RULES 1 & 2:  Quasi In Rem – (Domagas vs Jensen); e.g.

Action to close real

Commencement of Civil Action
 When does a civil case commence?
o From the filing of the original complaint/By the filing of the initiatory
pleading
o Complaint – An initiatory pleading which contains the plaintiff’s cause/s of
action and includes the names of the plaintiff/s as well as the defendant
and their respective addresses
o Importance of knowing when a civil action commences or the date of its
filing – for purposes of prescription
o For impleading or including a new defendant not included in the original
complaint – as far as said defendant is concerned, case commenced only
from the date of filing of the later pleading/amended complaint
- maybe be done any time before answer, as a matter of right
o When filing a complaint what should be included aside from causes of
action? (addendum)
 Verification and Certification of Non Forum Shopping
 MCLE Compliance of the Lawyer
 What is a cause of action?
o An act or omission committed by the defendant against the plaintiff
 What is right of action?
o Refers to right to sue by the plaintiff in connection with the act committed
or omitted by the defendant
 Essential Elements of a Cause of Action
o Legal Right of the Plaintiff
o Correlative Obligation of the Defendant
o The Act or Omission of the Defendant in violation of the legal right
 Classifications of Actions (From Case)
o As to Nature
 Ordinary
 Special Civil Action
o Object
 Action In rem (Important!) - Real Action /Directed towards the
plaintiff itself e.g. Recovery of Ownership
 In personam – Personal Action /Directed towards the person itself
e.g. Collection of sum of money
estate mortgage
“On the other hand, 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. In an action quasi in rem, an
individual is named as defendant and the purpose of the proceeding is to subject his interests therein
to the obligation or loan burdening the property. Actions quasi in rem deal with the status, ownership
or liability of a particular property but
which are intended to operate on these questions only as between the particular parties to the
proceedings and not to ascertain or cut off the rights or interests of all possible claimants. The
judgments therein are binding only upon the parties who joined in the action.”
o Is payment of the docket fee important/indispensable for the court to
entertain the case? (Manchester Doctrine)
 Payment may still be made after filing of the complaint as long as
made within a reasonable period (Balatan Case)
o Difference if complaint is filed with govt courier and private courier?
 If filed with govt courier, complaint is deemed filed the moment it
is sent by mail
 If thru private courier only considered filed upon receipt of the
court itself
o Rule regarding a cause of action in a complaint
 No splitting of causes of action allowed – remedy; dismissal of
case based on litis pendetia or res judicata
o Requisites for joinder of cause/s of action
 Party joining the causes of action should comply with rule
regarding joinder of cases (Sec 6 Rule 3)
 Joinder of parties allowed when arose out of the same
transaction or series of transactions and there must be a
common cause of action among them (Sec 6 Rule 3)
 The joinder shall not include special civil actions; they are
governed by special rules of procedure
 Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the
joinder may be allowed in the RTC provided one of the
causes of action falls within jurisdiction of said court and
venue lies therein
  Where the claims in all the causes of action are
principally for recovery of money the aggregate amount
claimed shall be the test of jurisdiction
o Remedy for Misjoinder of Parties and Causes of Action – may be severed
(J.S. prefers dropped) in any stage of the proceedings
Rule 2 cont’d.
Jessa: In the case of Ballatan vs. CA, (payment of filing fees) the Supreme Court ruled that the GR:
filing of the complaint must be accompanied by the payment of the required docket fees.
Ballatan case also allowed payment of the filing fees after the filing of the complaint within reasonable
time, as long as there is NO deliberate intention on the part of the plaintiff not to pay the filing fees.
Usually happens when the filing is made through mail either registered or by means of private courier.
In the case of real actions, the docket and filing fees are based on the value of the property and the
amount of damages claimed.
If the complaint is filed but the fees are not paid at the time of filing, the court still acquires
jurisdiction upon full payment of the fees within a reasonable time as the court may grant and barring
prescription.
SC relaxed the ruling in the case of Manchester.
Recap on rule 2:
1. One is not allowed to file more than one suit from one cause of action. (SPLITTING of action
is not allowed.)
2. Elements of cause of action.
3. Definition of cause of action.
RULE 3: PARTIES TO A CIVIL ACTION
A. Parties to a civil action whether plaintiff or defendant should only be Natural and Juridical
persons.
Q: If a corporation is not duly registered with the SEC, do you consider it a juridical person
and therefore can sue and be sued?
A: Cannot sue as a Corporation itself, but may be for those who allege to be incorporated to
such as members. Because a Corporation which is not duly registered will not have the
personality separate and distinct from the stock holders. They can still sue and be sued but
you include those corporators or stockholders or incorporators or members thereof.
Q: What about an estate of a deceased person, can you file a case against an estate of a
deceased person? In fact there’s one case where the SC ruled that an estate of a deceased
person can be considered a juridical person and therefore can be a plaintiff or defendant of a
particular civil case.
A: To be safe, don’t do that, because in some cases an estate of a deceased person cannot
be considered a juridical person. Rather sue them as Heirs of that particular deceased
person.
1. Q: What is the first rule when you file a civil case in the reference to the party of that case?
A: It must be filed and prosecuted in the name of the real party in interest. (SECTION 2)
Q: Who is considered as a real part in interest under this particular rule?
A: A party that may be benefited or injured as a consequence of the filing of that particular
case.
Q: If you are a counsel of the defendant and the case is not filed in the name of the real
party in interest as against the rule, what is your remedy?
A: Motion to dismiss anchored on the ground of lack of cause of action.
2. Classify the parties to a civil case. (MEMO)
a. Indispensable parties.
One without whom no final adjudication can be had, and without whom no final
judgment.
Q: Juan obtained a loan with BDO, Tacloban, in the loan they used an absolute
community of property as collateral. In the loan the wife signed “with my marital
consent”. While the loan was still existent, husband died and the wife was not able to
pay the loan. The bank foreclosed the loan. The children filed for the annulment of the
foreclosure on the ground of the death of the husband, their father but failed to allege
the wife as a party. Is it proper?
A: No. The wife is an indispensable party. Therefore excluding the wife would be a
problem there since she even signed “with my marital consent”.
Q: If an indispensable party is not included in the complaint, can that be a ground for a
motion to dismiss?
A: No. If an indispensable party is not included in the complaint, the proper remedy
would be to file a motion to amend the complaint to include an indispensable party. Non-
 joinder of parties cannot be a ground for a motion to dismiss, instead it may be added or Example: husband and wife when they sue based on a right on absolute community of
may be dropped in any stage of the proceedings. property.

b. Necessary parties. e. Quasi party

One who is not indispensable but is enjoined for the judgment to be complete. Without
whom no complete judgment can be had. 3. An unwilling co plaintiff shall be sued or joined as a defendant.
4. In case of several defendant but you are not sure in what capacity will you file the case
c. Representative party. (SECTION 3) against them, sue them as alternative defendants.
Those who are in fiduciary capacity like trustees or guardians. 5. Joinder of Parties (Section 6)

Q: What is the rule if you are filing a complaint in a representative capacity? What will Q: Is this mandatory?
the caption of the complaint be? A: It depends upon the party.
A: If it is an indispensable party, it is mandatory.
GR: Juan Dela Cruz If not. The law allows permissive joinder of parties. As long as the following
Represented by Pedro elements are present.
One is allowed to file a case in a representative capacity. You should indicate in the 1. the right arouse from the same transaction or series of transaction
complaint that you are suing in a representative capacity and also include the name of 2. there is a common cause of action.
the person you represent. Not limited to those in a fiduciary relationship. Anybody can 3. joinders are not proscribed (prohibited) by the rule on jurisdiction and venue (the
file a case in a representative capacity as long as you are duly oath of a special power of court must acquire jurisdiction of the person of all the defendants and venue shall
attorney which specifically allowed you to sue and be sued for and in behalf of this also be considered as the place where the case should be filed)
person and allowed to sign the verification and certification of non-forum shopping.
6. RULE in case of death. (presupposes that the case survives even upon death)
Q: Can an agent file a case in his own behalf without including the principal?
Q: If one of the parties (either plaintiff or defendant) to a case dies, while the case is
A: Yes. Suing for and in behalf of the principal.
pending trial, what will happen?
XPN: (principal should be included) If it involves things belonging to the principal.
If the claim is not yet extinguished. (Even if one of the parties dies, the action survives.)
Q: Differentiate a representative party and a class suit.
Instances: MEMO
A: Common cause action.
Class suit requires: 1. Recovery of real and personal property.
1. So numerous that it is impractical to bring all to court (representative pwede usa la) 2. Enforcement of client on such property.
2. Subject matter in the case involves one of common or general interest. 3. Recover from any injury to personal property due to tort or debit committed by the
3. Party bringing the suit is numerous and the representative of the class can fully deceased.
protect the interest of the others.
4. The representative sues for the benefit of all. Q: If the case does not survive upon the death of one of the parties, will that mean that
Example: Tax Payer’s suit. the court shall dismiss the case?
A: File your claim against the estate of the deceased.
d. Pro-forma party.
Parties who should be joined for the formalities of the case. Q: If the action survives and one of the parties dies while the case is going on, what will
happen?
 A: It is the duty of the counsel to inform the court upon the death of the party through
filing a Notice of Death which shall include the names of the Heirs of the deceased
together with their respective addresses. Should be done within 30 days upon recipt of
notice of death unless it would be a ground for disciplinary action.
Q: Why is the name and address of heirs being included?
A: Because they are to substitute the deceased. Within receipt of the Notice of Death,
the court shall issue an order, notice to the heirs and requiring from them their
willingness to substitute for the deceased party to the case.
Q: What if Heirs are not willing? They appear but not willing or interested to substitute?
A: The court will order the opposing party to procure the appointment of an
administrator for the estate of the deceased within a certain period of time; cost shall be
borne by the counsel or party himself.
Q: Must there be an amendment if you want to substitute the heirs of the deceased
party??
A: No amendment of the complaint. No summons shall be summoned. What is sufficient
is that they be notified.
Assignment: What is the effect if there is no substitution because the counsel failed to
inform the court about the death of the party? Will it render the entire proceedings Null and
Void?
RULE 3 Sec. 16 Death of party; duty of counsel
- It is the obligation or duty of the counsel to inform the court of the death within the period of
30 days. Together with the notice of death will be the names of the heirs of the
deceased and their respective addresses so that the court will issue an order to inform
the said heirs if they are willing to substitute said parties within a period of 30 days from
receipt of the notice. If they fail to appear, then the other party has the obligation to procure
the appointment of an administrator for executing. Expenses which are incurred shall be to
the account of the opposing party.
- If the counsel of one of the parties failed to inform the court of the death of the party, what
is the effect of the same if no substitution was made? Take note there is no need to amend
the complaint and no need to issue summons/summonses to the heirs of the
deceased party. What is required is the court will notify them if they are willing to appear
under substitute of the deceased party in a civil case.
- If there is no proper substitution because there was no notice of death: EFFECT: Sarsaba
case
The validity of the judgment according to the Supreme Court in that case actually
binds the successors and heirs in interest of the deceased party. Reason: this is an
action which survives even after the death of the parties; hence, it will not affect the
validity of the judgment. The requirement that there be proper substitution is only
to afford the heirs the required due process. It will never affect the validity of the
judgment, the judgment will bind the heirs and successors in interest precisely
because this section will only apply if the claim is not extinguished.
Three cases that will survive even if party dies: (1) right to recover real or personal
actions, (2) right to cover liens thereon, (3) right to recover damages arising from
torts.
Action based on money claims – which arouse out of a contract whether express or implied
and then plaintiff dies before entry of final judgment: Case is not dismissed. It will continue,
however, winning party shall claim that against estate of deceased pursuant to rule 86 of the
revised rules of court.
Case involving public officer, while it was going on, dies, resigns or is dismissed, what will
happen to the case? It shall continue against the successor of that particular office, provided that
there is a need to continue the case. Requirements: 1. In relation to the performance of the
official duty of that particular officer 2. Successor must always be notified
Defendant is unknown: may be sued as the unknown owner, heir, devisee, or by such other
designation as the case may require. If his identity is discovered, pleading must be amended
accordingly.
One of the parties becomes incapacitated: Case will continue but he will be assisted by a
guardian
RULE 4 VENUE OF ACTIONS
Distinction between venue and jurisdiction
Jurisdiction cannot be subjected to an agreement of the parties because it is conferred by
law. Venue may be, as long as there is a valid written agreement between the parties and
that agreement was made prior to the filing of the action.
Sweet lines versus Teves: the Supreme Court nullified a stipulation on venue because it was written in
very fine letters.
Contracts of adhesion : the terms and conditions of which are only prepared by one party. Common
in insurance. VALID. But if in case there is a problem, it shall be construed liberally in favour of the
one who did not participate in the formulation of the terms and conditions as against the one who
formulated.
Venue in real actions : actions which involve title or possession
*San Pedro case : >20,000 - RTC <20,000 - MTC
Metro Manila : 50,000
- Filed in the court where the property is situated or any portion thereof is situated
- How would you assess so you will know if it is a personal or real action? If the case involves
recovery of ownership, partition of property, recovery of possession; if that is not your
prayer, that is not a real action. It becomes a personal action.
- The guide there is determine whether the allegations including prayer is actually one which
involves title or possession
Venue in personal actions: in the place where plaintiff resides or any of the plaintiffs reside or
where any of the defendants reside, or in case of non-resident defendant, in the place where he may
be found at the election of the plaintiff.
What about if the transaction involves several real properties? If one transaction includes several
parcels of land located in different places, file in any of the places where one is situated. Basis: if it
arose out of the same transaction, it may be filed in any of the places. However if it arose out of
different transactions, there will be as many cases as there are, depending on where the property is
located.
If you file a case for surrender of title, because the title is in the possession of one who is not the
owner: REAL ACTION. File in the place where property covered by the title is located.
Petitions for the issuance of new owner’s copy: PERSONAL ACTION. File where plaintiff or
petitioner resides.
Residence: ACTUAL residence. Not synonymous to domicile.
Domicile: place where you’d like to return wherever you are.
Non-resident defendant: it is not necessary that the court acquires jurisdiction over his person.
What is important is the court acquires jurisdiction over the res. We allow summons by publication,
but not for the purposes of acquiring jurisdiction over the person, but only for compliance of due
process.
RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS
First and Second level courts – uniform procedure in the application for disposition of cases EXCEPT in
cases governed by rules on summary procedure and when the law itself expressly provides so.
If the case is under the first level court, you have to know whether the case is governed by the
regular rules or the rules on summary procedure.
RTC – always governed by regular rules.
What are cases which are covered by rules on summary procedure?
1. Forcible entry and unlawful detainer irrespective of claim of damages and unpaid rentals
(REAL ACTION)
2. If the claim exclusive of interest and costs is 100,000 and less – first level but covered by
summary procedure. In Metro Manila, it is 200,000 and less. More than 100k and 200k, apply
regular rules.
In the SC Circular 12-8-8, there must be filing of judicial affidavits in all civil cases whether first
level or second level courts, which will constitute as a direct testimony of the witnesses.
What is peculiar in the rules of summary procedure? (Differences between regular rules and summary
rules)
Under regular rules, defendant has 15 days to file responsive pleading upon receipt of
summons which can even be extended. In summary procedure, it is only 10 days and the
rule doesn’t allow extension of time.
In regular rules, upon receipt of last pleading (reply), issues are joined and set for pre-trial
conference. In summary procedure, it is not a trial but a preliminary conference.
Testimonies of witnesses:
summary procedure: there must be affidavit of witnesses based on their personal
knowledge, because the affidavit of witnesses will serve as their direct testimony.
The problem now is which will be applied? 12-8-8 or the affidavit required on SP. In
12-8-8, there are certain strict requirements. Here, the affidavit may not be in q and
a form. In 12-8-8, the affidavit must be in Q and A. When there is no affidavit, you
cannot present said witness.
 In Summary Procedure, there are pleadings which are prohibited. One of them is, motion
for extension of time to file answer. Motion to dismiss? It depends. Not allowed,
except if anchored on the grounds of lack of jurisdiction, failure to comply with condition
precedent, like referral to lupon. What else are prohibited? Motion for Bill of particulars, new
trial, petition for relief, memorandums. Motion for reconsideration? Not allowed.
There must be submission of position papers, which must attach affidavit of witnesses. It is
only when court requires some clarificatory questioning will witnesses be presented in court.
(Summary Procedure)
Days to decide? 30 days upon submission of the case for decision (Summary Procedure)
RULE 8 Manner of Making Allegations in the Pleading
I have assigned to you the case of Anderson vs___? What was the decision of the Supreme Court in
this case? In this particular case the complaint failed to allege the certification of non forum shopping
but it was belatedly submitted by the counsel, and what was the ruling of the SC in connection with
that belated filing of the certification of non forum shopping?
Since Mrs Anderson has an unreasonable ground for being late in the submission of the certificate of
non forum shopping, she was not allowed by the court to submit it.
So what happened to this case? The case was dismissed?
Yes, because of the non compliance of the certificate of non forum shopping which was signed by her
counsel and not by herself and not attaching a special power of attorney.
What about the filing what was the ruling of the SC?
The SC ruled that she has failed to comply the same and due to the laxity and that her reason was
not, because in this case she has compared it to another case, the case of Donato.
So in this particular case there was no liberal interpretation?
Yes sir.
So the SC did not allow the late submission of the certilfication of non forum shopping. You said that
she compared it with the case of Donato. Well what happened in the case of Donato?
In the case of Donato, it was the same case that Donato has failed to submit the CNFS…
But it was submitted in the SC?
Yes sir because it was impossible for him to file the CNFS because that person was from Virginia.
You would notice the decision that there could be a liberal interpretation of the application of the CNFS
depending on whether the party concerned can give a reasonable ground. I think it was the ruling
actually in the case of Anderson Kho that sana the SC can give a liberal interpretation on the late
submission of the CNFS, in some instances the court may allow the late submission depending on the
grounds relied upon. So that is supposed to be the ruling of the SC.
On manner of the allegations in the complaint, what is the rule?
*Every pleading shall contain in a methodical and logical form, a plain, concise and direct
statements of ultimate facts and omitting statements of mere evidentiary facts.
So what is the meaning of the word ‘ultimate facts’?
*Ultimate facts refers to facts which directly forms a basis as to the rights to be enforced,
these are supposed to be the substance itself, which will form part of the cause of action which is
relied upon by the plaintiff.
*Evidentiary facts are those facts which are necessary to prove the ultimate facts.
Evidentiary facts are in connection with the ultimate facts, but these are what we call, evidences if you
want to prove the ultimate facts. And under our rules, it need not be alleged in the complaint, what is
important is that the allegations in the complaint must contain the ultimate facts and these are the
facts which would actually constitute the cause of action of the plaintiff.
As far as answer is concerned, what is the rule?
*the same
The same rule with complaint, in answer, it must contain ultimate facts not evidentiary facts. However,
in connection with another rule for answer, if the answer is anchored on a law, then what should be
alleged there?
*Cite the provision of the law as well as its applicability.
If the answer is anchored on a particular law, you must cite the provision of that particular law and its
applicability. In connection with what should be contained in an answer, ultimate facts only, omitting
evidentiary facts. In connection with answer as another rule, in cases where the answer is anchored
on a particular law, it is required in the second paragraph of sec.1 of rule 8 that you must also cite the
law and its applicability. So if you anchor for example your defense on sec.1 of art.2 of the Civil Code
of the Philippines, you must also state what that particular section and its applicability in so far as your
answer is concerned. Precisely, even in your pre-trial, as you will learn later, you must already specify
the applicable laws and jurisprudence in support of your respective causes of action if you are for the
plaintiff and your defenses if you are for the defendant.
What about in terms of the capacity of the parties?
*It shall be specifically alleged..

Alleged likewise. Will it be correct to say that in one paragraph you will say that plaintiff and defendant
have the capacity to sue and be sued? Is it complied already? Like first second and third paragraph, in
your third paragraph of your complaint, you mentioned that plaintiff and defendant have the capacity
to sue and be sued, is that already in compliance of the requirement that capacity to sue of the
plaintiff or even in so far as the defendant is concerned must also be alleged in the complaint, what do
you think?
*Yes.
Yes, however if you are acting in a representative capacity, what is supposed to be the rule?
*You must also specify in what kind of capacity are you representing a party, but in its actual
application, see to it that in your complaint you must always put an allegation that the plaintiff and the
defendant have the capacity to sue and be sued. If that is already part and parcel of the complaint,
then that is already in compliance with the requirements of this particular rule. However, if you are
representing in a representative capacity, you must see to it that it must appear in the allegations in
your complaint that you are representing in a representative capacity.
What about if your allegation is anchored on fraud or mistake, for example, you file a case for
annulment of contract or annulment of deed of sale and then your ground there is anchored on the
fact of fraud or mistake, what is the requirement of law?
*It should be stated with particularity.
When the law says ‘in cases where your complaint is anchored on fraud or mistake’ you said it must
be ‘stated with particularity’, what do you mean by that?
*it must be specific
When you say ‘it must be specific’, it must be described with particularity, how do you do that?
*The fraudulent act should be stated.
You have to specify the ground itself like what constitutes the fraud that you’re relying or what
constitutes the mistake that you’re relying. So if you’ll only say that defendant by means of fraud,
compelled the plaintiff to enter into a contract with them, that is not sufficient because you must
specify the fraud or what constituted the fraud or mistake.
However if this has reference to knowledge, to intent for example or malice, then the requirement of
the law is?
*It may be generally averred.
What could have been the rationale, how come that if you’re anchoring your cause of action on
knowledge, or intent or malice, or any act of similar nature, unlike fraud and mistake that it must be
stated with particularity, here, it can be averred generally. What do you think is the rationale of the
rule here?
*Because it is difficult to prove knowledge and intent.
If it is anchored on an official document, or act, then it is sufficient to aver that the document was
issued or done in compliance with law.
In connection with an actionable document, what is the rule?
If you anchor your complaint in an actionable document, you have to: (2 ways to allege)
1. State the substance of that particular actionable document, or
2. State the contents of the document in toto
If these are based on condition precedents, what is the rule?
-The averment that it has been performed is sufficient.
If it is a judgment of a court, of a tribunal, of a quasi-judicial agency, then what is the rule?
-The averment that the judgment was issued by the court, tribunal or quasi-judicial agency
acting/acted with jurisdiction is sufficient.
What is the general rule when you make allegations in the answer?
2 ways, either:
-make specific denial, or
-raise affirmative defense
The defendant has no knowledge or information sufficient to form a belief as to the truth or falsity of
the allegation therein is a sufficient denial.
Negative Pregnant Rule
-mere repetitions of the allegations in the complaint (not sufficient denial)
How do you make specific denial?
-by specifically denying the material facts which constitutes the cause of action
If the answer would say defendant denies all the allegations in paragraphs 3, 4, and 5 of the
complaint, is it sufficient denial?
-No. It is considered as an admission. A general denial is considered as an admission, the
same effect as the negative pregnant rule. When the law says specifically deny, you must really set
forth the reason or the ground why you are denying that particular paragraph. If you will only say the
defendants specifically deny the allegations in paragraph 2-3 of the complaint, then that is not specific
denial, in effect, it is considered as an admission. You must set forth the ground why you are
specifically denying the same.
If you are answering based on an actionable document, it must be denied under oath otherwise, the
genuineness and due execution of that particular document is deemed admitted.
What do you mean by ‘genuineness’ and ‘due execution’?
 -you cannot raise now that your signature was a forgery, because by failing to deny the
allegation, you admit the genuineness of that particular document and what is due execution? It is
done voluntarily without force, coercion or intimidation.
Very Important: if it is an actionable document, you must deny that under oath otherwise if that is not
denied under oath, the due execution and genuineness of that document is deemed admitted.
Exceptions: -if that defendant is not a party to that document; and
-when an order was issued by the court for the inspection of the document and
the inspection was refused by the plaintiff (mode of discovery)
If you will not make a specific denial, allegations deemed admitted.
3 instances when it is not considered admitted:
-unliquidated damages
-conclusions of fact and law
-non material allegations in the complaint
Example of an actionable document: deed of sale, promissory note, any document which forms part of
the basis of the cause of action of the complaint
If you feel that the complaint contains allegations which are impertinent, immaterial, or scandalous,
you can file a motion to strike that particular allegation in the pleading, and that can be done even if
no answer is yet filed. (rarely resorted to in reality)
RULE 9 Effect of Failure to Plead
If you have a good ground for the dismissal of the complaint, what should you do?
Either:
-file a motion to dismiss-based on such ground
Motion for a Bill of Particulars- if the allegations in the complaint are not
specifically mentioned
-file an answer with affirmative defenses (raise the ground for dismissal as
affirmative defense)
Agreement between the Supreme Court and the Integrated Bar of the Philippines
-lawyers must observe restraint in filing motions to dismiss, what you will do instead is to file
an answer and raise your ground to dismiss the case as an affirmative defense. During trial,
affirmative defenses be treated first, as if you filed a timely motion to dismiss.
In your answer/motion to dismiss, you must raise your defenses, otherwise deemed waived.
Exceptions: (even if you failed to raise/allege these defenses in the answer/motion, not
deemed waived and will still be treated by the court)
-lack of jurisdiction over the subject matter of the action
-litis pendentia (there is a pending action involving the same cause of action)
-res judicata
-prescription
(ALL OTHER GROUNDS except the foregoing, IF NOT RAISED IN THE M.D OR IN THE
ANSWER ARE DEEMED WAIVED)
Defendant has 15 days to file his responsive pleading to the complaint from receipt of summons
issued by the court; or within 15 day period, file a motion for extension of time to file answer.
Motion for extension of time to file answer is prohibited in cases covered by the rules on summary
procedure.
In summary procedure, only 10 days to file answer, no extension allowed; upon failure of the
defendant to file a responsive pleading within 10 days, plaintiff can file motion to render
judgment.
In the regular rules, no responsive pleading filed by the defendant w/in 15 days, plaintiff can file a
motion to declare the defendant in default.
When the records of the case was seen by the presiding judge, he noticed that the defendant did not
file any responsive pleading, he immediately issued an order to declare the defendant in default for
failure to file his responsive pleading. Is the court correct?
*No. the court is not correct. The court cannot declare a defendant in default motu proprio.
There must be a motion to that effect, filed by the plaintiff, with notice to the defendant.
If the defendant is declared in default, the law allows the presentation of evidences of the plaintiff ex
parte; can be delegated to the branch clerk of court.
Court granted the motion and declared the defendant in default, if you are the counsel of the
defendant, what will you do?
*The remedy of the defendant is to file a motion to lift or set aside the order of default
before the court renders judgement (after judgment, motion to lift not allowed)
In a motion to set aside the order of default, your motion should contain an affidavit of merits. You
have to specify that you have a valid and meritorious defense, that it is based on FAME.
How would a court treat motions to lift or set aside an order of default, strictly or liberally?
*Liberally, and more often than not, the court always grants it specially so in cases when the
answer was filed before the court issued an order. Courts most often than not grant it because cases
must be decided based on the merits of the case not just on mere technicalities.
Court issued an order declaring the defendant in default. Like what I have told you, we can delegate
the reception of evidence of the plaintiff ex parte before the branch clerk of court. The branch clerk of
court scheduled the hearing on a particular date, but he failed to notify the defendant of the
scheduled hearing, and proceeded with the hearing of the case. Is the clerk of court correct?
*No. A party declared in default might not actively participate in the proceedings of the case,
however, he’s entitled to notice of all proceedings. He must always be notified.

Defenses not raised in a motion to dismiss or in the answer are deemed waived, except lack of
jurisdiction, litis pendentia, res judicata, and prescription.
Under our rules, defendant is given 15 days to file his answer upon receipt of the summons. However
in reality you are allowed to file a motion for extension of time to file answer, except on cases covered
by the rules on summary procedure where motions for extension of time to file answer is a prohibited
pleading.
RULE 12 BILL OF PARTICULARS
One of the remedies, within 15 days or 30 days for non-resident 3 options, is to file an answer, motion
to dismiss, file a motion for a bill of particulars, although I told you before, that although the filing of
motion to dismiss is actually discouraged, what you will do is to file an answer and use your grounds
for a motion to dismiss as affirmative defenses.
JS: Motion of bill of particulars, what is this, and when do you resort to this?
Ans: if the allegations in the complaint are actually general averments, or the allegation in the
complaint are not specifically alleged or not particularly allege, and you find it difficult to file your
answer, what you do before answering is actually file a motion for a bill of particulars.
JS: what would happen upon receipt of the bill of particulars?
Ans: the clerk of court will immediately bring the attention to the court, after that the court will either
deny or approve such.
JS: if the court grants it what is the effect?
Ans: if the court grants the motion the plaintiff will and must comply with the order within 10 days.
JS: what is the effect if the plaintiff will not comply with the order of the court?
Ans: 2 remedies:
1. The court can strike the pleading as if it was not filed in court or
2. Strike out the allegations or part of the allegations which are actually general averments.
JS: how many days should the defendant file an answer?
Ans: the law does not make any, as long as it should not be less than 5 days.
RULE 13 SERVICE OF PLEADINGS ETC.
JS: what is the manner of filing or the preferred mode?
Ans: personal service be it to the court or be it to the adverse party.
However, in cases when personal service is not possible the law allow the service via registered
mail.
JS: but what is one requirement that you must comply with if service is by registered mail?.
Ans: there must be an explanation why you resorted to service by registered mail.
JS: pursuant to what section is that?
Ans: pursuant to rule 13 section 11, in fact you must state that in your explanation.
This answer is served by registered mail, due to lack of messengers, otherwise it might be
excused from the record of the case.
JS: are you allowed to serve it by ordinary mail?
Ans: yes. If there are no available offices that will allow service by registered mail, service by ordinary
mail will be sufficient.
JS: what is the difference between registered mail and ordinary mail?
Ans: registered mail is deemed filed upon being posted at the post office but if it is sent via ordinary
mail, it is not deemed filed upon posting, it is only deemed filed upon the receipt of the mail by the
court, that is the same rule in the cases when services made through a private courier, to a service
made before the Philippine postal corporation in the post office.
JS: what is substituted service?
Ans: if the office and place of residence of the party or his counsel is unknown, service may be made
by delivering the copy to the clerk of court, with proof of failure of both personal service and service
by mail, the service is complete at the time of such delivery.
JS: if the party is represented by a counsel, to whom will it be served?
Ans: It must be served to the counsel, if it is served to the party the effect is that there was no service
was made, the only time you can serve it to a party is when the party is not represented by a counsel.
JS: if there are several Counsels?
Ans: you need not serve each of the counsel, because a service to one is already considered
sufficient.
JS: how do you serve final judgment?
Ans: three modes
1. by personal service.
2. by registered mail.
3. by publication.
JS: when is publication available?
Ans: there can only be service of a final order by means of publication, if the summons also was by
means of publication.
JS: completeness of service?
Ans: personal service - by delivery.
Registered mail- upon receipt.
Aside from the explanation, there must be an affidavit of service and in that affidavit you must specify
the instruction to the postmaster to return the mail within 10 days if not served.
End of transcription. God bless to us guys!
RULE 14
It is one which involves title holder. So what you do in the property so that the adverse party will not
sell the same to another and that very person can not claim that he is an innocent purchaser for
value? What we do is file a notice of lis pendens before the office of the Registry of Deeds of the city
or province where the property is located.
We just of course mentioned the caption, the name of the parties, then the nature of the case, and of
course the case number. Those are all required, or you always have to attach in your letter to the
Registry of Deeds of the city or province where the property is located the copy of the reports. That’s
what you do there.
But this one can not just be done by all cases. Dapat the case involved is one diba affecting title or
possession of a property. In fact, this notice of lis pendens according to the provision of the law, can
not be cancelled, ‘no? Except upon motion which will be heard by the court, giving notice to the party
who caused the annotation of lis pendens and he has to prove that the lis pendens is actually not just
to molest the other party because if that is proven that the lis pendens is actually to molest the
adverse party, that will be a ground for the court to actually cancel the notice of lis pendens. And
there is one decision of the Supereme Court wherein the court just cancelled the notice of lis pendens
by a mere motion without setting the motion for hearing but was not considered as a right act of the
court because in a motion for cancellation of lis pendens, dapat the one who caused the annotation
must always given an opportunity to prove whether indeed the annotation shall be cancelled or not.
One of the grounds to cancel is that the annotation is only caused to molest the other party. Usually
this is the most common one and as far as whether or not the purchaser of the properties concerned
can be considered as purchaser for value in good faith it is only at the time when the annotation was
done because once the annotation of lis pendens was properly made parang it is a notice to the whole
world that as far as this property is concerned, there is a pending litigation. That’s the most common
for lawyers to do, so that the other party will not be able to sell the property while the litigation is
going on.
Okay, Jimenez? Like what I said, we will focus and then exhaustively discuss on summons ha? Like
what I told you last meeting. And to start with as an opening statement, very important in the sense
that summons diba is one of the means by which the court acquires jurisdiction over the person of the
defendant. Just to check Mrs. Jimenez, together with what other ground where the court likewise
acquires jurisdiction over the person of the defendant? Diba there are two means? One is by service of
summons, in accordance with the provisions of this law. And the other one is by his voluntary
appearance to the court. For example, if his counsel files a motion to dismiss the case, except if the
ground is only to question the jurisdiction of the court over his person then that tantamounts to a
voluntary appearance in court, then the court acquires jurisdictionover his person. I repeat ha? Except
lang if his ground is only to question on the court’s jurisdiction over his person. But if it includes other
grounds, other than that ground. I repeat ha? That tantamounts to the voluntary appearance and
therefore the court now acquires jurisdiction over this person. Okay? Clear na? And that is also
mentioned, Mrs. Jimenez, in the last section of this particular rule. Just a check today, Mrs. Jimenez
before we take up each of this sections one-by-one. Mrs. Jimenez, in case there is an amended
complaint, ‘no? Meaning to say, an original complaint was filed and it was amended as a matter of
right. Question? Is there a need to again serve a summon.
Student: It depends, if there is a new cause of action.
It depends, if it raises diba? New causes of action. I repeat because like what I said before, if it is an
amendment which is a matter of right diba? There is no need for that. It can be amendments as to
form. It can be amendments as to substance. It can add other causes of action. According to Mrs.
Jimenez, in cases when the amended complaint will contain, I repeat, new causes of action which
were not included in the original complaint, summons have to be served on the defendant, including
an amended complaint which remember? Impleads another defendant. Because as far as the newly
impleaded defendant is concerned, then there has to be summons to be served on him. Very
important din. There is another one, in cases where the original complaint daw was filed, then the
defendants were not able to file their answer and they were declared in default. Then the original
complaint was amended, and the amendment was granted. Must there be summons to the issue on
the...
Student: No, sir.
I repeat. There is a case, where the original complaint was filed ha? But the defendants were declared
in default, then the original complaint was amended by the students, and the amendment was granted
by the court. The question now is, is there a need for the court to issue summons?
Student: Yes, sir.
Yes. Kasi diba remember, once an amended complaint is amended by the court, diba it supersedes the
original complaint. In point of view of the law, it is considered withdrawn. But it forms part pa din of
the records of the case. So in this particular instance, there is a need for the court to issue summons
on the defendant. Because, I repeat, since the original complaint superseded the original complaint, it
is considered withdrawn and then therefore there has to be issuance of summmons.
When the court issues summons, what should we include as attachments thereto?
Student: The complaint, sir.
The complaint, tapos the complaint includes also daw the appointment of guardian ad litem or ad
litem (different pronunciation), ‘no? This must be likewise be attached to the summon. There is a case
there which apparently, I did not agree, ‘no? That the summons daw which was served to the
defendant without the complaint was still considered as a valid summon. But just like what I said, how
can the defendant file the answer to the summon if the complainant did not attach the complaint?
Because in reality, the summons must always be attanced to the complaint because there is a
directive to the defendant to file a responsive pleading within fifteen (15) days from receipt of the
summons. So please take note of that. There must always be an attached copy of the complaint. And
if it involves, for example, a minor plaintiff, it must also include aside from the complaint, the
appointment ‘no of the guardian ad litem of that plaintiff who is actually suing in representation of the
minor. Kasi this one presupposes, that it is the minor who is filing the complaint but since he is a
minor diba? He should be represented by somebody maybe there was an appointment appointing that
person as guardian ad litem, I think you have taken this up in your Family Code of the Philippines, but
must also be incorporated together with the copy of the complaint with the summons, my dear
students, or summonses were served to the defendant. Okay, so clear na tayo on that aspect, ‘no?
Well as to what the contents are, take note nalang. I think that is at Secion 2 of this particualr rule.
Next question, Jimenez. Who can serve the summons? That is the first question ha? Because you the
court can not and will not acquire jusrisdiction over the person of the defendant if it was served by a
person not enumerated in the provisions of this law. And the law states the summons can be served
only by the following, number one:
Student: Sheriff.
Sheriff. It’s always the sheriff who will serve the summons in actual application. Number two:
Student: Deputy Sheriff.
The Deputy Sheriff. Because in courts like Tacloban, mga multi-sala courts, aside from the sheriffs,
there is a deputy sheriff. Who else?
Student: Propert court officers.
Yeah. Propert court officer, in the absence of a sheriff. Or, in special cases lang ito, any person who is
authorized by court to serve summons. The last one would actually only happen in few instances. But
in actual application, it should be the sheriff or the deputy sheriff or any person authorized by the
court to serve the summons ha? Who are allowed by the court to serve summons. So if summons are
served by persons not one of those enumerated by Mrs. Jimene earlier, the service of summons is
defective and therefore the court did not acquire jurisdiction over the person of the defendant. And
then after... What is the preferred mode... I’m sorry... for service of summons? The preferred mode.
Student: Personal.
Yeah. It’s personal service. In fact summons can not be sent by registered mail or by mail whatsoever,
unless... There is a little qualification there. Unless? I repeat ha? Summons should only be
served by persons enumerated in the rule by personal service, as a preferred mode. As a rule, service
of summons by registered mail is not valid. Except?
Student: If there is an explanation.
In summons by publication. Kasi in summons by publication, aside from publishing the summons and
the complaint itself, you must also send the copy of the summons together with the complaint at the
last known address of the defendant. These two, i repeat, must go together in cases where the court
allows service of summons by publication. I repeat for the last time, in cases where the court allows
service of summons by publication which we will discuss later ‘no? You must not only publish the
complaint. The publication must also publish the summons together with the order granting, my dear
students, summons by publication plus send the summons together with the complaint by registered
mail to the last known address of the defendant. Apart from that, in service of summons by mail is
considered null and void. And when service of summons is done by sheriff, in reality it’s the sheriff,
what is he required to do?
Student: He is required to...
To make a what of the summons?
Student: A return.
A return. And the return must be made within how many days?
Student: Five (5) days.
Five (5) days from service of the summons. What is the reason why is it... in fact when he makes a
return, he should? What is the requirement of the rule? In his return of the service of the summons
within five (5) days, is he required to serve a copy of his return to the detective?
 Student: Yes.
That is the one. He should serve a copy of his return to the detective. What is the reason why is it that
he should make a return withing five (5) days and serve a copy of his return to the plaintiff? What is
the reason, Mrs. Jimenez? This is a very important rule. I have a very nice discussion here ‘no? I move
really slowly, my dear students. What is the reason?
Student: So that the plaintiff will be informed...
So that the plaintiff will be informed, and then? If the summons is served, he can file the appropriate
motion or declare the defendant in default, diba? If no responsive pleading is filed. Or if it is unserved,
what can we do? Unserved man siya. File a motion for the issuance of what?
Student: Alias summons.
Alias summons. That is the reason. Okay, very easy. The return of the sheriff must be filed within five
(5) days from service, he must furnish the plaintiff of a copy, so that the plaintiff can do any of the
following remedies: (1) if no responsive pleading has been filed within fifteen (15) days, we can file a
motion to declare the defendant in default, (2) or if it is returned unserved because the defendant
cannot be located, the plaintiff, my dear students, can now file a motion for the issuance of an alias
summons. So, at the end of the day, an alias summons is a summons issued once the original
summons is returned and served by the sheriff. Okay, so take note of that. That is the justification to
the rule why the sheriff must serve the plaintiff a copy of the summons. Okay? Last for you.
However, in certain instances, when personal summons can not be done by sheriff, then what is the
next alternative?
Student: Substituted service.
Okay. You do substituted service of summons. Mrs. Jimenez, so that substituted service of summons
can be resorted, I assigned to you one (1) case last night. Can you read to me that particular case?
That case my dear students, gave you the requisites for substituted service of summons. Okay? First
muna, what will be the mode substituted service of summons before the case, Mrs. Jimenez?
Student: (1) By leaving copies of summons at the defendant’s residence with some
person
of suitable age and discretion then residing therein, or
(2) By leaving the copies at defendant’s office or regular placeof business
with
some competent person incharge thereof.]
(Rule 14, Section 7)
Thank you, Mrs. Jimenez. Okay, so take note ha? Substituted service of summons. Where is Mr.
Veradio, Ryan? Were almost going to the second round. Abud? Did you take note of that case that I
assigned? Where the Supreme Court laid down the requisites for substituted service of summons. If
I’m not mistaken, I am referring to the case of San Pedro vs Ong. I repeat, San Pedro vs Ong, et.al.
October 17, 2008.
Okay you can take your seat for the meantime. I will call another student for the second round.
Palomino? Again... You did not? Okay. When I assign to you cases, those are very important. Marticio,
Marie Tonette? Not ready? Valdivia, Joan Christine? Varona, Granny. San Pedro vs Ong. Mrs. Jimenez
did you study that case? I will give it to you for the second round. Okay. I will give you another grade
for the second round. Mrs. Jimenez? I just need you to give your classmates the requisites for a valid
substituted service of summons. San Pedro vs Ong. Number One! I repeat, this is only a mere
exception because the rule is, summons must only be served by personal service. However, as long as
the following requisites are all present, substituted service of summons by the persons correctly
enumerated to the residence and office... diba there are two (2) modes? Take note of it. Number one,
Mrs. Jimenez?
Student: (1) Impossibility of the personal service of summons within a reasonable time;
(2) Specify the efforts exerted to locate the defendant;
(3) State that the summons was served upon a person of sufficient age and
discretion
who is residing in his address of who is in charge of the defendant’s office or
regular
place of business; and
(4) Pertinent facts proving these circumstances be stated in the proof of service or
in the
officer’s return.
And what is the effect of that?
Student: The failure to comply strictly with all the foregoing requirements shall render the
substituted service of summons ineffective.
Okay. That is the recent decision of the Supreme Court. Thank you, Mrs. Jimenez. That’s it in
connection with substituted service of summons. I repeat, it must comply with the said requisites.
Otherwise, if it is shown that the requisites were not faithfully complied with, then the substituted
service of summons as ruled by the Supreme Court in the caseof San Pedro vs Ong becomes
ineffective. Clear? Diba I said the mode? For the last time, I already see plenty of questions in... in RULE 15 & 16:
Remedial Law examnination in connection with the modes of services of summons. So, for the last
time ha? The preferred mode actually is personal service. No services by mail except to the extend of a motion is not a pleading
what I said on service of summons by publication. And then, there is also, substituted service of
all motions must always be in writing and must comply with sections 4, 5 and 6. otherwise, the rule is
summons but it must strictly and faithfully comply with the requisites enumerated by Mrs. Jimenez
that it is considered as a mere scrap of paper
earlier. You can always quote the case of San Pedro vs Ong. You can say, “The Supreme Court, with
the famous case of San Pedro vs Ong, ruled that for substituted service of summons to be effective,
except for motions which can be treated immediately like ex parte motions, urgent motions, motions
the following requisites must all be present: one, two, three, and four.” That will be the law. You’ll
agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties, and
have a very good answer. Okay? Clear na? Okay, Abud?
motions for summary judgement because it has to be filed at least 10 days before it is scheduled, a
motion must always be set or scheduled for hearing at least 3 days before the said scheduled hearing.
No problem if the defendant is a natural person, diba? Kasi you must serve the summons personally or
you must always copy furnish the opposing counsel of the said motion.
resort to substituted service of summons, diba? What about... the question now is a juridical person.
How would you answer that? How will service of summons be made if the defendant is a juridical
that's why a motion can only be established by the clerk of court. like when the clerk of court RTC xxx
person? How will you do that? I know you are a veeery very good student. Always topnotcher in my
please xxx the foregoing motion for the court's consideration immediately upon receipt thereof did not
class, ‘no? Even in UP pa rin. How will you do that if you see a question like that in the bar
comply with the provision
examinations in Remedial Law?
because the motion must always state the date when it should be heard and the other counsel must
Student: Sir, juridical person?
always be furnished a copy as to when the particular motion will be heard.
Yeah, juridical person.
if your xxx motion is addressed to the clerk of court and the motion is worded this way:
Student: If it is a juridical person but without personality, summons may be made at all or
"please submit the foregoing motion for the consideration of the court immediately upon receipt
any of the defendants. If it is with personality....
thereof"
I love it! You have to make a decision whether... well it is good ‘no because it is... if a juridical person
this said motion did not comply with the provision of this particular law and therefore is to be
was able to acquire a personality separate or distinct from its members or if it already has a juridical
considered as a mere scrap of paper.
personality. Because if it does not have a juridical personality, then?
the motion must include this:
Student: The service of summons shall be made on any or all of the following: the resident,
managing partner, corporation secretary, treasury, and in-house secretary. "to the clerk of court please submit the foregoing motion for the consideration of the honorable court
on (a particular date) lets say december 12, 2014 at 8:30 in the morning xxx (4:02) to the opposing
Correct! Do you know by what we mean by law on juridical person with no personality? Let’s say for
counsel atty juan de la cruz xxx (4:07) please be informed that the foregoing motion will be submitted
example a corporation, you are taking up...? Not yet, ‘no? The corporation daw was able to get a
for consideration of the honorable court on december 12, 2014 at 8:30 in the morning xxx (4:23)
certificate of registration from the SEC but they lack the minimum requirement, so that corporation
was not able to acquire a personality separate and distinct from its members but it seem to act as if it in fact what the rule says, at least 3 days before the motion is heard. it is not correct, according to
is a corporation. So if that is the case, since the corporation has no personality because it failed to settled jurisprudence that the motion must be sent lang by registered mail 3 days before it is heard.
comply with certain requisites. Then, the law says on service of summons daw can be made on that is wrong. it must stipulate that the motion sent to the other counsel must be received at least 3
anyone or all of them, as required. So meaning to say, days in time for that scheduled hearing. so meaning to say if the hearing is december 12, 2014, tapos
you sent that by registered mail on december 8 or 9, 2014, it did not comply with the requirement of
the rule. because the rule is very clear that it must be received by the opposing counsel at least 3 days
before the scheduled hearing of the motion so that the opposing party will be given the opportunity of
course to file his comments in the said motion. so i repeat sections 4, 5 and 6, if these are not
complied with the motion is considered as a mere scrap of paper and therefore it should not be acted
by the court.
ok there is a concept there of omnibus motion, it is defined to be a motion attacking a pleading. and
the importance of this particular rule because from then on you will be hearing the concept of omnibus
motion. when you become lawyers, you will be filing an omnibus motion, it is simply a motion
attacking a pleading. within the rule stated all objection or grounds which are not included in an
omnibus motionare deemed waived subject of course to the exceptions as provided for in the next rule
of rule 16. please take note. ok no more questions. i repeat, take note ha, 4, 5 and 6 those are the
more important sections in connection with the concept of motions. although there are motions which
need not comply with these sections like non litigated motions, ex parte motions, motions agreed
upon by the parties to be heard on shorter notice and motions for summary judgement which should
be scheduled at least 10 days. so those are the only exceptions so far. so all other motions which
should be in writing must comply with sections 4, 5 and 6. i repeat omnibus motion is a motion
attacking a pleading. so meaning to say, omnibus motion in reality is a motion that contains more than
one ground. meaning to say xxx (4:50) you lump up all the other grounds together in just one motion
that's what we call omnibus motion. it contains more than one relief. its defined to be a motion
attacking a pleading. that's why it says that all objections or oppositions which are not included in an
omnibus motion are deemed waived except those which are enumerated in rule 16.
rule 16 is a very important rule. palomino rheand.very important rule ito ha and like what i said these
are more substantive more than procedural. ok you can take your seat for the meantime mr.
palomino. i told you before that the motion to dismiss should be filed within the period for filing a
responsive pleading that is within 15 days from the receipt of the summons xxx (9:18 - 28) counsels
must observe restraint in filing a motion to dismiss. what should be done instead is, again in one of
the sections you raise that as an affirmative defense in your answer then if you want to you can file a
motion before the court to hear these affirmative defenses before trial on the main issue of the case. i
think that's very practical because if the motion to dismiss is denied, you have to file your answer.
rather than raise it as an affirmative defense, tapos even if your affirmative defense is not considered
by the court, you have already filed the answer. that will basically save time, energy and effort not
only by the court but also the movant my dear students. the one that i've told you, that this can be
raised as an affirmative defense is stated in one of the sections, under rule 16. but like what i said, the
agreement does not mean that the lawyer is negligent from filing a motion to dismiss because the
administrative circular only says my dear students, observe restraint daw. ok so please take note.
grounds:
lack of jurisdiction over the person of the defendant, which if you can recall, if one files a motion to
dismiss on the ground that the court did not acquire jurisdiction over the person of the defendant, and
that is the only ground, it will not be considered as xxx (11:49) of the defendant in court, but if it has
another ground, other than that, the defendant there has already submitted himself to the jurisdiction
of the court. i repeat, because of the existing view, if you question the jurisdiction of the court over
the person of the defendant, dapat that should only be the ground. because, if you also include
another ground, other than that, then definitely your motion will be denied because it is as if you have
submitted yourself to the jurisdiction of the court when your motion allege not only lack of jurisdiction
over your person but you also alleged of course other grounds for a motion to dismiss. but if your only
ground is the fact that the court did not acquire jurisdiction over your person, then that should not be
considered as submitting yourself to the jurisdiction of the court. of course you know already when the
court acquires jurisdiction over the person of the defendant, the jurisdiction of the subject matter of
the case and
improper venue. but the law says this can be waived. and in cases where there is improper venue and
the court for example denies it. what is your remedy? diba the ground is improper venue, you knew
that it is filed in an improper venue but the court nevertheless denies your motion tapos the question
is what should be your remedy? to prevent the court from further proceeding with the hearing of the
case, you can file the special civil action of prohibition under rule 65. prohibition para the court is
prohibited from actually further hearing on your case if you raise of course improper venue as a
ground.
there is a case pending before another court. litis pendentia.
in cases of litis pendentia, diba there are two cases na, one pending against the other. which should
be given priority? - the first one should be given priority.
res judicata (in civil procedure). in criminal procedure its double jeopardy. simply put, there is res
judicata if there is a final judgement on the case involving the same parties and the same cause of
action or the same subject matter.
when the cause of action is barred by prescription. in connection my dear students with prescription,
actually, if the ground is prescription, it is limited on the allegations of the complaint. in fact xxx, if it
appears from the allegations of the complaint that indeed the cause of action has already prescribed,
even without waiting for a motion to dismiss to be filed by the defendant, the court can motu propio
dismiss the case.
lack of cause of action. what is the rule if the ground is lack of cause of action? in fact in this particular
ground, the court daw must observe extreme care and caution in taking or in grantin a motion to
dismiss based on the fact that there is lack of cause of action. so what will the court do? or whether or
not the complaint states a cause of action depends again on the allegations of the complaint.
remember on your criminal procedure that it is also limited to the allegations in the information. here,
if it is lack if cause of action, it is also based on the allegations on the complaint. so if upon the
perusal of the allegations of the complaint, indeed there is no cause of action, then the court of course
may dismiss the case.
unenforceable under the conditions of statute of frauds. there are some contracts which have to be
reduced in writing otherwise it cannot be enforced by any civil action. and one of which is the sale of a
real property. although, if i have to give you an additional information in the context of the statute of
frauds which should have rendered a contract unenforceable, dapat daw the contract is yet executory.
because if the contract is already partially executed, it is no longer covered by the statute of frauds.
xxx statue of frauds covers only executory contracts not partially executed contracts.
lack of personality to sue or it is not filed in the name of the real party in interest.
failure to comply with a condition precedent.
example: failure to comply with the referal to the lupon. it must be specified in the complaint
otherwise it can be dismissed on the ground of failure to comply with a condition precedent.
grounds for a motion to dismiss must be raised. maybe either in a motion to dismiss or in an answer
as an affirmative defense. otherwise, these are deemed waived. diba i told you, an omnibus motion is
a motion attacking a pleading all objections must be included in the motion otherwise if these are not
included then these are deemed waived. that is in accordance with a motion to dismiss. except? (not
deemed waived). in fact you can file the motion in any stage of the proceeding. because the rule is,
dapat it should be filed within the period for filing an answer. but like what i said, the better way is to
raise this as an affirmative defense. if these are not raised in a motion to dismiss or by way of
affirmative defenses, these grounds are actually deemed waived except?
-litis pendentia
-res judicata
-prescription (barred by statute of limitation)
-lack of jurisdiction over the subject matter of the case because lack of jurisdiction can also be raised
even for the first time on appeal
-obligation has been extinguished
-contract is unenforceable because it is covered by the statute of limitation. but that can be part of the
so called exception where it is not deemed waived. or it is one of the exceptions, by the filing of the
motion would not be a ground when you file the case. that would be included as a part and parcel of
the exceptions.
presuming you have filed a motion to dismiss on the tenth day after you received the summons and
the motion to dismiss was denied by the court, will it mean to say that you have only five days more
to file your answer?
-no.
fresh period rule. (case of napes vs ca 469 scra 633) you are given a fresh period 15 days from the
receipt of the denial of the motion to file in court your answer. that is what we call the famous fresh
period rule. diba there is a provision of the rule 16 if the motion to dismiss is denied then the
defendant has only the remaining days within which to file his answer that is now rendered moot and
academic by the decision of the supreme court in napes vs ca. this is the same also for filing an
appeal. diba you file a motion for reconsideration of the decision of the court on the eleventh day, the
motion for recon is denied by the court. how many days more do you have to file an appeal? 4 days or
5 days? no. you are given with the fresh period of 15 days within which to file an appeal.
the court can order amendment of the complaint if it does not contain a cause of action.
it is correct ba? if you file daw a motion to dismiss, you hypothetically admit the allegations in the
complaint?
-yes. but are there some exceptions? except allegations which are not material to the case. like
inferences and legal conclusions are not deemed admitted. or those which are not material to the
case.
diba before scc 1922, all pleadings must always contain the mcle compliance number of lawyer
otherwise the court will not accept it or it is a ground for dismissal of the complaint. it is no longer
now. that has been changed by the supreme court. now it is no longer ground to dismiss the
complaint instead the lawyer may be fined by the court. first offense: 2000, second: 3000, third: 5000
and may subject the lawyer to some disciplinary action.
RULE 17 Motion to Dismiss it is not only the remaining period is given to you but the entire period to appeal in
the neypes case. Now, I told you that a denial of motion to Dismiss is not appealable because it is
interlocutory order what should be done is if it is denied you file your answer once judgment is
rendered against you then you can appeal now the decision by the lower court as assigned as error of
Judge Sabarre: We have finished rule 15 and 16 except the cases I assigned to you 2 important
your motion to dismiss or raised in your affirmative defense in your answer because it is settled that if
decision of the SC in connection with elements of res judicata and elements of litis pendentia.
you raised affirmative defense as if you are able to file a timely motion to dismiss.
Judge S: You know that Res Judicata and Litis Pendentia are among the grounds which if the motion
Judge S: Question, can we daw file a petition for certiorari under rule 65. For me. Yes you can. If you
to dismiss is granted cannot be refiled anymore and also 2 of the grounds were it can be filed in any
feel that the denial of Motion to dismiss is with Grave Abuse of Discretion Amounting to Excess or Lack
stage of the proceedings because you know last night the grounds of Motion to Dismiss must be filed
of Jurisdiction but take note that it is only an extraordinary………(what?)
within 15 days from receipt of summon because Motion to Dismiss should be filed within a period for
responding a pleading and those grounds which are not raised are deemed waived except litis
Next rule: Alvero. we are now on rule 17. Dismissal of action.
pendentia and res judicata. Amarille give me the case of optima in connection with litis pendentia.
Judge S: We subdivide dismissal into 3 to make it short and interesting.
Amarille: According to the optima case, For litis pendentia to be present….
1. Dismissal by mere filing of notice of dismissal
2. Dismissal which requires filing of motion because the dismissal requires an order
Judge S: Okay you take note for litis pendentia a a ground for Motion to Dismiss the following
of the court
elements must be present.
3. Other grounds which warrant Dismissal which enumerated in one of the rules in
rule 17.
Amarille: 1. Identity of parties
2. Identity of rights asserted and relief sought
Judge S: alvero you are not ready? so pick one, Infante.
3. Identity with respect to the 2 preceding particulars in the 2 cases such that any
judgement will lead you rendered the pending case regardless of any parties successful will amount to
Judge S: Notice of dismissal ha not motion. Infante, When will this occur?
res judicata in the other case.
Infante: By notice at any time before the answer is served.
Judge S: You noticed noh that this is more exhausted that the grounds enumerated by regalado in
his book. How about the other case?
Judge S. How will you do that in a simple or understandable manner? I have a question, you listen
ha. The answer was already filed in the court but the plaintiff did not yet receive the answer. Can it be
Amarille: 1. Judgment must be final
dismissed by mere filing of notice of dismissal? I repeat the defendant was able to file his answer but
2. Judgment should be based on the merits of the case
the plaintiff did not receive the answer so he file a notice of notice of dismissal to the court. Would
3. It must be rendered by the court having a competent jurisdiction
that still be proper under the circumstances?
4. There must be identity between the 1st and 2nd actions based on subject matter
and cause of action
Infante: Yes.
Judge S: res judicata is synonymous with conclusive of judgment so if you see the concept of
Judge S. Yes. The more appropriate term is when can a notice of dismissal be proper? It is not the
conclusive of judgment you have to equate it with res judicata. Sometimes some will not use Res
filing of answer to the court of the defendant rather it is the service and receipt of answer by plaintiff
Judicata but use the word conclusive of judgment. I repeat the judgment in the 1st case must be final
that would determined whether or not the plaintiff can still file a notice of dismissal because under the
and based on the merits of the case if in case you filed a case before and the case was dismiss
context of our law it is actually a matter of right. So the more appropriate is the notice of dismissal
because of failure to appear during the pre trial he will be non-suited so it will be dismiss if you equate
should be before the service of answer or service of motion for summary judgment. If you want to
that there is no res judicata because the judgment must be based on the merits of the case. So please
dismiss the case you can do that by notice of dismissal. What will the court do upon receipt of notice
take note of this 2 cases. Thank you miss amarille:
of dismissal?
Judge S: I forgot to tell you that a denial of motion to dismiss is not appealable because it is only
Infante: Upon receipt of notice of dismissal under the provision of rule 17 the court will issue an
interlocutory but a grant to a motion to dismiss is appealable. Last night I told you about the fresh
order confirming the dismissal.
period rule in the case of neypes vs CA that after denial for Motion for Reconsideration or denial of
Judge Sabarre: Is a notice of dismissal which is confirmed by the court will it be with prejudice or
without prejudice. (with prejudice it will bar the case for refilling if without prejudice it will not bar the
case for refi
ling tha same case). what is the rule.
Infante: The dismissal is without prejudice.
Judge S: Correct! So if it is only a mere notice of dismissal and confirmed without prejudice you can
still refile the case. But there are exception. This instance is already with prejudice.
Infante: Exceptions
1. Where the plaintiff has previously dismiss the same case in a court of competent jurisdiction (Two-
dismissal rule).
2. When it is notice of dismissal is confirmed by court with prejudice.
Judge S: The effect in two-dismissal rule is the plaintiff already filed a notice of dismissal and it was
previously dismiss so you are not allowed to file a notice of dismissal that will make the dismissal with
prejudice. why? it operates as adjudication to the merits of the case.
So, clear na tayo?
ALL: CLEEEEEEEAR!
Judge S: Thank you Infante! Joan! dismissal by filing a motion. So miss Joan it presuppose
that…..that…. how come that in this particular instance is not enough you must file a motion to
dismiss because filing of motion to dismiss is made after….
Joan: The filing of the answer or filing of motion for summary judgment.
Judge S: I repeat the 2nd aspect of dismissal of action is dismissal by filing of motion because the
answer is already filed in court or one covered by summary judgment or the motion for summary
judgment was already filed in court. Question. If an answer has been filed or a motion for summary
judgment has been filed. Can the plaintiff just dismiss the case anytime?
Joan: No, it is a matter if discretion by the court.
Judge S: what could have been the rationale? What is the rationale that dismissal will always need
approval of the court?
Joan: To protect the interest of the defendant because you have to take into account the compulsory
or permissive counterclaim. it doesn’t matter if compulsory or permissive counterclaim.
Judge S: Question. Can the court always grant the Motion to dismiss and dismiss the case in the light
of this factual setting?
Judge S: Will the court grant it?
Joan: Not all the time.
Judge S: I love the answer “not all the time” why? what is the basis of consideration of the court will
it grant of the motion or denied it. So when will that instance that it will be granted or denied by the
court? You go to the counterclaim that is your clue.
Joan: if the counterclaim can be included/adjudicated in separate action then the court can grant the
motion to dismiss
Judge S: However if the counterclaim cannot be adjudicated in because it is dependent in the
complaint the court cannot grant it. I’m talking about compulsory counterclaim. If there is compulsory
counterclaim like moral, exemplary and litigation expenses and attorneys fees this are dependent on
the complaint so the court cannot grant it but if this are permissive counterclaim which can be filed
separately they can grant it.
Judge S: If the Motion to dismiss is filed by plaintiff what should be done by the defendant? again
your clue is counterclaim.
Joan: He should manifest before the court within 15 days upon receipt of the motion to dismiss filed
by the plaintiff
Judge S: whether????. what is that manifestation or what is supposed to be adjudicated?
Joan: if he wants his counterclaim in his answer to be adjudicated in the same complaint.
Judge S: There are instances where it cannot be adjudicated so the court will not grant it like
compulsory counterclaim because it is dependent from the complaint.
Judge S: What is the effect of Motion to Dismiss if granted by the court is it with prejudice or without
prejudice?
Joan: it is without prejudice.
Judge S: is there an exception?
Joan: Yes. Exceptions
1. If stated to be with prejudice
2. If stated with prejudiced by order of the court
Judge S: Thank you. Clear na tayo.
Judge S: We move on to the third. Parenasan! The third ground are also grounds of motion to
dismiss.
Parenasan: 1. When plaintiff fails to appear for no justifiable cause on the date of the presentation of
his evidence in chief on the complaint
Judge S: This one requires a motion and approval of the court. number 2?
Parenasan: 2. When the plaintiff fails to prosecute his action for an unreasonable length of time.
Judge S: How will you determine if he fails to prosecute for unreasonable length of time? How is this
concept of unreasonable length of time? what is reasonable or unreasonable is dependent on the
discretion of the court. number 3?
Parenasan: 3. When the plaintiff fails to comply with these rules or any order of the court.
Judge S: Yan I always anchor my dismissal there. Example you are told by the court to file an
amended pleading but you did not so I can dismiss it or you are told by the court to file a
memorandum but you did not so I can dismiss it. We always anchor our dismissal for failure to to
comply with lawful order by the court.
Judge S: I repeat other grounds for filing of motion to dismiss. What is the effect here is it with
prejudice or without prejudice?
Parenasan: with prejudice.
Judge S: With prejudice yan not unless it specified in the order of the court that it is without
prejudice. The first 2 kasi it without prejudice but in the case it is with prejudice not unless specified in
the order that it is without prejudice. Clear?
Judge S: You know of course of this pre trial conference nohhhh! When is there a pre-trial
conference?
Parenasan: When the last pleading has been filed.
Judge Sabarre: What is the effect of that? letter “I”. The ISSUES are already joint. Once the issues
are already joint the case is now ripe for pre-trial conference. Mr. Parenasan. Before the pre-trial
conference can there be another kind of conference? are you familiar with preliminary conference?
Before a preliminary conference what can be done by the court? aaaah. Before the preliminary
conference what should be issued? your taking a subject on that now.
Parenasan: Amicable settlement.
Judge Sabarre: Before a prelimary conference what order shall be issued?
Parenasan: Alternative dispute resolution.
Judge S: what is the most common term for that?
Parenasan: ADR (Sec. A and B LOOOOOOL(hahahahahahhaha)!)
Judge S: Okay. Parenasan the most common term is “Mediation”. All cases will be referred by the
court for preliminary conference to the Philippine Mediation Center for purposes of Mediation because
mediation is part of pre-trial. Just one last I gave you a good grade. What is that rule or Republic act
number that mandate mediation. I also forgot honestly anyway that will be a part now of attorney
Tutaan lecture na ha!. Rationale for Mediation: Clogging of courts. Even if the parties did not want to
go to mediation it is not allowed it still mandatory to refer the matter to the Philippine mediation
center. IF the mediation will not be successful it will be return to the court and conduct a judicial
dispute resolution. In samar it is not JDR but Leyte is now JDR. If JDR will not be successful then the
case will be raffled again to another judge because you are biased.
Rule 21 SUBPEONA
In connection with intervention— effect if the original complaint is dismissed will
it also carry with it the dismissal of intervention?
Ans. the cases of Matictic and Metropolitan Bank
 Matictic case (1987) – if the original/principal complaint is dismissed, it will also
carry with it the dismissal of intervention – rationale – kasi an intervention daw is
only an ancillary action, dependent on the existence of the principal. – It is merely
a collateral action ancillary to the action and is not an independent procedure.
 Metropolitan Bank vs. Presiding Judge (1990) – the supreme court allowed the
intervention to proceed inspite of the compromise agreement entered into by the
parties – rationale –
 The two cases are still good decision, you just have to look at the facts of the
case in applying which jurisprudence is applicable, if it is similar to that of bgry.
Matictic case then you apply the ruling in matictic case then if it is similar to that
of Metropolitan bank, then apply the ruling in that case. - - the facts of the case
vary from each case.
Can there be an intervention on appeal?
GR: no, it must be filed before rendition of judgment
 Exceptions: there can be as an exception- - Mago vs. CA 303 scra 600 - - in this
case the supreme court allowed intervention while the case was on appeal, the SC
relied on the principle of “Substantial Justice “ -
 In case where the parties already entered into a compromise agreement, and the
compromise agreement was already approved by the court, remember when the
 court approved the compromise agreement, it becomes the final decision of the
case.
Can there be an intervention in cases where the court already approved the
compromise agreement entered into by the parties?
Yes, it happens when the intervenor is an indispensable party. (Alfelor et.al vs.
Halasan et.al, March 31, 2006)
Yes, the Viatory right of a witness is only applicable in civil cases.
Whether the case is criminal or civil and the witness refused to testify in court,
what should be done by the court?
(1)The court will issue an arrest warrant to the witness for his arrest or (2) the
court will declare him in indirect contempt. He can either be fined or imprisoned
depending on the court order.

Who serves the subpoena?

Sherriff, deputy sheriff, officer of the court or any person who is authorized by the
SUBPEONA AD TESTIFICANDUM- is a process directed to a person requiring him to attend
court.
and to testify at the hearing or the trial of an action, or at any investigation conducted by
competent authority, or for the taking of his disposition.
Can a police issue a subpoena?
SUBPEONA DUCES TECUM- the requiring of the witness to bring with him any books, Yes, he is considered any officer authorized by the court.
documents, or other things under his control.
 Manner of service – personal or substituted service of summons.
 Who issue Subpeona?
a. The court before whom the witness is required to attend; What if the person to whom the subpoena is to be served was concealed? What
b. The court of the place where the deposition is to be taken; should be done?
c. The officer or body authorized by law to do so in connection with Aside from the subpoena, the court allows the officer who serve the subpoena to
investigations conducted by said officer or body; or break open and enter the building where the witness is concealed.
d. Any justice of the Supreme Court or of the Court of Appeals in any case or
investigation pending within the Philippines.  Fresh period Rule—Neypes vs CA case.
Can it be quashed?
Yes. It can be quashed it depends if the subpoena is subpeona ad testificandum or
subpoena duces tecum.
Rule 23
 If subpoena duces tecum – (a) upon motion promptly made; (b) before the time
Note: Please review in the recording the words in red. Thank you. Goodluck!
specified therein of it is unreasonable and oppressive; or (C) the relevancy of the
books, documents or things does not appear; or (d) if the person in whose behalf
JS: … discovery. Because if we were looking at the expiration of the finale. This is actually one which
the subpoena is issued fails to advance the reasonable cost of production thereof.
will assess in the trial of the case. In fact, this mode of discovery will actually help facilitate the
 If subpoena ad testificandum – when the witness is not bound thereby.
case. … in actual application of the case, when the court issues a summon, we are supposed to issue
also a model (1:11) in acquiring from the parties, specifically the plaintiff, of the modes of discovery.
When can be a witness considered not bound thereby?
And you notice that this is justified because one of the sections will talk about an instance whether,
if the witness resides more than 100 kilometres from his residence to the place
like a deposition, requires leave of court or without leave of court (1:40) that order is justified.
where he is to testify by the ordinary course of travel, or to a detention prisoner if
no permission of the court in which his case is pending was obtained.
If in case there is an order issued by the court inquiring from the parties whether they would
like to avail of any of the modes of discovery and no response was submitted by either parties, one of
Here is a criminal case for where a person who resides more than 100km from the
the effects there either in Rule 29, the other party is not allowed to present the other party as an
court was subpoenaed, he was arrested by the court, is the court correct?
adverse witness. That is one. There are times when you can present the other parties as hostile or
adverse witness. That is one of the consequences if the court issues an order to the parties inquiring if
they would like to avail of the odes of discovery but they choose not to respond to it. So while trial is
going on, if the other party feels that they have to present the other party as hostile or adverse
witness, they could not do so because of failure to respond to the court for them to avail of the rule of
discovery. One of the consequences of Rule 29.
But in reality, this is rarely used by lawyers, except in Rule 23, deposition. That is the most
common, particularly when the witness is sick, infirmed, disabled, and cannot hear a word, your
witness is living outside the Philippines and you do not know when he will return and his testimony is
dispensable or the instances where the witness resides in more than 100 kilometers from the place of
the court where the trial is supposed to be dealt. More often than not, in reality, you can avail of the
first mode of discovery which is deposition pending action.
(Jalucilha called)
JS: Can you explain what are these modes of discovery?
J: The different modes of discovery are deposition before a trial…
JS: Is it deposition before trial or pending action? There is a great difference to using the words before
trial and pending action. Next, under rule 24?
J: deposition before action or pending appeal.
JS: Next?
J: Preempt derogatoris (05:49) or admission by adverse parties.
JS: next.
J: Production or inspection of documents.
JS: Usually there are instances when a lawyer would not actually present all his evidences. The test
there is to file a motion for production of these documents para you would know what these
documents are. For example, you are for the defendant, and you would like to protect the interest of
your client because some of these documents are actually withheld by the other party, you would do
so. And the last? This one is not so common.
J: Physical and mental examination of a witness.
JS: The most difficult part of these rules is rule 23, deposition pending action. The other name for that
is what? Deposition viten est (7:37). Take note of that. Okay. And this one is used for a pending
action. And if you are to make comparison of this to rule 24, deposition before action or pending
appeal, where has the deposition are being distributed (08:06) in rule 23 and rule 24?
J: In a deposition for payment or for use of payment (08:24)
JS: Yeah, this is to perpetuate the testimony of the witness for use for future. It will be the
proceedings. As we sought before the case is filed in court or on appeal. And if rule 23 is deposition
******* (8:55), rule 24 is ?
J: ------
JS: okay, the 23 applies to deposition pending action while 24, this refers to deposition wherein one
perpetuate the testimony of a client for use for future proceedings as when you want the sala match
them later (9:38), or for purposes of appeal. That’s why its called rain in making (9:47).
Now, we got o rule 23. If you want to avail of deposition pending action under rule 23, is
there a need for leave of court (10:20)?
J: There is a …
JS: I repeat. If you want to avail of a deposition of a witness and there is a pending case, will you
have to file a motion in court to allow the taking of a testimony of a witness by way of deposition?
J: It depends.
JS: What it depends?
J: It is necessary for service of answer, before the service of answer
JS: So leave of court, if this is made before service of answer was served by the defendant to the
plaintiff, and therefore?
J: It is necessary if
JS: Again, making it simpler , according to rule 23, leave of court is given (11:47), if you want to make
a deposition of a witness before service of the answer by the defendant. Which means to say, if
service of the answer of the defendant is already made, then the making of the deposition of the
witness is without merit. Is that what you mean?
J: Yes sir.
JS: Correct. Okay. So it is now clear already. So leave of court is given if answer has been served but
leave of court is needed before a service of an answer but after the court acquires jurisdiction over the
person. I repeat. Leave of court is not required after an answer has been served, so that if an answer
has been served already , if not yet served then leave of court is necessary.
What is the rationale behind this so? Why is it leave of court is not required if answer is
already served while leave of court is required if the answer is not yet served by defendant to the
plaintiff as long as the court will acquire jurisdiction of the defendant? Do you know the rationale why
is this so?
J: Plaintiff must avail during the … issues
JS: Did we give a rationale why is this so? If the leave of court is required if no service of answer but
not required if answer was already served?
J: … issues
JS: Would t mean that the rationale why is it that there has to be leave of court the fact that the
defendant did not file his answer yet?
J: Yes. It is the service of the answer which is …
JS: I repeat. How come that the rationale [we could not leave this], what is the reason why is it that
leave of court is not required after an answer has been served but required if the answer is not yet
served as long as the court has already acquired jurisdiction over the person of the defendant? So
meaning to say there must be a motion, did the author give you the rationale why is that so?
J: I did not…
JS: I will not give you an explanation so sorry to tell if I had to tell you to read ore reano more than
regalado. Dapat pa la you more have to read regalado more than reano. Okay. So we will deal on that
tomorrow.
Now, what about if the deposition is for a reasoning? What is it?
J: If to file …
JS: If you want to take the deposition of a prisoner, what does it mean?
J: It would mean that plaintiff is in prison. (16:41)
JS: what is the reason also why is it that making of a deposition of a prisoner is with limit?
J: It refer on the courts…
JS: In connection yan with our discussion with ***** (17:02)
[Kim’s voice: acquired jurisdiction]
JS: If one is judged by an offence punishable by death, reclusion perpetua , reclusion , life
imprisonment, and is a detention prisioner, it cannot be removed unless there is an order by the
Supreme Court. Did we take that up yesterday? Parang I did not noh? That is very important because
that is the reason why is it there has to be leave of court because a witness cannot just testify and
obey at the witness stand unless it is authorized by the court and the court is authorized by the
supreme court. And that is another justification for one, not obey a subpoena, one, if he resides more
than 100 kilometers from the court when the trial is supposed to be dealt, and in cases of detention
prisoner because a detention prisoner cannot be brought out to testify in court if the same is
authorized by the supreme court. That is the reason why is it that there has always to be a reason for
leave of court if you want to take the deposition of a prisoner. Very clear in one of the sections of this
particular rule.
So we are now clear. Now, before whom should a deposition be made?
J: If a deposition is …
JS: You have to make a qualification whether a deposition will be taken in the Philippines or the
deposition is supposed to be taken outside of the Philippines. So if the deposition is supposed to be
taken outside or even in the Philippines, then before whom should it be made?
J: It can be made before judge.
JS: Yeah, although it is not required to be made before a judge but nevertheless, it can be made
before a judge. Second?
J: Notary public.
JS: Notary public.
J: Any person.
JS: Any person who is authorized to administer oath. But there is a qualification there. What is the
qualification?
J: Stipulated by the parties.
JS: Yeah, as long as the same is actually stipulated by the parties. And these taking of deposition is
outside of the Philippines, it can be made before?
J: Secretary of the embassy, general or consul, any person authorized
JS: legation, consul, general, vice consul, consular agent of the republic of the Philippines, any person
authorized by Commission or letter rogatori (21:12), any person authorized to administer oath as long
as stipulation of the parties in writing.
Okay, last question. What is a commission and what is letter rogatori?
J: Comission is for administration of court of justice or other similar taking of deposition. Letters of
rogatori are instrument sent in the name of the judge or court to another requesting the judge of the
latter to be examined upon interpose (22:36)
JS: The most important is letter rogatori and what is important is that you know how to make this.
This is supposed to be part of your legal forms or legal writing and conveyancing.
And that is the difference between a commission and letter rogatori. And if a person is given
a commission or letter rogatori then the taking of the deposition of a witness outside of the Philippines
can be made before it. Little similarity of in and outside of the Philippine, we put emphasis, if we refer
to the third person make authorized to administer oath there is necessity , that it must always be
stipulated in writing by the parties whether it be in the Philippines or outside the Philippines.
We are clear on that point now. So, one by one. We take note of the difference between rule
23 and rule 24. We took note, in reference to rule 23, leave of court is required. And third, before oath
to a judge and whether it is to be taken outside or in the Philippines.
(Villalon called)
JS: what is the form when there is a making of a deposition?
V: It can be written or oral.
JS: Correct. It can be upon oral examination or it can be in writing in the form of questions and
answers. But most often than not, in reality, we resort to oral examination because it is as if you are
just presenting a witness while a witness while away is testifying in court. That is usually what
happens. It is not before a judge, it can be before a judge or it can be of any person enumerated by
the law. But in connection with either oral or written examination in the form of questions and
answers, particularly upon oral examination, dapat how is this supposed to be done before an oral
examination of a deposition is supposed to be made?
V: There is a reasonable notice in writing of the parties before the action.
JS: and what is the purpose of that? There must be a notice to be sent to every party in the action
and what should be the content of that? Parang subpoena ano.
V: Name and time.
JS: yeah, stating the name and time of deposition is supposed to be made. And after, let’s say, the
notice is served, will the court issue an approval?
V: Yes sir, upon motion of the defendant (27:06)
JS: yes, and that would be for the protection of the parties and the proponents. It always goes along
with the order issued by the court after notice was already served and a copy for every party of the
action, the court will make an order for the protection of the parties and of the proponents. Because
actually, in reality, para talagang you are presenting a witness before that particular person to whom
the deposition is made. Therefore, there must be notice because the other party must be present
because they will also conduct their own cross examination. If not, according to law, if the witness
refuses, what will the court do?
V: sign the ….
JS: The court will issue a subpoena to compel attendance of these particular witnesses. Okay, the oral
examination was already being made on the time and place stipulated in the notice. While the
deposition of the witnesses is being undertaken, particularly on direct examination, the other party
objected to such questions, can the person to whom the deposition can take rule (29:03).
V: No sir.
JS: Take note of that when you become lawyers, the person to whom deposition is being taken is not
allowed to rule on whatever objections raised by the other party. That will just be second to rule out
by the court during trial of the case. So the entirety of the deposition must be presented in court. You
are not allowed to rule on any objection. So it is free flowing testimony on direct examination and in
cross examination, redirect and be crossed if that is done by way of an oral examination. What about
if this is a deposition in writing made in questions and answers form, what should be the rule?
V: The party proposing the inquisition shall serve notice to the party who will answer stating the
name and addresses of the parties.
JS: is it necessary that the other party is given notice in advance a copy of the deposition in the form
of question and answer? Is that necessary? Because earlier, what we were discussing was oral
examination. We should now to what we call as written because that can be another rule. He is
correct. There must also be a notice stating the time and the place where the deposition is to be
made. My question is, must be the other parties be given a copy of that particular deposition in the
form in writing in question and answer form. Parang you are making actually a judicial affidavit.
V: yes sir
JS: Yes. Because he has also make a written cross examination based on the answers in the written
deposition. So that is necessary. He must be served for him to be also be prepared in writing his
cross-examination. After all of this deposition is completed, can this used? To whom can this be used?
V: any party present in the making of deposition and the parties to be notified in the making of the
deposition
JS: or, the one who was given notice of the deposition. It can be used against any parties who was
present or represented in the making of the deposition, against one who had due notice of the
deposition. And one last question, deposition can be used in the following instances, memorize that.
V: if they are reaching (33:54) for a proponent as a witness.
JS: Correct. No. 2?
V: for any purpose of the adverse party, if the proponent is a defendant.
JS: Correct.
V: for any purpose, if the court finds the following: first, the witness is dead, two, if its exercised
beyond the regular place of the trial, no.3 if the witness is unable to testify due to sickness,
intermitage or represented (33:39), no. 4 the person proposing the deposition was not able to secure
the attendance of witness by subpoena. No. 5, other exceptional circumstances of the witnesses.
JS: Thank you. Earlier, as you were listening to the answer Ms. Capoquian of Mr. Villalon when I asked
him whether the written in derogatoris, this is simply
(cellphone rings)
JS: if you don’t mind the cellphone. In my court, 1 ring is 200 pesos. But I will not impose it as it is
not sanctioned at all. Okay
The other party must be given a copy of written in derogatori. Actually para lang syang
sworn statement in the form of question. Para lang syang actually a judicial affidavit, question-answer.
That is what we mean by written in derogatori. As we have been told earlier, there must be a service
attached to the other party because it has to submit also cross in derogatoris. Within how many days?
C: 10 days
JS: 10 days from receipt of the written in derogatori. Tapos upon receipt of the cross in derogatoris,
the other party who submitted written in derogatori is given how many days?
C: 5 days
JS: which to?
C: to file a re …
JS: so para talagang representing a witness. Re? redirect? Derogatoris, how many again? 5? And the
other party again upon receipt of the redirect has also 3 days within which to submit recross in
derogatoris. Kasi, when you present a witness, you conduct a direct examination. The other counsel
will conduct a cross examination. Now the cross examination in the court will ask “any direct
examination?” now of there us a direct examination, definitely there has to be a recross examination.
At the end of the day, you can now picture that para ding you are actually presenting a
witness in court.
Can this deposition be made by a way of an excuse for a witness to testify? Can a deposition
be made as an excuse ba to present a witness? Its not in the book of reano
C: the deposition can be used at trial …
JS: some would say that “I will file a motion for a deposition of a witness because my witness does not
want to appear in court. Is that valid?
C: No sir.
JS: No. at the outset of the making of a deposition, should not be guarded as an excuse for a witness
to testify in court. Because at the end of the day, the preferred mode is still for a witness to testify in
court. Precisely, as mentioned by Mr. Villalon Riel who memorized all the provisions. There may only
be instances where this may be resorted to, the witness is dead, the witness is a firm, is sick, the
witness is might be living outside of the Philippines because these are actually exception
circumstances. So it is not a resort to a witness who doesn’t want to testify in court. Because the
preferred mode actually is for the witness to testify in court. Why? Because under the rules of
evidence. The judge has to observe the gesture, the demeanor of a witness, and the trial court is at
the best position to actually observe the gesture, the demeanor of a person who is actually testifying
in court. We have this because there are instances where the witnesses cannot appear in court, the
court allows the taking of a deposition upon written or oral examination or upon written in derogatoris.
Rule 26 Admission by the Adverse Party
Admission by the Adverse Party – it is a written request by one party to another party for the
admission of the genuineness of material and relevant documents or facts.

What is the effect if you elicit the admission of the other party of the relevant facts?
Rule 25- Interrogatories to Parties
Ans. It expedites the trial. Because this will no longer be disputed in the court if it is already admitted.
You want something from the adverse party, what is that you want from the adverse party?
Limitations in so far as to the admission:
Ans. You want to elicit relevant and material facts from the adverse party.
1. Privileged communication
- Lawyer-client relationship
Just like rule 23&24 is there a leave of court for Written Interrogatories?
- Doctor-patient relationship
Ans. It depends. If answer was already filed and if no answer was filed. If an answer has not yet been
filed, there is a need for leave of court, but if an answer has already been filed, leave of court is not
 Your admission should not be the admission already set forth/admitted in the pleading kasi
necessary/ required.
sometimes when you file an answer there is already some admission. This would usually
include evidentiary matters. This is also to expedite the proceedings of the case.
 This is your written interrogatories and you have to serve the same to the adverse party.

What is supposed to be the duty of the adverse party upon the receipt of your written interrogatories?
Admission on due execution and genuineness of the documents. When do you do this?
Ans. It is their duty to answer the written interrogatories. In fact of it is one for the juridical person it
Ans. At any time after the issues are settled. when the issues are already joined
must be filed by the officer directed of that particular juridical entity.
 Unlike in rule 25 on written interrogatories it depends if the answer is already filed or not,
Now if the adverse party has objections to their Written Interrogatories what should he do under the
here, it is when the issues are already joined. This is filed wen the last pleading has already
rule?
been filed because it is where the issues are already been joined.
Ans. He must present hi objections within 10 days from receipt thereof to the court and the court
must rule on this objection. If the objection is overruled he must submit his objection 15 days from
What is the effect if the request for admission is already filed and this was not answered and the
the receipt of the set of WI as provided for by the rules.
request was not acted upon?
Ans. Each of the matters admitted shall be deemed admitted if the request is not acted upon by the
What is the effect of the adverse party when he received the WI but he did not file his answer within
adverse party.
15 days from the receipt of the WI?
Ans. Declare in default
Can this request be used for future proceeding?
Ans. No. this can only be used on that particular proceeding or for that particular case.
Can one file more than 1 set of written interrogatories?
Ans. Yes, if there is leave of court. The rules says, No one is allowed without leave of court to file
more than 1 written interrogatories.
Rule 27 Motion for the production and inspection of Documents or things
If a party is not served of the set of written interrogatories, what is the effect of that?
What is this?
Ans. He may not be compelled by the adverse party to testify or take deposition pending appeal.
Ans. An order seeking from the court in which the action is pending to do the following: refer to (a)
and (b) in the provision.
 In written interrogatories it is not serve to the counsel but to the adverse party himself. If the
WI was serve to the counsel and not to the adverse party, it is as if there was no serving of
How will the court should act to it? What is the test or basis whether the court will grant or deny a
the WI. Because unlike deposition where it can be served to the counsel, but in WI it must be
particular motion? you usually do it before pre trial conference.
serve to the adverse party himself.
Ans. The documents, books things and documents that you want to produce in court must be
specifically mentioned in the motion. The basis is whether or not the document sought for is relevant
or reasonable.
Rule 28 Motion for Physical and Mental Examination of persons
When is this applicable?
Ans. When the physical and mental condition of a party is in controversy. You can file this mode of
discovery and some of this cases would be petition for guardianship because the person concerned is
insane. Annulment of contract on the account of insanity. Damages arising out of vehicular accident.
How do you do this?
Ans. by filing a motion. There must be good cause and serve a copy to the adverse party.
JAN. 7, 2015
If you have read that particular case, the case is about demurrer to evidence and the effect if in case
the demurrer is granted and the effect if it is denied. I told you that if the demurrer is granted,
according to our rules, that is final and executory. The remedy there is to appeal, although it refers
that the day he loses (00:53) his right to present evidences by the appellate court, you can recall,
should not be … mannered (01:04) the case instead the appellate court should render the decision
based on presented by the plaintiff. Of course if it is denied it is not appealable because it is
interlocutory. As I was saying last night that unlike in new (01:23) evidence, if the ___ is denied, the…
RULE 34: JUDGMENT ON PLEADINGS
When will you file a motion for judgment on pleadings?
Richmond: when there is no …
Can you take out the word genuine? Because we are talking about judgment on the pleadings, I think
the word genuine is used on summary judgment. If you notice, that is the difference between
judgment on the pleadings, it does not use the word genuine. But summary judgment uses it.
If answer filed by defendant fails to tender an issue or otherwise there is an admission of material
allegations in the complaint of the plaintiff, you can file judgment on pleadings.
So from sec. 1 of this particular rule, we can deduce that a judgment on the pleadings requires the
filing of the motion. It has to comply with the 3-day notice rule. However there is an exception. The
pre-trial conference where there were admissions, diba I told you one of the matters to be taken up
during PTC would be stipulation of facts diba, remember that? Tapos the plaintiff stipulated material
facts and these are all admitted by the defendant so in that particular case the court may allow to
render judgment based on the previous submitted by the parties. That’s the exception to the rule. Just
like what I have said earlier, very clear in sec. 1 that you must file a motion, if you feel that the
answer failed to render an issue or merely admitted the allegations in plaintiff’s complaint, except I
repeat, during pre-trial, there were admissions made by the defendant, then the court may render
judgment on pleadings.
You notice that when the plaintiff files a motion for judgment on pleadings, parang he admits the
material and relevant facts in the answer of the defendant, can there be an exception to that?
Because when you file a motion for judgment on pleadings, incontestably it’s as if you admitted also,
the relevant facts in the answer of the defendant. That will be the ___ found in the motion for
judgment on pleadings. Is there an exception? Except on the amount of damages, because as far as
damages are concerned, this might require a rule (?). Or those facts which are irrelevant, those are
not deemed admitted.
What are the exceptions to the rule that there could be no judgment on the pleadings?
1. Annulment of marriage
2. Legal separation cases
3. Declaration of nullity of marriage
These are subjected to compromise agreement … except in the aspect of annulment of marriage,
prays for the dissolution of the absolute community properties or support which might be subjected to
the compromise agreement but as far as the petition itself is concerned, it’s not allowed. They say
likewise in this rule, no judgment on pleadings on annulment of marriage, declaration of nullity of
marriage, and legal separation.
What is the reason why these are not subject to judgment on pleadings? So these 3 are exceptions,
not only in judgment of pleadings but likewise in summary judgment. Do you know the reason why?
Because there can be no declaration of default in a nullity of marriage. The respondent can always file
his answer antime, in any stage of the proceedings and can be admitted by the court – that is the
effect diba?
How is it differentiated from summary judgment?
JUDGMENT ON PLEADINGS SUMMARY JUDGMENT
PROPER when it appears that there is NO genuine PROPER even If there is an issue as to damages
issue between the parties recoverable
BASED EXCLUSIVELY upon pleadings w/o BASED on pleadings + affidavits, depositions and
introduction of evidence admissions of the parties showing that, except as YES. It is the plaintiff who will file the motion for judgment of pleadings. Usually, it is the plaintiff
to the amount of damages, there is no genuine likewise, who files the motion for summary judgment. This is because of Sec. 2. I repeat, it is the
issue plaintiff who will file the motion of judgment of pleadings upon receipt of the answer. Likewise, it is
AVAILABLE in any action AVAILABLE in actions to recover a debt, or the plaintiff who will file the motion of summary judgment. But apparently, sec. 2 will give us the
XPNs: declaration of nullity, annulment of liquidated sum of money, or declaratory relief
conclusion that a motion for summary judgment can also be filed by the defendant.
marriage, legal separation
Subject only to the 3-day notice rule and where Required PRIOR 10-day notice
What do you mean by genuine issue?
all the material averments of the complaint are
admitted, such motion may even be made ex
parte Diba because summary judgment says “it did not enter genuine issue based on the pleadings,
depositions, affidavits and admissions, then other party can file for summary judgment...” Because in
if based upon these particular documents, there is a genuine issue, then definitely the court has to
You notice, that on the judgment on the pleadings, of course it is solely based on the pleadings deny your motion for summary judgment. What is the concept?
submitted by both parties. However, in summary judgment aside from the pleadings submitted by the
parties, they are also required to submit three: 1. Affidavits, 2. Depositions and 3. Admissions. Next, Genuine issue – is an issue of fact which calls for the presentation of evidence, as distinguished from
judgment on the pleadings is available in all actions except for the 3 mentioned earlier, but summary an issue which is fictitious or contrived so as not to constitute a genuine issue for trial. From the
judgment is only available in 3 instances: 1. Recovery of debt, 2. Recovery of liquidated sum of allegations in the pleadings, in the depositions, affidavits, and admissions that there are facts which
money, 3. Special civil action of declaratory relief. Those are the only 3 cases upon which the law actually require the presentation of evidence, then the court has no other choice but to deny the
allows for the filing of summary judgment. Unlike the judgment on the pleadings which is available in motion, because summary judgment is only allowed in cases where it did not tender genuine issue. I
all the cases except for the 3. think that is justified because how can the court rule if the issue requires a presentation of evidence?
That is very clear my dear students.
(DE DIOS)
And like what I said the same also with judgment on the pleadings. Annulment ha, but anyway,
What is the next distinction? There’s another one pa there. In judgment on the pleadings, it has to automatic yan because it is limited naman to 3 cases of recover a debt, or liquidated sum of money, or
comply with the 3-day notice rule. What about in summary judgment? 10 days. If you can recall we declaratory relief.
discussed on motions, diba you should always comply with the 3-day notice rule but there is an
exception: in cases of motions for summary judgment, it has to be filed within the 10-day rule. Can you give me the case of Christina Deillo (?) Because you can appreciate what we are talking
Meaning to say, when you file a motion for summary judgment, see to it that date should be 10 days about. I think the ____ is a perfect place for judgment on the pleadings.
before otherwise that will ___ by court in connection with the rule, unlike with the judgment on
Christina case:
pleadings, it has to comply with the 10-day rule.
This is involving an annulment of an extrajudicial partition, which were actually executed by the heirs
of San Jose, however the extrajudicial partition excluded some heirs – so definitely the heirs filed an
RULE 35: SUMMARY JUDGMENT action to annul – that is the consequence. A compulsory heir cannot be pre-deleted. So definitely since
the extrajudicial partition excluded some compulsory heirs, the latter filed an action to annul the
(16:50) In summary judgment, if it did not raise genuine issue … but in judgment of pleadings, it talks extrajudicial partition.
about issue and admission of the material allegations, and based on the pleadings of depositions and
admissions if he can raise the genuine issue then he can file a for a motion on summary judgment – Upon filing the complaint, Mr. Maccabeo, what was the answer of the defendants here?
meaning to say, it is the plaintiff who files it just like in the motion for judgment on the pleadings.
The answer was that they denied that the extrajudicial partition was not a forgery but they admitted
Can a defendant file a motion for summary judgment? that the plaintiffs in this case were actually compulsory heirs. They admitted. They denied that it was
a forgery. But they admitted that the plaintiffs, the one who filed the annulment were compulsory
heirs. So with that, they filed with motion for judgment on the pleadings. It reached up to the
Supreme Court and how did the Supreme Court rule on that? Was it proper? YES. It was proper.
Because the fact that they admitted that the plaintiffs are compulsory heirs then therefore, it did not
tender an issue. What else would they prove in court when the defendants there have already
admitted that the plaintiffs are actually compulsory heirs of the person subject of the extrajudicial
partition. So we that, the plaintiffs filed for motion for judgment on the pleadings. It was granted, all
the way questioned in the Supreme Court, the Supreme Court said, the judgment on the pleadings
was proper because the answer actually failed to tender an issue and that the defendants actually
admitted that the plaintiffs are compulsory heirs. So, that’s perfect example.
Can there be a partial summary judgment? When will this happen?
In cases where summary judgment was made, the court will then ascertain the facts which are
material and uncontroverted. Yah pwede yan. Actually during pre-trial conference, you can determine
facts which are uncontroverted. Meaning to say, facts which are admitted already, then facts which
are controverted. So as far as uncontroverted facts are concerned why do you have to present pa
evidence there? You can file a motion for summary judgment and therefore the presentation of
evidence will only be limited now to facts which are actually controverted.
What will happen, Mr. De Dios, Christian Eduard, if the court now grants the motion for summary
judgment and court renders a decision based on that? What will happen to that particular decision?
You will have to wait for the presentation of the evidence and the finality of the case of the other parts
which concerns the controverted facts. You know what is stayed? It means SUSPENDED. To await
finality as far as the other parts are concerned – that is the effect. But the law incontestably allows
partial summary judgment.
*Distinguish summary judgment and judgment on the pleadings, bangin gumawas ha
midterms.*
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
(PETILLA)
Judgment is synonymous to decision, yes? For a judgment to be valid it has to require the following
requisites:
1. It must be in writing, personally & directly prepared by the judge
2. Must clearly state clearly and distinctly the facts and the law on which it is based
3. It must contain a dispositive portion and should be signed by the judge and filed with the
clerk of court
What is the other term for dispositive portion? Falio (?). How do you call the body of the decision?
Ratio decidendi (the point in a case which determines the judgment) What is obiter dictum? These are
called opinions which stem from the decision.
There are times that there is a conflict between the ratio decidendi and the falio. Which will prevail?
Falio will prevail over the ratio decidendi. Is there an exception? What is that? And the rule is: the falio
will prevail in case there is conflict between the decision and the body of the decision because my dear
students, what will be executed is not the body of the decision but the dispositive portion. Bagan
wherefore ba, premises considered.
What is the exception?
YES. If there is a little ambiguity in the dispositive portion, resort to the body of the decision. If you
are the counsel of the winning party and you noticed that the dispositive portion is ambiguous, even if
you go to the body of the decision, you find that it is also ambiguous, what will you do? CRY. And file
a motion for clarificatory judgment.
There are several kinds of judgment. There is a judgment based on compromise. What is it?
It is in fact one of the grounds upon which trial of the case can be postponed if there is a possibility
for the parties to enter into a compromise agreement. If is a possibility that one party may enter into a
compromise agreement, the court will always grant it and the case will be rescheduled. That is a valid
ground to reschedule the hearing of that case.
What is the effect if the parties enter into a compromise agreement, and judges are also praying for
that. That’s why we have ADR of 2004, where all civil cases are only subject to ____ pursuant to the
act of 2004. In fact, aside from the ADR, we also have the JDR (Judicial Dispute Resolution). If there
is failure of the mediation, then it is submitted to the court and the court, before conducting a pre-trial
conference, may conduct a JDR. Do you know that in the conduct of a JDR, the court can tell a
plaintiff if they’ll lose in a case, so they better into a compromise. For a JDR that’s not successful, the
judge conducting it will not be the one to hear it, it will be raffled to another. That’s the effect. You
can actually purge the party into entering into a settlement.
Is a judgment based on a compromise agreement final and executory? Can you appeal?
What you do is final a motion to set aside the compromise agreement within the 15-day period from
receipt of that judgment. And you anchor your motion on what ground? Fraud, mistake, force,
intimidation. Unfortunately, even if you are able to prove to the court the compromise agreement, you When there are several defendants and the court renders judgment against one or more of them,
are only compelled by force or intimidation to sign the compromise agreement, the court denied your leaving the action to proceed against the others.
compromise agreement.
What is a special judgment?
What is your remedy?
When the judgment requires the ___ of certain acts of ___ or the delivery of personal property
APPEAL. A judgment on a compromise agreement is not appealable because it is final and executory. (47:00)
What you can do is file a motion to set aside the compromise agreement, if that is denied, that denial
can now be the subject of appeal. What is a separate judgment?

What is Judgment Non Pro Tunc? English term? What is the purpose? When there are different claims and you can render separate judgment based on each particular
claim.
It is a judgment intended to enter into the records a judgment which was made before but not
entered into the records of a cases. This is to make judgment final. What is a judgment upon confession? Do you think this is allowed?

How can a judgment become final when it was not yet entered into the Book of Entries of judgment? When the defendant appears in court or files a pleading expressly agreeing to the plaintiff’s demand.
In criminal and civil cases, if you want to determine the finality of the decision, you base it on the date Not allowed. The law allows compromise agreement but never judgment upon confession. Kasi in
of entry of that particular judgment made by the clerk of court. Kasi diba after we render a decision, confession you do away with trial and that is not allowed.
we give it to the clerk of court and we call it RENDITION OF JUDGMENT – it is the filing of the
What is immutability of judgment?
decision with the clerk of court and the clerk of court is duty-bound to enter the same into the records
of the book of judgment kasi that is the reckoning point as to when to consider the decision as final
There has to be an end of a judgment. That is the general rule. There are certain exceptions where
and executory. Diba mga motions for executions, those are very important, you have to base it on the
judgment may not be executed and that will be lectured more in rule 39.
date from when will it start.
We take up the case for summary judgment. About the collection for sum of money – DENIED. There
(JOSOL)
are some facts which will require presentation of evidence.
Can you enumerate the other kinds of judgment?
JAN. 8, 2015
1. Judgment by default
RULE 37: NEW TRIAL OR RECONSIDERATION
2. Judgment on the pleadings
3. Summary judgment (DIOLOLA)
4. Several judgment
5. Separate judgment This rule actually contains 2 motions and these will be motions for new trial or reconsideration.
6. Judgment for specific acts
7. Special judgment When will second motion for new trial happen?
8. Judgment upon confession
The ground did not yet exist at the time when the first motion for new trial was filed.
9. Judgment upon compromise / consent / agreement
10. Clarificatory judgment
When is the filing of the second motion for new trial?
11. Judgment nunc pro tunc
Should be within the 15-day period for taking an appeal.
What is a several judgment?
What about motion for reconsideration? Are you allowed to file a second motion? Exceptions? Must it contain an affidavit? There is one case sited by Regalado that a motion for reconsideration
need not contain an affidavit of merit.
NO. Except lang before the Supreme Court. Only the Supreme Court may allow, but you have to file a
motion for leave for the filing of second motion for reconsideration. FRAUD:

When to file motion for new trial or reconsideration? What kind of fraud?

Within 15 days from taking an appeal – usually reckoned from the day you receive the decision. Not intrinsic. It should be extrinsic or collateral fraud. What do you mean by that? These are instances
Regalado mentioned 15 or 30 days from taking an appeal because as a general rule, appeal period is which prevented one party from fairly presenting his case in court. Like for example his lawyer was
15 days, but there are cases where appeal period is 30 days – in cases where the law requires the thinking all along that compromise agreement was supposed to be entered into but there was none
filing of a record of appeal. Example: expropriation proceedings, settlement of estate. And the pala.
requirement there will not only be filing a notice of appeal but also a record of appeal.
ACCIDENT:
Ground for new trial: (FAMEN)
An event that takes place without one’s foresight or expectation.
1. Fraud
2. Accident MISTAKE:
3. Mistake
What kind of mistake?
4. Excusable Negligence
5. Newly discovered evidence - with reasonable diligence, have discovered and produced at the trial
GR: mistake of fact
& which if presented would probably alter the result
Why is mistake of law not a ground? Because ignorance of the law excuses no one from compliance
Grounds for Reconsideration:
therewith. But there are exceptions.
1. Award of damages is excessive
XPN: (for mistake of law to be a ground – to prevent manifest injustice)
2. Facts & evidences are insufficient to justify decision or final order
3. Decision is contrary to law When one of the parties is of limited intelligence that he cannot understand the ___ (17:06) of the
application of the law
Requirements for New Trial:
Mistake of fact is made by the party himself. What about mistakes of the counsel? In legal ethics, the
1. Should be in writing
rule is: mistake of counsel is mistake of client. Can there be an exception to that where the client is
2. Affidavit of merit of existence of FAME – must comply with rule of motions
not bound to the mistake of the lawyer? Notice to client is notice to counsel, but notice to an
3. Must comply with the 3-day notice rule
irresponsible counsel is not notice to client.
4. In case of newly discovered evidence – a. affidavit of new witnesses b. duly authenticated
documents to be introduced EXCUSABLE NEGLIGENCE:

Requirements for Reconsideration: Depends upon the circumstances of the case

1. Should be in writing NEWLY DISCOVERED EVIDENCE (also known as forgotten evidence):

2. Must point out specifically the conclusion of judgment
3. Express reference to testimonial or documentary evidence or to provisions of law Requisites:
1. Discovered after trial
2. Could not have been discovered and produced at trial despite the exercise of reasonable diligence
3. If presented, could probably alter the result of the action
(TING)
Earlier, we were talking about the requisites for the filing of motion of new trial. It has to be in writing,
has to obtain an affidavit of merit – filing is considered complied or conformed to the requirements of
the rules. Why? Give me an instance that it has complied with the rules for motions.
It might be a ground to dismiss the motion right away but more than that, what is the effect? It
makes the motion pro-forma.
What is pro-forma motion?
Doesn’t comply with Rule 15 & 37 – doesn’t point out specifically the findings or conclusions of the
judgment as 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, and is
merely intended to delay the proceedings or if there is no affidavit of merit.
What is the effect if motion for new trial or reconsideration is pro-forma?
This only applies in civil cases and other cases, but not criminal.
It will not toll (suspend) the right of the reglementary period for the appeal. After 30 days the decision
is rendered, you can no longer appeal because the appeal there is never tolled.
What are the instances when the motion becomes pro-forma particularly if you are referring to a
motion for reconsideration? Patay ka ha.
1. Motion for new trial is pro-forma where it uses the same ground. You only repeat the grounds
which were already alleged when trial was going on.
2. The same arguments were used as in the arguments when you were told to submit your
respective memorandum after the case has been submitted for decision.
3. Sufficiency of evidence
4. Lack of __ based on fraud, accident, mistake, excusable negligence – and you were not able to
prove it – because if you raise these, they must be specifically set forth in your motion. A general
allegation is not sufficient. You must express specifically the acts the constituting FAME.
One of the requisites for filing of new trial is that it must contain an affidavit of merit.
What should be in that affidavit of merit?
1. It should contain the act constituting the ground i.e. extrinsic fraud – must be specified
2. It should contain the statement that you have a good and meritorious defense
XPN: When the petition itself already contained the grounds that you already set forth in your petition.
The grounds of your motion for new trial specifically – its as if there is already an affidavit of merit so
to speak.
What should the court do in connection with the motion for new trial?
1. If it is denied – no problem
2. If granted – set aside / vacate judgment or final order and order new trial however, if there are
already evidences which were presented which served as basis for the decision subject of the
motion for new trial, can that still be adapted by the court? YES. Evidences already appreciated by
the court can still be adapted in new trial.
What about for the motion for reconsideration?
1. If granted - the decision is amended accordingly.
RULE 38: PETITION FOR RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS
(CAPOQUIAN)
What is this petition for relief from judgment, orders or other proceedings and when is this availed?
1. This can be availed of if the judgment or final order was rendered based on FAME.
2. Judgment is rendered and party has been prevented by FAME from taking an appeal.
Diba you were not able to appeal? There is still one remedy but it should be based on FAME because
remember this is an extraordinary remedy. This will not be granted by court if the appropriate remedy
is actually appealed or in a certiorari so to speak. FAME should be interpreted to be the same as in the
interpretation in Rule 37 (grounds on motions for new trial).
Negligence of lawyer where it was also considered the negligence of client but if the negligence is to
the extent that it affects the client’s interest as to suffer injustice, the law still allows the filing of relief
from judgment. If you fail to file an appeal, the remedy is to file a petition of relief from judgment.
What are those including in other proceedings?
If court grants an order of writ of execution – you can file to the court for leave of judgment
When should that be filed?

1. 60 days from the time the petitioner learns of the judgment, decision or other proceedings and
2. Within 6 months from entry into the book of judgment by the clerk of court

In a petition for relief from judgment, it concerns judgments and decisions. Will the filing of the
petition for relief from judgment suspend the execution? Will it stay the execution? We are talking
about a judgment rendered by the court. You failed to appeal, opted to file petition for relief from
judgment. Will it stay a decision which is final and executory? NO.

What will you do so that the decision will be stayed?

Your petition for relief from judgment must have a prayer for the issuance a writ of preliminary
injunction or temporary restraining order – this is the only way by which you can prevent the
execution of a judgment or decision subject for petition for relief from judgment. If a court does not
issue a writ of preliminary injunction to be honest with you, your petition is nothing, because the other
party can still file a motion for execution for that particular decision.

But however, if you are granted with a preliminary injunction, you are required by the court to what?

Put up a bond to answer for whatever damages the other party may incur if it turns out later that you
are not entitled to the petition for the relief from judgment you prayed for. A bond will answer for
those damages.

What is required when you file a petition for relief from judgment?

1. It must be verified
2. It must have an affidavit of merit
3. And must contain the grounds for petition

After receipt of petition, what will the court do?

It will require the respondent to file an answer within 15 days after which it will be set for trial.

What is the effect?

If granted – a new decision is made by court.

Where should you file a petition for relief from judgment?

From the court where the decision was read. If it’s MTC, you file it with MTC, if it’s RTC, you file it with
RTC.