REMEDIAL LAW REVIEWER

DEFINITIONS: 1. PRINCIPLE OF INTERLOCKING CONFESSIONS a rule wherein the accused voluntarily and independently executed identical confession with co-accused without collusion thereof and corroborated by other evidence. 2. FALSUIS IN UNO FALSUIS IN OMNIBUS false in one thing, false in everything. 3. WRIT OF AMPARO a remedy available to any person whose right to life, liberty and security is violated by an unlawful act or omission of a public official employee or private individual or entity. 4. DOCTRINE OF ANCILLIARY JURISDICTION it involves the inherent or implied powers of the court to determine issues incidental to the exercise of its primary jurisdiction. 5. RES INTER ALIOS ACTA the rights of a party cannot be prejudiced by an act, declaration or omission of another, except as provided by law. 6. MITIMUS is a process issued by the court after conviction to carry out the final judgment, such as commanding a prison warden to hold the accused in accordance with the terms of the judgment. 7. DEPENDENT PERSONALITY DISORDER it is a condition which may be a ground for declaration of nullity of marriage, that such person is dependent to his parents even if he has his own family, one classic example is mamas boy. 8. SEXUAL ABUSE SHIELD RULE considered as inadmissible in evidence as a general rule. The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:

a. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and b. Evidence offered to prove the sexual predisposition of the alleged victim. Exception Evidence of specific instance of sexual behavior by the alleged victim to prove that a person other than the accused the source of semen, injury, or other physical evidence shall be admissible. 9. STATUTE OF NON-CLAIMS it is a period fixed by the rule for the filing of the claims against the estate. Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Otherwise it is barred forever. 10. RESIDUAL POWER OF THE COURT pertains to the authority of the court in which the case was originally filed to determine certain controversies, which remain w/in their jurisdiction after the case has been elevated to an appellate or superior court. power of a court w/c rendered the judgment, while the records are not yet forwarded to the appellate court, to approve compromises; to issue protection orders; to allow withdrawal of appeal; to approve motions or applications to litigate as pauper litigant. 11. WRIT OF HABEAS CORPUS writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, within the day and the cause of his capture or detention, to do submit to and receive whatsoever the court or judge awarding the writ shall consider in that behalf. 12. WRIT OF HABEAS DATA a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employees or a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

13. PROCESSUAL PRESUMPTION a doctrine which lays down the presumption that the foreign law is the same as the law of the forum. It arises if the foreign law, though properly applicable, is either not alleged or if alleged is not duly proved before a competent court. 14. PROVISIONAL REMEDIES are remedies that may be obtained by the parties in the course of the litigation for the purpose of preserving their rights. 15. PRELIMINARY CITATION a citation to the government officer having the person in his custody to show cause why the writ of habeas corpus should not issue (detention not patently illegal) 16. PEREMPTORY WRIT issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. 17. GOOD SAMARITAN RULE an offer to pay or the payment of medical, hospital and other expenses occasioned by an injury is not admissible in evidence as proof of civil and criminal liability for the injury. 18. EQUIPOISE RULE the doctrine refers to a situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In such case, the decision should be against the party with the burden of proof. NOTE: Jurisdiction and Venue pls memorize REMEDIES: 1. JUDGMENTS OR FINAL ORDERS OF THE CTA - The proper remedy is to Appeal the judgments or final orders of the CTA to the Court of Appeals under Rule 43 2. ORDER CITING THE DEFENDANT IN DIRECT CONTEMPT - The proper remedy is to file a Motion for Reconsideration under Section 4, Rule 65,

and if denied file a Petition for Prohibition under Rule 65. The basis of the remedy is provided in Section 2, Rule 71. INDIRECT: Ordinary Appeal plus bond is the proper remedy because it is a form of judgment.

3. FAILURE TO APPEAL DUE TO FAME - The proper remedy is Petition for Relief from Judgment with Affidavit of Merit. 4. NON-JOINDER OF PARTIES - The proper remedy is to file a Motion to Implead or Strike Out as party defendant. 5. DENIAL OF DEMURRER TO EVIDENCE IN CRIMINAL CASES - If w/ leave of court, the proper remedy is to present evidence and proceed with the trial, in case of conviction appeal the adverse decision and assign as errors the denial of demurrer to evidence and the judgment for conviction. - If w/o leave of court, although if the right of the accused to present evidence is deemed waived, he may still Appeal from the judgment of conviction. 6. DECISION OF THE OMBUDSMAN - In matters of criminal cases, the proper remedy is to file a Motion for Reconsideration under Section 4, Rule 65 as precondition before filing a Petition for Certiorari, if denied, the remedy is to file a Petition for Certiorari to the Supreme Court under Rule 65. - In matters of administrative cases, the proper remedy is Appeal to the Court of Appeals under Rule 43. 7. DENIAL: RIGHT TO PRELIMINARY INVESTIGATION (4yrs.,2mons.,1day) - The accused may refuse to enter a plea upon arraignment and to object to the continuation of further proceedings based on lack of preliminary investigation; - insist on the preliminary investigation by filing a Motion to Conduct Preliminary Investigation; and in case of denial, file a

Motion for Reconsideration (Sec. 4, Rule 65) as precondition to file a Petition for Certiorari, and if still denied a Petition for Certiorari under Rule 65 may be availed. 8. ISSUANCE OF ORDER AND WRIT OF ATTACHMENT - The proper remedy is to post a Counterbond and to file a Motion to Quash or Motion for the cancellation of attachment when there is patent nullity thereof. 9. ORDER APPOINTING A SPECIAL ADMINISTRATOR - Being an interlocutory order, the proper remedy is to file a Motion for Reconsideration under Section 4, Rule 65 as precondition for the filing of Petition for Certiorari, if denied, file a Petition for Certiorari under Rule 65. 10. EXCLUSION OF EVIDENCE - The proper remedy is to tender an offer of proof for excluded evidence on appeal stating the grounds thereof and whether it is written documents or oral as the case may be 11. VIOLATION IN THE ISSUANCE OF SEARCH WARRANT - The proper remedy is to file a Motion to Quash the search warrant and/or to suppress evidence obtained thereby filed in and acted upon only by the court where the action has been instituted. (Rule 126, Section 14) - Replevin, if the objects are legally possessed - In case of grave abuse of discretion, the proper remedy is Petition for Certiorari under rule 65. 12. FINAL DECISIONS OF THE COURT The proper remedies are as follows: - MR - MNT - Petition for Annulment of Judgment - Petition for Certiorari - Petition for Relief of Judgment - Other collateral attack

13. REVIEW OF RESOLUTION BY THE PROSECUTOR - In case of adverse resolution of the Office of the Prosecutor, aggrieved party may file a Motion for Reconsideration of the said Resolution (Sec. 3, DOJ D.O. No. 3) - In case of denial, aggrieved party may file a Petition for Review plus Motion to defer proceedings with the Secretary of Justice, and if denied aggrieved party may file a Motion for Reconsideration (Sec. 2 & 3, DOJ D.O. No.70) - In case of denial, aggrieved party may Appeal the decision to the Office of the President in case of non-bailable offense OR a Petition for Certiorari under Rule 65 for bailable offenses. - In case of adverse decision of the Office of the President, aggrieved party may file a Motion for Reconsideration, and if denied, file a Petition for Review under Rule 43 in relation to Rule 42, and if further denied, file a Motion for Reconsideration (Rule 52), and if again denied, file Petition for Review on Certiorari under Rule 45 - In case of denial of the Petition for Certiorari, aggrieved party may file Motion for Reconsideration (Rule 52), and if denied, file a Petition for Review on Certiorari under Rule 45 because decisions of CA are reviewable by the SC 14. ORDER DENYING A MNT - Final Order, the proper remedy is Appeal - Interlocutory Order, the proper remedy is MR, if denied, Petition for Certiorari 15. FAILURE OF THE ACCUSED TO APPEAR DURING PROMULGATION OF JUDGMENT - Motion for leave of court to avail remedies under the rules. 16. JUDGMENT ON PARTITION - Petition from Relief from Judgment; Annulment; Certiorari

i. 17. DENIAL: MOTION TO QUASH - The proper remedy is for the accused to plead during arraignment, go to trial w/o prejudice, if convicted, appeal from the judgment of conviction and interpose as errors the denial of the motion to quash and the judgment for conviction. - If w/ grave abuse of discretion the proper remedy is Certiorari or Prohibition. GRANT: MOTION TO QUASH Appeal is the proper remedy because it is a final order.

The accused has been previously convicted/acquitted of the offense charged, or the case against him was dismissed/otherwise terminated w/o his express consent.

DISTINCTIONS AND ENUMERATIONS: 1. PRELIMINARY CITATIONS VS. PEREMPTORY WRIT a. PC, a citation to the government officer having the person in his custody to show cause why the writ of habeas corpus should not issue (detention not patently illegal) b. PW, issued when the cause of the detention appears to be patently illegal and the noncompliance therewith is punishable. WRIT OF HABEAS CORPUS VS. WRIT OF AMPARO VS. WRIT OF HABEAS DATA -look @ Memo-aide BEDA 2. GROUNDS FOR QUASHAL OF INFORMATION a. The facts charged do not constitute an offense b. The court trying the case has no jurisdiction over the offense charged c. The court trying the case has no jurisdiction over the person of the accused d. The officer who filed the information had no authority to do so e. Does not conform substantially to the prescribed form f. More than one offense is charged except when a single punishment for various offenses is prescribed by law g. The criminal action/liability has been extinguished h. It contains averments w/c, if true, would constitute a legal excuse/justification

3. DISCHARGE OF THE WITNESS UNDER THE RULES VS. WITNESS UNDER THE WITNESS PROTECTION PROGRAM The discharge of the witness under the rules has no effect of acquittal of the accused if his/her testimony is only corroborative or there are other witnesses that will prove that the accused is guilty beyond reasonable doubt. While, the discharge of the witness under the witness protection program, if considered as State Witness has an effect of acquittal of the accused because his/her testimony absolutely necessary and there is no other direct evidence available for the proper prosecution of the offense committed. 4. HEARSAY RULE AND ITS EXCEPTIONS A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception. The Exceptions are the following: a. Dying Declaration b. Declaration against interest c. Act or Declaration about Pedigree d. Family Reputation or Tradition regarding Pedigree e. Common Reputation f. Res Gestate g. Entries in the course of business h. Entries in Official records i. Commercial lists j. Learned Treatises k. Testimony or Deposition at a former proceeding 5. GROUNDS FOR ISSUANCE OF A WRIT OF ATTACHMENT a. In actions for recovery of a specified sum of money or damages, except moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict, or

b.

c.

d.

e.

f.

quasi-delict against a party about to depart from the Philippines with intent to defraud his creditors. In actions for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of the corporation, attorney, factor, broker, agent or clerk in the course of his employment as such or by any person in a fiduciary capacity or for a willful violation of duty. In an actions to recover the possession of property unjustly or fraudulently taken, detained, or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found, or taken by the applicant or an authorized person In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof. In an action against a party who has removed or disposed of his property, or is about to do so with intent to defraud his creditors. In an action against a party who does not reside in the Philippines, or whom summons may be served by publication.

(a) If the penalty imposed by the trial court exceeds 6 years of imprisonment; and (b) When upon showing by the prosecution with notice to the accused of the following and other similar reasons: a. That he is a recidivist, quasirecidivist, or habitual delinquent b. That he has previously escaped from legal confinement, evaded sentence or violated the conditions of his bail without valid justification c. That he committed the offense while under probation, parole or conditional pardon d. That the circumstances of his case indicate the probability of flight if released on bail e. That there is undue risk that he may commit another crime during the pendency of the appeal. 7. GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION a. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually. b. That the commission, continuance, or nonperformance of the act or acts complained of during litigation would probably work injustice to the applicant c. That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual 8. LOST OR DESTROYED WILL CAN BE PROBATED BY SUBMITTING A SECONDARY EVIDENCE PROVIDED THAT: a. The original is lost or destroyed

6. BAIL AS A MATTER OF RIGHT VS. BAIL IS DISCRETIONARY Former, is limited only to: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court; and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. Latter, on the following instances: (a) upon conviction by the Regional Trial of an offense not punishable by death, reclusion perpetua or life imprisonment; and (b) if the decision of the Regional Trial Court convicting the accused change the nature of the offense from nonbailable to bailable. WHEN BAIL MAY BE DENIED OR CANCELLED

b. It must be supported by testimony of at least 3 witnesses who know the handwriting and signature of the testator c. That the lost or destruction of the will is not the fault of the person who will benefit under the will 9. PETITION FOR REVIEW ON CERTIORARI (RULE 45) VS. PETITION FOR CERTIORARI (RULE 65) R45, is a mode of appeal R65, is a special civil action that is an original action and not a mode of appeal R45, seeks to review final judgments or final orders R65, may be directed against an interlocutory order or matters where no appeal may be taken from R45, raises only questions of law R65, raises questions of jurisdiction R45, shall be filed w/in 15days from notice of judgment or final order appealed from R65, shall be filed not later than 60days from notice of judgment, order or resolution R45, does not require a prior MR R65, requires as a general rule R45, stays the judgment appealed from R65, does not stay the judgment R45, the parties are the original parties with the appealing party as the petitioner and adverse party as respondent w/o impleading the lower court or its judge R65, the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents R45, filed w/ the SC R65, filed w/ RTC, CA, or SC 10. BEST EVIDENCE RULE When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. EXCEPTION a. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror

b. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice c. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole d. When the original is a public record in the custody of a public officer or is recorded in a public office 11. BEST EVIDENCE VS. PAROL EVIDENCE RULE BE, contemplates a situation where the original is not available in court and/or there is a dispute as to whether said writing is the original PE, presupposes that the original is available in court BE, prohibits the introduction of secondary evidence in lieu of the original PE, prohibits the varying of the terms of a written agreement BE, can be invoked by any party to an action regardless of whether such party participated or not in the written document involved PE, can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected BE, apply to all kind of writing PE, with the exception of wills, applies only to contractual in nature

12. RULE ON PROVISIONAL DISMISSAL OF THE CASE A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offense punishable by

imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. G.R.: where the case was dismissed provisionally with the consent of the accused, he cannot invoke Double Jeopardy in another prosecution thereof or where the case was reinstated on a motion for reconsideration by the prosecution. EXC: Where the dismissal was actually an acquittal based on: a) Lack or insufficiency of evidence b) Denial of the right to speedy trial 13. ARREST WITHOUT WARRANT A peace officer or a private person may, without a warrant, arrest a person: a. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense b. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to arrested has committed it c. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112

b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings c. Dilatory motion for postponement d. Motion for a bill of particulars e. Counterclaim or cross-claim f. Third-party complaint g. Reply h. Motion to declare respondent in default i. Intervention j. Memorandum k. Motion for reconsideration of interlocutory orders of interim relief orders l. Petition for certiorari, mandamus, or prohibition against any interlocutory order 15. JUDICIAL ADMISSION VS. JUDICIAL CONFESSION JA, is an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. JC, it is the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against the accused JA, it is a statement by the accused acknowledging the facts in issue but which does not necessarily involve an admission of guilt of the offense charged JC, must by express or in a definite and unequivocal language JA, it may be used against him, his successor-ininterest or even against 3rd persons when allowed by law JC, it is available only as against the accused except those instances where it may be used against his co-accused who has the opportunity to cross-examine him JA, it may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. JC, it may be contradicted on the ground that it was obtained through force, intimidation or because of fraud committed by his counsel

14. PROHIBITED PLEADINGS AND MOTIONS a. Motion to dismiss or to Quash except on the ground of lack of jurisdiction over the subject matter or failure to comply with the condition precedent

16. GROUNDS FOR THE SUSPENSION OF ARRAIGNMENT a. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intellectually thereto. b. There exists a prejudicial question c. A petition for review of the resolution of the prosecutor is pending at either the DOJ, or the OP provided that the period of suspension shall not exceed 60 days counted from the filing of then petition with the reviewing office 17. IN CRIMINAL CASES, AN OFFER OF COMPROMISE BY THE ACCUSED MAY BE RECEIVED IN EVIDENCE AS AN IMPLIED ADMISSION OF GUILT, EXCEPT? a. Those involving quasi-offenses or criminal negligence b. Katarungang Pambarangay Law c. Plea of guilty later withdrawn d. An unaccepted offer of plea of guilty to a lesser offense e. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury f. Tax cases 18. GROUNDS FOR DISALLOWANCE OF A WILL a. If not executed and attested as required by law b. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution c. If it was executed under duress, or the influence of fear, or threats d. If it was procured by undue and improper pressure and influence, on the part of the beneficiary e. If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature 19. GROUNDS FOR CHANGE OF NAME

a. Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce b. Consequences of a change of status c. Habitual and continuous use and been known since childhood by a Filipino name, unaware of her alien parentage d. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody e. Necessity to avoid confusion 20. GROUNDS UNDER RA 9048 a. The petitioner find the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce b. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community c. The change will avoid confusion 21. ESSENTIAL REQUISITES IN ORDER THAT A DYING DECLARATION MAY BE ADMITTED IN EVIDENCE a. That the death is imminent and the declarant is conscious of that fact b. That the declaration refers to the cause and the surrounding circumstances of such death c. That the declaration relates to the facts which the victim is competent to testify to d. That the declaration is offered in a case wherein the declarants death is the subject of inquiry e. That the statement is complete in itself 22. RIGHTS OF A WITNESS a. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanors b. Not to be detained longer that the interest of justice requires c. Not to be examined except only as to matters pertinent to the issue d. Not to give an answer which will tend to subject him to a penalty for an offense e. Not to give an answer which will tend to degrade his reputation

23. REQUISITES OF DOUBLE JEOPARDY a. The complaint or information or other formal charge was sufficient in form and substance to sustain a conviction b. The court had jurisdiction c. The accused had been arraigned and had pleaded d. He was convicted or acquitted without his express consent When all these circumstances are present, they constitute a bar to a second prosecution for: the same offense an attempt to commit said offense a frustration of the said offense any offense which necessarily included in the first offense charged

24. PETITIONS FOR CHANGE OF NAME VS. PETITIONS FOR CORRECTION, CANCELLATION OF ENTRIES N, petition to be filed in the RTC where the petitioner resides C, verified petition file in the RTC where the corresponding civil registry is located N, solicitor general must be notified by service of a copy of the petition C, civil registrar concerned is made a party to the proceeding as a respondent. The solicitor general must also be notified by service of a copy of the petition N, petition is filed by person desiring to change his name C, petition is filed by any person interested in any act, event, order or decree concerning the civil status of persons N, first name or last name may be changed C, only typographical errors may be changed 25. INTERIM RELIEFS IN WRIT OF AMPARO a. Temporary Protection Order the court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the

immediate family be protected in a government agency. b. Inspection Order the court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. c. Production Order the court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers books, etc, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection d. Witness Protection Order may refer the witnesses to the DOJ for admission to the Witness Protection, Security and Benefit Program 26. COMMISSION VS. LETTERS ROGATORY C, issued to a non-judicial foreign officer who will directly take the testimony L, issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony C, applicable rules of procedure are those of the requesting court L, foreign court requested to act C, resorted to if permission of the foreign country is given L, when the commission is refused in the foreign country C, leave of court is not necessary L, necessary 27. GROUNDS FOR DISMISSAL OF APPEAL a. Failure of the record on appeal to show on its face that the appeal was taken w/in the period fixed by these Rules b. Failure to file the notice of appeal or the record on appeal w/in the period prescribed by these Rules c. Failure of the appellant to pay the docket and other lawful fees

d. Unauthorized alterations, omissions or additions in the approved record on appeal e. Failure of the appellant to serve and file the required number of copies of his brief or memorandum f. Absence of specific assignment of errors in the appellants brief g. Failure of the appellant to take necessary steps for the corrections or completion of the record h. Failure of the appellant to appear at the preliminary conferences i. That fact that the order or judgment appealed from is not appealable 28. NO APPEAL CAN BE TAKEN ON THE FOLLOWING: a. An order denying a MR/NT b. An order denying a Petition for Relief from judgment c. An interlocutory order d. An order disallowing or dismissing an appeal e. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud f. An order of execution g. A judgment or final order for or against one or more of several parties or in separate claims, cc, cc and tpc while the main case is pending h. An order dismissing an action w/o prejudice

c) Rely solely on his mortgage and foreclose the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate 2. DENIAL OF THE WRIT OF AMPARO: REMEDY? Any party may appeal from the final judgment or order to the SC under Rule 45. The appeal may raise question of fact or law or both. The period of appeal shall be 5 working days from the date of notice of the adverse judgment.

3. DNA Testing is admissible as evidence (People vs. Vallejo) but such is only considered as Circumstantial Evidence, which indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established. When the accused is already convicted but DNA Evidence overturned his conviction or the semen found in the organ of the minor did not match with that of the accused, the proper remedy is Petition for Writ of Habeas Corpus. 4. In the absence of special provisions, the rules provided in ordinary actions shall be, as far as practicable, applicable in special proceedings. Motion to dismiss may be a remedy in special proceeding in suppletory character only. 5. GROUNDS FOR QUASHAL OF THE SEARCH WARRANT a) When the search warrant is in the nature of a general warrant without specific description of the place to be searched and the things to be seized in violation of Section 2, Article III of the Constitution. b) Failure to conduct searching questions and answer before the issuance of the search warrant by the issuing judge c) The search warrant was issued based not on personal knowledge or information

Take note: 1. CREDITOR HOLDING A CLAIM SECURED BY A MORTGAGE OR OTHER COLLATERAL SECURITY a) Abandon or Waive the security and prosecute his claim against the estate and share in the general distribution of the assets of the estate b) Foreclosure his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is judgment for deficiency, he may file a claim against the estate within the statute of non-claims

d) A search warrant for more than one offense e) When the thing ordered seized are legally in possession of a person. 6. DEMAND is necessary in UNLAWFUL DETAINER to avoid a presumptive extension of the lease. If at the end of the lease, the lessee continues to enjoy the possession of the leased premises for 15 days with the consent of the lessor, and no notice to the contrary has been given, there is an implied new lease under the principle of tacita reconduccion. 7. EQUITY OF REDEMPTION is the applicable mode of redemption in judicial foreclosure of real estate mortgage except when the mortgagee is a bank. If the mortgagee is a bank, there is a right of redemption. RIGHT OF REDEMPTION is normally applied in extrajudicial foreclosure of mortgage. The EQUITY OF REDEMPTION can be exercised up to the time before the foreclosure sale is confirmed. The proceeds of the foreclosure sale shall be given to the person foreclosing the mortgage. Any residue shall be given to junior encumbrancers. If there remains any proceeds, then the mortgagor is entitled thereto. 8. DIRECT CONTEMPT is summary (no hearing) and is committed in the presence of or so near the court as to obstruct the proceedings. A person adjudged in direct contempt cannot appeal but he can avail of certiorari or prohibition against the court. The filing of the petition will suspend the execution of the judgment if he posts a bond. In INDIRECT CONTEMPT, there must be a verified charge to be filed and a hearing is required. There is always a formal charge if the charge is initiated by the court. If it is the court, it is in the form of an order to show cause why one should not be punished for contempt. 9. When a person is charged in a complaint with a crime and the evidence does not show that he is guilty thereof, but does show that he is guilty of

some other crime or a lesser offense, the court may sentence him for the lesser offense, provided the lesser offense is a cognate offense and is included in the complaint with the court. 10. The presence of the accused is not required at every stage of the trial but ONLY: a) During arraignment b) Promulgation of judgment except when the conviction is for a light offense c) When ordered by the court for purposes of identification 11. Conditions for trial in absentia to apply: a) Accused has been arraigned b) He has been duly notified of the trial c) His failure to appear is unjustified 12. When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. 13. If the dismissal is based on the right of the accused to a speedy trial, the dismissal amounts to an acquittal and operates to bar another prosecution for the same offense even if the dismissal were upon motion of the accused 14. When the judge is absent or outside of the province or city, the judgment may be promulgated by the clerk of court. To be valid, the judgment must be signed and promulgated during the incumbency of the judge who signed the same. However, it is not necessary that the judge who prepares and signs the decision be the one who heard the case. 15. Where the accused fails to appear without justifiable cause, despite due notice to him, his bondmen or counsel, he is considered to have waived his right to appeal. However, if within 15day period of appeal, he voluntarily surrenders to the court or is otherwise arrested, then he may avail of the right to appeal within said period of appeal. 16. SEARCH INCIDENT TO LAWFUL ARREST a person lawfully arrested may be searched for

dangerous weapons or anything, which may be used as proof of the commission of an offense, without a search warrant. Cases where warrantless searches and seizures valid: (a) Search of moving vehicles (b) Consented search without a warrant (c) Seizure of evidence in plain view (d) Enforcement of customs law, except in dwelling house (e) Search based on probable cause under extraordinary circumstances 17. GR: A motion to quash a search warrant or to suppress evidence may only be filed and acted upon only by the court where the action is pending. EXC: If no criminal case is subsequently filed in another court and the motion to quash is still not resolved by the former court unless compelling reasons warrant its resolution by the latter court. EXC to the EXC: If the criminal case is subsequently filed in another court and the motion to quash is still not resolved by the issuing court, the motion shall not be resolved by the former court unless compelling reasons warrant its resolution by the latter court. 18. Autoptic preference or object evidence it is addressed to the senses of the court and is capable of being exhibited to examined or viewed by the court. 19. The following facts need not be proved: (a) Those which the courts may take judicial notice (b) Those which are judicially admitted (c) Those which are presumed 20. In criminal cases, the accuseds plea of guilty later withdrawn cannot be offered in evidence against the accused as it will not be in the interest of justice and fairplay to allow the accused to withdraw his plea and thereafter use this against him. 21. Even without evidence: (a) Judgment on the pleadings

(b) (c) (d) (e)

Judicial admission Admission in the pleadings Pre-trial conference Depositions

22. Anti-wire tapping law, when private communication without consent was recorded and offered as evidence, it is inadmissible in evidence. Except violations of RA 4200 Crimes against National Security and The Human Securities Act, such recording is admissible in evidence. 23. OFFER OF TESTIMONY VS. OFFER OF EVIDENCE (When made?) Former, at the time of the presentation of the witness in the witness stand Latter, after termination of the presentation of evidence-in-chief 24. ADMISSION VS. CONFESSION A, statement of fact which does not involve an acknowledgement of guilt or liability C, statement of fact which involves an acknowledgement of guilt or liability A, may be made by third persons C, can be made only by the party himself A, express or tacit C, always express 25. EXCEPTIONS TO LEADING QUESTION: a) On preliminary matters b) On cross-examination c) To adverse party witness d) To hostile witness e) To unwilling witness f) To children of tender age g) To deaf-mutes h) To those who are ignorant i) To those who are of weak minds j) To the officers of the adverse party who is a juridical person