SPECIAL CIVIL ACTIONS (2006 EDITION) 1. Interpleader SPECIAL CIVIL ACTIONS INITIATED BY COMPLAINTS PETITIONS 2. Expropriation 3.

Foreclosure of Real Estate Mortgage 4. Partition 1. Declaratory Relief 5. Forcible Entry and Unlawful Detainer 2. Review of Adjudication of the Comelec/COA 3. Certlorari 4. Prohibition 5. Mandamus 6. Quo Warranto 7. Contempt VENUE The venue of special civil actions is governed by the general rules on venue, ex cept when otherwise indicated by a particular rule under the rules on special ac tion (Ex. Quo warranto). Special civil actions are governed by the rules on ordinary civil actions, subje ct to the specific rules prescribed for a particular special civil action. (Sec. 3-a Rule 1) By virtue of Section 3 of Rule 1, the provisions of Rule 16 on motion to dismiss are applicable in special civil actions. (National Power Corp. vs. Valera, L-15 295, Nov. 30, 1961). RULE 62: INTERPLEADER Interpleader that special civil remedy whereby a party who has property in his p ossession or an obligation to perform. Either wholly or partially, but who claim s no interest in the subject, or whose interest, in whole in or part, is not dis puted by others, goes to court and asks that conflicting claimants to the proper ty or obligation be required to litigate among themselves in order to determine finally who is entitled to the same. (Alvarez vs. commonwealth, 65 PHIL 302) REQUISITES FOR INTERPLEADER 1. The plaintiff claims NO INTEREST in he subject matter or his claim thereto is not disputed; 2. There must be at least TWO OR MORE conflicting claimants; 3. The parties to be interpleader must make EFFECTIVE CLAIMS; 4. The subject matter must be ONE AND THE SAME. The peculiar characteristic of an interpleader is hat there is no cause of actio n on the part of the plaintiff but only a threat of cause of action. PURPOSE OF REMEDY: to protect a person not against double liability but against double vexation in respect to one s liability. (Work Wack Golf vs. Won, 70 SCRA 16 5) Section 2. Order: The court shall issue an order requiring the conflicting clai mants to interplead. The court may direct that the subject matter be paid or del ivered to the court. Section 3 .Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order. > The conflicting claimants, who are co-defendants in the action, must serve cop ies of their answers not only on the plaintiff but also upon their co-defendants since the controversy actually exists among the co-defendants. 4blue95:An action in interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending cla imants. Otherwise, it may be barred by laches or undue delay. This is because af ter judgment is obtained against the plaintiff of one claimant, he is already li able to the latter. Section 4. Motion to Dismiss

Within the 15 days provided for filing the answer, each claimant may file a MOTI ON TO DISMISS on the ff GROUNDS: 1. Impropriety of the interpleader action; 2. Rule 16. The period to file the answer shall be tolled and if the motion is denied, the m ovant may file his answer within the remaining period, but not less than 5 days from notice of denial. Section 5. EFFECT WHEN A CLAIMANT FAILS TO PLEAD WITHIN THE TIME FIXED The court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect o the subject matter. The parties in an interpleader action may file counterclaims, cross-claims, thir d-party complaints and responsive pleadings thereto, as provided by these Rules. A defendant may file a counterclaim for interpleader against the plaintiff and a third party also claiming the subject matter of the suit. Section 6. Determination Section 7. Docket and other lawful fees, costs and litigation expenses as liens. If there are no conflicting claims among the defendants, the complaint for inter pleader may be dismissed or lack of cause of action. The costs, expenses and attorney fees incurred by the plaintiff in the action sh all constitute a lien upon the subject mater and/or is recoverable from the defe ndant who loses in the action and is found by the court to have caused the unnec essary litigation. NOTE: Interpleader cannot be availed of to resolve the issue of breach of undert akings made by defendants which issued should be resolved in an ordinary civil a ction for specific performance or other relief NOTE: Always remember that the court determines only the issue of WHO HAS A BETT ER RIGHT among the conflicting claimants. Presupposes Ancillary action An original INTERVENTIONthat plaintiff has no interest in the subject matter of the action o INTERPLEADERaction r has interest therein in whole or in part which is not disputed by the other pa Proper rties in any of these four situations: person having (a) legal interest in the matter in litigation, or (b) success of either of the parties, or (c) an intere st against both, or (d) is so situated as to be adversely affected by a distribu tion or other disposition of property in the custody of the court or of an offic Defendants (rule 19, Sec. 1) to to pending suits. er thereof.are being sued preciselythe interplead them original parties RULE 63:DECLARATORY RELIEF Additionaldismiss violation Motion There is breach No writ oforRELIEFfor (FILE Writ oftoACTION or(rule16&17)to dismiss DECLARATORYexecution motion it before court may refuse to ORDINARYexecution available of right breach or violation) exercise rights and to breach ground violation construe instruments where a decision would not terminate the uncertainty or co ntroversy or where declaration is not necessary and proper under the circumstanc Scenario: Am I covered by the ordinance or law? To know it, then file declaratory es. relief Requisites for action for declaratory relief: a. Subject matter of controversy is a deed, will, contract, or other written ins trument, statute, executive order, or regulation, or ordinance (EXCLUSIVE, as su ch, citizenship is not a ground for declaratory relief) --> Court may refuse to adjudicate where decision would not terminate the uncert ainty or controversy which gave rise to the action OR where the declaration is n ot necessary and proper at the time; --> If it involves validity of statute,EO or regulation, the Solicitor General m ust be notified by the party assailing the same and shall be entitled to be hear d upon such question. --> If it involves validity of ordinance, prosecutor of LGU shall be notified an d if it alleges unconstitutionality of such ordinance, the SOLGEN shall also be notified and heard. b. Terms and validity thereof are doubtful and require judicial construction; c. No breach of the document, otherwise ordinary civil action is the remedy;

--> Must be before breach is committed, as in the case where the petitioner paid under protest the fees imposed by an ordinance. Declaratory relief still p roper because the applicability of the ordinance to future transactions still re mains to be resolved, although the matter could be threshed out in an ordinary s uit for the recovery of the fees paid. d. There is an actual justiciable controversy; Justiciability- court must be satisfied that an actual controversy or the ripenin g seeds of one exist between parties ,all of whom are sui juris and before the co urt,and the declaration sought will be a practical help in ending the controvers y. e. Parties must have interest (coz if none,then it cannot be filed) Non-joinder of necessary parties may be a ground for dismissal under section 5. Notary public who is not a party to the contract is not entitled to file declara tory relief. 4blue95: parties are persons who are interested under a deed or a will, contract or instrument whose rights are affected thereby. f. The same is ripe for adjudication (it must appear under the facts of the case that there is a threatened litigation in the immediate future,which litigation is imminent and inevitable unless prevented by the declaratory relief sought). g. Adequate relief is not available through other means or other forms of action or proceeding. Actions similar to Declaratory relief: i.action for reformation of instrument ii.action to quiet title or remove clouds to real property iii.action to consolidate ownership under 1607 of Civil code. WHEN IS CONVERSION TO ORDINARY ACTION PROPER? If after filing of petition for declaratory relief but before rendition of judgm ent,a breach or violation of instrument or statute occurs, then the same may be converted into an ordinary action. If breach was before the filing of action ,the remedy of declaratory relief cann ot be availed of much less can the suit be converted into an ordinary action. Law does not require that there shall be an actual pending case ,it is sufficien t that there is a breach of the law,an actionable violation to bar a complaint f or declaratory relief (Borja v Villadoid 85 PHIL 36) WHEN ACTION FOR DECLARATORY RELIEF WILL NOT LIE? 1.if action is to obtain declaration of citizenship 2.to establish illegitimate filiation and actions to determine hereditary rights 3.subject of action is a court decision 4.action to resolve a political question/issue 5.those determinative of the issues rather than a construction of definite statu s ,rights and relations 6.where the terms of the assailed ordinances are not ambiguous or of doubtful me aning 7.where the contract or stature on which action is based has been breached. 8.action is merely to seek advisory opinion from the court on a moot question. 4blue95:THIRD PARTY complaint is supposed to seek contribution,indemnity, subrog ation or other relief from the third party defendant in respect to the claim of the plaintiff against him. And hence it is improper when the main case is for de claratory relief which purpose is mere interpretation and construction. However,when complaint for declaratory relief alleges other matters the court ma y grant such affirmative reliefs as the evidence may warrant. Compulsory counterclaim based on or arising from the same transactions,deed or c ontract on which petition is based maybe filed and entertained in declaratory p roceedings because there is nothing in the nature of Declaratory relief that pre scribes the filing of counterclaim.

4blue95: DECLARATORY RELIEF shall be filed with the RTC exception if the petitio n has far reaching implications and it raises questions that should be resolved ,it may be treated as one for prohibition or for mandamus, which be filed with SC or CA. RULE 64: REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF COMELEC AND COA Congress enacted RA 792 amending section 9 of BP 129 effective March 18,1995 eli minating such recourse to the SC and transferring the power to the CA over all a djudications of the Civil Service Commission. 4blue95: THE petition should be filed with the Supreme Court, this refers to CER TIORARI under Rule 65 as an independent civil action and not as a mode of appeal (as such, motion for reconsideration muna bago ka magfile ng certiorari) 4blue95:IT shall be filed within 30 days from notice of judgment. Upon filing of petition, the petitioner shall pay to the clerk of court the docket fee and oth er lawful fees. 4blue95:filing of petition for certiorari shall not stay the execution of judgme nt, final order or resolution sought to be reviewed unless the Supreme Court sha ll direct otherwise upon such terms as it may deem just. Under this rule, the petitioner may apply for a restraining order or a prelimin ary injunction from the Supreme Court to stay the execution of judgment or final order sought to be reviewed. The petition must be: 1.verified and in 18 copies (accompanied by certified true copy of judgment) 2.aggrieved parties as petitioner while Commission concerned and person interest ed in sustaining judgment shall be responsible 3.findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable. Respondent shall file comment within 10 days from notice of order to comment and it shall be in 18 copies and no other pleadings may be filed by any party unles s required or allowed by the court (the order to comment in case SC finds petiti on sufficient in form and substance shall be equivalent to summons in ordinary c ivil actions) Court may dismiss petition if it was filed manifestly for delay or the question raised are too unsubstantial to warrant further proceedings. DISTINCTION BETWEEN RULE 64 FROM RULE 65 If MRbe Must 65 denied, aggrieved party notice the petition within the remaining peri RULE 64 filed within 30 days fromMAY FILEof the judgment or resolution is 60 If MR which shall not be less party days. od butis denied, the aggrieved than 5will have another 60 days counted from the notice of the denial within which to file the petition. RULE 65:CERTIORARI, PROHIBITION AND MANDAMUS CERTIORARI In certiorari, before you can have this action ,there must be a motion for recon sideration. 4blue95:certiorari is not a mode of appeal (unlike in rule45) and it is not base d on question of law. 4blue95:certiorari is directed on interlocutory order, and it can either be file d by SC, CA, and RTC (always observed hierarchy of courts) REQUISITES OF CERTIORARI 1. there must be a CONTROVERSY; 2. respondent is exercising JUDICIAL OR QUASI-JUDICIAL FUNCTIONS; 4blue95:you can only question a tribunal if it acts on a judicial or quasi-judic ial(like the NLRC) function (coz if not,then no certiorari) 3. respondents acted WITHOUT OR IN EXCESS OF ITS JURISDICTION or acted with GRAV

E ABUSE OF DISCRETION amounting to lack of jurisdiction; and 4. there must be NO APPEAL or other plain, speedy and adequate remedy. Writ of Certiorari is a writ emanating from a superior court directed against an inferior court, tribunal, or officer exercising judicial or quasi-judicial func tions, the purpose of which is to CORRECT ERRORS OF JURISDICTION. Question of fact cannot be raised in an original action for certiorari. Only est ablished or admitted facts can be considered. Special civil action for certiorari on Rule 65 should not be confused with Appea l by certiorari under Rule 45.:SEE RULE 45 FOR DISTINCTIONS. 4blue95: rule 45 is from RTC or Sandiganbayan going to SC (petition for certiora ri ) it is a mode of appeal aka appeal by certiorari on question of law. 4blue95:in rule45, di na kelangan ng motion for reconsideration and that judge i s not impleaded. Are the remedies of APPEAL AND CERTIORARI EXCLUSIVE? General Rule: Where the proper remedy is appeal, the action for certiorari will not be entertained. Certiorari is not a remedy for errors of judgment. Errors o f judgment are corrective by appeal, errors of jurisdiction are reviewable by ce rtiorari. EXCEPTIONS: Even when appeal is available a writ of certiorari may be allowed: 1. when appeal does not constitute a speedy and adequate remedy; 2. when orders were issued either in excess of or without jurisdiction 3. for certain special considerations as far public policy or pubic welfare; 4. when the order is a patent nullity; 5. when decision in the certiorari case will avoid future litigation. BAR: Action for legal separation was filed in MTC, but since MTC has no jurisdic tion ,X filed a motion to dismiss on ground that MTC has no jurisdiction, but co urt denied such motion . from there, X cannot file appeal since interlocutory. So remedy of X is to first file a motion for reconsideration, if denied, then th at s the time X will file for certiorari. 4blue95:once order becomes final,certiorari cannot be assailed. BAR: While trial was going on,lawyer of Mario Reyes discovered there was imprope r service of summons, since it was sent by registered mail. He filed a motion to dismiss on ground of court s lack of jurisdiction over person of Mario. If MTD is denied, what is recourse of Mario? It is not immediate appeal since order is i nterlocutory, but since issue raised is lack of jurisdiction over his person, he may file petition for certiorari under Rule 65. BAR:On Jan 3,1991, Z . filed a complaint for foreclosure of real estate mortgage against one of its sales agents. A,who was discovered to have incurred a shorta ge in his account. Mortgage was executed to guarantee faithful compliance with h is duties and responsibilities as agent. Impleaded in complaint as co-defendants were A s co-mortgagors Band C. Acting on defendant s MTD, court dismissed complaint in order dated Feb 15,1991, a copy of which was received by Z on Feb 18. On March 15 and definitely within re asonable time, Z filed with SC a special civil action for certiorari alleging th at trial court acted in excess of jurisdiction. HELD: SC should not give due course to petition since the proper remedy is appea l from order of dismissal. Certiorari under Rule 65 cannot take the place of a l ost appeal. 4blue95: If you want to question acts of court, then you can file either or both CERTIORARI and PROHIBITION. 4blue95: order attached in certiorari and mandamus must be certified true copy a nd with affidavit of non-forum shopping.

MOTION FOR RECONSIDERATION AS PRE-REQUISITE General Rule: A motion for reconsideration is an essential precondition for the filing of a petition for certiorari, prohibition, or mandamus. It is plain, spee dy, and adequate remedy. Its purpose is to give the court a quo the opportunity to correct itself. 1. Where the order is a patent nullity; 2. Where the question raised in the certiorari proceeding have been duly raised and passed upon by the lower court; 3. Where there is an urgent necessity for the resolution of the question; 4. Where a motion for reconsideration would be useless; 5. Where petitioner is deprived o due process; 6. Where, in criminal case, relief from an order of arrest is urgent and the gra nting of such relief by the trial court is improbable; 7. Where the issue raised is one purely of law or where public interest is invol ved. 2006 notes:when may a sca for certiorari be given due course ,nothwithstanding t hat no motion for reconsideration has been filed before the lower court? 1.issue raised in purely one of law 2.public interest is involved 3.matter is one of urgency 4.question of jurisdiction was squarely raised, submitted ,met and decided by th e lower court 5.where order is a patent nullity EFFECT OF FILING OF MOTION FOR RECONSIDERATION If a motion for reconsideration filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner within which to file the ap propriate petition for certiorari or prohibition with the superior court. (SC Ad ministrative Circular 002-03) Where the error is not one of jurisdiction but an error of law or fact which is a mistake of judgment, appeal is the remedy. PROHIBITION REQUISITES OF PROHIBITION 1. there must be a CONTROVERSY 2. respondent is exercising JUDICIAL QUASI-JUDICIAL OR MINISTERIAL FUNCTIONS; 3. respondent acted WITHOUT OR IN EXCESS OF ITS JURISDICTION or acted with GRAVE ABUSE OF DISCRETION amounting to lack of jurisdiction; and 4. there must be NO APPEAL or other plain, speedy and adequate remedy. Writ of Prohibition writ issuing from a superior court directed against an infer ior court, corporation, board, officer or other person whether exercising judici al, quasi-judicial or ministerial functions for the purpose of PREVENTING THE LA TTER FROM USURPING JURISDICTION which it is not legally vested. ACTS FAIT ACCOMPLI (accomplished facts) General Rule: Prohibition does not ordinarily lie to restrain an act which is al ready a fait accompli. Exception: Writ of prohibition will lie to prevent the creation of a new provinc e by those in the corridors of power who could avoid judicial intervention and r eview by merely speedily and stealthily completing the commission of such illega lity. (Tan vs. COMELEC GR No. 73155, July 11, 1986) 4blue95:Prohibition, and not mandamus, is the remedy where a motion to dismiss i s improperly denied. 4blue95:It is directed ANYBODY.The result is the respondent is ordered to desist from further proceedings. (BAR) An action that seeks to recover ownership and possession of a parcel of la

nd. B filed a motion to dismiss this complaint file w/ RTC of Manila on ground o f improper venue. Court denied motion. B filed motion for recon of the order den ying his motion to dismiss. Court also denied this motion. Thereupon, b filed w/ SC a petition for certiorari. HELD: Remedy taken by B is not proper. B should file petition for prohibition. 2006 notes: Prohibition is generally directed against a court or judicial offic er while injunction is directed against private parties. Prohibition strikes at the very essence of jurisdiction, whereas ,injunction ordinarily recognizes jur isdiction of the court. 4blue95:Prohibition must not be confused with injunction Grounds for the court to motu propio dismiss the special civil action for CPM 1. patently without merit 2. prosecuted manifestly for delay, or 3. the questions raised therein are too unsubstantial to require consideration. NOTE: A writ of certiorari or prohibition CANNOT be issued by an RTC against an ADMINISTRATIVE AGENCY EXERCISING QUASI-JUDICIAL FUNCTIONS since the later is of the same rank as the RTC. However, a writ of prohibition MAY BE issued by the RTC against ADMINISTRATIVE A GENCIES EXERCISING ADMINISTRATIVE FUNCTIONS. AN ORIGINAL ACTION FOR CERTIORARI, PROHIBITION, MANDAMUS, IS AN INDEPENDENT ACTI ON AND AS SUCH: 1. does not interrupt the course of the principal action; 2. does not affect the running of the reglementary periods involved in the proce edings; 3. does not stay the execution of judgment, unless a temporary restraining order or writ, of preliminary injunction has been issued. In original actions for Certiorari, Prohibition, Mandamus, when does the court a cquire jurisdiction over the person of the respondent? IT depends: If the action is filed with the RTC, we follow the rules on ordinary civil actio ns, hence, jurisdiction is acquired by the service of summons to the respondent or by his voluntary appearance in court. If the action to filed with the CA or the SC, the court acquires jurisdiction ov er the respondents with the service on them of its orders indicating its initial action on the petition or by their voluntary submission to such jurisdiction. WHAT IS THE CONCEPT OF IN AID OF ITS APPELLATE JURISDICTION? It means a court s right to hear an appeal from the lower court s judgment on the me rits. In original actions for certiorari under Rule 65, the findings of fact of the CA are not conclusive or binding upon the SC, unlike the general rule in appeals b y certiorari under Rule 45. (Medran vs CA, 83 PHIL, 164) Important Requirements: 1. verified; 2. accompanied by a certified true copy of the judgment or duplicate original (n ot photocopy) 3. certification of non-forum shopping Section 5. Respondent and cost on certain cases The private respondent shall appear and defend the assailed proceedings and shal l bear the costs. Unless otherwise specifically directed by the court where the petition is pendin g, the public respondent shall not appear, in or file an answer or comment to th e petition or any pleading therein. Section 7. Expending proceedings; injunctive relief The petition shall not interrupt the course of the principal case unless a tempo rary restraining order or a writ of preliminary injunction has been issued again

st the public respondent from further proceeding in the case. Section 8. Proceedings after comment is filed If the petition is not sufficient in form and substance, the court may dismiss i t outright, The court may dismiss the petition after the filing and consideration of the com ment without holding a hearing or requiring the submission of memoranda. It is not mandatory on court to receive evidence and hear petition. Section 9. Service and enforcement of order or judgment MANDAMUS 1. there must be a CLEAR LEGAL RIGHT OR DUTY 2. act to be performed must be PRACTICAL within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated. 3. respondent must be exercising a MINISTERIAL DUTY a duty which is absolute and imperative and involves merely its execution; 4. duty or act to be performed must be EXISTING a correlative right will be deni ed if not performed by the respondents; and 5. NO APPEAL or other plain, speedy and adequate remedy in the ordinary course o f law. Preliminary injunction must be sought. Writ of Mandamus a writ issued in the name of the State, to an inferior tribunal corporation, board or person, COMMANDING THE PERFORMANCE of an act which the la w enjoins as a duty resulting from an office, trust or station. GROUNDS FOR MANDAMUS 1. When any tribunal, corporation, board officer or person unlawfully neglects t he performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; 2. When any tribunal, corporation, board officer or person unlawfully excludes a nother from the use and enjoyment of a right or office to which the other is ent itled. 2 Concepts: 1.POSITIVE REMEDY--Mandamus is a special civil action whereby a court of jurisdi ction commands an inferior tribunal, corp or person to perform a particular duty w/c the law requires to be done resulting from such office or trust. 2.NEGATIVE REMEDY--Mandamus is a preventive remedy whereby a person is directed to desist from unlawfully excluding another from the use/enjoyment of an office, trust or station. MANDAMUS vs. QUO WARRANTO Mandamus is the proper remedy when the respondent unlawfully excludes the petiti oner from an office to which the latter is entitled without usurping, intruding into or unlawfully holding the office, on the other hand, if the respondent clai ms any right to the office and usurps, intrudes into or unlawfully holds it agai nst the petitioner, quo warranto is the proper remedy. MANDAMUS MAY BE COMBINED WITH QUO WARRANTO The complaint for mandamus is against the persons who exclude the plaintiff from the office in question, while the petition fro quo warranto is directed against the person who actually holds he said office. (Burguelo vs. mayor, 94 PHIL 930) 4blue95 Notes: Mandamus in both concepts is directed against entities exercisin g only ministerial functions. The result is the respondent is ordered to desist from further proceedings. HELD: I will file Quo Warranto to compel X to show by what right he continues to hold office as mayor to which B was newly elected to the position. X not merely excludes B from the use and enjoyment of the office, but lays claim to such office. If X merely excludes B from the office, w/o making a claim to i t under a color of law, then ,the remedy would be mandamus. EXHAUSTION OF ADMINISTRATIVE REMEDY

General Rule: Mandamus will not be issued when administrative remedies are still available. Exceptions: 1. if party is in estoppel; and 2. Pure questions of law are raised. May mandamus be used to compel a discretionary duty? NO. it is only applicable to a ministerial duty, HOWEVER, it can be used to the extent of requiring the performance of a discretionary duty to act but not to re quire performance of such duty in a particular manner. 4blue95: you can compel court to act,but you cannot compel them to act in your f avor (since discretionary) Additionalmotion and to 16 and 17inaction. (CONSERVATIVE) Motion to To set in Preventive motion or to enforce Remedial INJUNCTION ground Rule compel Dismiss- Rule 58 MANDAMUS dismiss for Motion toaction. (ACTIVE) Sec. 6 restrain One where public MINISTERIAL ACT DISCRETIONARY ACTfunctionaries, by virtue of a power or right, conferred upon th em by law, can act officially, under certain circumstances, uncontrolled by the One which an officer or tribunal judgment or conscience of others performs in a given state of facts, in prescrib ed manner, in obedience to the mandate of a legal authority, without regard to o r the exercise of his own judgment upon the propriety or impropriety of the act done. 2006 notes: Mandamus will lie in the following cases: 1.Necessity to compel performance of a ministerial act w/c law requires to be pe rformed by an officer of the legislative department. 2.Need to compel the performance of a ministerial act but not to compel a discre tionary duty 3.Issuance of execution by a municipal judge in a case where the defendant fails to pay rent within the time fixed in the judgment. 4.Where there is need for the court to grant permission to 3rd persons to interv ene in an action authorized by law. Can the Court of Appeals award damages in mandamus proceedings? YES. The CA in resolving a petition for mandamus is authorized to award civil da mages in the same petition. RESPONDENTS The principal defendant/respondent is the judge as a person, not the court as an entity. However, he is merely a nominal or formal party. The non-inclusion of the person interested in sustaining the proceedings renders the petition defective. (RP vs. Zurbano, 105 PHIL 409) A person not a party to the proceedings in the trial court or in the CA cannot m aintain an action for certiorari in the SC to have the judgment reviewed. (Ramos vs. Lampe, 63 Phil 216) PROHIBITION CERTIORARI MANDAMUS (prohibit something to be done) Directed against to be done) (compel somethingan entity or person exercising judicial or quasi-judicial funct Directed against an entity or person exercising judicial-quasi-judicial or minis ion Entity or person Directed against is alleged to have exercising ministerial function terial function an entity or personacted: -Without jurisdiction; -In excess of jurisdiction; or Entity or person of discretion amounting -With grave abuseis alleged to have acted:to lack or excess of jurisdiction -Without jurisdiction; -In excess of jurisdiction; or Entity or person of discretion amounting to lack _With grave abuseis alleged to have unlawfully; or excess of jurisdiction -Neglected a ministerial duty; or Purpose another from anullifydesist or further excludedis to annulrespondent aarightfromoffice proceeding forhave or right respondent to: proceeding 1. Do he act required; and

This remedy is preventive and negative usurpation of jurisdiction 2. to pay damages corrective to correct restrain or prevent usurpation of jurisdi This ctionremedy is affirmative or positive (if the performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from Covers discretionary actsministerial acts a right of office)acts ministerial and Section 4. Where and when petition filed > filed not later than 60 days from notice of the judgment, order or resolution > Maybe filed with: * Supreme Court (but if it can be acted by other courts, then go to that court and not in SC since as a general rule the SC may avail of such action however, a s a matter of policy, you must respect the hierarchy of courts) * Court of Appeals, whether or not the same is in aid of its appellate jurisdict ion (if its quasi-judicial tribunal,pwede sa CA) * Sandiganbayan, only if it is in aid of its appellate jurisdiction. * RTC RULE 65 :QUO WARRANTO Quo Warranto - a proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exerci sing such office, position or franchise if his right is unfounded or if he had f orfeited his right to enjoy the privilege. Actions of quo warranto against corporations with regard to franchise and rights granted to them, as well as their dissolution, covered under the former Rule 66 now fall under the jurisdiction of Securities and Exchange Commission and are g overned by its rules. However, such jurisdiction was subsequently transferred to the RTC. Designed MANDAMUS to QUO WARRANTOtry the right or title to the office, if the right or title to the o Applicable only in cases ffice itself is disputed where the right to the office is NOT in dispute GROUNDS 1. A person who USURPS, INTRUDES INTO, OR UNLAWFULLY HOLDS OR EXERCISES a public office, position or franchise; 2. A pubic officer who does or suffers an act which, by the provision of law, co nstitutes a ground for the FORFEITURE of his office; 3. An ASSOCIATION which acts as a corporation within the Philippines without bei ng legally incorporated or without lawful authority so to act. WHO MAY COMMENCE 1. Government through Solicitor General or Public prosecutor; (if commence by solgen or prosecutor, as exemption, it is not necessary that the re s person who is claiming a position) 2. Individual claiming to be entitled to the office or position usurped or unlaw fully held or exercised by another. If plaintiff s right to file the complaint is not proven, it becomes unnecessary f or the court to pass upon the right of the defendant who has a perfect right to the undisturbed possession of his office. HOWEVER, if complaint is brought the S ol. Gen. or public prosecutor, the Court may pass upon the defendant s right to of fice. 4blue95:you cannot file if you re not a challenger to the seat. CLASSIFICATION OF QUO WARRANTO PROCEEDINGS 1. MANDATORY brought by the Solicitor General or a public prosecutor, when: a) Directed by the President; b) Upon complaint or otherwise he has good reason to believe that the case for q uo warranto can be established by proof. 2. DISCRETIONARY Brought by the Solicitor General or a public prosecutor at the request or upon the relation of another person provided there must be: a. Leave of court; b. Indemnity bond.

VENUE > Where respondent resides. > If commenced by Solicitor General, it must be filed with the RTC of Manila, CA , or SC. Section 8. Period for pleadings and proceedings may be reduced; action given pre cedence 4blue95: if queston is eligibility of candidates then it is quo warranto, but if question is no. of voters then it is election protest. Prerogative IN byRULE 66 elected public office to hold public show To WARRANTOwritELECTORAL that govt. QUOcontest the rightwhich PROCEEDINGScan call upon any person toofficeby what ti UNDER of an An he holds proceeding under the Omnibus Elections exclusive tleelectoral a public office or exercises a public franchise purpose of impugni ng the election of a public officer on the ground of ineligibility or disqualifi Presupposes that the respondent is from actually holding Petition hold usurpation, Three tomust the office 10 daysalreadyillegal associationthe candidate cationgrounds;be filed w/inforfeiture, orthe proclamation ofoffice and action mu st be commenced within one year from cause of ouster or right of petitioner to h May be filed by old office aroseany registered candidate for the same office and, who, even if t The petitioner must be the not be entitled person entitled he petition prospers, wouldgovernment or theto that office to the office and w Actual or compensatory damages action succeeds ho would assume the same if hisare recoverable in quo warranto proceedings under Person adjudged entitled to the office may also bring an action (separate) again the Omnibus Election Code st the respondent to recover damages PERIODS FOR INSTITUTING QW: 1.Against public officers/employee for his ouster from office- w/in 1 yr from ou ster w/in 1 yr after entry of judg 2.Action for damages by persons entitled to office ment establishing his right to office 3.Against corporations- w/in 5 yrs after act complained was committed. (BAR) V was director and L the assistant. V met an accident, so L took over. Af ter 7 mos, L refused to relinquish position. What judicial remedy may V avail?Qu o Warranto since L asserts right of office under some color of law. Had L merely usurped w/o claiming right to it, then remedy would be mandamus. V may bring ac tion anytime during period L refuses to turn over the office. (BAR)Does V have to bring matter to the Office of the Sec of Agriculture, then t o President for administrative remedy before he goes to court? NO, question is t o whether L is entitled to seat as director is a legal question. RIGHTS OF PERSONS ADJUDGED ENTITLED TO THE OFFICE 1. take upon himself the execution of the office. 2. demand from respondent all the books and papers appertaining to the office. > Respondent s neglect or refusal is punishable by contempt 3. Bring an action for damages against respondent sustained by him reason of the usurpation. > Must be commenced within 1 YEAR after the entry for the judgment, establishing the petitioner s right to the office in question . NOTE: in quo warranto proceeding, no one is compelled to resort to administrativ e remedies since public interest requires that the right to public office should be determined as speedily as possible. (Palma-Fernandez vs. Dela Paz, 16 SCRA 7 51) Distinctions between Quo Warranto in elective and in appointive office. 1. In an elective office: the issue is eligibility of the officer-elect; the cou rt or tribunal cannot declare the protestant (or the candidate who obtained the second highest number of votes) as having been elected. 2. In an appointive office: the issue is the legality of the appointment, the co urt determines who of the parties has legal title to the office RULE 67:EXPROPRIATION EMINENT DOMAIN is the right of the State to acquire private property for public

use upon the payment of just compensation. 4blue95:LGU may expropriate if granted by congress through charter. EXPROPRIATION is the procedure to be observed in the exercise of the right of em inent domain. WHEN IS EXPROPRIATION PROPER? 1. When owner refuses to sell; 2. When owner agrees to sell but an agreement as to price cannot be reached. CONTENTS OF VERIFIED COMPLAINT 1. RIGHT AND PURPOSE of expropriation; 2. DESCRIPTION of the real or personal property sought to be expropriated; 3. all persons OWNING OR CLAIMING TO WON OR OCCUPYING any part or interest there in must be named as defendants, showing, so afar as practicable, the separate in terest of each defendant; 4. if the title of the property to be expropriated is in the name of the REPUBLI C OF THE PHILIPPINES OR IF THE TITLE IS OBSCURE OR DOUBTFUL, averment to that ef fect shall be made in the complaint. All properties(PERSONAL,REAL,TANGIBLE & INTANGIBLE) can be expropriated except 1. Money 2. Choices in action Sec. 2. Entry of Plaintiff upon depositing Value with Authorized government Depo sitory Upon filing the complaint or a anytime thereafter and after due notice to the de fendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he makes a Preliminary Deposit. PURPOSE OF PRELIMINARY DEPOSIT UNDER SEC. 2 1. provide damages if court finds plaintiff has no right to expropriate; 2. Advance payment for just compensation VALUE OF PRELIMINARY DEPOSIT Personal Property provisionally ascertained and fixed by the court. Real Property assessed value in tax return Section 3. Defenses and Objection: If defendants has no objection: > file and serve a NOTICE OF APPEARANCE and MANIFESTATION to that effect; > Thereafter he shall be entitled to notice of all proceedings. * If defendants has objection, he must serve his answer within the time stated i n the summons. No counterclaim, cross-claim or third-party complaint shall be alleged or allowe d in the answer or any subsequent pleading. REASON: Expediency. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not late r than 10 days from the filing thereof. Can the defendants be declared in default? NO, Failure to file an answer would result to the court s judgment on the right to expropriate without prejudice to the right to present evidence on just compensa tion Ascertainment of compensation COMMISSIONERS not more than 3 competent and disinterest persons to ascertain and report to the court the just compensation > Objections to the ORDER OF APPOINTMENT must be filed within 10 DAYS from servi ce of the order and shall be resolved within 30 DAYS after ALL commissioners rec eived the copies of the objection.

REPORT OF COMMISSIONERS > must be filed with the court within 60 DAYS from notice of their appointment. > Shall not be effectual until the court shall have accepted their report and re ndered judgment in accordance with their recommendations. > Interested parties may file their objections to the report within 10 DAYS from notice thereof. The appointment of commissioner is mandatory or cannot be dispensed with. (Meral co vs. Pineda) NOTE: Findings of the Commissioners may be disregarded and the Court may subst itute its won estimate of the value but the letter may only do so for valid reas on and based on the evidence gathered (Meralco vs. Pineda) Action upon Commissioners Report JUST COMPENSATION is equivalent to the fair market value of the property at the time of its taking or filing of complaint whichever comes first. It is the fair and full equivalent for the loss sustained by the defendant. FORMULA for determination of just compensation JC = Just Compensation FMV = Fair Market Value CD = Consequential Damages CB = Consequential Benefits JC = FMV + CD - CB If CB is less than CD then, JC = FMV In no case shall the consequential benefits exceed the consequential damages ass essed or the owner be deprived of the actual value of his property so taken. (Se c. 6) 4blue95: COURT cannot determine whichever is fair and just compensation . HOWEVE R, the court,as an exemption, may do so if commissioner ascertain such compensat ion illegally or with abuse of discretion. Order of Expropriation > order declaring that the plaintiff has lawful right to take the property > Issued when: 1. Objections or defenses against the right of plaintiff to expropriate are over ruled; OR 2. No party appears t defend the case. NOTE: After the rendition of such an order, the plaintiff shall NOT be permitted to dismiss or discontinue the proceeding except on such terms as the court deem s just and justifiable. 4blue95:value of land expropriated is based on value as of date of filing or tha t of taking whichever comes first (and final order may be appealed) If there are conflicting claims or ownership is uncertain? If the ownership of the property taken is uncertain, or there are conflicting cl aims to any part thereof, the court shall determine ownership thereto and the ju st compensation shall be deposited to the Clerk of Court. Such amount shall be a warded to the person adjudged to be entitled thereto. STAGES IN EXPROPRIATION 1. Determination of the authority of the plaintiff to exercise the power of emin ent domain and the propriety of such exercise in the context of the facts involv ed (as such, court may either dismiss it contending that expropriator has no rig ht to expropriate or it may allow such expropriation therefore ,if it is allowed,t hen expropriator will go to the 2nd stage which is: ) 2. determination of JUST COMPENSATION

MULTIPLE APPEALS 4blue95:since there are two stages above, then ,there are also multiple appeals involved. Order of expropriation may be appealed by the defendant by record on appeal. Thi s is an instance when multiple appeals are allowed because they have separate an d/or several judgment on different issues. Examples: a. issue on the right to expropriate (1st stage) b. issue of just compensation (2nd stage ) A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. (Sec. 4 par. 2) An appeal does not delay the right of the plaintiff to enter upon the property o f the defendant and appropriate the same for public use. What is the effect if the order of condemnation was reversed? The owner shall repossess the property with the right to be indemnified for all damages sustained due to he taking. WHEN MAY PLAINTIFF ENTER INTO POSSESSION OF PROPERTY? 1. Upon filing of complaint, serving notice to defendant and after depositing th e assessed value of property for taxation purposes with an authorized government depositary; (Sec. 2) 2. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff (Sec. 10) In the event the judgment of expropriation is reversed by the appellate court an d the case is remanded to the lower court with the mandate to determine the dama ges caused to the landowner, such landowner has the option of proving such damag es either in the same expropriation case or in a separate action instituted for that purposes, as the judgment denying the right of expropriation is not res jud icata on the issue of damages arising from such illegal expropriation. (Republic vs. Baylosis, 109 Phil 580) Section 10. Rights of plaintiff after judgment and payment. EXPROPRIATION 1. If personal property, upon payment of just compensation (Sec. 10); 2. If real property, upon payment of just compensation and registration. Section 11. Entry not delayed by appeal; effect of reversal Section 12. Costs, by whom paid COST > All costs shall be paid by the plaintiff, EXCEPT: 1. Cost of rival claimants litigating their claims; or 2. appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal will be paid by owner. Section 13. Recording, judgment, and its effect Section 14. Power of guardian in such proceedings RULE 68:FORECLOSURE OF REAL ESTATE MORTGAGE Act of Rule3135 Right is redemption There68 only intervention No court intervention necessary Requires courtan equity of EXTRAJUDICIAL FORECLOSURE JUDICIAL FORECLOSUREexists redemption A mortgagee may bring a personal action for the amount due, instead of a forecl osure suit, in which case he will be deemed to have waived hi right to proceed a gainst the property. In a foreclosure proceeding. (Movido vs. RFC, 105 Phil 886) DEFENDANTS IN JUDICIAL FORECLOSURE 1. the persons obliged to pay the mortgage debt; 2. the persons who own, occupy or control the mortgaged premises or any part the

reof 3. the transferee or grantee of the property; 4. the second mortgagee or junior encumbrances or any interest in the property subordinate to the mortgage o foreclosure their equity of redemption); but if the cumbrancer, the first mortgagee may also be joined as

person claiming a right or sought to be foreclosed (t action is by the junior en defendant.

EFFECT IF THE JUNIOR ENCUMBRANCER IS NOT IMPLEADED a. His equity of redemption is NOT affected or barred by the judgment of the cou rt because he is merely a necessary party not an indispensable party (Sunlife In surance vs. Diez, 52 Phil 271). b. The remedy of the senior encumbrancer is to file an independent proceeding to foreclose the right to redeem by requiring the junior encumbrancer to pay the a mount stated in the order of execution or to redeem the property at a specified time. There is no provision prohibiting the joinder of a first mortgagee in a complain t filed by the second mortgagee for the same purpose. In such a situation, the s econd mortgagee has to wait until after the debtor s obligation to the first mortg agee has been fully settled and the excess of the proceeds of the sale, if any, will be given to the second mortgages. (Alpha Insurance vs. Reyes, 106 SCRA 274) If the first mortgagee is not joined as party, he may file a complaint in interv ention. Moreover, even without this intervention, his rights are protected in as much as the mortgaged property remains subject to lien. (BPI vs. De Coster, 47 PHIL 594) FORECLOSURE OF MORTGAGE is a proceeding in a court of justice conducted accordin g to legal forms by which the mortgagee or his successors or one who has by law succeeded to the rights and liabilities of the mortgagee undertakes TO DISPOSE O F, TO BAN, TO CUT-OFF THE LEGAL AND EQUITABLE CLAIMS of lien holders or of the m ortgagors or those who have succeeded to the rights and liabilities of the mortg agor. CONTENTS OF THE COMPLAINT: 1. the DATE AND DUE EXECUTION of the mortgage; of assignments, if any; 2. the NAMES AND RESIDENCES of the mortgagor and the mortgagee; 3. a DESCRIPTION of the mortgaged property; 4. a statement of the date of the note or other documentary evidence of the OBLI GATION SECURED by the mortgage, the amount claimed to be unpaid thereon; and 5. the names and residences of all persons having or claiming an interest in the property SUBORDINATE in right to that of the holder of the mortgage, all of who m shall be made defendants in the action. JUDGMENT ON FORECLOSURE Judgment of the court ordering debtor to pay within 90-120 DAYS from the entry o f judgment after ascertaining the amount due to the plaintiff (aka EQUITY OF RED EMPTION) 4blue95: equity of receipt can be exercised even if maglampas na ng 120 days for as long as no order of confirmation of sale. FORECLOSURE SALE When the defendant fails to pay the amount of the judgment within the period spe cified therein, the court, upon motion, shall order the property to be sold in t he manner and under the provision s of Rule 39. Need 68 No need confirm sale RULE 39 to confirm sale to Order of confirmation Before the order of confirmation, even after the expiration of the period of equ ity, the debtor can still pay his debt. Mortgagor does not have the right to a notice of sale after failure to pay debt

because: 1. said notice is not litigable; and 2. issuance is ministerial However, the mortgagor is entitled to a notice of hearing of the confirmation of the sale, OTHERWISE, THE ORDER IS VOID. Due process requires that said notice be given so that the mortgagor: 1. can resist the motion; and 2. be informed that his right to redeem is cut-off. (Tiglao vs. Botones, 90 Phi l 275) The order of Confirmation is APPEALABLE. REMEDY if mortgagor refuses to vacate the property Ask for a writ of possession NOTE: the issuance of a writ of possession in a foreclosure proceeding is not an execution of judgment within the purview of Section 6 of Rule 39 of the Rules o f Court but is merely a ministerial and complementary duty of the court to put a n end to the litigation which the court can undertake even after the lapse of fi ve years, provided the stature of limitations and the rights of third person hav e not intervened in the meantime. WHEN TITLE ACQUIRED The buyer acquires title upon finality of the confirmation of sale. The certificate of sale cannot be registered without the final order confirming the sale. DEFICIENCY JUDGMENT Judgment rendered by the court holding defendant liable for any unpaid balance d ue to the mortgagee if the proceeds from the foreclosure sale does not satisfy e ntire debt. Action QuasiFORECLOSURE DEFICIENCYPersonam JUDGMENT OFJUDGMENT in in Rem. INSTANCES WHERE COURT CANNOT RENDER DEFICIENCY JUDGMENT 1.Recto Law; (Art. 1484 of the NCC) 2. When the mortgagor is non-resident and is not found in the Philippines; 3. When the mortgagor dies, the mortgagee may file his claim with the probate co urt; (Rule 86, Sec. 7) Deficiency not executed before the death of mortgage debtor may be filed as a cl aim against the estate of the deceased. 4. If mortgagee is a third person (since he is not primarily liable, he merely m ortgage his property in favor of a debtor) Rights of the defendant mortgagor to extinguish the mortgage and retain ownershi RIGHT OF REDEMPTION EQUITYOF REDEMPTION p of the property by paying the debt w/in 90-120 days after the entry of judgmen Right of after the or his successor in interest or any judicial creditor or ju t or eventhe debtor foreclosure sale but prior to confirmation dgment creditor of said debtor or any person having a lien on he property subseq uent to the mortgage or deed of trust under w/c the property is sold to redeem t he property w/in 1 year from the registration of the Sheriff s certificate of fore Period Governedsale. closureisby rule 68. afterRule 39. judgment or even after foreclosure safe but 90-120 days of entry of Secs. 29-31 Period to confirmationdate of registration of certificate of sale prior is 1 year from 4blue95Note: There is no right of redemption on judicial foreclosure sale (rule 68)after the confirmation of sale except, if the mortgagee is a bank, (Governmen t Insurance System vs. CFI of Iloilo, 185 SCRA 19) In extrajudicial foreclosure, the mortgagor has the right to redeem the property within one year from the registration of the deed of sale, HOWEVER, Sec. 7 of t he General Banking Act provides that in case o EXTRAJUDICIAL FORECLOSURE, notwit hstanding Act 3135, JURIDICAL person shall have the right to redeem the property until but not after, the registration of the certificate of foreclosure safe wi th the applicable register of Deeds which in no case shall be more than three mo nths after foreclosure, whichever is earlier. Where, after extrajudicial foreclosure of a real estate mortgage, the mortgagee purchased the same at the foreclosure sale, he shall be entitled to a writ of po

ssession despite the fact that the premises are in the possession of a lessee wh ose lease has not yet terminated, unless the lease has been previously registere d in the Registry of Property or the mortgagee had prior actual knowledge of the existence of the lease. Under Sec 7 of Act 3135, as amended, the petition for s uch writ of possession shall be under oath and filed as an ex parte motion in th e registration or cadastral proceedings of the property. (Ibasco vs. Caguloa, G. R. No. 62619, august 19, 1986) PROVISIONAL REMEDIES AVAILABLE TO MORTGAGEE IN CASE OF FORECLOSURE 1. Preliminary attachment of properties o the debtor not covered by he mortgage; and 2. Receivership of mortgaged property. Section 8. applicability of other Provisions RULE 69 :PARTITION PARTITION is the process of dividing and assigning property owned in common amon g the various co-owners thereof in proportion to their respective interests in s aid property. PARTITION MAY BE 1. Judicial procedure is under Rule 69. 2. Extrajudicial no court intervention required. Section 1. Complaint in action for partition of real estate CONTENTS OF A COMPLAINT 1. NATURE AND EXTENT of his title; 2. ADEQUATE DESCRIPTION of the real estate of which partition is demanded; and 3. Join as DEFENDANTS al other person interested in the property PARTIES All-co-owners are indispensable parties. Creditors or assignees of co-owners may intervene and object to a partition effe cted without their concurrence, but hey cannot impugn a partition already execut ed, UNLESS: 1. there has been fraud; OR 2. in case it was made notwithstanding a formal opposition presented to prevent it. However, this right to intervene is not absolute and intervenor must show a legi timate and proper interest in the subject property. (De Borja vs. Jugo 64 PHIL 4 64) NON-INCLUSION OF A CO-OWNER > BEFORE JUDGMENT not a ground for motion to dismiss; remedy is to file a motion to include the party. > AFTER JUDGMENT judgment is void because co-owners are indispensable parties. Even though a complaint is defective for failure to make allegations necessary t o constitute a cause of action but during the trial evidence offered establishes a cause of action intended to be alleged, the defect is cured and cannot be mad e a ground for subsequent objection. This is in accordance with Section 5 of rul e 10 (Amendment to conform to evidence) WHEN CAN PARTITION BE MADE? It can be made anytime and the right to demand partition is IMPRESCRIPTIBLE. NATURE OF PARTITION The partition of property may be made voluntarily (by agreement) or compulsory u nder the rules. Even if he parts had resorted to judicial partition, they may st ill make an amicable partition of the property. There can be a judicial partition of personal property

An action for partition and accounting under Rule 69 is in the nature of an acti on quasi-in rem. Such an action is essentially for the purpose of affecting the defendants interest in a specific property and not to render a judgment against him. TWO (2) ASPECTS OF PARTITION 1. EXISTENCE of co-ownership 2. ACCOUNTING (how to actually partition the property.) - with at least 3 commissioners Section 2. Order for partition, and partition by agreement there under MODE OF APPEAL: Record on Appeal Judgment directing an accounting is appealable regardless of whether the account ing is the principal relief sought or a mere incident, and becomes final and exe cutory within the reglementary period. (Miranda vs. CA, 71 SCRA 295) The judgment shall If actual EFFECT OF partition CONTENTS JUDGMENT state definitely, by JUDGMENT OF JUDGMENTof property is made metes and bound and adequate description To vest in each portion the action, assigned to he party. , the particularparty to of the statein severalityeachportion of the estate assi If he whole gned to him property is ASSIGNED to one of the parties upon his paying to the ot The the sum shall state the fact of such hersjudgment of sums ordered by the court payment and the assignment of the real To vest tothe party making the payment the whole of the real estate free form an estate I the party making the payment The judgment the state the other the purchaser or purchasers If the property is sold and name of is confirmed action y interest onshallpart ofthethe SALEparties to theby the court and a definite To vest the real estate in the purchaser sold to each making the description of the parcels of real estateor purchasers purchaser payment/s free from the claims of any of the parties to the action Section 3. Commissioners to make partition when parties fail to agree Section 4. Oath and duties of commissioners Report of commissioners > Interested parties may object to the report within 10 days from notice; > Not binding until the court has accepted it and rendered judgment thereon. The appointment of Commissioners is mandatory unless there is an extrajudicial p artition between the parties. They have the power to effect the partition BUT NO T to inquire into question of ownership or possession. Section 5. Assignments or sale of real estate by commissioners ASSIGNMENT of real property to one of the parties is made if the real estate or a portion thereof cannot be divided without prejudice to the interest of the par ties. Requisites of Assignment 1. assignment is in favor of one the parties not to 3rd persons; 2. payment to the other parties; and 3. other interested parties does not ask the court that the property be sold ins tead. 4blue95 NOTE: The public sale of the property is MANDATORY if one of the pariti es interested asks that the property be sold instead of being assigned to be of the parties. (Feria, p. 601) Section 6. Report of commissioners; proceedings not binding until confirmed Section 7. Action of the court upon commissioners report Section 8. Accounting for rent and profile in action for partition Section 9. Power of guardian in such proceedings Section 10 Costs and expenses to be taxed and collected Section 11. the judgment and its effect; copy to be recorded in registry of deed s Section 12. Neither paramount rights nor amicable partition affected by this Rul e Judgment of partition is without prejudice to rights of 3rd persons.

Rule 70:FORCIBLE ENTRY AND UNLAWFUL DETAINER Nature of Proceedings in accion interdictal. Ejectment cases are summary procee dings intended to provide an expeditious means of protecting actual possession o r right to possession of property. It is not talking about ownership, it focuses merely on who is the 1st in posses sion. 4blue95:issue on ownership cannot be raised, however, it can be resolved only wh en it is necessary for the adjudication of an issue in possession. 4blue95: The Rule on Summary Procedure applies only in cases filed before the MT C. When the decision of the MTC is appealed to the RTC the applicable rules are those of the latter court, (Refugia vs. CA, 258 SCRA 347) Section 1. Who may institute proceedings and when A. Forcible entry (Deprivation): a person deprived of possession of any land or building by force, intimidation, threat, strategy or stealth (FITSS) B. Unlawful Detainer (Unlawful holding) 1. lessor, vendor, vendee or other person against whom possession of any and or building is unlawfully withheld; 2. legal representatives or assigns of any such lessor, vendor, vendee, or other person against whom possession of any land or building is unlawfully withheld. Against whom may action be maintained? 1. The action of forcible entry and detainer may be maintained only against one in possession at the commencement of the action; 2. Tenant with right of possession may bring action against another tenant; 3. vendor may bring action for ejectment against vendee upon failure to pay the installments; 4. forcible entry and unlawful detainer lie even against the very owner of prope rty. THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION ACCION ACCION INTERDICTAL Summary action for the ACCION REINVIDICATORIA recovery of physical possession where the dispossession h PUBLICIANA A NOT lasted for more recovery of asplenary action for thethan one yearthe real right of possession when the dispo ssession has lasted for more than one year An action for the recovery of ownership, which necessarily includes the recovery (CAN BE FILED ANYTIME) All possession of cases of forcible entry and unlawful detainer irrespective of the amount of RTC has jurisdiction if the value of the property exceeds brought to the Metro damages or unpaid rentals sought to be recovered should beP20,000 outside MTC. Manila P50,000 within Metro Manila. MTC has jurisdiction if the value of the pro RTC ha jurisdiction if the value of the perty does not exceed the above amounts.property exceeds P20,000 outside Metro M anila; P50,000 within Metro Manila. MTC has jurisdiction if the value of the pro perty does not exceed the above amounts 4blue95: Forcible Entry and Unlawful Detainer are real actions. It is known as A ccion Interdictal. It should be filed within 1 year ,if lampas ,then it is now A ccion Publiciana FROM WHAT DATE IS THE ONE-YEAR PERIOD COUNTED? 1.FORCIBLE ENTRY from the date of entry or taking of possession by force, intimi dation, threat, strategy, or stealth. NOTE: In the case of Vda. De Prieto vs. Reyes (121 Phil 1218), the Supreme Court acknowledged the difference between an entry secured by force or violence and o ne obtained by stealth. The owner or possessor of the land could not be expected to enforce his right to its possession against the illegal occupant and sue the latter before leaning of the clandestine intrusion. And o deprive the lawful po ssessor of the benefit of the summary action under Rule 70 simply because the st ealthy Intruder manages to conceal the trespass for more than a year would be to

reward clandestine usurpation even if it is unlawful. The one year period in su ch case should be counted from the demand to vacate upon learning of the entry b y stealth. 2.UNLAWFUL DETAINER a. from the date of the last demand to vacate in case of non-payment of rent or non-compliance with the conditions of the lease. b. from the date of the notice to quit(or vacate), in case of a tacit renewal of the lease (tacita reconduccion), as when with the acquiescence of the lessor, t he lessee continues enjoying the thing leased for fifteen days, as provided in A rticle 167, NCC. 4blue95: Demand to vacate- the language of the letter to vacate must not be vagu e like you re given 15 days to vacate or else (yan claro!),since if vague,then defec t is jurisdictional,then such results to instead of MTC it is now lodged with RT C and it will become Accion Publiciana. c. from the date of the revocation of the permit in case of occupancy on mere to lerance or under a temporary permit. While it is true that the only issue in forcible entry or unlawful detainer acti on is the physical possession of the leased property, that is, possession de fac to not possession de jure, yet the court may go beyond that if only to prove the nature of possession. The court may receive evidence upon the question of title solely for he purpose of determining the character and extent of possession and damages for the detention FORCIBLE ENTRY UNLAWFUL DETAINER (Detentacion) Possession (Desahucio)of the land by the defendant is unlawful from the beginning as he acq Possession is inceptively intimidation, threat, Strategy reason of uires possession by force,lawful but it becomes illegal byor Stealth the reason of the termination of his right to the possession of the property under his cont Demand is demand for No w/ thejurisdictional if the ground vacate the premises is necessary actpreviousplaintiff the defendant tois non-payment of rentals or failure to c The plaintiff must prove omply with lease contractthat he was in prior physical possession of the premise Periodyear was deprivedthe beenof last demand The plaintiff needfrom havedate by the from theor last actual on the land s untilis counted is generally counted defendantdate oflatter of demand 1 he period not thereof in prior physical possession (in FE and UD, damages recoverable is the UNPAID RENTAL) 4blue95: Amounts of rents and damages claimed does not affect the jurisdiction o f the above municipal court because they are only incidental or accessory to the main action, (Lao Seng Hian vs. Lopez, 83 Phil. 617) Section 2. Lessor to proceed against lessee only after demand DEMAND contemplated under his section is jurisdictional. It is a two-fold demand 1. to pay AND vacate; OR 2. to comply with the conditions of the lease AND vacate a demand is a pre-requisite to an action for unlawful detainer when the action i s FOR FAILURE TO PAY RENT DUE OR TO COMPLY WITH THE CONDITIONS OF HIS LEASE , and n ot where the action is to terminate the lease because of the expiration of its t em The acceptance of rentals in arrears does not constitute WAIVER of default in pa yment of rentals (Clutario vs. CA, 216 scra 341). The term VACATE need not be stated if there are other terms definitely implying that the tenant should vacate. HOWEVER, in La Campana vs CA, the court ruled that the rule in Golden Gate will not apply if the term of the demand is ambiguous in nature. HOW IS DEMAND MADE? 1. personally; 2. posting it as the premises if no person is found thereon; (Viray vs. CA) 3. substituted service

4. registered mail. (Co Keng Kian vs. CA) PRIOR DEMAND IN UNLAWFUL DETAINER NOT REQUIRED: 1. where the purpose of the action is to terminate the lease by reason of expiry of its term; 2. where the purpose of the suit is not for ejectment but for the enforcement o f the terms of the contract or 3. when the defendant is not a tenant but mere intruder. Section 3. Summary Procedure Section. 4. Pleadings allowed 1. complaint; 2. compulsory counterclaim; 3. cross claim; and 4. answers thereto. Section 5. Action on complaint > dismiss case outright if any ground for dismissal of civil action is apparent therein or issue summons if no ground for dismissal is found. Section 6. Answer > Filed within 10 days from service of summons. > Answer to counterclaims or cross-claims shall be served and filed within 10 da ys from service of the answer in which they are pleaded. Section 7. Effect of Failure to Answer > Defendant not declared in default > Court, will, motu proprio or on motion, immediately render judgment. Section 8. Preliminary conference; appearance of parties > Preliminary conference held not later than 30 days after the last answer is fi led > If plaintiff to appear, the complaint shall be dismissed and defendant shall b e entitled to counterclaim and all cross-claim shall be dismissed. > If defendant fails to appear, the plaintiff shall be entitled to judgment Section 9. Record of Preliminary Conference Section 10. Submission of Affidavits and Positions Papers > filed within 10 days from order in preliminary conference. Section 11. Period of Rendition of Judgment > Within 30 days after receipt of affidavit and position papers or expiration of period for filing the same. > Court may order that certain matters be clarified before judgment can be rende red. Section 12. Referral for Conciliation Prohibited Pleadings and Motions 1. Motion to DISMISS the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with Section 12. 2. Motion for a BILL OF PARTICULARS; 3. Motion for NEW TRIAL, OR FOR RECONSIDERATION OF A JUDGMENT, OR FOR REOPENING OF TRIAL; 4. Petition for RELIEF FROM JUDGMENT; 5. Motion for EXTENSION of time to file pleadings, affidavit or any other paper; 6. MEMORANDA; 7. Petition for CERTIORARI, MANDAMUS, OR PROHIBITION against any Interlocutory o rder issued by the court. 8. Motion to declare the defendant in DEFAULT; 9. DILATORY motions for postponement 10. REPLY; 11. THIRD-PARTY COMPLAINTS; 12. INTERVENTIONS NOTE: The motion prohibited by Section 13, par. (g) is that with seeks reconside ration of the judgment rendered by the courts AFTER TRIAL ON THE MERITS of the c ase. He decision dismissing the petitioner s Ejectment case for lack of jurisdicti

on was not an adjudication on the merits. Review thereof could be sought by the petitioner through her motion for reconsideration and this motion, which is not pro forma, had the effect of suspending the running of the period to appeal. (Jo ven vs. CA, 212 SCRA 700) Section 14. Affidavits Section 15. Preliminary Injunction > Plaintiff may ask for writ of preliminary mandatory injunction within 5 days f rom filing of the complaint. Section 16. Resolving defense of ownership > provisional determination only Is formal contract a prerequisites in unlawful detainer? The existence of a formal contract is NOT necessary in unlawful detainer. Even i f there is no formal contact between the parties there an be an unlawful detaine r because implied contracts are covered by ejectment proceedings. Possession by tolerance crease an implied to vacate the premises upon demand by the owner. (Pe ran vs. CFI of Sorsogon) Questions to be resolved in an action for forcible entry are: First, who had actual possession over the piece of real property? Second, was the possessor ousted therefrom within one year from the filing of th e complaint by force, intimidation, threat, strategy or stealth? Third, does the plaintiff ask for restoration of his possession? (DIZON vs. Conc ina, 30 SCRA 897) Are third persons bound by a judgment in an ejectment case? General Rule: YES, provided his possession can be traced from the title of the d efendant e.g., sublessee. Exception 1. if the property was acquired before the action; 2. if the property is covered by a Torrens Title and the certificate does not st ate that the property is subject to a pending action and he bought the same in g ood faith. The judgment binds and may be executed against sub-lessees who have not been imp leaded since their right to stay is only subsidiary to that of the lessees. Once the right of the latter disappears, they have nothing to stand on, unless they claim an understanding or relation with the owner. Judgment for ejectment cannot been forced against a co-owner who was not made a party to the action. (Cruzcosa vs. Conception, 11 Phil. 147) Section 17. Judgment The court can award DAMAGE in ejectment cases PROVIDED the damages refer only to : a. the fair reasonable value of the use and enjoyment of the property or the ren t arising from the loss of possession. b. Rent in arrears c. Liquidated damage since they are already part of the contract. (Azcuna Jr., v s. CA, 265 SCRA 215) Atty s fees cannot be considered damages. (De Laureano vs. Adil 72 SCRA 148) Section 18. Judgment conclusive only on possession; not conclusive in actions in volving title or ownership Section 19. Immediate execution of Judgment; how to stay same. General Rule: JUDGMENT of the MTC against the defendant in ejectment proceedings is IMMEDIATELY EXECUTORY. Exception(what defendant should do to stay the execution): 1. the defendant perfects his APPEAL; 2. he files sufficient SUPERSEDEAS BOND to pay the rents, damages and costs acqu iring down to the time of judgment appealed form; and 3. he DEPOSITS with he appellate court the amount of rent due from time to time

under the contract or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period(SO EVERY MONTH ,coz if not, then execution sets in) WHERE SUPERSEDEAS BOND NOT REQUIRED: 1. Where the monetary award in the judgment of the inferior court has been depos ited with the court; 2. where the judgment of the lower court did not make findings with respect to a ny amount in arrears, damages or costs against the defendant. 4blue95: it is not payment of bond that execution stays, but the timeliness of p ayment. Ejectment suits are not suspended or barred by other actions such as the followi ng: 1. Injunction; 2. consignation of rentals; 3. Accion publiciana; 4. Writ of possession case; 5. Quieting of title 6. Specific Performance with damages; 7. Reformatiion of instrument; 8. reconveyance of property or accion reinvindicatoria; 9. annulment of sale, or title, or document, annulment of deed of sale with assu mption of mortgage and/or to declare the same an equitable mortgage; annulment o f sale with damages. (enumeration from Feria p. 615) Ejectment case is a real action, which is not extinguished by the death of a par ty. (Caiza vs. CA, 268 SCRA 640) Section 20. Preliminary mandatory Injunction in case of appeal > RTC may issue writ of preliminary mandatory injunction on motion of plaintiff within 10 days from the perfection of the appeal. Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court The judgment of the RTC against the defendant shall be immediately executory, wi thout prejudice to a further appeal that may be taken therefrom. It is mandatory for the RTC to order execution of the appealed judgment upon fai lure of defendant to make the monthly deposit of current rentals. (Dehesa vs. Ma calalag, 81 SCRA 543) Prior notice of judgment is required for immediate execution. (Dy vs. CA, 195 SC RA 585) 4blue95: once tapos na lahat, which means no more appeal, the execution of the j udgment shall be with the MTC and not with the RTC or CA. RULE 71:CONTEMPT CONTEMPT OF COURT is a defiance of the authority, justice or dignity of the cour t, such conduct as tends to bring the authority and administration of the law in to disrespect or to interfere with or prejudice parties litigant or their witnes ses during the litigation. (Halili vs. CIR, 136 SCRA 112). PURPOSE AND NATURE OF POWER: The power to punish for contempt is INHERENT in all courts, its existence is essential to the preservation of order in judicial pro ceedings and to the enforcement of judgment, orders, and mandates of the courts, and, consequently, to he due administration of justice. The exercise of the power to punish for contempt has dual aspect, primarily, the proper punishment of guilty party for his disrespect to the courts, and seconda rily, his compulsory performance of some ac or duty required of him by the court and which he refuses to perform. Direct Contempt PUNISH SUMMARILY (no hearing) GROUNDS OF DIRECT CONTEMPT

a. MISBEHAVIOR in the presence of or near a court as to obstruct or interrupt th e proceedings; b. DISRESPECT towards the court c. OFFENSIVE personalities towards others; and d. REFUSAL to be sworn or to answer as witness or to subscribe an affidavit or d eposition Section 2. Remedy therefrom In direct Contempt, the person adjudged in direct contempt may avail himself of the REMEDIES of CERTIORARI or PROHIBITION. The execution of the judgment shall b e suspended pending resolution of the petition, provided such person files a bon d and conditioned that he well abide by and perform the judgment should the peti tion be decided against him. Section 3. Indirect contempt to be punished AFTER CHARGE AND HEARING GROUNDS OF INDIRECT CONTEMPT a. MISBEHAVIOR of an officer of a court in the PERFORMANCE of his official dutie s or in his official transactions; 4blue95:Power to DISBAR is separate from Power to CONTEMPT, as such, filing of o ne will not bar the other. b. DISOBEDIENCE of or resistance to a lawful, writ, process, order, or judgment. Unauthorized intrusion to any real property after being ejected; In cases of disobedience of or resistance to lawful, writ, process, order, or ju dgments the following must be present: 1. Order must be specified 2. order must be lawful; and 3. Disobedience should be willful If the court has jurisdiction when it rendered judgment, the same cannot be diso beyed however erroneous it may be. c. Any ABUSE OR ANY UNLAWFUL INTERFERENCE w/the proceedings not constituting dir ect contempt. 4blue95: ex is publication on newspaper during trial w/c would embarrass the cou rt d. Any IMPROPER CONDUCT tending to degrade the administration of justice; e. ASSUMING TO BE AN ATTORNEY or an officer of the court w/o authority; f. FAILURE to obey a subpoena duly served; g. RESCUE or attempted rescue, of a person or property in the custody of an offi cer. TWO MODES OF COMMENCING A PROCEEDING FOR INDIRECT CONTEMPT 1. Commence motu propio by court in order(issued by judge) or other formal charg e by the court requiring the respondent to show cause why he should not be punis hed for contempt; 4blue95: The first procedure applies only when the indirect contempt is committe d against a court or judge possessed and clothed with contempt power. 2. a verified petition charging indirect contempt with supporting particulars an d certified true copies of the necessary documents and papers. 4blue95:The second mode applies if the contemptuous act was committed NOT agains t a court or a judicial officer with authority, to punish contemptuous acts. (Na zareno vs. Barnes, 136 SCRA 57) 4blue95:Without charge and hearing, court acquires no jurisdiction to punish for indirect contempt. (Esparagoza vs. Tan, 94 Phl 749) 4blue95:Formal information be the prosecuting officer is not necessary to begin contempt proceedings, all Rule 71 requires is that there be a charge in writing

duly filed in court and an opportunity given to the person charged to be heard by himself or counsel. Section 5. Where charge to be filed > If committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. > If committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court. Section 6. hearing; release on bail Section 8. Imprisonment until order obeyed When the contempt consists in REFUSAL or OMISSION to do an act which is yet in t he power of the respondent to perform he, may the IMPRISONED by order of the cou rt UNTIL he performs it. Section 9. Proceeding when party released on bail fails to answer The court may: 1) issue another order of arrest of 2) may order the bond for his appearance to be forfeited and confiscated, or 3) BOTH. If there is no aggrieve d party, the bond shall be liable and disposed as in criminal cases. Section 10. Court may release respondent The court may discharge respondent when it appears that public interest will not be prejudiced by his release. Section 11. Review of judgment or final order; bond for stay In indirect contempt the person adjudged for indirect contempt may appeal such judgment or final order to the proper court as IN CRIMINAL CASES (by notice of a ppeal). The execution of the judgment shall NOT be suspended until a bond is fil ed by the person adjudged in contempt. The judgment against a person adjudged to be in contempt is immediately executor y and can be stopped only by filing a bond. Section 12. Contempt against quasi-judicial entities Rule 71 applies suppletorily to contempt committed against persons, entities, bo dies or agencies exercising quasi-judicial functions. The RTC of the place where in the contempt has been committed shall have jurisdiction over such charges as may be filed thereto. CLASSES OF CONTEMPT 1) As to manner of commission Punishment: ifwithin Immediatelynature Certiorari/prohibitionunless Remedy There Summaryis appeal presenceagainst:court Not committedtheand orsuspends execution provided there is a bond Committee certiorarihearing aofso INDIRECT chargecommittedprohibition is a court DIRECTisininexecutorypresenceorbondnearfiled of RTC fine not exceeding P2,000 or imprisonment not exceeding 10 days or both Punishment: if exceeding P200 or MTC - fine notcommitted against: imprisonment not exceeding 1 day or both RTC fine not exceeding P30,000 or imprisonment not exceeding 6 months or both MTC fine not exceeding P5,000 or imprisonment not exceeding 1 month or both. 4blue95: accused can appeal and if such appeal is granted by court thereby exone rating his liability,the other party cannot appeal anymore (or else it would tan tamount to double jeopardy) 2) As to nature a. Civil Contempt - consist in failing to do something ordered to be done by a court or a judge in a civil case for the benefit of the opposing party therein. > defendant s intent in committing the contempt is immaterial since the purpose of civil contempt proceedings is remedial. Hence, good faith is not a defense. > purpose is primarily compensatory or remedial. b. Criminal contempt is a conduct that is directed against the authority and dig nity of a court or of a judge acting judicially, as in unlawfully assailing or d iscrediting the authority and dignity of the court or judge, or in doing a duly forbidden act. > intent is necessary. > Purpose is primarily punitive

> State is the real prosecutor If accused is acquitted, enforce be Failure CONTEMPT respondent, by theno be for and Conduct to do something there there civil an Purpose directed againstorderedcanthecan appealappeal remedies CIVIL CONTEMPTprotect andthe dignity orcourtrightsof benefit of a the CRIMINALis to vindicate public authorityauthoritythe the court ofpartylitigants judgment is for In special judgment under rule 39 Section 11. the person required by the judgmen t to obey the same nay be punished for contempt if he disobeyed. NO contempt how ever lies in judgments for money (Section 9) and judgments for specific act (Sec tion 10) under Rule 39. Note that a losing party in an ejectment case does not commit contempt by mere r efusal to leave the premises. But if such party had been dispossessed pursuant t o a court order, but subsequently disturbs the possession of the prevailing part y, he now commits contempt. 4blue95:if you re ejected, and you re still inside ,then ,that s not contempt but the moment you go out and you return,then that is already contempt. SUMMARY OF VENUE AND JURISDICTION IN SPECIAL CIVIL ACTION SPECIAL CIVIL Where 1. Interpleader JURISDICTION VENUE ACTIONthe plaintiff or any of the principal plaintiff resides or where the defen dant or any of the principal defendants resides. NOTE: the venue of special civil actions is governed by the general rules on ven ue, except as otherwise indicated in the particular rule for said special civil action MTC - where the value of the claim or the personal property does not exceed P30 0,000 or P4000,000 in Metro Manila or where the value of the real property does not exceed P20,000 or P50,000 in Metro Manila. RTC if the value exceeds the above amounts or if the subject matter is exclusive ly within the jurisdiction of the RTC (e.g., specific performance, recovery of t 3. RTCCertiorari, Prohibition, Mandamus Where.)the place where 2. Declaratory Relief the respondent resides itleofthe petitioner orthe respondent court, corporation, officer of person is s ituated: If petition is filed in the CA, SC or Sandiganbayan, in which case the location If filed SC, Sandiganbayan the of its rule 65) 4. Quo Warranto is or CAin aid(Sec. 4,of respondent is immaterial or; RTC,the respondentSC, immateriallocation appellate jurisdiction of CA, with the RTC of place where the respondent resides or where any of respondent resides; However, if the SolGen commence the action, it may be brought in the RTC in Mani la , CA or SC (Sec. 7, Rule 7, Rule 68) The Sandiganbayan has exclusive original jurisdiction on quo warranto arising or that may arise in case file under EO 1,2,14, 14-A but this must be in id of it Where the 5. Expropriation RTC,CA,SC property is located in case the of the is s appellate jurisdiction and not exclusivesubject SC a land. In cases where the subject of expropriation is personal property, venue is the p 7. Where incapable of pecuniary portion located 6. Partition property or estimation. RTCForeclosure or any part adefendant resides lace-whereland plaintiffor thereof isthereof is located. If the subject matter i the real the s personal property (Sec. 13, Rule 69) in the place where the plaintiff of the d MTC Where the property is located 8. - incapable RTCForcible Entry/Unlawful Detainer efendant residesof pecuniary estimation. MTC,RTC,CA Where the Court involved is sitting 9. Contempt Transcribe by: 4blue 95 ?? ?? ?? ?? Special Civil Actions Reviewer