authority is confined to a mere
genuine issue as to any material fact and a moving determination of the propriety of rendering a
party is entitled to a judgment as a matter of law. judgment on the pleadings or a summary judgment.
The requisite motion should be filed and heard
Distinctions between judgment on the pleadings and a pursuant to Rule 34.
summary judgment

45 | P L A T O N
Referral to the Philippine Mediation Center
At the start of the preliminary conference, the judge is
mandated to refer the parties and/or their counsels to the
mediation unit of the PMC for purposes of mediation. If
mediation fails, the judge will schedule the continuance of the
preliminary conference.
How pre-trial is called
1. Under the Rules, it shall be the duty of the plaintiff,
not of the defendant, to promptly file a motion to set
the case for pre-trial. This motion is an ex parte
motion. This means that the motion need not be the
subject of a hearing.
2. The ex parte motion to set the case for pre-trial is to
be made by the plaintiff after the last pleading has
been served and filed. Specifically, the motion is to be
filed within 5 days after the last pleading joining the
issues has been served and filed. If the plaintiff fails
to file said motion within the given period, the branch
clerk of court shall issue a notice of pre-trial.
The meaning of last pleading
1. The last permissible pleading that a party can file is
the reply to the answer to the last pleading asserting
a claim.
2. Where the last pleading has not yet been served and
filed, the case is not yet ready for pre-trial. For
purposes of the pre-trial, the expiration of the period
for filing the last pleading without it having been
served and filed is sufficient.
Notice of pre-trial
It shall be served on the counsel of the party if the latter is
represented by counsel. Otherwise the notice shall be served
on the party himself. The counsel is charged with the duty of
notifying his client of the date, time and place of the pre-trial.
Appearance in the pre-trial
It shall be the duty of both the parties and their counsels to
appear at the pre-trial.
Effect of failure to appear by the plaintiff
1. It shall be cause for the dismissal of the action with
prejudice except when the court orders otherwise.
2. Since the dismissal of the action shall be with
prejudice, unless otherwise provided, the same shall
have the effect of an adjudication on the merits thus,
final. The remedy of the plaintiff is to appeal from the
order of dismissal.
Effect of failure to appear by the defendant
1. It shall be cause to allow the plaintiff to present his
evidence ex parte and for the court to render
judgment on the basis of the evidence presented by
the plaintiff.
2. The order of the court allowing the plaintiff to
present his evidence ex parte does not dispose the
case with finality. The order is therefore, merely
interlocutory hence, not appealable. Remedy: Move
for the reconsideration of the order and if denial is
tainted with grave abuse of discretion, he may file a
petition for certiorari.
How non-appearance is excused
1. Only if a valid cause is shown for such non-
appearance AND a representative shall appear in his
behalf fully authorized in writing to enter into any of
the following matters: (a) an amicable settlement, (b)
alternative modes of dispute resolution, and (c)
stipulations or admissions of facts.
2. The written authority must be in the form of a special
power of attorney. If the party is a corporation, the
SPA must be supported by a board resolution.
Filing and contents of pre-trial briefs
1. The parties shall file with the court their respective
pre-trial briefs which shall be received at least 3 days
before the date of the pre-trial. This pre-trial brief
shall be served on the adverse party.
2. The pre-trial brief shall contain the following matters:
a. A statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating the
desired terms thereof;
b. A summary of admitted facts and proposed
stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented,
stating the purpose thereof;
e. A manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners; and
f. The number and names of the witnesses,
and the substance of their respective
testimonies.
Importance of identification and marking of evidence
The current rule establishes the policy that no evidence shall be
presented and offered during the trial in support of a partys
evidence-in-chief other than those that had been earlier
identified and pre-marked during the pre-trial, except if
allowed by the court for good cause shown.
Legal effect of representations and statements in the pre-trial
brief
The parties are bound by the representations and statements in
their respective pre-trial briefs. Hence, such representations
and statements are in the nature of judicial admissions in
relation to Sec.4 of Rule 129 of the Rules of Court.
Effect of failure to file a pre-trial brief
1. The failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.
Hence, if it is the plaintiff who fails to file a pre-trial
brief, such failure shall be cause for dismissal of the
action. If it is the defendant who fails to do so, such
failure shall be cause to allow the plaintiff to present
his evidence ex parte.
2. The dismissal of a complaint for failure to file pre-trial
brief is discretionary on the part of the trial court.
No termination of pre-trial for failure to settle
1. Instead, the judge should expose the parties to the
advantages of pre-trial. He must also be mindful that
46 | P L A T O N
 there are important aspects of the pre-trial that the prosecution or the
ought to be taken up to expedite the disposition of defense
the case. Made after the last pleading Ordered by the court after
2. If all efforts to settle fail, the trial judge shall has been served and filed arraignment and within 30
endeavor to achieve the other purposes of a pre-trial days from the date the court
like, among others, obtaining admissions or acquires jurisdiction over the
stipulations of fact. person of the accused
3. The court shall ask the parties to agree on the specific Considers the possibility of Does not include the
dates for continuous trial, adhere to the case flow amicable settlement as an considering of the possibility
chart determined by the court and use the time important objective of amicable settlement of
frame for each stage in setting the trial dates. criminal liability as one of its
purpose
Adherence to the One Day Examination of Witness Requires the proceedings to All agreements or admissions
Rule shall be required where the witness shall be fully be recorded in the Minutes made or entered during the
examined in 1 day only, subject to the courts of Preliminary Conference to pre-trial conference shall be
discretion during the trial on whether or not to be signed by both parties reduced in writing and signed
extend the examination for justifiable reasons. and/or counsel by both the accused and
counsel, otherwise, they
Where no settlement has been effected, the court cannot be used against the
shall follow the Most Important Witness Rule, where accused
the court shall determine the most important witness The sanctions for non- The sanctions are imposed
and limit the number of such witnesses and require appearance in a pre-trial are upon the counsel for the
the parties and/or counsels to submit to the branch imposed upon the plaintiff accused or the prosecutor
clerk of court the names, addresses and contact and the defendant
numbers of the witnesses to be summoned by A pre-trial brief is specifically A pre-trial brief is not
subpoena. required to be submitted specifically required

Note however, that the court may also refer the case Preliminary conference under the Revised Rules on Summary
to a trial by commissioner under Rule 32. Procedure

Questions are to be asked by the judge
During the pre-trial, the judge shall be the one to ask questions
on issues raised by the parties and all questions or comments
by counsel or parties must be directed to the judge to avoid
hostilities between the parties.
Pre-trial order
1. This order of the court is issued by the court upon the
termination of the pre-trial. Under A.M. No. 03-109-
SC, the pre-trial order shall be issued within 10 days
after the termination of the pre-trial. This order
recites in detail the following:
a. Matters taken up in the conference;
b. The action taken thereon;
c. The amendments allowed to the pleadings;
and
d. The agreements or admissions made by the
parties as to any of the matters considered.
2. Should the action proceed to trial, the pre-trial order
(a) defines and limits the issues to be tried, and (b)
controls the subsequent course of the action, XPN:
a. if it is modified before trial to prevent
manifest injustice;
b. issues impliedly included therein or may be
inferable therefrom by necessary
implication; and
c. amendment to conform to evidence.
Pre-trial in civil cases compared to pre-trial in criminal cases
IN CIVIL CASES IN CRIMINAL CASES
Set when the plaintiff moves Ordered by the court and no
ex parte to set the case for motion to set the case for pre-
pre-trial trial is required from either
1. Under the Revised Rules on Summary Procedure, a
preliminary conference shall be held not later than
thirty (30) days after the last answer is filed. Here, the
rules on pre-trial in ordinary cases shall apply except
when inconsistent with the rules on summary
procedure.
2. The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the
dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim. All cross-
claims shall be dismissed.
3. Within five (5) days after the termination of the
preliminary conference, the court shall issue an order
stating the matters taken up in the conference.
The Enhanced Pre-Trial Proceeding
On August 29, 2006, the Supreme Court issued A.M. No. 04-1-
12-SC-Philja which provided for guidelines for an enhanced pre-
trial proceeding. Two model courts have been set up in Bacolod
City and San Fernando, Pampanga to pilot test these guidelines.
More model courts will be set up in Benguet, La Union and
Cagayan de Oro. (See Annex D for guidelines)
B. Modes of Discovery
Meaning of discovery
A discovery is a device employed by a party to obtain
information about relevant matters on the case from the
adverse party in preparation for the trial.

47 | P L A T O N
Purpose of discovery
The modes of discovery are designed to serve as an additional
device aside from a pre-trial, to narrow and clarify the basic
issues between the parties, to ascertain the facts relative to the
issues and to enable the parties to obtain the fullest possible
knowledge of the issues and facts before civil trials and thus
prevent the said trials to be carried on in the dark.
It is intended to make certain that all issues necessary to the
disposition of a case are properly raised.
Duty of the court in relation to the modes of discovery
Modes of discovery under the Rules of Court
1. Depositions pending action (Rule 23);
2. Depositions before action or pending appeal (Rule
24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or inspection of documents and things
(Rule 27); and
6. Physical and mental examination of persons (Rule 28).
Depositions (Rules 23-24)
1. It is the taking of the testimony of any person,
whether he be a party or not, but at the instance of a
party to the action. It may be either by:
a. An oral examination, or by
b. A written interrogatory.
2. A deposition may be sought for use in a future action,
during a pending action, or for use in a pending
appeal.
If the deposition is for use during a pending trial
action, it is commonly called a deposition de benne
esse and is governed by Rule 23.
If it is to perpetuate a testimony for use in future
proceedings as when it is sought before the existence
of an action, or for cases on appeal, it is called a
deposition perpetuam rei memoriam.
When leave of court is required and not required for taking a
deposition pending action
Leave of court is not required after an answer has been served
but leave of court is required before the services of an answer
but after jurisdiction has been acquired over the defendant or
over the property subject of the action.
An answer ex abudanti cuatela (out of abundant caution or to be on
the safe side) does not make an answer less of an answer. Thus, when
an answer ex abudanti cuatela is filed, deposition may be made
WITHOUT leave of court.
Deposition of a prisoner
His deposition may be taken only with leave of court and upon
such terms as the court may prescribe.
Before whom taken (depositions pending action)
1. Within the Philippines, a deposition need not be
taken before a judge, although it may be taken before
one. It may also be taken before a notary public or
before any person authorized to administer oaths if
the parties so stipulate in writing.
2. Outside the Philippines, a deposition may be taken
before:
a. A secretary of an embassy or legation,
consul general, consul, vice-consul, or
consular agent of the Republic of the
Philippines;
b. Such person or officer as may be appointed
by commission or letters rogatory; or
c. A person authorized to administer oaths by
written stipulation of the parties.
Examination of the deponent
1. A party desiring to take the deposition of any person
upon ORAL EXAMINATION shall give reasonable
notice in writing to every party to the action stating
the time and place for taking the deposition and the
name and address of each person to be examined.
After the notice is served, the court may make any
order for the protection of the parties and the
deponents.
2. The attendance of witnesses may be compelled by
the use of subpoenas.
3. The deponent may be examined or cross examined
following the procedures for witnesses in a trial. He
may be asked questions on direct, cross, re-direct or
re-cross. He has the same rights as a witness and may
be impeached like a court witness because Sections 3
to 18 of Rules 132 apply to a deponent.
4. Unless otherwise provided by the court, the
deponent may be examined:
a. regarding any matter not privileged,
b. which is relevant to the pending action,
c. whether relating to the claim or defense of
any party, including the existence,
description, nature, custody, condition and
location of any books, documents, or other
tangible things and the identity and location
of persons having knowledge of relevant
facts.
5. The officer before whom the deposition is taken has
no authority to rule on the objections interposed
during the course of the deposition although any
objections shall be noted by the officer upon the
deposition. Any evidence that is objected to shall still
be taken but subject to the objection.
Use of depositions pending action
1. Any part or all of the deposition, so far as admissible
under the rules of evidence, may be used:
a. Against any party who was present or
represented at the taking of the deposition,
or
b. Against one who had due notice of the
deposition.
2. The deposition may be used for the following
purposes:
a. For contradicting or impeaching the
testimony of the deponent as a witness;
b. For any purpose by the adverse party where
the deponent is a party;
c. (Alternative mode of testimony) For any
purpose by any party, where the deponent
is a witness if the court finds that
i. The witness is dead; or
48 | P L A T O N
 ii. The witness resides at a distance
more than one hundred (100)
kilometers from the place of trial
or hearing, or is out of the
Philippines, unless it appears that
his absence was procured by the
party offering the deposition; or
iii. The witness is unable to attend or
testify because of age, sickness,
infirmity, or imprisonment; or
iv. The party offering the deposition
has been unable to procure the
attendance of the witness by
subpoena; or
v. Upon application and notice, that
such exceptional circumstances
exist.
Deposition upon written interrogatories
A deposition need not be conducted through an oral
examination. It may be conducted through written
interrogatories which shall be served upon every other party.
The party served may also serve cross-interrogatories upon the
party proposing to take the deposition within 10 days from
service of the written interrogatories. The latter may, within 5
days serve re-direct interrogatories and within 3 days the other
party may serve re-cross interrogatories. Copies of all these
interrogatories shall be delivered to the officer before whom
the deposition is taken and who shall take the responses and
prepare the record.
Perpetuation of testimony before action or pending appeal
1. The perpetuation of a testimony is done by filing a
verified petition in the place of the residence of any
expected adverse party. This petition is filed by a
person who desires to perpetuate his own testimony
or that of another regarding any matter that may be
cognizable in any court of the Philippines.
2. Notices shall be sent in accordance with the Rules and
if the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it
shall make the appropriate order for the taking of the
deposition.
3. The deposition taken under this Rule is admissible in
evidence in any action subsequently brought
involving the same subject matter.
4. A deposition for the perpetuation of testimony in a
case pending appeal may likewise be availed of under
the same rules as those followed in perpetuation of
testimony pending action and those prescribed for
depositions pending action.
Interrogatories to Parties (Rule 25)
Purpose of interrogatories to parties
Availed of by a party to the action for the purpose of eliciting
material and relevant facts from any adverse party.
Answers may also be used as admissions of the adverse party
Distinguished from a bill of particulars
A bill of particulars is designed to clarify ambiguities in a
pleading or to state with sufficient definiteness allegations in a
pleading. A bill of particulars therefore, is directed to a
pleading. Interrogatories to parties are not directed to a
particular pleading. Instead, they seek to disclose all material
and relevant facts from a party.
Distinguished from written interrogatories in a deposition
Written interrogatories in a deposition are not served upon the
adverse party directly. They are instead delivered to the officer
before whom the deposition is to be taken. Interrogatories to
parties are served directly upon the adverse party.
Procedure
1. The mode of discovery is availed of by FILING and
SERVING upon the adverse party written
interrogatories to be answered by the party served. If
the party is a juridical entity, the written
interrogatories shall be answered by any of its
officers competent to testify in its behalf. Note: the
answers may constitute as JUDICIAL ADMISSIONS.
2. No party may, without leave of court, serve more
than one set of interrogatories to be answered by the
same party.
3. The interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person
making them. The party upon whom the
interrogatories have been served shall file and serve a
copy of the answers on the party submitting the
interrogatories within 15 days after service thereof.
This time may, upon motion, be extended or
shortened by the court.
4. The party against whom it is directed may make
objections to the interrogatories. If he does so, said
objections shall be presented to the court within 10
days after service of the interrogatories. The filing of
the objections shall have the effect of deferring the
filing and service of the answer to the interrogatories.
Effect of failure to serve written interrogatories
1. A party NOT SERVED with written interrogatories may
not be compelled by the adverse party to give
testimony in open court, or to give deposition
pending appeal, XPN: allowed by the court for good
cause or to prevent a failure of justice.
2. This provision encourages the use of written
interrogatories and although a party is not compelled
to use this discovery procedure, the rule imposes
sanctions for his failure to serve written
interrogatories by depriving him of the privilege to
call the adverse party as a witness or to give a
deposition pending appeal.
Admission by Adverse Party (Rule 26)
Purpose of admission by adverse party
To allow one party to request the adverse party in writing to
admit certain material and relevant matters which most likely
will not be disputed during the trial.
To avoid unnecessary inconvenience to the parties in going
through the rigors of proof, before trial (after the issue had
been joined), a party may request the other to:
49 | P L A T O N
 1. Admit the genuineness of any material and relevant
document described in and exhibited with the
request.
2. Admit the truth of any material and relevant matter
of fact set forth in the request.
Filing of written request for admission
A party is advised to file and serve a written request for
admission on the adverse party of those material and relevant
facts at issue which are, or ought to be, within the personal
knowledge of said adverse party. The party who fails to file and
serve the request shall not be permitted to present evidence on
such facts, unless allowed by the court for good cause shown
and to prevent a failure of justice.
Filing and service of a sworn statement of admission or denial;
effect of failure to file and serve
1. It is advisable for the party to whom the written
request is directed to file and serve upon the party
requesting the admission a sworn statement either:
a. Specifically denying the matters of which
admission is requested, or
b. If he does not deny the same, to set forth in
detail the reasons why he cannot truthfully
admit or deny those matters.
This sworn statement shall be filed and served within
the period designated in the request but which shall
not be less than 15 days from the service of such
request, or within such further time as the court may
allow.
2. If the party to whom the written request for
admission does not file the required sworn statement
each of the matters of which an admission is
requested shall be deemed admitted.
3. Any admission made by a party as a consequence of
the failure to comply with the request is only for the
purpose of the PENDING ACTION and shall not be
deemed an admission for any other purpose.
Likewise, the admission cannot be used against the
admitting party in any other proceeding.
Deferment of compliance
To avoid implied admission, the party may have the compliance
of the filing and service of the sworn statement deferred. This
deferment may be effected by the filing with the court
objections to the request for admission. Compliance shall be
deferred until such objections are resolved by the court.
Withdrawal of admission
Admissions made, whether express or implied, are not final and
irrevocable. The court may allow the party making the
admission to withdraw or amend the admission upon such
terms as may be just. To effect the withdrawal, the admitting
party should file a motion to be relieved of the effects of his
admission.
The party who fails or refuses to request the admission of facts in
question is prevented from thereafter presenting evidence thereon
UNLESS otherwise allowed by the court.
Production or Inspection of Documents or Things (Rule
27)
Purpose
1. To allow a party to seek an order from the court in
which the action is pending to:
a. order any party to produce and permit the
inspection and copying or photographing,
by or on behalf of the moving party, of any
designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which
constitute or contain evidence material to
any matter involved in the action and which
are in his possession, custody or control.
b. order any party to permit entry upon
designated land or other property in his
possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
designated relevant objects or operation
thereon.
2. Requisites:
a. Documents must not be privileged against
disclosure. Reason: Books and papers
which, because of their confidential
character, could not be received in
evidence;
b. The items be specifically described;
c. The items must constitute or contain
evidence material to any matter involved in
the action; and
d. The items are in the partys possession,
custody or control.
Q What are privileged communications?
A
1. Communications between:
a. Husband and wife
b. Attorney and client
c. Physician and patient
d. Priest and penitent
e. Public officers and public interest
2. Editors may not be compelled to disclose the source
of published news
3. Voters may not be compelled to disclose for whom
they voted
4. Trade secrets
5. Information contained in tax census returns; and
6. Bank deposits
Filing a motion; order of the court
1. A motion must be filed by the party seeking the
production or inspection of documents and things
and the motion must show good cause and
supporting the same.
2. The order shall specify the time, place and manner of
making the inspection and taking copies and
photographs and may prescribe such terms and
conditions as are just.
50 | P L A T O N
 Physical and Mental Examination of Persons (Rule 28)
Applicability
Applies to an action in which the mental and physical condition
of a party is in controversy. Examples of this action would be:
a) An action for annulment of a contract where the
ground relied upon is insanity or dementia;
b) A petition for guardianship of a person alleged to be
insane;
c) An action to recover damages for personal injury
where the issue is the extent of the injuries of the
plaintiff.
Procedure
1. A MOTION must be filed showing GOOD CAUSE for
the examination, with notice to the other parties as
well aside from the party to be examined. The motion
shall likewise SPECIFY the time, place, manner,
conditions and scope of the examination and by the
persons by whom it is made. Note: Notice to the
party to be examined and to all other parties.
2. The party examined may request the party causing
the examination to be made to deliver to him a copy
of a detailed written report of the examining
physician setting out his findings and conclusions.
After such request and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a like
report of any examination, previously or thereafter
made, of the same mental or physical condition. If
refused, the court may make an order requiring
delivery on such terms as are just. If it is the physician
who fails or refuses to make a report, the court may
exclude his testimony.
Waiver of privilege
By requesting and obtaining a report of the examination or by
taking the deposition of the examiner, the party examined
waives any privilege he may have in that action or any other
involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter
examine him in respect of the same mental or physical
examination.
Refusal to Comply with the Modes of Discovery (Rule 29)
The sanctions for the refusal to comply with the modes of
discovery may be summarized as follows:
A. Refusal to answer any question
1. The court may upon proper application, compel a
deponent who refuses to answer an oral examination.
The same applies to a witness who refuses to answer
an interrogatory submitted. A refusal to answer after
being directed by the court may be considered as a
contempt of court.
The court may order the deponent, a party, or the
counsel advising the refusal, or both of them, to pay
the proponent the amount of reasonable expenses
incurred in obtaining the order, including attorneys
fees.
2. If the application for an order to compel a deponent
to answer is denied because of the absence of a
substantial justification, the court may require the
proponent or the counsel advising the application, or
both of them, to pay to the refusing party or
deponent the amount of reasonable expenses
incurred in opposing the application, including
attorneys fees.
B. Refusal to answer designated or particular questions or
refusal to produce documents or things or to submit to
physical or mental examination
1. The court may order that the matters regarding which
the questions were asked shall be taken as
established for purposes of the action in accordance
with the claim of the party obtaining them.
2. The court may issue an order refusing to allow the
disobedient party to refuse or support designated
claims or defenses or prohibiting him from
introducing in evidence designated documents or
things or items of testimony, or from introducing
evidence of physical or mental condition.
3. The court may issue an order striking out pleadings or
parts thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a
judgment by default against the disobedient party.
4. The court may direct the arrest of any party or agent
of a party for disobeying any of the orders of the
court, except an order to submit to a physical
examination.
C. Refusal to be sworn
A refusal after being directed by the court may be considered
as contempt of court.
D. Refusal to admit
If a party refuses to admit the genuineness of any document or
the truth of any matter of fact and serves a sworn denial
thereof and if the other party later on proves the genuineness
of the document or the truth of such matter of fact, the court
upon proper application, may order the former to pay the
reasonable expenses in making such proof, including attorneys
fees.
E. Failure to attend depositions or to serve answers to
interrogatories
1. The court may (a) strike out all or any part of the
pleading of that party, or dismiss the action or
proceeding or any part thereof, or (b) enter a
judgment by default against that party, and in its
discretion, (c) order him to pay reasonable expenses
incurred by the other, including attorneys fees.
2. The consequences will apply if a party refuses to
answer the whole set of written interrogatories, and
not just a particular question. Where the party
refuses to answer a particular question, despite an
order compelling him to answer, Section 3 (c) of Rule
29 will apply:
a. The court may issue an order striking out
pleadings or parts thereof;
b. The court may issue an order staying
further proceedings until the order is
obeyed; or
51 | P L A T O N
 c. The court may issue an order rendering a
judgment by default against the disobedient
party.
3. The matter of how, and when, the above sanctions
should be applied is one that primarily rests on the
sound discretion of the court where the case is
pending, having always in mind the paramount and
overriding interest of justice.
Chapter IX Trial, Demurrer to Evidence and Judgment
A. Trial
Nature of trial
A trial is the judicial process of investigating and determining
the legal controversies, starting with the production of
evidence by the plaintiff and ending with his closing arguments.
GR: When an issue exists, trial is necessary. Decision should not
be made without trial.
XPN: When trial is unnecessary:
1. Where the pleadings of the parties tender no issue at
all, a judgment on the pleadings may be directed by
the court. (Rule 34)
2. Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
court may render a summary judgment. (Rule 35)
3. Where the parties have entered into to a compromise
or an amicable settlement either during the pre-trial
or while the trial is in progress. (Rule 18)
4. Judgment by confession
5. Where the complaint has been dismissed with
prejudice. (Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5,,
Rule 7.
6. Where the case falls under the operation of the Rules
on Summary Procedure.
7. Where, the parties in writing, upon the facts involved
in the litigation, and submit the case for judgment on
the facts agreed upon, without the introduction of
evidence. If however, there is no agreement as to all
the facts in the case, trial may be held only as to the
disputed facts. (Sec. 6, Rule 30)
Trial and hearing
A hearing is a broader term. It is not confined to the trial
presentation of the evidence because it actually embraces
several stages in the litigation. It includes the pre-trial and the
determination of granting or denying a motion.
TRIAL HEARING
Reception of evidence and other Not confined in trial but embraces
processes several stages of litigation,
including the pre-trial stage.
The period for the introduction of Does not necessarily imply
evidence by both parties presentation of evidence in open
court but the parties are afforded
the opportunity to be heard.
When Trial is Unnecessary
A civil case may be adjudicated upon without the need for a
trial in any of the following cases:
a) Where the pleadings of the parties tender no issue at
all, a judgment on the pleadings may be directed by
the court
b) Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
court may render a summary judgment
c) Where the parties have entered into a compromise or
a amicable settlement either during the pre-trial or
while the trial is in progress
d) Where the complaint has been dismissed with
prejudice
e) Where the case falls under the operation of the Rules
on Summary Procedure
f) Where the parties agree in writing upon the facts
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence.
Notice of trial
Upon entry of the case in the trial calendar, the clerk of court
shall notify the parties of the date of trial in such manner as to
ensure its receipt at least 5 days before such date.
Calendaring of cases (See Sec. 1, Rule 20)
Session hours
1. From 8:30 A.M. to noon (devoted to the conduct of
trial) and from 2:00 P.M. to 4:30 P.M. (utilized for the
conduct of (1) pre-trial conferences; (2) writing of
decisions, resolutions, or orders; or (3) the
continuation of the trial on the merits, whenever
rendered necessary as may be required by the Rules
of Court, statute or circulars in specified cases) from
Monday to Friday.
2. Unless the docket of the court requires otherwise,
not more than 4 cases shall be scheduled for trial
daily.
Adjournments and postponements; Limitations on the
authority to adjourn
GR: A court may adjourn a trial from day to day, and to any
stated time, as the expeditious and convenient transaction of
business may require.
XPN: The court has no power to adjourn a trial for a period
longer than 1 month from each adjournment, nor more than 3
months in all.
XPN to the XPN: When authorized in writing by the Court
Administrator.
Postponement on the ground of illness of either party or
counsel by complying with the following:
1. A MOTION for postponement must be filed;
2. The motion must be supported by an AFFIDAVIT or
SWORN CERTIFICATION showing that
a. The presence of the party or counsel at the
trial is indispensable, and
b. That the character of the illness is such as to
render his non-attendance excusable.
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Postponement on the ground of absence of evidence upon B. Demurrer to Evidence
compliance with the following:
1. A MOTION for postponement must be filed; Motion to dismiss in Rule 16 distinguished from demurrer to
2. The motion must be supported by an AFFIDAVIT or evidence
SWORN CERTIFICATION showing the
a. Materiality or relevancy of the evidence, A demurrer to evidence under Rule 33 is in effect, a motion to
and dismiss but is not the motion to dismiss described under Rule
b. That due diligence has been used to 16.
procure it
MOTION TO DISMISS DEMURRER TO EVIDENCE
If the adverse party admits the facts to be given in evidence, (under Rule 16)
the trial shall not be postponed even if he reserves the right to When to file
object to the admissibility of the evidence. BEFORE filing of answer AFTER the plaintiff rests its
case or after the completion
Postponement is not a matter of right of the presentation of
evidence
It is addressed to the sound discretion of the court. In the Grounds
absence of grave abuse of discretion, it cannot be compelled by The 10 grounds enumerated That upon the facts and the
mandamus. in Rule 16 law, the plaintiff has shown
no right to relief
Note: A motion for postponement should not be filed on the If denied
last hour especially when there is no reason why it could have
The defendant may file his The defendant may present
been presented earlier.
responsive pleading his evidence
If granted
Reception of evidence
The complaint may be refiled The complaint may not be
depending on the ground of filed. The remedy of the
GR: The judge shall PERSONALLY receive the evidence to be
dismissal plaintiff is to APPEAL from the
adduced by the parties.
dismissal
XPN: Reception may be delegated to the clerk of court who is a
Effect of denial of the demurrer to evidence
member of the bar, in any of the following cases:
1. The defendant shall have the right to present his
1. In default hearings;
evidence. This means that the denial does not deprive
2. In ex parte hearings; or
the defendant to adduce evidence in his behalf.
3. In any case by written agreement of the parties.
2. The court should set the date for the reception of the
Issues in the trial defendants evidence in chief. It should not proceed
to grant the relief demanded by the plaintiff.
The trial shall be limited to the issues stated in the pre-trial 3. Interlocutory and is therefore, NOT APPEALABLE. It
order. This is the general rule unless the court so directs for can however, be the subject of a petition for
special reasons. certiorari in case of grave abuse of discretion or an
oppressive exercise of judicial authority.
Agreed statement of facts (Stipulation of Facts) 4. The provision of the Rules of Court governing
demurrer to evidence does not apply to an election
The parties to any action may agree, IN WRITING (or verbally case. (See Sec. 4, Rule 1)
made in open court), upon the facts involved in the litigation,
and submit the case for judgment on the facts agreed upon, Effect of granting of the demurrer to evidence
without the introduction of evidence (a trial need not be 1. The case shall be dismissed. However, if on appeal
conducted) but if the parties agree only on some facts in issue, the order granting the motion is reversed, the
the trial shall be held as to the disputed facts in such order as defendant loses his right to present evidence.
the court shall prescribe. 2. The reviewing court cannot remand the case for
further proceedings; rather, it should render
Consolidation or Severance judgment on the basis of the evidence presented by
1. When the actions that involve a common question of the plaintiff.
law or fact are pending before the court, the court 3. A demurrer to evidence abbreviates judicial
may order joint hearing or trial of any or all the proceedings, it being an instrument for the
matters in issue in the actions and may order the expeditious termination of an action.
consolidation of all the actions.
2. On the other hand, the court may also order a Demurrer in a civil case as distinguished from a demurrer in a
separate trial of any claim, cross-claim, counterclaim, criminal case
or third-party complaint or issues. The court may do
so in furtherance of convenience or to avoid CIVIL CASE CRIMINAL CASE
prejudice. Leave of court is NOT required A demurrer is filed WITH or
before filing a demurrer WITHOUT leave of court
If granted, the order of The order of dismissal is NOT
dismissal is appealable appealable because of the

53 | P L A T O N
 constitutional policy against
double jeopardy
If denied, the defendant may The accused may adduce his
proceed to present his evidence only if the demurrer
evidence is filed with leave of court
C. Judgment
Meaning of judgment
A judgment is the final ruling by a court of competent
jurisdiction regarding the rights or other matters submitted to
it in an action or proceeding.
Judgment and decision
Judgment is normally synonymous with decision.
Requisites of a valid judgment
1. The court must be clothed with authority to hear and
determine the matter before it;
2. The court must have jurisdiction over the parties and
the subject matter;
3. The parties must have been given an opportunity to
adduce evidence in their behalf;
4. The evidence must have been considered by the
tribunal in deciding the case;
5. The judgment must be in writing, personally and
directly prepared by the judge. Note: A verbal
judgment is not in esse, therefore, ineffective;
6. The judgment must state clearly (and distinctly) the
facts and the law on which it is based, signed by the
judge and filed with the clerk of court.
A decision need not be a complete recital of the evidence
presented. So long as the factual and legal basis is distinctly and
clearly set forth, the judgment is valid.
Orders Granting of Denying a Motion to Dismiss
It is not only judgments which must distinctly and clearly state
the facts and the law upon which they are based. Under the
Rules of Court, it is required that resolutions disposing of a
motion to dismiss shall state clearly and distinctly the reason
therefore. This requirement prescribes the common practice of
perfunctorily dismissing a motion to dismiss for lack of merit.
An example of an order violative of the Rule of Court is one
which reads: This Court finds that the grounds stated on the
Motion to Dismiss are without merit, hence, denied.
(Barrazona vs. RTC of Baguio, G.R. No. 154282)
Denials of a petition for review or a motion for
reconsideration
The Constitution of the Philippines also requires that the refusal
to give due course to or the denial of a petition for review or of
a motion for reconsideration must state the legal basis
therefor.
Conflict between the dispositive portion and body of the
decision
1. A judgment has two parts, namely,
a. Ratio decidendi or the body of the
judgment, and
b. Fallo or the dispositive portion of the
judgment.
2. The ratio decidendi is not the part of the judgment
that is subject to execution but the fallo because it is
the latter which is the judgment of the court.
3. It is the dispositive part of the judgment that actually
settles and declares the rights and obligations of the
parties, finally, definitely, and authoritatively.
4. The general rule is that where there is a conflict
between the dispositive portion or fallo of the
decision and the body of the decision, the fallo
controls. Note: The fallo to reviewis the final order
while the opinion in the body is merely a statement
ordering nothing.
5. Where the inevitable conclusion from the body of the
decision is so clear that there was a mere mistake in
the dispositive portion, the body of the decision will
prevail.
Ambiguity in the judgment; clarificatory judgment
Where the judgment is difficult to execute because of
ambiguity in its terms, it is suggested that the remedy to avail
of is to have the court remove the ambiguity by the filing of a
motion for a clarificatory judgment and not to assail the
judgment as void.
Resolutions of the Supreme Court
1. Resolutions of the Supreme Court denying petitions
to review decisions of the Court of Appeals, are not
decisions within the purview of the Constitution.
2. Minute resolutions are likewise not decisions falling
within the constitutional requirement.
Interlocutory orders
Interlocutory orders are NOT decisions within the constitutional
definition. They are those that determine incidental matters
that do not touch on the merits of the case or put an end to the
proceedings.
The proper remedy to question improvident interlocutory order
is a petition for certiorari under Rule 65, not Rule 45. A petition
for review under Rule 45 is the proper mode of redress to
question only final judgments.
Memorandum decisions
1. A memorandum decision is one rendered by an
appellate court and incorporated by reference the
findings of fact and conclusions of law contained in
the decision or order under review.
2. This is to avoid the cumbersome reproduction and
repetition of the decision of the lower court in the
decision of the higher court.
3. It must also provide direct access to the facts and the
law being adopted, which must be contained in a
statement attached to the decision, and made an
indispensable part of the decision.
4. As long as a memorandum decision states the nature
of the case, summarizes the facts with references to
the record and contains a statement of the applicable
laws and jurisprudence and the tribunals assessment
and conclusions on the case, the constitutional
requirement of a valid judgment will not be
transgressed.
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Meaning of rendition of judgment
1. Rendition of a judgment is the filing of the same with
the clerk of court.
2. Even if the judgment has already been put in writing
and signed, it is still subject to amendment if it has
not yet been filed with the clerk of court and before
its filing does not yet constitute the real judgment of
the court.
Period within which to render a decision
1. All cases must be decided or resolved by
a. the Supreme Court within 24 months from
the date of their submission for decision;
b. all lower collegiate courts within 12
months, unless reduced by the Supreme
Court; and
c. all other lower courts within 3 months,
unless reduced by the Supreme Court.
2. A case is deemed submitted for resolution upon the
filing of the LAST pleading, brief or memorandum
required by the Rules of Court or by the court.
3. The 90-day period for deciding the case commences
from the submission of the case for decision without
memoranda. In case the court requires or allows its
filing, the case shall be considered submitted for
decision upon the filing of the LAST memorandum, or
the expiration of the period to do so, whichever is
earlier. In cases where the court allows the filing of
memoranda, no further orders announcing the
submission of the case for decision is necessary
before they are deemed submitted for decision.
Note: The speedy disposition of cases by judges is in fact
unequivocally directed by Canon 6 of the Code of Judicial
Ethics: He should be prompt in disposing of all matters
submitted to him, remembering that justice delayed is often
justice denied.
Extension of the period to render a decision
An extension of the period may be set by the Supreme Court
within which to decide a case upon request by the judge
concerned on account of heavy caseload or by other reasonable
excuse. Without an extension granted by the court, a delay in
the disposition of cases is tantamount to gross inefficiency on
the part of the judge.
Judgment penned by a judge who did not hear the evidence
1. It is not necessary that the judge who heard the
evidence be the same judge who shall pen the
decision.
2. The fact alone that the judge who penned the
decision was not the same judge who heard the case
and received the evidence therein would not render
the findings in the said decision erroneous and
unreliable.
Judgment penned by a judge who had ceased to be a judge
1. A decision penned by a judge after his retirement
cannot be validly promulgated and cannot acquire a
binding effect.
2. When a judge retires, all his authority to decide any
case, i.e., to write, to sign and promulgate the
decision has also retired with him.
3. It is well-settled that, to be binding, a judgment must
be duly signed and promulgated during the
incumbency of the judge whose signature appears
thereon. A decision is void if promulgated after the
judge who rendered it had ceased to be a judge of the
court.
Judgment penned by a judge who was transferred
A judge who was permanently transferred to another court of
equal jurisdiction before the case heard by him was decided
may validly prepare and sign his decision on the said case and
send the same to the court where he was originally assigned.
Judgments of the Supreme Courtform part of the legal
system
Rule of stare decisis
1. The rule holds that when the Supreme Court has laid
down a principle of law applicable to a certain state
of facts, it will adhere to that principle and apply it to
all future cases where the facts are substantially the
same.
2. A point of law, once established by the court, will
generally be followed by the same court and by all
courts of lower rank in subsequent cases involving a
similar legal issue.
3. The principle enjoins adherence to judicial
precedents.
4. It is founded on the necessity for securing certainty
and stability in the law and does not require identity
of or privity of parties.
Obiter dictum
1. An obiter dictum is an opinion expressed by a court,
which is not necessary to the decision of the case
before it. It is neither enforceable as a relief nor a
source of a judicially actionable claim.
2. Such is not binding as a precedent.
When a judgment becomes final
The term final when used to describe a judgment may be
used in two senses:
1. It refers to a judgment that disposes of a case in a
manner that leaves nothing more to be done by the
court in respect thereto. The remedy is to appeal.
2. It refers to a judgment that is no longer appealable
and is already capable of being executed because the
period for appeal has elapsed without a party having
perfected an appeal or if there has been an appeal it
has already been resolved by a highest possible
tribunal. (Also referred to as Final and executory).
Conclusiveness of judgments (immutability of judgments)
1. A judgment that has attained finality can no longer be
disturbed.
2. It may no longer be modified in any respect, even if
the modification is meant to correct what is perceived
to be an erroneous conclusion of fact or law, and
regardless of whether the modification is attempted
to be made by the court rendering it or by the highest
court of the land.
55 | P L A T O N
 3. The court loses jurisdiction over the judgment to
amend or alter the same but it retains jurisdiction to
execute it during its lifetime.
Exceptions to the Rule of Immutability of Judgments
GR: Once a judgment has become final and executory, it can no
longer be disturbed, altered or modified
XPN:
a) The correction of clerical errors;
b) The so-called nunc pro tunc entries which cause no
prejudice to any party and void judgments;
c) Whenever circumstances transpire after the finality
of the decision rendering its execution unjust and
inequitable;
d) In cases of special and exceptional nature as when
facts and circumstances transpire which render the
judgments execution impossible or unjust, when
necessary in the interest of justice to direct its
modification to harmonize the disposition with
prevailing circumstances;
e) Void judgments
Res judicata effect of a final judgment or final order
1. Res judicata has two aspects:
a. Bar by prior judgmentthe judgment or
final order is a bar to the prosecution of a
subsequent action based on the same claim
or cause of action; and
b. Conclusiveness of judgmentthe judgment
or final order precludes the relitigation of
particular issues or facts on a different
demand or cause of action.
2. By force of res judicata, a final judgment is conclusive
not only on the matters or issues directly or actually
determined by the decision but also on all issues that
could have been raised in relation thereto.
3. A significant effect of a final judgment or order is its
being appealable.
4. A judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or
final order, has the following effects:
a. If the judgment is on a specific thing, the
judgment is conclusive upon the title to the
thing;
b. If the judgment is against a person, the
judgment is presumptive evidence of a right
as between the parties and their successors
in interest by a subsequent title.
In either case, the judgment or final order may
however, be assailed only on any of the following
grounds:
a) Evidence of want of jurisdiction;
b) Want of notice to the party;
c) Collusion;
d) Fraud; or
e) Clear mistake of fact or law.
Judgment on the merits
1. A judgment is on the merits when it amounts to a
legal declaration of the respective rights and duties of
the parties, based upon the disclosed facts.
2. Jurisprudence does not require that a judgment on
the merits be one rendered after a full blown trial.
3. One that is rendered after consideration of the
evidence submitted by the parties during the trial of
the case.
Doctrine of law of the case
According the this principle, whatever is once irrevocably
established as the controlling legal rule or decision between the
same parties in the case continues to be the law of the case,
whether correct on general principles or not, so long as the
facts on which such decision was predicated continue to be the
facts of the case before the court.
The principle generally finds application in cases where an
appellate court passes on a question and remands the case to
the lower court for further proceedings. The question there
settled becomes the law of the case upon subsequent appeal.
Several judgment
1. A several judgment is one rendered by a court against
one or more defendants, but not against all, leaving
the action to proceed against the others.
2. A several judgment is proper when the liability of
each party is clearly separate and distinct from that of
his co-parties. (E.g., debtors in a joint obligation).
Separate judgment
This kind of judgment presupposes that there are several claims
for relief presented in a single action. The judgment will
terminate the action with respect to one claim and the action
shall proceed as to the remaining claims.
1. One rendered by a court disposing of a claim, among several
others, presented in a case after determination of the issues
material to a particular claim and all counterclaims arising
out of transaction or occurrence, which is the subject matter
of said claim.
2. It is proper when more than one claim for relief is presented
in an action and a determination as to the issues material to
the claim has been made. The action shall proceed as to the
remaining claims.
Conditional judgment
On the effectivity of which depends upon the occurrence or the
non-occurrence of an event. Such judgment is generally void
because of the absence of a disposition.
Judgment sin perjuicio
1. A brief judgment containing only the dispositive
portion, without prejudice to the making of a more
extensive discussion of the findings of fact and law to
support it. This is not actually a final decision, should
be avoided and should not be looked with favor.
2. May refer to a dismissal of a case without prejudice
to its being re-filed.
Judgment nunc pro tunc (now for then)
1. A judgment intended to enter into the record acts
which had already been done, but which do not yet
appear in the record.
2. The function of which is not to render a new
judgment or to correct a judicial error but to make
the records show what the judicial action really was
but was omitted from the records.
56 | P L A T O N

Judgment upon a compromise
1. This is a judgment rendered by the court on the basis
of a compromise agreement entered into between
the parties to the action.
2. A compromise has upon the parties the effect of res
judicata which had already been laid to rest by the
parties themselves can no longer be relitigated.
3. A compromise is perfected by mere consent,
manifested by the meeting of the offer and the
acceptance upon the thing and the cause which
constitutes the contract. It is perfected upon the
meeting of the minds and does not need a judicial
approval for its perfection.
4. Under Article 2028 of the Civil Code, a compromise
agreement is defined as a contract whereby the
parties, by making reciprocal concessions, avoid
litigation or put an end to one already commenced.
5. Once approved by the court, a judicial compromise is
not appealable and it thereby becomes immediately
executory. The order approving the compromise
agreement thus becomes a final act, and it forms part
and parcel of the judgment that can be enforce by a
writ of execution unless otherwise enjoined by a
restraining order.
6. If one of the parties refuses to abide by the
compromise, the other party may either enforce the
compromise or regard it as rescinded and insist upon
the original demand.
7. To assail a judgment by compromise, there must be a
proper motion to set aside the compromise on the
ground that the compromise agreement was
obtained either by:
a. Fraud;
b. Violence;
c. Intimidation;
d. Falsity of documents; or
e. Some other vices of consent.
8. A motion to set aside the compromise on a ground
vitiating consent applies only to a judgment upon a
compromise. When the compromise is not judicial
and is a result of the contract between the parties,
the proper remedy is an action to annul the
compromise.
Judgment upon a confession
This is a judgment rendered by the court when a party
expressly agrees to the other partys claim or acknowledges the
validity of the claim against him.
Judgment against an entity without a juridical personality
Section 15, Rule 3 Section 6, Rule 36
When two or more persons The judgment shall be actually
not organized as an entity against the parsons who form
with juridical personality the entity without a juridical
nevertheless transact with personality and the judgment
third persons under a shall set out their individual or
common name, they may be proper names, if known.
sued under the name by
which they are generally or
commonly known.
Entry of judgment; date thereof
1. The entry of judgment refers to the physical act
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become final
and executory.
2. The record shall contain:
a. The dispositive portion of the judgment or
final order, and
b. Shall be signed by the clerk of court,
c. With a certificate by said clerk that the
judgment has already become final and
executory.
3. The date of the entry of judgment is the date when
the judgment becomes final and executory regardless
of the date when the physical act of entry was done.
Relevance of knowing the date of the entry of a judgment
There are some proceedings the filing of which is reckoned
from the date of the entry of judgment.
E.g.
a) The execution of a judgment by motion is within 5
years from the entry of judgment;
b) The filing of a petition for relief has, as one of its
periods, not more than 6 months from the entry of
judgment or final order.
Chapter X Post Judgment Remedies
Available remedies to the aggrieved party
1. BEFORE a judgment becomes final and executory, the
aggrieved or losing party ay avail of the following
remedies:
a. Motion for reconsideration;
b. Motion for new trial; and
c. Appeal
2. AFTER the judgment becomes executory, the losing
party may avail of the following:
a. Petition for relief from judgment;
b. Action to annul a judgment;
c. Certiorari; and
d. Collateral attack of a judgment.
I. Remedies Before a Judgment Becomes Final and
Executory
A. Motion for Reconsideration (Rule 37)
Object of the motion
1. The motion is one that is directed against a judgment
of a final order. It is not the motion for
reconsideration of an interlocutory order which for
instance, precedes a petition for certiorari.
2. It is a prohibited motion is a case that falls under
summary procedure and under the Rule of Procedure
for Small Claims.
When to file
1. Within the PERIOD FOR APPEAL. No motion for
extension of time to file a motion for reconsideration
shall be allowed.
2. The period for appeal is within 15 days after notice to
the appellant of the judgment or final order appealed
from. Where the record on appeal is required, the
57 | P L A T O N
 appellant shall file a notice of appeal and a record on
appeal within 30 days from notice of the judgment or
final order. A record on appeal shall be required only
in special proceedings and other cases of multiple or
separate appeals.
3. The above-mentioned 15-day period begins to run
upon receipt of notice of the decision or final order
appealed from. Such period has been considered to
begin upon receipt of notice by the COUNSEL OF
RECORD, which is considered notice to the parties.
Service of judgment on the party is prohibited and is
not considered the official receipt of the judgment.
XPN: When the court or tribunal orders service upon
the party or when the technical defect in the manner
of notice is waived.
Effect of the filing of the motion on the period to appeal
The filing of a timely motion for reconsideration INTERRUPTS
the period of appeal.
Grounds for a motion for reconsideration
1. The MOTION for reconsideration must be IN
WRITING, a WRITTEN NOTICE of which must be
served on the adverse party, and may be anchored on
any of the following grounds:
a. That the DAMAGES awarded are excessive;
b. That the EVIDENCE is insufficient to justify
the decision or final order; or
c. That the DECISION or final order is contrary
to law.
2. It is not sufficient to mention the ground relied upon.
It is necessary for the motion to POINT OUT
specifically the findings or conclusions of the
judgment or final order which are not supported by
the evidence or which are contrary to law, making
EXPRESS REFERENCE to the testimonial or
documentary evidence or to the provisions of law
alleged to be contrary to such findings or conclusions.
Note: Non-compliance with this requirement would reduce the
motion to a mere pro forma motion and shall not toll the
reglementary period of appeal.
Pro forma motion
One which does not satisfy the requirements of the rules and
one which will be treated as a motion intended to delay the
proceedings.
Resolution of the motion
The motion shall be resolved within 30 days from the time it is
submitted for resolution.
Denial of the motion; the fresh period rule
If the motion is denied, the movant has a fresh period of 15
days from receipt or notice of the order denying or dismissing
the motion within which to file a notice of appeal. (See Neypes
v. Court of Appeals, G.R. No. 141524).
Order of denial, not appealable
The fresh period rule does not refer to the period within
which to appeal from the order denying the motion for
reconsideration but to the period within which to appeal from
the judgment itself because an order denying a motion for
reconsideration is not appealable. (See Section 9, Rule 37).
Remedy when motion is denied
1. Not to appeal from the order of denial but to appeal
from the judgment or final order itself subject of the
motion for reconsideration.
2. Effective December 27, 2007, it is submitted that an
order denying a motion for reconsideration is NO
LONGER ASSAILABLE BY CERTIORARI because of the
amendment to Rule 41 by A.M. No. 07-7-12-SC.
Effect of granting a motion for reconsideration
It may AMEND such judgment or final order accordingly. The
amended judgment is in the nature of a new judgment which
supersedes the original judgment. It is not a mere supplemental
decision which does not supplant the original but only serves to
add something to it.
Partial reconsideration
If the court finds that a motion affects the issues of the case as
to only a part, or less than all of the matters in controversy, or
only one, or less than all, of the parties to it, the order may
grant a reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest.
The single motion rule
A party shall not be allowed to file a second motion for
reconsideration of a judgment or final order. Note: This rule
only applies when the motion is directed against a judgment or
a final order. The rule does not apply to a motion for
reconsideration of an interlocutory order.
B. Motion for New Trial (Rule 37)
When to file
1. A motion for new trial is filed WITHIN THE PERIOD
FOR APPEAL. No motion for extension of time to file a
motion for new trial shall be allowed.
2. A motion for new trial is prohibited in cases covered
by the Rule on Summary Procedure and under the
Rule of Procedure for Small Claims Cases.
Effect of the filing of the motion on the period to appeal
The filing of a timely motion for new trial INTERRUPTS the
period to appeal.
Form of a motion for new trial
Like a motion for reconsideration, the motion for new trial shall
be made IN WRITING, stating the GROUND or grounds
therefore, a WRITTEN NOTICE of which shall be served by the
movant on the adverse party.
Grounds for a motion for new trial
The aggrieved party may move the trial court to SET ASIDE the
judgment or final order and grant a new trial for one or more of
58 | P L A T O N
the following causes materially affecting the substantial rights
of said party:
1. Fraud, accident, mistake or excusable negligence
which ordinary prudence could not have guarded
against and by reason of which such aggrieved party
has probably been impaired in his rights (supported
by affidavits of merit); or
2. Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced
at the trial, and which if presented would probably
alter the result (supported by affidavits of the witness
by whom such evidence is expected to be given, or by
duly authenticated documents which are proposed to
be introduced in evidence).
Affidavit of merit
1. One showing the facts (not mere conclusions or
opinions) constituting the valid cause of action or
defense which the movant may prove in case a new
trial is granted, because a new trial would serve no
purpose and would just waste the time of the court
as well as the parties if the complaint is after all
groundless or the defense is nil or ineffective.
2. Under the Rules, the moving party must show that he
has a meritorious defense.
Gross negligence of counsel NOT a ground for new trial
Resolution of the motion
The motion shall be resolved within 30 days from the time it is
submitted for resolution.
Denial of the motion; the fresh period rule
If the motion is denied, the movant has a fresh period of 15
days from receipt or notice of the order denying or dismissing
the motion within which to file a notice of appeal. (See Neypes
v. Court of Appeals, G.R. No. 141524).
Order of denial, not appealable
The fresh period rule does not refer to the period within
which to appeal from the order denying the motion for new
trial because the order is not appealable. (See Section 9, Rule
37).
Remedy when motion is denied
Effective December 27, 2007, it is submitted that an order
denying a motion for new trial is NO LONGER ASSAILABLE BY
CERTIORARI because of the amendment to Rule 41 by A.M. No.
07-7-12-SC.
The remedy available therefore, would be that prescribed
under Section 9 of Rule 37, i.e., to appeal from the judgment of
final order.
Effect of granting a motion for new trial
If the court grants the motion, the original judgment or final
order shall be VACATED, and the action shall stand for trial de
novo. The recorded evidence taken upon the former trial shall
be used at the new trial without retaking the same if the
evidence is material and competent.
Partial new trial
1. If the court finds that a motion affects the issues of
the case as to only a part, or less than all of the
matters in controversy, or only one, or less than all,
of the parties to it, the order may grant a
reconsideration as to such issues if severable without
interfering with the judgment or final order upon the
rest.
2. When there is an order for a partial new trial, i.e., less
than all of the issues are ordered retried, the court
may either:
a. ENTER a judgment or final order as to the
rest, or
b. STAY the enforcement of such judgment or
final order until after the new trial.
Second motion for new trial
While a second motion for reconsideration is not allowed, a
second motion for new trial is AUTHORIZED by the Rules. A
motion for new trial shall include all grounds THEN AVAILABLE.
Those not so included are deemed waived. However, when a
ground for new trial was not existing or available when the first
motion was made, a second motion for new trial may be filed
within the period allowed but excluding the time during which
the first motion had been pending.
APPEALS
General principles on appeal
1. The right to appeal is not part of due process but a
mere statutory privilege that has to be exercised only
in the manner and in accordance with the provisions
of law.
2. The right to appeal is not a constitutional or a natural
right.
3. The general rule is that the remedy to obtain reversal
or modification of judgment on the merits is appeal.
Note: A party is not allowed to question the decision
on the merits and also invoke the extraordinary
remedy of certiorari under Rule 65 and an ordinary
appeal under Rule 41 cannot be allowed since one
remedy would necessarily cancel out the other.
4. An appeal may be taken only from judgments or final
orders that completely disposes of the case. An
interlocutory order is not appealable until after the
finality of the judgment on the merits.
Judgment or orders that are not appealable
a) An order denying a motion for new trial or
reconsideration; (See A.M. No. 07-7-12-SC)
b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
c) An interlocutory order;
d) An order disallowing or dismissing an appeal;
e) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground
vitiating consent;
f) An order of execution;
g) A judgment or final order for or against one or more
of several parties or in separate claims,
59 | P L A T O N
 counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
h) An order dismissing an action without prejudice.
Remedy in case the judgment or final order is not appealable
The aggrieved party may file the appropriate special civil action
under Rule 65. XPN: An aggrieved party may no longer assail an
order denying a motion for new trial or a motion for
reconsideration by way of Rule 65 as per A.M. No. 07-7-12-SC,
such ground having been removed from the enumeration in
Sec. 1 of Rule 41. Remedy: Appeal from the judgment (Sec. 9,
Rule 37).
Issues that may be raised on appeal
1. It is already well-settled in this jurisdiction that a
party may not change his theory of the case on
appeal. (Sec. 15, Rule 44)
2. Also, defenses not pleaded in the answer may not be
raised for the first time on appeal. Accordingly, courts
of justice have no jurisdiction or power to decide a
question not I issue.
Issues that the appellate court decides on appeal
1. The appellate court shall consider no error unless
stated in the assignment of errors.
2. As a rule, no question will be entertained on appeal
unless it has been raised in the court below. (See
exceptions below)
When errors not raised on appeal may be considered
1. The court may consider an error not raised on appeal
provided the same falls within any of the following
categories:
a) It is an error that affects the jurisdiction
over the subject matter;
b) It is an error that affects the validity of the
judgment appealed from;
c) It is an error which affects the proceedings;
d) It is an error closely related to or dependent
on an assigned error and properly argued
on the brief;
e) It is a plain and clerical error;
f) Where there are jurisprudential
developments affecting the issues; or
g) When the issues raised present a matter of
public policy.
2. Jurisprudence likewise provides some exceptions to
the rule:
a) The Supreme Court is clothed with ample
authority to review matters, even if they
are not assigned as errors on appeal, if it
finds that their consideration is necessary in
arriving at a just decision of the case.
3. It has also been held that the Court of Appeals for
instance, is imbued with sufficient authority and
discretion to review matters, not otherwise assigned
as errors on appeal, if it finds that the consideration is
necessary in arriving at a complete and just resolution
of the case or to serve the interest of justice or to
avoid dispensing piecemeal justice.
Appeals in criminal cases
1. In criminal cases, it is axiomatic that where an
accused appeals the decision against him, he throws
open the whole case for review and it then becomes
the duty of the Supreme Court to correct any error as
may be found in the appealed judgment, whether it
was made the subject of assignment of errors or not.
2. An appeal in a criminal case opens the entire case for
review. The Court can correct errors unassigned in
the appeal.
Payment of docket fee
1. The payment of docket fee within the prescribed
period is MANDATORY for the perfection of an
appeal. Without such payment, the appellate court
does not acquire jurisdiction over the subject matter
of the action and the decision sought to be appealed
from becomes final and executory. Note: Non-
payment of the appellate court docket and other
lawful fees within the reglementary period is a
ground for the dismissal of an appeal.
2. GR: The payment in full of the docket fees within the
prescribed period is mandatory.
XPN:
a) The failure to pay appellate court docket
fee within the reglementary period allows
only discretionary dismissal, NOT automatic
dismissal, of the appeal.
b) Such power should be used in the exercise
of the Court's sound discretion "in
accordance with the tenets of justice and
fair play and with great deal of
circumspection considering all attendant
circumstances."
Record on appeal; notice of appeal
1. An appeal is normally made by filing a notice of
appeal with the court which rendered the judgment
or final order appealed from. No record on appeal
shall be required EXCEPT in special proceedings and
other cases of multiple or separate appeals where the
law or the Rules of Court so require.
2. In a case where multiple appeals are allowed, a party
may appeal only a particular incident in the case and
not all of the matters involved in the same case. The
others which are not made the subject of the appeal
remain to be resolved by the trial court. The RECORD
ON APPEAL is required so the appellate court may
have a record of the proceedings to resolve a
separate and distinct issue raised in the appeal, and
since the original records remain with the trial court it
still can resolve the other issues of the case not made
subject of the appeal.
3. Multiple appeals are allowed in special proceedings,
in actions for recovery of property with accounting, in
actions for partition of property with accounting, in
the special civil actions of eminent domain and
foreclosure of mortgage. Note: If however, the trial
court has fully and finally resolved all the issues in the
complaint for expropriation, there is no need to file a
record on appeal even in an expropriation case.
60 | P L A T O N
 A. Appeal from Municipal Trial Courts to the Regional
Trial Courts (Rule 40)
Where to appeal from a judgment or final order of a
Municipal Trial Court
Such appeal may be taken to the Regional Trial Court exercising
jurisdiction over the area to which the former pertains.
When to appeal
1. An appeal may be taken within 15 days after notice to
the appellant of the judgment or final order appealed
from.
2. Where a record on appeal is required (in special
proceedings and in cases of multiple or separate
appeals), the appellant shall file a notice of appeal
and a record on appeal within 30 days after notice of
the judgment or final order.
How to appeal
1. The appeal is taken:
a) By filing a notice of appeal with the court
that rendered the judgment or final order
appealed from; and
b) By serving a copy of the notice to the
adverse party.
2. Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the
judgment or final order appealed from the full
amount of the appellate court docket and other
lawful fees. (Proof of payment shall be transmitted to
the appellate court)
3. Within 15 days from the perfection of the appeal, the
clerk of court of the lower court shall transmit the
original record or the record on appeal, together with
transcripts and exhibits, which he shall certify as
complete, to the proper Regional Trial Court.
Perfection of the appeal
A party's appeal is deemed perfected as to him by:
1. NOTICE OF APPEALupon the filing of the notice of
appeal in due time.
2. RECORD ON APPEALupon the approval of the
record on appeal filed in due time, with respect to the
subject matter thereof.
Note: The notice of appeal does not require the approval of the
court. Its function is merely to notify the trial court that the
appellant was availing of the right to appeal, and not to seek
the court's permission that he be allowed to pose an appeal.
Duty of clerk of court
Upon the receipt of the complete record or record on appeal,
the clerk of court of the Regional Trial Court shall NOTIFY the
parties of such fact.
Within 15 days from such notice, it shall be the duty of the
appellant to submit a memorandum (briefly discussing the
errors imputed to the lower court), copy of which shall be
furnished the appellee. For the appellant, the filing of a
memorandum is vital to his appeal. Failure to so file shall be a
ground for the dismissal of the appeal.
The appellee may, if he so desires, file his memorandum within
15 days from receipt of the appellant's memorandum.
When case is deemed submitted for decisionupon the filing
of the memorandum of the appellee, or the expiration of the
period to do so.
the Regional Trial Court shall decide the case on the basis of the
entire record of the proceedings had in the court of origin and
such memoranda as are filed.
Appeal from an order dismissing a case for lack of jurisdiction
1. A case may be dismissed in the Municipal Trial Court
without trial on the merits. This occurs when a
motion to dismiss is filed and granted in accordance
with Rule 16 of the Rules of Court. If an appeal is
taken from the dismissal by the lower court, the
Regional Trial Court may affirm or reverse it.
a) If the order of dismissal is REVERSED, the
case shall be remanded to the lower court
for further proceedings.
b) If the order is AFFIRMED, then it is a
declaration of the merits of the dismissal.
However, if the dismissal is made on the ground of
lack of jurisdiction over the subject matter, and the
Regional Trial Court affirms the dismissal, the action
of the latter court shall not be confined to a mere
affirmation of the dismissal. Instead, the rule
obligates the Regional Trial Court to try the case on
the merits as if the case was originally filed with it.
2. The same rule prevails if the case was tried on the
merits in the lower court without jurisdiction over the
subject matter and was subsequently dismissed on
such ground. On appeal, the Regional Trial Court, if it
has original jurisdiction shall not dismiss the case, but
shall decide the case in the same manner as a case
dismissed by the lower court without trial on the
merits. Note: The Regional Trial Court may allow
amendment of the pleadings and may receive
additional evidence in the interest of justice.
3. When a case is dismissed for lack of jurisdiction, the
order of dismissal is one without prejudice because
the plaintiff may simply refile the complaint in the
court with the proper jurisdiction.
Note: Sec. 1(g) of Rule 41 as amended provides that
the order dismissing an action without prejudice is
NOT APPEALABLE. Sec. 8 of Rule 40, on the other
hand, allows an appeal from an order of the MTC
dismissing a case for lack of jurisdiction.
Sec. 8 of Rule 40 hence, should be considered as an exception
to Sec. 1 of Rule 41.
B. Appeal from the Regional Trial Courts to the Court of
Appeals (Rule 41)
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Modes of appeal from the decision of the Regional Trial
Court
PETITION FOR
PETITION FOR
ORDINARY APPEAL REVIEW ON
REVIEW
CERTIORARI
Appeal by
Appeal by writ of
- certiorari to the
error
Supreme Court
Where judgment Where judgment Where judgment
was rendered by was rendered by was rendered by
the court in the the court in the the court in the
exercise of its exercise of its exercise of its
original jurisdiction appellate original jurisdiction
jurisdiction
Governed by Rule Covered by Rule 42 Sec. 2 of Rule 41
41
Brought to the
Taken to the Court of Appeals
Supreme Court
Questions of fact or mixed questions of ONLY questions of
fact and law law
Application of Rule 41"ordinary appeal"appeals from the
judgment or final order of the Regional Trial Court in the
exercise of its ORIGINAL JURISDICTION.
On the other hand, if a litigant loses in the MTC and on appeal
loses in the RTC, the mode of appeal to the Court of Appeals is
by way of Rule 42. This is because the decision of the RTC is in
the exercise of its APPELLATE jurisdiction.
When to appeal
Within 15 days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record on appeal
within 30 days from notice of judgment of final order.
How to appeal
1. Taken by (a) filing a notice of appeal with the court
which rendered the judgment or final order appealed
from, and (b) serving a copy thereof upon the adverse
party. A record on appeal shall be required in special
proceedings and other cases of multiple or separate
appeals when so required by law or the Rules. Note:
Where both parties are appellants, they may file a
joint record on appeal.
2. Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the
judgment or final order appealed from, the full
amount of the appellate court docket fee. (See Rule
40 on Perfection of the appeal)
3. Within 30 days after perfection of all the appeals, the
clerk of court shall verify the correctness and
completeness of the records and if incomplete, to
take such measures to complete such records, certify
to the correctness of the records, to transmit the
same to the appellate court, and to furnish the
parties with copies of his letter of transmittal of the
records to the appellate court.
4. Upon receiving the original record on appeal and the
accompanying documents transmitted by the lower
court, as well as the proof of payment of the docket
and other lawful fees, the clerk of court of the Court
of Appeals shall docket the case and notify the
parties.
5. Within 45 days from receipt of the notice of the clerk
of court, the appellant shall file a brief with proof of
service upon the appellee.
Within 45 days from the receipt of the appellant's
brief, the appellee shall file his own brief with proof
of service to the appellant.
Within 20 days from receipt of the appellee's brief,
the appellant may file a reply brief answering points
in the appellee's brief not covered in his main brief.
Note: Extension of time for the filing of briefs will not
be allowed, except for good and sufficient cause and
only if the motion for extension is filed before the
expiration of the time sought to be extended.
Questions that may be raised on appeal
The appellant may include in his assignment of errors any
question of law or fact that has been raised in the court below
and is within the issues framed by the parties.
Residual jurisdiction
1. The authority of a trial court:
a. To issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated by
the appeal,
b. Approve compromises,
c. Permit appeals of indigent litigants,
d. Order execution pending appeal in
accordance with Sec. 2 of Rule 39, and
e. Allow withdrawal of the appeal
provided these are done prior to the transmittal of
the original record or the record on appeal even if the
appeals have already been perfected or despite the
approval of the record on appeal or in case of a
petition for review under Rule 42, before the Court of
Appeals gives due course to the petition.
2. Available at a stage in which the court is normally
deemed to have lost jurisdiction over the case or the
subject matter involved in the appeal. Note: There is
no residual jurisdiction to speak of where no appeal
or petition has ever been filed.
C. Petition for Review from the Regional Trial Courts to
the Court of Appeals (Rule 42)
Application of Rule 42"petition for review"appeals from
judgment or final order of the Regional Trial Court to the Court
of Appeals in cases decided by the former in the exercise of its
APPELLATE JURISDICTION.
When to appeal
Within 15 days from notice of the decision sought to be
reviewed or of the denial of petitioner's motion for new trial or
reconsideration filed in due time after judgment.
The court may grant an additional period of 15 days only
PROVIDED the extension is sought:
a) Upon proper motion, and
62 | P L A T O N
 b) There is payment of the full amount of the docket
and other lawful fees and the deposit for costs before
the expiration of the reglementary period.
Note: No other extension shall be granted except for the most
compelling reason and in no case to exceed 15 days.
How to appeal
1. Made by filing a VERIFIED petition for review with the
Court of Appeals, paying at the same time to the clerk
of said court the corresponding docket and other
lawful fees, depositing the amount of P500.00 for
costs, and furnishing the Regional Trial Court and the
adverse party with a copy of the petition. Note: The
appeal as to the petitioner upon the timely filing of a
petition for review and the payment of the
corresponding docket and other lawful fees.
2. Filed in the proper form required in Sec. 2 of Rule 42
stating among others:
a) A concise statement of the matters
involved;
b) The Issues raised;
c) The specification of errors of law or fact, or
both, allegedly committed by the trial court;
and
d) The reasons or arguments relied upon for
the allowance of the appeal.
e) Indicate the specific material dates showing
that the petition was filed on time (material
1
date rule );
f) Certification against forum shopping.
Note: Failure to comply with any of the requirements in Sec. 2
of Rule 42 regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
DISMISSAL of the petition.
3. The Court of Appeals may dismiss the petition motu
proprio if it finds the same to be patently without
merit, prosecuted merely for delay, or that the
questions raised are too unsubstantial to require
consideration. Note: If the court does not dismiss the
petition, it may require the respondent to file a
comment on the petition within 10 days from notice.
The respondent shall file a comment, not a motion to
dismiss.
4. If the Court of Appeals finds prima facie that the
lower court has committed an error of fact or law
that will warrant a reversal or modification of the
appealed decision, it may accordingly give due course
to the petition.
If the petition is given due course, the Court of
Appeals may set the case for oral argument OR
require the parties to submit memoranda within a
period of 15 days from the filing of the last pleading
or memorandum required.
Dismissal of the appealdiscretionary
1
Applies also to Rule 42, not only to a petition for certiorari under Rule
65.
An appeal MAY be dismissed by the Court of Appeals, on its
own motion or on that of the appellee, on the following
grounds:
a) Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed by
these Rules;
b) Failure to file the notice of appeal or the record on
appeal within the period prescribed by these Rules;
c) Failure of the appellant to pay the docket and other
lawful fees as provided in section 4 of Rule 41;
d) Unauthorized alterations, omissions or additions in
the approved record on appeal as provided in section
4 of Rule 44;
e) Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within
the time provided by these Rules;
f) Absence of specific assignment of errors in the
appellants brief, or of page references to the record
as required in section 13, paragraphs (a), (c), (d) and
(f) of Rule 44;
g) Failure of the appellant to take the necessary steps
for the correction or completion of the record within
the time limited by the court in its order;
h) Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders,
circulars, or directives of the court without justifiable
cause; and
i) The fact that the order or judgment appealed from is
not appealable.
Residual jurisdiction
The doctrine also applies to Rule 42. The Regional Trial Court
loses jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to
appeal of the other parties (See Sec. 8, Rule 42). Recall that in
an ordinary appeal the residual jurisdiction of the Regional Trial
Court may be exercised prior to the transmittal of the original
record or the record on appeal.
Stay of judgment
GR: The appeal shall stay the judgment or final order.
XPN: Unless the Court of Appeals, the law or the rules shall
provide otherwise:
1. Civil cases decided under the Rules on Summary
Procedure;
2. Small Claims Cases;
2
3. In ejectment cases
D. Appeal by Certiorari to the Supreme Court (Rule 45)
Application of Rule 45"petition for review on certiorari"
1. Appeal from a judgment or final order of the Regional
Trial Court in cases where ONLY QUESTIONS OF LAW
are raised or are involved and the case is one decided
by said court in the exercise of its original jurisdiction.
Note: A decision rendered by the RTC in the exercise
of its appellate jurisdiction should be elevated to the
CA under Rule 42 instead of appealing directly before
2
Discretionary (MTC) if RTC affirms the decision
63 | P L A T O N
 the SC under Rule 45 EVEN IF IT RAISES A PURE 2. The Supreme Court is not a trier of facts, and is not to
QUESTION OF LAW. review or calibrate the evidence on record.
3. Moreover, the findings of facts of the trial court, as
2. Appeal from the judgment, final order, or resolutions affirmed on appeal by the Court of Appeals, are
of the Court of Appeals where the petition shall raise conclusive on the Court.
only questions of law distinctly set forth. 4. Indeed, the general rule is that findings of facts of the trial
3. Appeal from the judgment, final order, or resolutions court will not ordinarily be disturbed by an appellate court
of the Sandiganbayan where the petition shall raise absent any clear showing that the trial court has overlooked,
misunderstood or misapplied some facts or circumstances of
only questions of law distinctly set forth.
weight or substance which could very well affect the
4. Appeal from the decision or ruling of the Court of Tax outcome of the case. It is the trial court that had the
Appeals en banc. opportunity to observe the witnesses manner of testifying,
5. Appeals from a judgment or final order in a petition their furtive glances, calmness, sighs or their scant or full
for a writ of amparo to the Supreme Court. realization of their oaths. Nevertheless, the higher court is
not entirely precluded from reviewing and reversing these
Note: Here the question raised need not only be findings if it is not convinced that they conform to the
questions of law but also questions of fact or of both evidence of record and to its own impressions of the
credibility of the witnesses.
law and fact.
Exceptions to the ruleQuestions of fact may be raised in an
6. Appeals from a judgment or final order in a petition
appeal under Rule 45 provided the petition shows any, some or
for a writ of Habeas Data.
all of the following:
1. The conclusion of the Court of Appeals is grounded
Note: The appeal may raise questions of fact or law
entirely on speculations, surmises and conjectures;
or both.
2. The inference made is manifestly mistaken, absurd or
impossible;
The MODE OF APPEAL prescribed under Rule 45 shall be
3. There is a grave abuse of discretion;
applicable to both civil and criminal cases, except in criminal
4. The judgment is based on misapprehension of facts;
cases where the penalty imposed is death, reclusion perpetua
5. The findings of facts are conflicting;
or life imprisonment.
6. The Court of Appeals, in making its findings went
beyond the issues of the case and the same is
Provisional remedies
contrary to the admissions of both appellant and
appellee;
The petition for review on certiorari under Rule 45 may include
7. The findings are contrary to those of the trial court;
an application for a writ of preliminary injunction or other
8. The findings of fact are conclusions without citation
provisional remedies. The petitioner may seek the same
of specific evidence on which they are based;
provisional remedies by verified motion filed in the same action
9. The facts set forth in the petition as well as in the
or proceeding at any time during its pendency.
petitioner's main and reply briefs are not disputed by
the respondents; or
Not a matter of right
10. The findings of fact of the Court of Appeals are
1. A matter of sound discretion and will be granted only
premised on the supposed absence of evidence and
when special and important reasons could justify the
contradicted by the evidence on record.
petition.
11. In an appeal from a judgment or final order of the
2. Examples of reasons which the court may consider in
court in a petition for a writ of amparo or habeas
allowing the petition:
data, questions of fact may be raised.
a) when the court below decided a question of
substance not yet determined by the
Appeals from Judgment in a Petition for a Writ of Amparo Or
Supreme Court;
Writ of Habeas Data
b) when the court below decided a matter of
1. Any party in a petition for a writ of amparo may
substance in a way that is not accord with
appeal from the final order or judgment of the court
law or with applicable decisions of the
to the Supreme Court under Rule 45. Although Rule
Supreme Court;
45 mandates only questions of law, an appeal from a
c) when the court below has departed from
judgment in a petition of writ of amparo, by way of
the accepted and usual course of judicial
exception to the general rule under Rule 45, may
proceedings, or so far sanctioned such
raise not only questions of law but also questions of
departure by a lower court, as to call for the
fact or bothe questions of law and fact. (Sec. 19, The
exercise of the power of supervision of the
Rule on the Writ of Amparo, eff. Oct. 24, 2007).
Supreme Court.
2. Also, an appeal from a judgment in a petition for writ
3. XPN: Where the penalty of death or reclusion
of habeas data may be appealed to the Supreme
perpetua, an appeal is a matter of right leaving the
Court under Rule 45. Said appeal may likewise raise
court without any discretion.
questions of fact or law or both (Sec. 19, The Rule on
the Writ of Amparo, eff. Feb. 2, 2008)
Questions of law
1. The rule is that before the Supreme Court, only legal
issues may be raised in a petition for review on
certiorari.

64 | P L A T O N
Certiorari under Rule 45 is not the certiorari under Rule 65
Certiorari under Rule 45
Mode of appeal
A continuation of the
appellate process over the
original case
A petition for review
Seeks to review final
judgments or final orders
Raises questions of law
Filed within 15 days from
notice of judgment or final
order appealed from
Does not require a prior
motion for reconsideration
Stays the judgment appealed
from
The parties are the original
parties with the appealing
p[arty as the petitioner and
the adverse party as
respondent WITHOUT
impleading the lower court or
its judge
The petitioner and
respondent are also the
original parties to the action
in the lower court
Filed with the Supreme Court
GR: A party cannot file a petition both under Rules 45 and 65 of
the Rules of Court because said procedural rules pertain to
different remedies and have distinct applications. Otherwise,
his petition may be dismissed outright.
Certiorari under Rule 65
Special civil action that is an
original action
Not a part of the appellate
process but an INDEPENDENT
action
An original special civil action
for certiorari
Directed against an
interlocutory order or matters
where no appeal may be
taken from
Raises questions of
jurisdiction because a a) There is a motion for extension of time duly
tribunal, board or officer
exercising judicial or quasi-
judicial functions has acted
without jurisdiction or in
excess of jurisdiction or with
grave abuse of discretion
amounting to lack of
jurisdiction
Filed not later than 60 days
from notice of judgment,
order or resolution sought to
be assailed and in case a
motion for reconsideration or
new trial is timely filed.
whether such motion is
required or not, the 60 day
period shall be counted from
notice of denial of said motion
As a general rule, a prior
motion for reconsideration is
required
Does not stay the judgment or
order subject of the petition
unless enjoined or restrained
The tribunal, board, officer
exercising judicial or quasi-
judicial functions is impleaded
as respondent.
The parties are the aggrieved
party against the lower court
or quasi-judicial agency and
the prevailing parties, who
thereby respectively become
the petitioner and
respondents.
Filed with the RTC (Sec. 21, BP
129 as amended), the CA (Sec.
9, BP 129 as amended) or with
the SC (Sec. 5[1], Art. VIII,
Constitution)
XPN: The court may set aside technicality for justifiable reasons
as when the petition before the court is clearly meritorious and
filed on time both under Rules 45 and 65. The court may treat
the petition as having been filed under Rule 45.
When to appeal
1. In the form of a VERIFIED petition, filed within 15
days from notice of the judgment, final order or
resolution appealed from, or within 15 days from
notice of the denial of the petitioner's motion for new
trial or motion for reconsideration filed in due time.
2. The Supreme Court may, for justifiable reasons, grant
an extension of 30 days only within which to file the
petition PROVIDED:
filed and served;
b) There is full payment of the docket and
other lawful fees and the deposit for costs;
and
c) The motion is filed and served and the
payment is made before the expiration of
the reglementary period.
How to appeal
1. File a VERIFIED petition with the Supreme Court
within the reglementary period raising therein ONLY
questions of law.
2. Pay to the clerk of court of the Supreme Court the
docket and other lawful fees as well as the deposit in
the amount of P500.00 for costs. Proof of service of a
copy of the petition on the lower court concerned
and the adverse party shall be submitted together
with the petition.
The petition shall contain all the matters mentioned
in Sec. 4 of Rule 45 including compliance with the
material data rule which requires the petitioner to
indicate the materail dates showing when notice of
the judgment, final order or resolution subject of the
petition was received and when a motion for new
trial or motion for reconsideration, if any, was filed
and when notice of the denial was received. Among
others, the petition must also be accompanied by a
certification against forum shopping as provided for
in Sec. 2 of Rule 42.
Note: Failure to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees,
deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for its DISMISSAL.
3. The Supreme Court, may on its own initiative, deny
the petition on the ground that:
a) the appeal is without merit;
b) is prosecuted manifestly for delay; or
c) that the questions raised therein are too
unsubstantial to require consideration.
For purposes of determining whether the petition should be
denied or given due course, the Supreme Court may require the
filing of such pleadings, briefs, memoranda or the submission of
documents it may deem necessary.
65 | P L A T O N
If the petition is given due course, the Supreme Court may
require the elevation of the complete record of the case or
specified parts thereof within 15 days from notice.
2.
Provisional Remedies in a Rule 45 Petition
certiorari under Rule 65 may be filed with
the Supreme Court to set aside the
Ombudsman's order or resolution.
In criminal cases, the ruling of the Ombudsman shall
be elevated to the Supreme Court by way of Rule 65.

The new rule now expressly provides that the petition for
review under Rule 45 may include an application for a writ of
preliminary injunction or other provisional remedies which the
petitioner may seek by verified motions filed in the same action
or proceeding at any time during its pendency. (A.M. No. 07-7-
12-SC, eff. Dec. 27, 2007)
Appeals from quasi-judicial agencies
1. Appeals from judgments and final orders of quasi-
judicial bodies/agencies enumerated in Rule 43 are
now required to be brought to the Court of Appeals
under the requirements and conditions set forth in
Rule 43. This rule was adopted precisely to provide a
uniform rule of appellate procedure from quasi-
judicial bodies.
2. The appeal may be taken to the Court of Appeals
whether the appeal involves a question of fact, a
question of law, or mixed questions of fact and law.
The appeal shall be taken by filing a VERIFIED petition
for review with the Court of Appeals.
3. The appeal shall NOT stay the award, judgment, final
order or resolution sought to be review unless:
a. A TRO is applied for by the adverse party; or
b. When the Court of Appeals shall direct
otherwise upon such terms as it may deem
just.
Review of decisions of the NLRC
The remedy of a party aggrieved by the decision of the National
Labor Relations Commission is to promptly move for
reconsideration of the decision and if denied to timely file a
special civil action of certiorari under Rule 65 within 60 days
from notice of the decision. In observance of the doctrine of
hierarchy of courts, the petition for certiorari should be filed in
3
the COURT OF APPEALS .
Appeals from the Sandiganbayan
1. Appealable to the Supreme Court by way of certiorari
under Rule 45 raising pure questions of law. Certiorari
under Rule 65 is NOT THE REMEDY.
2. The above rule applies when the penalty is less than
reclusion perpertua, life imprisonment or death. (Sec.
7 of PD 1606 as amended by R.A. 7975 and R.A. 8249)
Review of the rulings of the Ombudsman
1. In administrative disciplinary cases, the ruling of the
Office of the Ombudsman are appealable to the
COURT OF APPEALS.
a) The Court of Appeals cannot, therefore,
review the orders, directives or decisions in
criminal or non-administrative cases.
b) Nevertheless, in cases in which it is alleged
that the Ombudsman has acted with grave
abuse of discretion amounting to lack or
excess of jurisdiction, a special civil action of
3
See St. Martin Funeral Homes v. NLRC, G.R. No. 130866, September
16, 1998.
Note: The Supreme Court is not authorized to correct every
error or mistake of the Office of the Ombudsman other than
grave abuse of discretion. The remedy is not a petition for
review on certiorari under Rule 45 but a petition for certiorari
under Rule 65.
Appeals from judgments of the Court of Tax Appeals
1. Under Sec. 11 of R.A. 9282, no civil proceeding
involving matters arising under the National Internal
Revenue Code, the Tariff and Customs Code or the
Local Government Code shall be maintained, except
as herein provided, until and unless an appeal has
been previously filed with the Court of Tax Appeals
and disposed of in accordance with the provisions of
this Act.
A party adversely affected by a resolution of a
Division of the CTA on a motion for reconsideration or
new trial, may file a petition for review with the CTA
EN BANC.
2. Sec. 11 of the same Act further provides that a party
adversely affected by a decision or ruling of the CTA
en banc may file with the SUPREME COURT a verified
petition for review on certiorari pursuant to RULE 45.
Review of judgments of the Commission on Electionsto the
Supreme Court on certiorari under Rule 65 by filing the petition
within 30 days from notice.
Review of judgments of the Commission on Auditto the
Supreme Court on certiorari under Rule 65 by filing the petition
within 30 days from notice.
Appeals from judgments of the Civil Service Commissionto
the Court of Appeals under Rule 43. Note the difference
between the mode of appeal from a judgment of the CSC and
the mode of appeal from the judgments of other constitutional
commissions.
Appeals from judgments of the Office of the Presidentto the
Court of Appeals.
II. Remedies After a Judgment Becomes Final and
Executory
A. Petition for Relief or Relief from Judgments, Orders or
Other Proceedings (Rule 38)
Nature of the petition
1. It is a LEGAL REMEDY whereby a party seeks to set
aside a judgment rendered against him by a court
whenever he was unjustly deprived of a hearing or
was prevented from taking an appeal because of
fraud, accident, mistake or excusable neglect.
2. An equitable remedy that is allowed only in
EXCEPTIONAL CASES when there is no other available
or adequate remedy. Note: A party who has filed a
motion for new trial but which was denied, cannot
66 | P L A T O N
 file a petition for relief. These two remedies are said
to be EXCLUSIVE of each other. The remedy is to
appeal from the judgment.
3. Not an independent action but a CONTINUATION of
the old case. It is filed with the same court which
decided the case.
Grounds for a petition for relief; proper court
1. When a judgment or final order is entered into, or
any other proceeding is thereafter taken against the
petitioner in any court through FAME.
The petition shall be filed in such court and in the
same case (not in another or higher court) praying
that the judgment, order or proceeding be SET ASIDE.
2. When the petitioner has been prevented from taking
an appeal by FAME.
The petition shall likewise be filed in such court and in
the same case (not in another or higher court) but the
prayer this time is that the appeal be given DUE
COURSE.
Petition is available ONLY to the parties
A petition for relief from judgment together with a motion for
new trial and a motion for reconsideration are remedies
available ONLY to parties in the proceedings where the assailed
judgment is rendered.
Petition is available to proceedings after the judgment
A petition for relief is available:
a) Not only against a judgment or final order, but also
b) When any other proceeding is thereafter taken
against the petitioner in any court through FAME.
(i.e., a proceeding taken after the entry of judgment
or final order such as an order of execution)
When to file
The petition shall be filed within 60 days AFTER the petitioner
learns of the judgment, final order or proceeding and NOT
MORE THAN 6 months after such judgment or final order was
entered, or such proceeding was taken. Note: These two
periods must concur. Both periods are also not extendible and
never interrupted.
A petition for relief is actually the last chance given by law to
litigants to question a final judgment or order. An failure to
avail of such last chance within the grace period fixed by the
Rules is FATAL.
Form of the petition; affidavit of merit
The petition:
1. Must be VERIFIED;
2. Must be accompanied with AFFIDAVITS showing
FAME relied upon; and
3. The facts constituting the petitioners good and
substantial cause of action or defense, as the case
may be.
Order to answer
If the petition is sufficient in form and substance, to justify
relief, the court in which it is filed, shall issue an order requiring
the adverse parties to answer the same within 15 days from the
receipt thereof.
Hearing of the petition
After the filing of the answer or the expiration of the period to
file the answer, the court shall hear the petition.
Action of the court
1. After the hearing and the court finds that the
allegations therein are not true, it shall DISMISS the
petition.
2. If the court finds the allegations to be true, it shall SET
ASIDE the judgment, final order or other proceeding
complained of.
a. The case then shall stand as if such
judgment, final order or proceeding had
never been rendered, issued or taken. The
court shall then proceed to hear and
determine the case as if a timely motion for
a new trial or reconsideration had been
granted by it.
b. Where the prayer is to give due course to
his appeal, the court shall set aside the
previous denial of the appeal and shall give
due course to the said appeal. It shall then
elevate the records of the appealed case as
if a timely and proper appeal had been
made.
Preliminary injunction pending the petition for relief
The court in which the petition is filed, may grant such
preliminary injunction to preserve the rights of the parties upon
the filing of a bond in favor of the adverse party. Note: The
bond is conditioned upon the payment to the adverse party of
all damages and costs that may be awarded to such adverse
party by reasons of the issuance of the injunction or other
proceedings following the petition.
No petition for relief in the Supreme Court and Court of
Appeals
Reasons:
1. A petition for relief from judgment is not included in
the list of Rule 56 cases originally cognizable by the
Supreme Court.
2. While Rule 38 uses the phrase any court, it refers
only to Municipal/Metropolitan and Regional Trial
Courts.
3. The procedure in the CA and the Supreme Court are
governed by separate provisions of the Rules of
Court.
4. The Supreme Court is not a trier of facts.
B. Annulment of Judgments or Final Orders or
Resolutions (Rule 47)
Nature of the action
1. A remedy in law independent of the case (not a mode
of appeal) where the judgment sought to be annulled
was rendered.
2. Purpose: To have the final and executory judgment
set aside so that there will be a renewal of litigation.
67 | P L A T O N
 3. It is resorted to in cases where the ordinary remedies
of new trial, appeal, petition for relief from judgment,
or other appropriate remedies are no longer available
through no fault of the petitioner, and is based on
only two grounds.
4. The remedy may no longer be invoked where the
party has availed himself of the remedy of new trial,
appeal, petition for relief or other appropriate
remedy and lost or where he has failed to avail
himself of those remedies through his fault or
negligence.
5. The action is commenced by the filing of a VERIFIED
petition with the proper court.
a) If it is the judgment or final order of a RTC,
the action shall be filed in the CA.
Basis: It has exclusive original
jurisdiction.
The CA may dismiss the case
outright; it has the discretion on
whether or not to entertain the
petition.
b) If it is that of a MTC, it shall be filed in the
RTC having jurisdiction over the former.
Basis: It is a court of general
jurisdiction.
The RTC is required to consider it
as an ordinary civil action. (no
discretion)
Grounds for annulment
1. Extrinsic fraud; and
2. Lack of jurisdiction.
Note: A petition for annulment of judgment is an
EXTRAORDINARY ACTION.
Extrinsic fraud (collateral in character)
1. Fraud which prevents 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.
2. It exists when there is a fraudulent act committed by
the prevailing party outside of the trial of the case,
whereby the defeated party was presented from
presenting fully his side of the case by deception
practiced on him by the prevailing party.
Lack of jurisdiction
Refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Period for filing the action
a) Extrinsic fraud: within 4 years from its discovery;
b) Lack of jurisdiction: before the action is barred by
laches of estoppel.
Who may file the action
The petitioner need not be a party to the judgment sought to
be annulled. What is essential is that the petitioner is one who
can prove his allegation that:
1. The judgment was obtained by the use of fraud and
collusion; AND
2. He was affected thereby
Basic procedure
1. A petition for annulment of judgment filed in the
Court of Appeals shall observe the procedure in
ordinary civil cases. Should it find a trial necessary,
the reception of evidence may be referred to a
member of the court or to a judge of a Regional Trial
Court. A petition filed in the Regional Trial Court shall
also be treated as an ordinary civil action.
2. Except under Sec. 4 of the 1991 Rules on Summary
Procedure where the court is clearly authorized to
dismiss a complaint outright even before summons is
served, an outright dismissal is not the usual
4
procedure in ordinary civil actions .
3. An action for annulment of a judgment, although
treated as an ordinary civil action, departs from the
usual norm because the court, upon the filing of the
petition may make an outright dismissal of the
petition as long as it has specific reasons for its
dismissal. This dismissal may be made even before
summons is served. It is only when the court finds a
prima facie merit in the petition shall summons be
served on the respondent.
Effect of a judgment of annulment
1. Based on lack of jurisdictionshall SET ASIDE the
questioned judgment or final order and will render
the same NULL AND VOID; without prejudice to the
refiling of the original action in the proper court.
2. Based on extrinsic fraudshall SET ASIDE and ANNUL
the questioned judgment or final order; the court,
upon motion, may order the trial court to try the case
as if a motion for new trial was granted.
Note: The prescriptive period for the refiling of the original
action shall be deemed suspended from the filing of such
original action until the finality of the judgment of annulment.
This prescriptive period shall not however, be suspended where
the extrinsic fraud is attributable to the plaintiff in the original
action.
Aside from the setting aside of the judgment or final order and
other effects, the judgment of annulment may include the
award of damages, attorney's fees and other relief.
Application of Rule 47; annulment of judgment of the MTC
1. Rule 47 governs the annulment by the Court of
Appeals of judgments or final orders and resolutions
in civil actions of Regional Trial Courts.
2. Sections 2, 3, 4, 7, 8 and 9 or Rule 47 shall likewise
apply to annulment of judgments or final orders of a
Municipal Trial Court by the Regional Trial Court
having jurisdiction of the former. This action shall be
treated as an ordinary civil action.
4
In ordinary civil actions, the clerk of court first issues the
corresponding summons to the defendant upon the filing of the
complaint and the payment of the requisite legal fees. The defendant
may then file a motion to dismiss pursuant to Rule 16 or the court may
make a motu proprio dismissal on certain grounds as when it finds from
the examination of the complaint that it has no jurisdiction over the
subject matter.
68 | P L A T O N
Annulment of judgments of quasi-judicial bodies
The silence of B.P. Blg. 129 on the jurisdiction of the Court of
Appeals to annul judgments or final orders and resolutions of
quasi-judicial bodies indicates its lack of such authority.
Remedy: Petition for review to the Court of Appeals under Rule
43.
C. Certiorari (Rule 65)
Nature of the Remedy
It is called a supervisory or superintending writ, this remedy is
availed of to annul or modify the proceedings of a tribunal,
board or officer exercising judicial or extra-judicial functions
which has acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack of jurisdiction.
The task of a court in a certiorari proceeding is to determine
whether the lower court committed grave abuse of discretion.
Its function is to raise only questions of jurisdiction and no
other.
The petition shall be filed not later than 60 days from notice of
the judgment, order or resolution. In case a motion of
reconsideration was filed, the 60-day period starts not from the
notice of judgment but from notice of the denial of the motion
for reconsideration.
Motion for Reconsideration
The general rule is that before filing a petition for certiorari
under Rule 65 of the Rules of Court, the petitioner is mandated
to comply with a condition precedent: the filing of a motion for
reconsideration of the assailed order, and the subsequent
denial of the court a quo.
However, the rule is subject to the following recognized
exceptions:
a) Where the order is a patent nullity, as where the
court a quo has no jurisdiction;
b) Where the questions raised in the certiorari
proceeding have been duly raised and passed upon
by the lower court, or are the same as those raised
and passed upon in the lower court;
c) Where there is an urgent necessity for the resolution
of the question and any further delay would prejudice
the interests of the Government or of the petitioner
or the subject matter of the action is perishable;
d) Where, under the circumstances, a motion for
reconsideration would be useless;
e) Where petitioner was deprived of due process and
there is extreme urgency for relief;
f) Where, in a criminal case, relief from an order of
arrest is urgent and the granting of such relief by the
trial court is improbable;
g) Where the proceedings in the lower court are a
nullity for lack of due process;
h) Where the proceedings was ex parte or in which the
petitioner had no opportunity to object; and
i) Where the issue raised is one purely of law or public
interest is involved (Sps. Nice vs. Equitable PCI-Bank
G.R. No. 167434)
Material Data (Date) Rule
Under the Rules of Court provides that there are three material
dates that must be stated in a petition for certiorari brought
under Rule 65:
1) the date when notice of the judgment or final order
or resolution was received;
2) the date when a motion for new trial or for
reconsideration when one such was filed; and
3) the date when notice of the denial thereof was
received.
This requirement is for the purpose of determining the
timeliness of the petition.
Certification Against Forum Shopping
Rule 65 also required the pleader to submit a certification
against forum shopping. (Sec. 1, Rule 65 in relation to Sec. 3 of
Rule 46; Great Southern Maritime Services Corp. vs Acuna,
supra)
Observance of Hierarchy of Courts
In filing for a petition for certiorari, the hierarchy of courts must
be observed. Hence, even though the Supreme Court has
concurrent jurisdiction with the Court of Appeals and the RTC
to issue a writ of mandamus, prohibition or certiorari, litigants
are advised against taking direct recourse to the Supreme Court
without initially seeking proper relief from the lower courts.
Amendments to Rule 65
Read Chapter 13 for a discussion of Rule 65.
D. Collateral Attack of a Judgment
A direct attack of a judgment is made through an action or
proceeding the main object of which is to annul, set aside or
enjoin the enforcement of such judgment if not yet carried into
effect; or if the property has been disposed of, the aggrieved
party may sue for recovery. (E.g., Petition for certiorari under
Rule 65)
A collateral attack is made when, in another action to obtain
different relief, an attack on the judgment is made as an
incident in said action. This is proper only when the judgment,
on its face, is null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction. (E.g., a
motion to dismiss a complaint for collection of a sum of money
filed by a corporation against the defendant on the ground that
the plaintiff has no legal capacity to sue. A motion to dismiss is
incidental to the main action for a sum of money.)
Chapter XI Execution of Judgments
Meaning of execution
Execution is the remedy afforded for the satisfaction of a
judgment. It is the fruit and end of the suit.
Part of the judgment to be executed
1. The dispositive portion (also called fallo) of the
judgment is that part which is subject to execution.
2. Jurisprudence consider this portion of the judgment
asthat which finally invests rights upon the parties,
69 | P L A T O N
 sets conditions for the exercise of those rights, and
imposes the corresponding duties and obligations.
When execution shall issue
1. Execution is a matter of right upon the expiration of
the period to appeal and no appeal was perfected
from a judgment or order that disposes of the action
or proceeding.
2. The issuance of a writ of execution becomes the
ministerial duty of the court, thus, compellable by
mandamus.
3. Judgments and orders become final and executory by
operation of law and not by judicial declaration.
How execution shall issue
1. There is a need to file a MOTION for the issuance of a
writ of execution.
2. Even in judgments which are immediately executory,
there must be a motion to that effect and a hearing
called for the purpose.
3. Such motion shall contain a NOTICE (of hearing of the
time and place for the hearing of said motion) to the
adverse party. Otherwise, it is a worthless piece of
paper which the clerk of court has no right to receive
and which the court has no authority to act upon.
Where the application for execution made
1. Execution shall be applied for in the COURT OF
ORIGIN.
2. If an appeal has been duly perfected and finally
resolved, the execution may be applied for also in the
court of origin on motion of the judgment obligee,
attaching certified true copies of:
a. The judgment of the appellate court, and
b. The entry of judgment
3. If for whatever reason execution cannot be had with
the court of origin, he may file a motion with the
appellate court to direct the court of origin, in the
interest of justice, to issue the writ of execution.
No appeal from an order of execution
A party desiring to assail an order of execution may instead file
an appropriate special civil action under Rule 65 of the Rules of
Court.
Form and contents of writ of execution
The writ of execution is:
1. Issued in the name of the Republic of the Philippines;
and
2. Shall state the:
a. Name of the court which granted the
motion;
b. Case number;
c. Dispositive portion of the judgment or
order subject of the execution; and
d. Shall require the sheriff or other proper
officer to whom it is directed to enforce the
writ according to its terms.
Writ of execution must conform with judgment
The execution is VOID if it is in excess of and beyond the
original judgment or award for it is settled general principle
that a writ of execution must conform strictly to every essential
particulars of the judgment promulgated.
Lifetime of the writ of execution
1. The writ shall continue in effect during the period
within which the judgment may be enforced by
motion.
2. The writ is enforceable within the FIVE-YEAR period
from entry of judgment by motion.
Q: When is an execution a matter of right?
A:
1. The judgment has become final and executory;
2. Judgment debtor has renounced or waiver his right to
appeal;
3. The period for appeal has lapsed without an appeal
having been filed;
4. Having been filed, the appeal has been resolved and
the records of the case have been returned to the
court of origin.
When execution will be denied
a) When the judgment has already been executed by
the voluntary compliance thereof by the parties;
b) When the judgment has been novated by the parties;
c) When a petition for relief is filed and a preliminary
injunction is granted; Also when execution of the
judgment is enjoined by a higher court;
d) When the judgment sought to be executed is
conditional or incomplete;
e) When the facts and circumstances transpire which
would render execution inequitable or unjust;
f) When executions is sought more than 5 years from its
entry without the judgment having been revived;
g) When execution is sought against property exempt
from execution; or
h) When refusal to execute the judgment has become
imperative in the higher interest of justice.
Quashal of a writ of execution
a) When the writ of execution varies the judgment;
b) When there has been a change in the situation of the
parties making execution inequitable or unjust;
c) When execution is sought to be enforced against
property exempt from execution;
d) When it appears that the controversy has never been
submitted to the judgment of the court;
e) When the terms of the judgment are not clear
enough and there remains room for interpretation
thereof;
f) When it appears that the writ of execution has been
improvidently issued;
g) When it appears that the writ of execution is
defective in substance, or is issued against the wrong
party, or that the judgment debt has been paid or
otherwise satisfied, or the writ was issued without
authority.
Duty of the sheriffpurely ministerial; he is to execute the
order of the court strictly to the letter.
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Modes of execution of a judgment
1. Execution by MOTION if the enforcement of the
judgment is sought within 5 years from the date of its
entry; and
The date of the finality of the judgment or
final order shall be deemed to be the date
of its entry.
2. Execution by INDEPENDENT ACTION for the revival of
the judgment if the 5-year period has elapsed and
before it is barred by the statute of limitations.
Revival of judgment
1. A procedural means of securing the execution of a
previous judgment which has become dormant after
the passage of 5 years without it being executed upon
motion of the prevailing party.
2. Such action presupposes that the judgment can no
longer be enforced by mere motion.
3. The action must be filed WITHIN 10 YEARS from the
date the judgment became final.
4. A revived judgment is deemed a NEW JUDGMENT
separate and distinct from the original judgment. It is
not a continuation of the original judgment.
The 10-year period to revive the revived
judgment shall commence to run from the
date of the finality of the revived judgment
and not from the date of finality of the old,
original judgment.
5. After the lapse of 5 years, the judgment is reduced to
a mere right of action in favor of the person whom it
favors which must be enforced, as are all ordinary
actions, by the institution of a complaint in the
regular form.
6. It is an original action, no a mere incident of the
primitive suit or a mere auxiliary or supplemental
remedy.
The purpose of the new action is not to
reexamine and retry issues already decided
and the cause of action of this new action is
the judgment to be revived and no identity
of causes of action can be said to exist
between the first and the second actions.
REVIVAL OF JUDGMENT REVIVAL OF JUDGMENT
(Sec. 6) (Sec. 34)
It is an INDEPENDENT ACTION It is carried out through the
filing of a motion in court
Assumes that there is no Assumes that a judgment is
execution within the first 5 executed within the first 5
years years
The party who files the action The party who files such
is the judgment creditor motion is not the original
himself, or his assignee, or judgment creditor but he is
successor-in-interest the highest bidder in the
public auction sale
Filed due to lapse of the 5- Filed because the movant is
year period deprived of the property
purchased
Q Where is the proper venue of an action for revival of
judgments?
A The proper venue depends on the determination of
whether the present action for revival of judgment is a real
action or a personal action.
1. Real actionmust be filed with the court of the place
where the real property is located;
2. Personal actionmay be filed with the court of the
place where the plaintiff or defendant resides.
In labor cases, the action for revival of a
judgment must be instituted in the NLRC.
When the five-year period is interrupted
1. Delays attributable to the defendant (judgment
debtor) have the effect of suspending the running of
the prescriptive period for the enforcement of the
judgment;
2. By agreement of the parties for a definite time;
3. By injunction; or
4. By the taking of an appeal or writ of error.
When the five and ten-year periods do not apply
a) Special proceedings, such as land registration and
cadastral cases, wherein the right to ask for a writ of
possession does not prescribe;
b) Judgments for support which do not become dormant
and which can always be executed by motion despite
lapse of the 5-year period because the obligation is a
continuing one and the court never loses jurisdiction
to enforce the same.
Stay of execution of a judgment; exceptions
GR: An appeal perfected in due time stays the execution of a
judgment.
XPN:
1. Those judgments which by express provision of the
rules are immediately executory and are not stayed
by an appeal; and
2. Those judgments that have become the object of
discretionary execution.
Judgments NOT STAYED by appeal, thus, immediately
executory UNLESS otherwise ordered by the court.
1. Judgment for injunction;
2. Judgment for receivership;
3. Judgment for accounting; and
4. Judgment for support.
5. Judgment against the defendant in an action for
forcible entry and unlawful detainer.
The appellate court in its discretion may
make an order, suspending, modifying,
restoring or granting the injunction,
receivership, accounting or award of
support.
The stay of the execution of the above
judgments, if ordered by the trial court,
shall be upon such terms as to bond or
otherwise as may be considered proper for
the security or protection of the rights of
the adverse party.
Note: Even if the above judgments are immediately executory,
there must be a motion to that effect and a hearing called for
the purpose.
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Q What are the defenses available in an action for
enforcement?
A allow execution pending appeal (Sec. 19,
1. Prescription;
2. Satisfaction of claim; and
3. Counterclaims.
Discretionary execution
1. Constitutes as an exception to the general rule that a
judgment cannot be executed before the lapse of the
period for appeal or during the pendency of an
appeal.
2. Be it noted that discretionary execution does not
require a final and executory judgment but simply a
final judgment or order.
Q When is execution discretionary:
A Financial distress as reason for discretionary appealalso NOT
1. Execution pending appeal; and
2. While trial court has jurisdiction over the case and is
in possession of either the original record or record
on appeal;
3. When trial court has lost jurisdiction but has not
transmitted records of the case to the appellate
court; and
4. When trial court has lost jurisdiction and has
transmitted records (motion for execution pending
appeal with appellate court);
5. Execution of several, separate or partial judgment.
Requisites for discretionary execution
a) There must be a MOTION filed by the prevailing party
with NOTICE to the adverse party;
b) There must be a HEARING of the motion for
discretionary execution;
c) There must be GOOD REASONS to justify the
discretionary execution; and
d) The good reasons must be stated in a SPECIAL ORDER.
Discretionary execution is to be strictly construedbecause it
is an exception to the general rule and is availed of only in
extraordinary circumstances.
Good reasons
1. The good reasons are what confer discretionary
power upon the court to issue a writ of execution
pending appeal.
2. Certiorari will lie against an order granting execution
pending appeal where the same is not founded upon
good reasons.
3. What constitutes a good reason is left to the sound
exercise of judicial discretion.
a. The proven insolvency of the judgment
debtor;
b. The purpose of preventing irreparable
injury;
c. The fact that the goods subject of the
judgment will perish or deteriorate during
the pendency of the appeal; or
d. The failure in an unlawful detainer case to
make the required periodic deposits to
cover the amount of rentals due under the
contract or for payment of the reasonable
value of the use and occupation of the
premises, or the failure to post a
supersedeas bond may be good reasons to
Rule 70)
Frivolous appeal as reason for discretionary executionONLY
an appellate court can appreciate the dilatory intent of an
appeal as an addition good reason in upholding an order for
execution pending appeal.
Posting of bond as reason for discretionary executionmere
filing of a bond by the successful party is NOT in itself a good
reason for ordering execution pending appeal, because it is the
combination of circumstances which is the dominating reason
that would justify immediate execution, the bond being only an
additional factor.
in itself a good reason to justify execution pending appeal.
Where to file an application for discretionary execution
1. With the trial court while:
a. It has jurisdiction over the case; AND
b. It is in possession of either the original
record or the record on appeal.
2. With the appellate court when the trial court has lost
jurisdiction.
Remedy where the judgment subject to discretionary
execution is reversed, totally or partially, or annulled, on
appeal or otherwisethe trial court may, on motion, issue such
orders of restitution or reparation of damages as equity and
justice may warrant under the circumstances.
Execution in case the judgment obligee dieswill not prevent
the execution of the judgment. The execution may issue upon
the application of his executor, administrator or successor in
interest.
Execution in case the judgment obligor dies
If the death occurs after execution is actually levied upon any of
his property, the same may be sold for the satisfaction of the
judgment obligation. If there be any surplus after the sale, the
officer making the sale shall account to the corresponding
executor or administrator.
How to execute judgments for money (steps)
1. DEMAND from the judgment obligor the immediate
payment of the full amount stated in the judgment
including the lawful fees in cash, certified check
payable to the judgment oblige or any other form of
payment acceptable to him.
2. If the judgment obligor cannot pay all or part of the
obligation, the officer shall LEVY upon the properties
of the judgment obligor.
The judgment obligor shall have the option
to choose which property or part thereof
may be levied upon.
If the judgment obligor does not exercise
the option, the officer shall first levy on the
personal properties, if any, and then on the
real properties if the personal properties
are insufficient to answer for the personal
judgment but the sheriff shall sell only so
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 much of the property that is sufficient to
satisfy the judgment and lawful fees.
Garnishmentthe officer may levy on the
debts due the judgment debtor including
bank deposits, financial interests, royalties,
commissions and other personal property
not capable of manual delivery in the
possession or control of third parties.
Garnishment of debts and credits
a) By serving a NOTICE upon the third person having in
possession or control of the credits in favor of the
judgment obligor;
b) The third person or garnishee shall make a WRITTEN
REPORT to the court within 5 days from service of the
notice of garnishment stating whether or not the
judgment obligor has sufficient funds to satisfy the
judgment.
c) If sufficient, the garnishee shall DELIVER the amount
in case or certified check shall be delivered directly to
the judgment obligee within 10 working days from
service of notice on said garnishee. The lawful fees
shall be directly paid to the court.
d) If the amount is insufficient, the garnishee shall make
a REPORT as to the amount he holds for the judgment
obligor.
Execution of a judgment for the performance of a specific act
1. What are considered specific acts?
a. Conveyance, delivery of deeds, or other
specific acts vesting title;
b. Sale of real or personal property;
c. Delivery or restitution of real property;
d. Removal of improvements on property
subject of execution; and
e. Judgment for the delivery of personal
property.
2. If the judgment requires a person to perform a
specific act, said act must be performed but if the
party fails to comply within the specified time, the
court may direct the act to be done by someone at
the cost of the disobedient party and the act when so
done shall have the effect as if done by the party.
3. If the judgment directs a conveyance of real or
personal property, and said property is in the
Philippines, the court in lieu of directing the
conveyance thereof, may by an order divest the title
of any party and vest it in others, which shall have the
force and effect of a conveyance executed in due
form of law.
Execution for a judgment for the delivery or restitution of real
property
1. In an action for ejectment, the officer shall demand
from the judgment obligor to vacate peaceably within
3 working days, and restore possession of the
property to the judgment obligee.
The three-day notice is required.
2. After the lapse of the period given and the judgment
obligor refuses to vacate, then the sheriff may
enforce the writ by ousting the judgment obligor and
all the persons claiming a right under him, with the
assistance, if necessary, of appropriate peace officers,
and employing such means as may be reasonably
necessary to retake possession and place the
judgment obligee in possession of such property.
Contempt is not a remedy
The writ of possession is not directed to the judgment debtor
but to the sheriff who is directed to deliver the property to the
prevailing party.
What the officer should do is to dispossess him of the property
and if after the dispossession, the judgment debtor should
execute acts of ownership or possession or in any manner
disturb the possession of the judgment creditor, then and only
then may he be punished for contempt.
Removal of improvements on the property subject of
executionmay only be done by the officer upon a special
order by the court which will be issued upon motion by the
judgment obligee and after hearing and only after the
judgment obligor fails to remove them within a reasonable time
fixed by the court.
Q What is a special judgment?
A It is a judgment that can be complied with only by the
obligor himself. It requires the performance of any other
act other than payment of money, or the sale or delivery
of real or personal property.
Q What is the effect of failure to comply with special
judgments?
A Punishable by contempt under Section 11 of this Rule.
Note: If it is an ordinary judgment and the defendant refuses to
comply, it is not a ground for contempt.
Q How is execution of special judgments executed?
A When a judgment requires the performance of any act
other than those mentioned in the two preceding sections
(Sec. 9 and 10), a certified copy of the judgment shall be
attached to the writ of execution and shall be served by
the officer upon the party against whom the same is
rendered, or upon any other person required thereby, or
by law, to obey the same, and such party or person may be
punished for contempt if he disobeys such judgment.
Property exempt from execution (exclusive)
Except as otherwise expressly provided by law, the following property,
and no other, shall be exempt from execution:
a) The judgment obligor's family home as provided by law, or
the homestead in which he resides, and land necessarily
used in connection therewith;
b) Ordinary tools and implements personally used by him in hs
trade, employment, or livelihood;
c) Three horses, or three cows, or three carabaos, or other
beasts of burden such as the judgment obligor may select
necessarily used by him in his ordinary occupation;
d) His necessary clothing and articles for ordinary personal use,
excluding jewelry;
e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor may
select, of a value not exceeding one hundred thousand
pesos;
f) Provisions for individual or family use sufficient for four
months;
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 g) The professional libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers, surveyors,
clergymen, teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
h) One fishing boat and accessories not exceeding the total
value of one hundred thousand pesos owned by a fisherman
and by the lawful use of which he earns his livelihood;
i) So much of the salaries, wages, or earnings of the judgment
obligor of his personal services within the four months
preceding the levy as are necessary for the support of his
family;
j) Lettered gravestones;
k) Monies benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance;
l) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from
the Government;
m) Properties specially exempt by law.
When the property mentioned is not exempt from execution
If the property is the subject of execution because of a
judgment for the recovery of the price or upon a judgment of
foreclosure of a mortgage upon the property, the property is
NOT EXEMPT from execution.
Q What are other properties ESPECIALLY exempt from
execution?
A See Page 107, Remedial Law, 2011 Golden Notes.
Miscellaneous principles to be remembered in execution sales
Proceedings when property levied upon is claimed by third
1. A NOTICE OF SALE is required before the property is
persons; terceria
1. A person claiming a property levied upon may
execute an AFFIDAVIT of his title or right of
possession over the property. Such affidavit must
state the grounds of such right or title. The affidavit
shall be served upon the officer making levy and a
copy thereof must also be served upon the judgment
obligee.
The officer served with the affidavit of the
claiming third person shall not be bound to
keep the property subject of the claim,
UNLESS the judgment obligee, on demand
of the officer, files a bond approved by the
court to indemnify the claimant in a sum
not less than the value of the property
levied upon.
No claim for damages for the taking or
keeping of the property may be enforced
against the bond unless the action therefor
is filed WITHIN 120 DAYS from the date of
the filing of the bond.
The officer shall not be liable to any third-
party claimant for damages for the taking or
keeping of the property, if such bond is
filed.
2. In Ching v. Court of Appeals:
the sheriff may attach only those properties of the
defendant against whom a writ of attachment has been
issued by the court. When the sheriff erroneously levies on
attachment and seizes the property of a third person in
which the said defendant holds no right or interest, the
superior authority of the court which has authorized the
execution may be invoked by the aggrieved third person in
the same case. Upon application of the third person, the
court shall order a summary hearing for the purpose of
determining whether the sheriff has acted rightly or wrongly
in the performance of his duties in the execution of the writ
of attachment, more specifically if he has indeed levied on
attachment and taken hold of property not belonging to the
plaintiff. If so, the court may then order the sheriff to
release the property from the erroneous levy and to return
the same to the third person. In resolving the motion of the
third party, the court does not and cannot pass upon the
question of the title to the property with any character of
finality. It can treat the matter only insofar as may be
necessary to decide if the sheriff has acted correctly or not.
If the claimants proof does not persuade the court of the
validity of the title, or right of possession thereto, the claim
will be denied by the court. The aggrieved third party may
also avail himself of the remedy of "terceria" by executing an
affidavit of his title or right of possession over the property
levied on attachment and serving the same to the office
making the levy and the adverse party. Such party may also
file an action to nullify the levy with damages resulting from
the unlawful levy and seizure, which should be a totally
separate and distinct action from the former case. The
above-mentioned remedies are cumulative and any one of
them may be resorted to by one third-party claimant
without availing of the other remedies.
3. Other remedies may also be availed of by the third-
party claimant because nothing contained in the
Rules shall prevent the claiming third person from
vindicating his claim to the property in a separate
action
sold on execution. All sales of property under
execution must be made at PUBLIC AUCTION to the
highest bidder but the execution sale must be
preceded by a valid LEVY which is indispensable for a
valid execution sale.
LEVY is the act whereby the sheriff sets
apart or appropriates a part of the whole of
the properties of the judgment obligor to
satisfy the command of the writ.
Levy upon real property is made by the
officer by performing two specific acts:
a) FILING with the Register of Deeds
a copy of attachment; and
b) LEAVING with the occupant of
the property a copy of the same
order, description and notice.
Non-compliance with any of the requisites
is fatal.
2. After sufficient property has been sold to satisfy the
execution, no more shall be sold.
3. Any excess property or proceeds of the sale shall be
delivered to the judgment obligor.
4. If the purchaser at the auction refuses to pay the
amount bid by him, the officer may again sell the
property to the highest bidder and the court may
require such purchaser to pay unto the court the
amount of whatever loss, with costs occasioned by
his refusal to pay and if he disobeys the order, may
punish him for contempt. Any subsequent bid by such
purchaser may be refused by the officer conducting
the bidding.
5. The judgment obligee may bid and if said party is the
purchaser and there is no third party claim, he need
not pay the amount of the bid if it does not exceed
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 the amount of his judgment. If it does, he shall only
pay the excess.
6. If the purchaser of personal property capable of
manual delivery pays the purchase price, the officer
making the sale must deliver the property to the
purchaser and, if desired, shall execute a certificate of
sale. The sale conveys to the purchaser all the rights
which the judgment obligor had in such property as of
the date of the levy on execution or preliminary
attachment.
7. When the purchaser of any personal property not
capable of manual delivery pays the price, the officer
making the sale must execute and deliver to the
purchaser a certificate of sale. Such certificate
conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date
of the levy on execution or preliminary attachment.
Sale and redemption of real property
1. Upon a sale of real property, the officer must give to
the purchaser a certificate of sale. Such certificate
must be registered in the registry of deeds of the
place where the property is situated.
2. The real property sold may be redeemed from the
purchaser, at any time WITHIN 1 YEAR from the date
of the registration of the certificate of sale. If there
are other creditors having a lien on the property, the
property so redeemed may again be redeemed
WITHIN 60 DAYS from the last redemption. The
property may again, and as often as a redemptioner is
so disposed, be redeemed from any previous
redemptioner WITHIN 60 DAYS after the last
redemption.
3. The property may be redeemed by the judgment
obligor, or his successor in interest or by a creditor
having a lien by virtue of an attachment, judgment or
mortgage on the property sold, subsequent to the
lien under which the property was sold. Such
redeeming creditor is called a redemptioner.
4. Note that the right of redemption under the Rules of
Court has reference only to REAL, not personal
property
Effect if no redemption is made
1. If no redemption is made within 1 year from the date
of the registration of the certificate of sale, the
PURCHASER is entitled to a conveyance and
possession of the property; or if so redeemed
whenever 60 days have elapsed and no other
redemption has been made, and notice thereof given,
the LAST REDEMPTIONER is entitled to the
conveyance and possession of the property.
2. Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and
acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the
levy.
Rents, income and earnings of the property pending the
redemption
The purchaser or a redemptioner SHALL NOT BE ENTITLED to
receive the rents, earnings and income of the property sold on
execution, or the value of the use and occupation thereof when
such property is in the possession of a tenant. All rents,
earnings and income derived from the property pending
redemption shall belong to the judgment obligor until the
expiration of his period of redemption.
Remedy when the judgment is unsatisfied
1. The judgment obligee is entitle to an order from the
court which rendered the judgment, requiring the
judgment obligor to appear and be examined
concerning his property and income before the court
or a commissioner appointed by the court. XPN: The
judgment obligor cannot be required to appeal before
a court or commissioner outside the province or city
in which such obligor resides or is found.
2. A person, corporation, or other juridical entity
indebted to the judgment debtor may also be
required to appear before the court or a
commissioner appointed by it, at a time and place
within the province or city where such debtor resides
or is found, and be examined concerning the same.
Effect of final judgments
A. In case of a judgment or final order is on a specific
thing, the same is conclusive upon the title to the
thing; or
B. In case of a judgment or final order is in respect to
the probate of a will, or the administration of the
estate of a deceased person, the same is conclusive
upon the will or administration but the probate of a
will or granting of letters of administration shall only
be prima facie evidence of the death of the testator
or intestate and not conclusive presumption of death;
or
C. In case of a judgment or final order is in respect to
the personal, political, or legal condition or status of a
particular person or his relationship to another, the
same is conclusive upon the condition, status or
relationship;
D. In other cases, if the judgment or final order with
respect to the matter directly adjudged or as to any
other matter that could have been raised in relation
thereto, the judgment or final order is conclusive
between the parties and their successors in interest
by title subsequent to the commencement of the
action or special proceeding, litigating for the same
thing and under the same title and in the same
capacity, relationship;
E. In any other litigation between the same parties or
their successors in interest, that only is deemed to be
adjudged in a former judgment or final order which
appears upon its face to have been so adjudged, or
which was actually and necessarily included therein
or necessary thereto.
Letter d above, declares that the judgment or decree of a
court of competent jurisdiction concludes the litigation
between the parties and their successors or privies and bars a
new action or suit involving the same cause of action. This is
referred to as bar by a prior judgment which is a form of res
judicata. Letter e lays down the rule that any right, fact, or
matter in issue which has been directly adjudicated upon or is
necessarily involved in the determination of the action by a
competent court is conclusively settled by the judgment or final
order and cannot be litigated upon again by the parties and
their privies whether or not the claims or demands, purposes or
subject matters of the two suits are the same. This rule is
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known as conclusiveness of judgment, another form of res
judicata.

Note:

Res Judicataalso known as bar by prior judgment or direct

estoppel by judgment.

Conclusiveness of judgmentalso known as estoppel by

verdict, or estoppel by record, or collateral estoppel by
judgment or preclusion of issue or rule of auter action pendant.

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