8679763 2002 Memory Aid Civil Procedure Copy

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R E M E D I A L L A W ( C I V I L P R O C E D U R E )M E M O R Y A I D

A T E N E O C E N T R A L B A R O P E R A T I O N S 2 0 0 2

d. Actions to recover money arising from contract, express or implied.2. Death of defendant in action on contractual money claims before judgment of RTC

NOT ground for dismissal. Action continues until entry of final judgment. Any judgment against estate of deceased will be enforced as money claim. Writ ofpreliminary attachment, if any, not dissolved.

3. REQUISITESOFPERMISSIVEJOINDEROFPARTIES:

a. Right to relief arises out of the same transaction or series of transactions,whether jointly, severally, or in the alternative

b. There is a question of law or fact common to all the plaintiffs and defendants;

c. Such joinder is not otherwise proscribed by the provisions of the Rules onjurisdiction and venue.

4. REQUISITESOFA CLASSSUIT:

a. Subject matter of the controversy is one of common or general interest to manypersons;

b. Parties affected are so numerous that it is impracticable to bring them all to thecourt;

c. Parties bringing the class suit are sufficiently numerous or representative of theclass and have the legal capacity to file the action.

5. TRANSFEROF INTEREST

Action may be continued by or against the original party, unless the court, onmotion, directs the transferee to be substituted in the action or joined with theoriginal party; however, if transfer is made before commencement of the action,the transferee must necessarily be the party, since only he is the real party ininterest.

RULE 4 VENUE OF ACTIONS

* Uniform rule on venue in RTC and MTC

1. VENUE OF REAL ACTIONS in the proper court which has jurisdiction over the areawherein real property involved or a portion thereof is situated.

2. VENUEFORFORCIBLEENTRYANDDETAINERACTIONS in the MTC of the municipality or citywherein the real property or a portion thereof is situated.

3. VENUEOFPERSONALACTIONS where the plaintiff or any of the principal plaintiffs resides,or where the defendant or any of the principal defendants resides, or in the caseof a non-resident defendant where he may be found, at the election of theplaintiff.

NOTE: residence means place where party actually resides at time of action;

does NOT mean permanent home or domicile.

4. Action against non-resident not found in the Philippines

a. ACTIONAFFECTSTHEPLAINTIFFSPERSONAL STATUS- in the court of the place where theplaintiff resides.

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b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where theproperty or any portion thereof is situated or found.

5. Rules on Venue shall NOT apply:

a. In those case where a specific rule or law provides otherwise (e.g., civil case fordamages in cases of libel, where Article 360 of RPC provides specific rules onvenue); OR

b. Where the parties have validly agreed IN WRITING before the filing of the actionon the EXCLUSIVE venue thereof.

In this instance, the action can only be filed in the place agreed upon even ifthe other place is the place of residence of the parties or the location of thereal property involved.

RULE 5 UNIFORM PROCEDUREIN TRIAL COURTS

1. The procedure in the MTCs shall be the same as that in the RTC.

2. Uniform Procedure shall NOT be applicable:

a. Where a particular provision expressly or impliedly applies only to either of saidcourts.

b. In civil cases governed by the Rule on Summary Procedure.

RULE 6 KINDSOF PLEADINGS

1. Negative Defense specific denial of the material fact or facts alleged in thepleading of the claimant essential to his cause of action.

2. Affirmative defense an allegation of a new matter which, while hypotheticallyadmitting the material allegations in the pleading of theclaimant, would nevertheless prevent or bar recovery by him.Includes:

a. Fraudb. Statute of limitationsc. Released. Paymente. Illegalityf. Statue of fraudsg. Estoppelh. Former recoveryi. Discharge in bankruptcy

j. Any other matter by way of confession or avoidance.

3. Compulsory counterclaim REQUISITES:

a. Arises out of or is necessarily connected with the transaction or occurrencewhich is the subject matter of the opposing partys claim;

b. Does not require for its adjudication the presence of 3rd parties ofwhom the court cannot acquire jurisdiction; and

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c. Must be within the jurisdiction of the court both as to the nature andthe amount, except that in an ORIGINAL action in the RTC, the counterclaimmay be considered regardless of the amount.

Agustin vs. BacalangA court (if MTC) has no jurisdiction to hear and determine a set-off or

counterclaim in excess of its jurisdiction. A counterclaim beyond the courtsjurisdiction may only be pleaded by way of defense, the purpose of which is todefeat or weaken the plaintiffs claim, but NOT to obtain affirmative relief.MOREOVER, the amount of judgment obtained by the defendant on appealcannot exceed the jurisdiction of the court in which the action began. Since thetrial court did not acquire jurisdiction over the counterclaim in excess of the

jurisdictional amount, the appellate court likewise did not have jurisdiction overthe same. In such a case, the award in excess of the jurisdiction of the trial courtis void.

Calo vs. AjaxA counterclaim, even if otherwise compulsory, but amount exceeds the

jurisdiction of the inferior court, will only be considered permissive. Hence, factthat it is not set-up in the inferior court will not bar plaintiff from instituting aseparate action to prosecute it.

RULE 7 PARTSOFA PLEADING

1. FORMAL REQUIREMENTSOFPLEADINGS:

a. Caption

b. Title

c. Body divided into headings and paragraphs

d. Signature and address

e. Verification in some cases

2. Signature of the lawyer constitutes a certification by him that:

a. He has read pleading

b. To the best of his knowledge, information, and belief, there is good ground tosupport it

c. It is not interposed for delay.

3. HOWA PLEADINGIS VERIFIED:

By an affidavit stating that

a. Affiant (person verifying) has read the pleading

b. Allegations therein are true and correct as of his personal knowledge or basedon authentic records. (SC Circular 48-2000, effective May 1, 2000)

4. A pleading required to be verified which:

a. Contains a verification based on information and belief, OR

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b. Contains a verification based on knowledge, information and belief, OR

c. Lacks a proper verification

Shall be treated as an unsigned pleading.5. What pleadings have to be verified:

a. Petition for relief from judgment (38.3)

b. Appeal by certiorari from CA to SC (45.1)

c. Complaint with prayer for preliminary attachment (57. 3)

d. Complaint for injunction (58.4)

e. Complaint for replevin (60.2)

f. Petition for certiorari (65.1)

g. Petition for prohibition (65.2)

h. Petition for mandamus (65.3)

i. Complaint for forcible entry or unlawful detainer (70.4)

j. Petition for appointment of general guardian (93.2)

k. Petition for leave to sell or encumber property of estate or guardian (95.1)

l. Petition for declaration of competency of the ward (97.1)

m. Petition forhabeas corpus (102.3)

n. Petition for change of name (103.2)

o. Petition for voluntary dissolution of a corporation (104.1)

p. Petition for cancellation or correction of entries in the civil registry (108.1)

q. Petition to take deposition in perpetuam rei memoriam (before action or pendingappeal)(24.2)

r. Motion to set aside a default order of an inferior court

s. Motion for dissolution of preliminary injunction on the ground of irreparabledamage to the movant while the adverse party can be fully compensated

t. Petition for appointment of receiver

u. Petition for review of the decision of an RTC in cases within the exclusive originaljurisdiction of the inferior court, by and elevated to the CA.

v. Pleadings that need not be verified but must be under oath:

w. Denial of the genuineness and due execution of an actionable document (8.8)

x. Denial of allegations of usury (8.11)

y. Answer to written interrogatories (25.2)

z. Answer to request for admission (26.2)

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aa. Notice of appeal from administrative tribunals to the CA

6. Supporting affidavits of merit required:

a. Motion to postpone for absence of evidence (30.3)

b. Motion to postpone for illness of a party or counsel (30.4)

c. Motion for summary judgment or opposition thereto (35.1,2,3,5)

d. Motion for new trial on the ground of FAME or opposition thereto (37.2)

e. Petition for relief from judgment (38.3)

f. Third-party claim (39.16)

g. Proof required of a redemptioner (39.30)

h. Motion for preliminary attachment (57.3)

i. Motion for dissolution of preliminary injunction (58.6)

j. Application for writ of replevin (60.2)

k. Claim against the estate of the decedent (86.9)

l. Motion for new trial based on newly discovered evidence in criminal cases(121.4)

7. CERTIFICATIONAGAINST FORUM-SHOPPING:

Plaintiff or principal party shall certify under oath in the complaint or otherinitiatory pleading or in a sworn certification annexed and filed therewith:

a. That he has not commenced any action or filed any claim involving the sameissues in any court, tribunal or quasi-judicial agency; to the best of his knowledgeno such other claim or action pending;

b. If there is such other pending action, a complete statement of the present statusthereof;

c. If he should thereafter learn that same or similar action or claim is filed orpending, he shall report the same within 5 days therefrom to the court where hefiled his complaint.

NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THECOMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THECASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLYCONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FORSUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT

CONTEMPT.

For Forum-Shopping to exist, there must be:

i. Same transactions involved;

ii. Same essential facts and circumstances; and

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iii. Actions raise identical cause of action, subject matter, and issues

RULE 8 MANNEROF MAKING ALLEGATIONSIN PLEADINGS1. Allegations of capacity

a. Capacity of party to sue or be sued or the authority of a party to sue or be sued ina representative capacity or the legal existence of an organized association thatis made a party must be averred;

b. To raise an issue as to the legal existence of a party or the capacity of a party ina representative capacity, do so by specific denial, including such supportingparticulars as are peculiarly within the pleaders knowledge.

2. Action or defense based on documenta. Substance of such document set forth in the pleading;b. Original or copy attached to the pleading as exhibit and deemed to be part of the

pleading; OR

c. Copy may be set forth in the pleading with like effect.3. How to contest actionable document: Genuineness and due execution ofinstrument deemed admitted unless adverse party:a. Specifically denies them under oath;b. Sets forth what he claims to be the facts.

Requirement of an oath does NOT apply:i. When diverse party does not appear to be a party to the instrument;

orii. When compliance with an order for an inspection of the original

instrument is refused.

Admission of genuineness and due execution:i. Party whose signature appears admits that he signed it, or that it was signed by another with his authorityii. Was in words and figures as set out at the time it was signediii. Document was deliverediv. Any formal requisites required by law which it lacks arewaived by him

The following defenses are cut-off by admission of genuineness and dueexecution of the document:

i. Signature is a forgeryii. Signature is unauthorized

iii. Corporation is not authorized under its charter to sign theinstrument

iv. Party charged signed the instrument in some other capacitythan that alleged in the pleading setting it outv. Document was never delivered.4. SPECIFIC DENIAL

a. Defendant must specify each material allegation of fact the truth of which hedoes not admit;

b. Defendant must set forth the substance of the matters upon which he relies tosupport his denial, whenever practicable;

c. If denying only part of an averment, he shall specify so much of it as is true andmaterial and shall deny the remainder;

d. If defendant does not have knowledge or information sufficient to form a belief asto the truth of a material averment, he shall so state and this has effect of denial.

Negative pregnant a denial which at the same time involves an admission ofthe substantial facts in the pleading responded to.

5. Allegations not specifically denied, other than those as to amount of unliquidateddamages deemed admitted.

RULE 9 EFFECTOF FAILURETO PLEAD1. General Rule: Defenses and objections not pleaded in answer or motion to dismiss

are deemed waived (Omnibus Motion Rule).

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Exception: Court shall dismiss the claim, even without allegation in answer or motionto dismiss, if any of the following appear from the pleadings or theevidence on record:

a. Lack of jurisdiction over the subject matter;

b. Litis pendentia between same parties for the same cause;c. Res judicatad. Action barred by statute of limitations.

2. DECLARATIONOF DEFAULTa. Defendant entitled to notice of motion to declare him in default and of order of

default;b. Motion to set aside order of default may be filed after notice and before

judgment;c. Party may make motion, under oath, to set aside order of default upon proper

showing that failure to answer was due to FAME;d. Effect of order of default party in default entitled to notice of subsequent

proceedings but not to take part in trial;e. Partial default if several defending parties and not all in default, the court shall

try the case against all upon the answers thus filed and evidence presented;f. After declaration of default, court may render judgment on the basis of the

complaint or require claimant to submit evidence;g. Judgment against party in default shall not exceed the amount or differ in kind

from that prayed for nor award unliquidated damages;h. No defaults in action for annulment or declaration of nullity of marriage or for

legal separation.

RULE 10 AMENDEDAND SUPPLEMENTAL PLEADINGS1. Amendments of pleadings may be made once as a matter of right:

a. At any time before responsive pleading is servedb. In the case of a reply, anytime within 10 days after service.

Plaintiff may amend complaint as a matter of right even after defendant files aMotion to Dismiss, since the same is not a responsive pleading.

2. Substantial amendments may be made only with leave of court, except asprovided above.3. An amended pleading supersedes the pleading that it amends but admissions insuperseded pleadings may be received in evidence against the pleader. (NOT

judicial admissions anymore; thus, must be formally offered)4. Claims and defenses alleged in original but not incorporated in the amendedpleading shall be deemed waived.

5. Amended and Supplemental pleadings distinguished:

AMENDED SUPPLEMENTAL

Refers to facts existing at the time of the

commencement of the action

Refers to facts arising after the filing of the

original pleadingResults in the withdrawal of the originalpleading

Merely an addition, and does NOT result inthe withdrawal of, the original pleading

Can sometimes be made as a matter ofright

Always filed with leave of court

RULE 11 WHENTO FILE RESPONSIVE PLEADINGS1. Answer to complaint 15 days from service, unless different period fixed by thecourts;2. Answer of defendant foreign private juridical entity when service of summons ismade on the government official designated by law, answer to be filed within 30 daysfrom receipt of summons by such entity.3. Answer to amended complaint if amended as a matter of right, 15 days frombeing served with copy thereof

If amended not as a matter of right, 10 days from notice of order admitting thesame

Answer earlier filed may be answer to amended complaint, if no new answer isfiled

Applicable to amended counterclaim, cross, third, etc,

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4. Answer to counterclaim or cross-claim within 10 days from service.5. Answer to 3rd party complaint 15 days from service6. Reply may be filed within 10 days from service of the pleading

responded to

RULE 12 BILLOF PARTICULARS1. Bill of particulars

a. Period of filing motion before responding to a pleading; if pleading is a reply,within 10 days from service thereof;

b. Order for bill must be complied with in 10 days from notice OR period fixed bycourt

c. After service of bill or denial of motion party has balance of time he was entitledto file responsive pleading, but not less than 5 days

Motion for Bill of Particulars may NOT call for matters which form part of theproof of the complaint. Thus, motion should not be granted if the complaint,while not very definite, nonetheless already states a sufficient cause of action.

RULE 13 FILINGAND SERVICEOF PLEADINGS, JUDGMENTSAND OTHER PAPERS1. Kinds of service of pleadings:

a. Personal service to be done whenever practicable (Most preferred mode)b. Service by mail (ordinary if no registered mail)

c. Substituted service (delivering copy to clerk of court with proof of failure of 1 st 2modes)

Exceptwith respect to papers emanating from the court, a resort to other modesmust be accompanied by a written explanation why the service or filing was notdone personally.

Violation of rule may be cause to consider the paper as not filed.2. Kinds of service of final orders:

a. Personalb. Registered mailc. Publication (if summons by publication)

3. Proof of personal servicea. Written admission of party served;b. Official return of the server; orc. Affidavit of party serving, containing a full statement of the date, place and

manner of service.

RULE 14 SUMMONS1. Contents of summons

a. Signed by the clerk under the seal of the courtb. Name of the court and the parties to the actionc. Direction that the defendant answer within the time fixed by these rulesd. Notice that unless defendant so answers, plaintiff will take judgment by default

2. Kinds of service of summons:

a. PERSONAL:i. Handing a copy to the defendant in person; OR

ii. If he refuses to receive and sign for it, by tendering it to himB. SUBSTITUTED:

i. Leave copies at his residence, with person of suitable age and discretionresiding therein; ORii. Leave copies at defendants office/regular place of business, withcompetent person in charge thereof.

c. By publication3. By whom served:

a. Sheriff b. Other proper court officerc. Any suitable person specially authorized by the judge

4. When extraterritorial service allowed:a. Defendant is a non-resident and is not found in the Philippines and action affects

plaintiffs personal status

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b. Subject of action is property within the Philippines in which the defendant has orclaims a lien or interest

c. Where relief demanded consists in whole or in part in excluding the defendantfrom any interest in such property

d. When property of defendant has been attached within the Philippines5. Kinds of extra territorial service

a. Personal serviceb. Publication and summons sent by registered mail to last known addressc. Any other matter the court may deem sufficient

6. When service by publication in a newspaper of general publicationallowed:

a. Identity of defendant unknownb. Whereabouts of defendant unknown and cannot be ascertained by diligent

inquiry

(a) and (b), applies to ANY action, even actions in personam

c. Defendant is non-resident and the suit is quasi in remd. Defendant is temporarily out of the country and the suit is quasi in rem7. Service upon private domestic juridical entity refers to corporation, partnership,or association organized under Phil. Laws with a juridical personality:a. Presidentb. Managing partnerc. General managerd. Corporate secretarye. Treasurerf. In-house counsel

8. Service upon private foreign juridical entity transacting business in thePhils:

a. Resident agent designated in accord with Lawb. If no such agent, on government official designated by law ORc. On any of its officers or agents within the PhilsNOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSESON THE SEC.

9. Newspaper of general circulation (RA 4883, PD 1079)a. Published for the dissemination of local news and general informationb. Has a bona fide subscription list of subscribersc. Published at regular intervalsd. Not published for nor devoted to the interest of a particular group of personse. Must have been regularly published for at least 2 years before the date of the

publication in question.

Mere filing of an answer per se should not be automatically treated as a voluntaryappearance by the defendant for the purpose of sumons. It should be noted thatwhen the appearance of the defendant is precisely to object to the jurisdiction ofthe court over his person, it cannot be considered as an appearance in court.

RULE 15 MOTIONS1. All motions must be in writing except:

a. Those made in open court; ORb. Those made in the course of a hearing or trial.

2. Exceptions to the three-day notice rule:

a. Ex parte motionb. Urgent motionc. When court sets hearing on shorter notice for good caused. Motion for summary judgment (must be served at least 10 days before the

hearing)

A prudent judge would, in the absence of the opposing party in the hearing of amotion, inquire from the other party or inquire from the records the proof of theservice of notice rather than proceed with the hearing. He should not rely on apartys undertaking to notify the adverse party of a scheduled hearing. The judgemust demand what the rule requires, i.e., proof of such notice on the adverse

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party. Otherwise, a contentious motion should be considered a mere scrap ofpaper which should not have even been received for filing.

Subsequent service of the motion on the adverse party may be consideredsubstantial compliance with the Rule 15, 6. Failure to attach to the motionproof of service thereof to the adverse party is not fatal when the adverse partyhad actually received a copy of the motion and was in fact present in court whenthe motion was heard.

RULE 16 MOTIONTO DISMISS1. Motion to Dismiss must be filed within the time for and before the filing of ananswer to complaint.

2. Grounds for motion to dismiss:a. Court has no jurisdiction over the person of the defendant- unlike old rule,

inclusion in motion to dismiss of other grounds aside from lack of jurisdiction overthe person does NOT constitute a waiver of the said ground or voluntaryappearance;

b. Court has no jurisdiction over the subject matter of the claim;

c. Venue is improperly laid;d. Plaintiff has no legal capacity to sue;e. There is another action pending between the same parties for the same cause;

Requisites oflitis pendentia:i. Identity of parties/interest

ii. Identity of rights asserted and prayed for/relief founded on the same facts;iii. Identity of the 2 cases (such that judgment in one would amount to res

judicata in the other)f. Cause of action is barred by a prior judgment or by statute of limitations;

Requisites ofres judicata:i. Final judgment or orderii. Rendered by court of competent jurisdictioniii. On the merits (even without trial, such as cases decided by Judgment on

the Pleadings, Summary Judgment, or dismissed for failure to prosecuteor for refusal to obey an order of the court)

iv. Identity of the partiesg. Pleading asserting claim states no cause of action;h. Claim or demand in the plaintiffs pleading has been paid, waived, abandoned,

extinguished;i. Claim on which action is founded is unenforceable under the statute of frauds;

j. Condition precedent for filing has not been complied with (this includes priorrecourse to barangay conciliation, or failure to make attempts to reach acompromise in cases between members of the same family)

The court shall not defer the resolution of the motion for the reason that theground relied upon is not indubitable.

3. Actions that court may take on a Motion to Dismiss:a. Grant it remedy: appealb. Deny NOT appealable; but may avail of certiorari, prohibition andmandamusc. Order amendment of the pleading

4. If denied, defendant must file answer within the balance of the 15-day period, but notless than 5 days from the time he received notice of the denial;

5. Subject to the right to appeal, dismissal based on the following grounds will be bar torefiling:

a. Res judicatab. Extinguishment of claim or demand

c. Prescriptiond. Unenforceability under the Statute of Frauds

6. The dismissal of the complaint shall be without prejudice to the prosecution in thesame or separate action of a counterclaim pleaded in the answer.

A motion to dismiss on the ground of failure to state a cause of action in thecomplaint must hypothetically admit the truth of the facts alleged in the complaint.The admission, however, is limited only to all material and relevant facts which arewell pleaded in the complaint. The demurrer does not admit the truth of mere

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epithets charging fraud; nor allegations of legal conclusions; nor an erroneousstatement of law; nor matters of evidence; nor to legally impossible facts.

RULE 17 DISMISSALOF ACTIONS1. Dismissal by the plaintiff

a. Notice of dismissal any time before service of the answer or a motion forsummary judgment;

Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, whichoperates as adjudication on the merits when filed by same plaintiff who hasonce dismissed an action based on or including said claim.

b. If answer or motion for summary judgment already served, dismissal by a Motionfor Dismissal, which shall require approval of the court; shall be without prejudiceunless otherwise specified by the court

If counterclaim has been pleaded by a defendant prior to the service uponhim of plaintiffs motion to dismiss, dismissal is limited to the complaint;dismissal is without prejudice to defendants right to prosecute counterclaimin a separate action or, if he makes a manifestation within 15 days fromnotice of the motion, to prosecute CC in same action.2. Dismissal due to plaintiffs fault - the following must be without justifiable

causea. If plaintiff fails to appear on the date of presentation of his evidence in chief;b. Plaintiff fails to prosecute claim for an unreasonable length of timec. Plaintiff fails to comply with the Rules of Court or any order of the court

Complaint may be dismissed upon defendants motion ormotu proprio.

Unless otherwise declared by the court, dismissal has effect of adjudication uponthe merits.

RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action uponplaintiffs motion or due to plaintiffs fault does not necessarily carry with it thedismissal of the compulsory CC; defendant is also given option to prosecute thesame in same or separate action.3. Dismissal of counterclaim, cross-claim, or 3rd-party complaint must be made byclaimant before a responsive pleading or a motion for summary judgment is served,or if there is none, before the introduction of evidence.

RULE 18 PRE-TRIAL1. What to consider in pre-trial (with notice to counsel or party without counsel)

a. Possibility of amicable settlement or arbitrationb. Simplification of the issuesc. Amendments to the pleadingsd. Stipulations or admissions of facts and documentse. Limitation of number of witnessesf. Preliminary reference of issues to a commissionerg. Propriety of judgment on the pleadings, summary judgments, or dismissal of

actionh. Other matters for the prompt disposition of the action2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the defendants counterclaim, it will be the lattersduty to set the pre-trial.3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow plaintiff to present evidence ex parte andthe court to render judgment on basis thereof.

4. Non-appearance of party excused only if:a. A valid cause is shown therefor OR

b. If representative shall appear in his behalf fully authorized in writing to enter intoan amicable settlement, to submit to alternative modes of dispute resolution, andto enter into stipulations or admissions of facts and of documents,

5. Must file pre-trial brief so as to ensure that other party receives it at least 3 daysbefore pre-trial. Failure to file brief has same effects as failure to appear at pre-trial.6. Proceedings recorded, and court shall issue an order reciting in detail matterstaken up.

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RULE 19 INTERVENTION1. Grounds for intervention

a. Legal interest in the matter in litigationb. Interest in the success of either or both parties or interest against bothc. Party is so situated as to be adversely affected by the distribution of the court

d. Disposition of property in the custody of the court or of an officer thereof.2. Motion may be filed at any time before rendition of judgment.

3. Answer to complaint-in-intervention must be filed within 15 days from notice ofcourt admitting the complaint.4. Motion for intervention will be granted if it will not unduly delay or prejudiceadjudication of rights of original parties and if the intervenors rights may be fullyprotected in separate proceedings.5. Complaint in intervention is merely collateral to the principal action. Hence, it willbe dismissed if main action is dismissed.6. A complaint in intervention that seeks affirmative relief prevents a plaintiff fromtaking a voluntary dismissal of the main action. Such a case is not subject todismissal upon intervenors petition showing him to be entitled to affirmative relief.

The petition will be preserved and heard regardless of the disposition of the mainaction.

RULE 20 CALENDAROF CASES1. Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those

whose trials adjourned or postponed and those with motions set for hearings.2. Preference given to habeas corpus, election cases, special civil actions andthose so required by law.

RULE 21 SUBPOENA1. Subpoena issued by:

a. The court before whom witness is required to attend;

b. The court of the place where the deposition is to be taken;c. The officer or body authorized by law to do so in connection with its

investigations;d. Any Justice of the SC or CA in any case or investigation pending within the Phils

2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who isconfined in any penal institution shall be brought outside said institution forappearance or attendance in any court unless authorized by the SC.

3. Grounds for quashing subpoena duces tecuma. It is unreasonable or oppressiveb. The articles sought to be produced do not appear to be relevantc. Person asking for subpoena does not advance cost of production

4. Ground for quashing subpoena ad testificandum

a. The witness is not bound thereby if witness resides more than 100 km from theplace where he is to travel by the ordinary course of travel, or if he is a detentionprisoner and no permission is obtained from the court in which his case ispending

This is known as the viatory right of the witness; NOTE, however, that theright is available only in CIVIL cases

b. Witness fees and kilometrage allowed by rules not tendered when subpoenaserved.

5. Service of subpoena made in the same manner as personal or substitutedservice of summons.6. Person present in court before a judicial officer may be required to testify as if hewere in attendance upon a subpoena.

7. Failure by any person without adequate cause to obey a subpoena served uponhim shall be deemed a contempt of the court from which subpoena issued.

RULE 22 COMPUTATIONOF TIME1. Computing for any period of time: day of the act or event from which designatedperiod of time begins to run is to be excluded and the date of performance included.2. If last day of period falls on Saturday, Sunday or legal holiday in place wherecourt sits, the time shall not run until the next working day.

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3. If there is effective interruption of period, it shall start to run on the day afternotice of the cessation of the cause of the interruption. The day of the act thatcaused the interruption is excluded in the computation of the period.

RULE 23 DEPOSITIONS PENDING ACTION

DEPOSITIONS DE BENE ESSE taken for purposes of pending action1. Depositions pending action

a. Taken by leave of court after court obtains jurisdiction over any defendant orproperty subject of the action

b. Taken without leave after an answer has been servedc. Upon the instance of any partyd. May be deposition upon oral examination or written interrogatories2. Scope of examination deponent may be examined regarding any matter notprivileged relevant to the subject of the action

3. Examination and cross-examination proceeds as in trials4. Depositions and Affidavits distinguished

DEPOSITIONS AFFIDAVITS

Written testimony of witness in course ofjudicial proceedings, in advance of trial andhearing

Mere sworn written statements

Opportunity for cross-examination No cross-examination

Can be competent testimonial evidence Little probative value (hearsay)5. Use of depositions

Any part or all of a deposition which is admissible in evidence may be usedagainst any party who was present or represented during the taking of thedeposition or who had notice thereof as follows:

DEPOSITIONOF MAYBEUSEDBY PURPOSE

A witness Any party To contradict or impeach thedeponents testimony as a witness

Any party, or anyone whoat the time of taking thedeposition was an officer,director, or managing agentof a public or privatecorporation

An adverse party For any purpose

Of any witness, whether aparty or not

Any party For any purpose, IF court finds that:a. Witness is dead;

b. Witness resides at adistance more than 100 km fromplace of trial, UNLESS absenceprocured by party offering thedeposition

c. Witness is unable totestify because of age, sickness,infirmity, or imprisonment;

d. Party offering thedeposition has been unable toprocure the attendance of thewitness by subpoena; OR

e. Other exceptionalcircumstances make it desirableto allow deposition to be used.

Deponent is made the witness of the party offering the deposition.

If only part of the deposition is introduced, adverse party may require that all of itwhich is relevant to the part introduced be introduced.

6. Persons before whom depositions may be takena. Within the Philippines

i. Judgeii. Notary public

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iii. Any person authorized to administer oaths if the parties so stipulate inwriting

b. In foreign countriesi. On notice, before a secretary of any embassy or legation, consul-general,

consul, vice-consul, consular agent of the Phils

ii. Before such person or officer as may be appointed by commission orunder letters-rogatoriesiii. Any person authorized to administer oaths if the parties so stipulate.

Commission addressed to any authority in a foreign country authorized therein totake down depositions; the taking of such depositions is subject to the rules laiddown by the court issuing the commissionLetters Rogatory addressed to judicial authority in the foreign country; the taking ofthe depositions is subject to the rules laid down by such foreign judicial authority.

7. Persons disqualified to take depositions

a. Relative within 6th degree of consanguinity or affinity of any partyb. Employee of any partyc. Counsel of any party

d. Relative within the same degree of partys counsele. Employee of partys counself. Anyone financially interested in the action

8. Depositions upon written interrogatories

Party desiring to take such deposition shall serve them upon every other partywith a notice stating the name and address of the person who is to answer themand the name and descriptive title of the officer before whom the deposition is tobe taken;

Party so served may serve cross-interrogatories upon the proponent within 10days thereafter

Re-direct interrogatories served within 5 days

Re-cross interrogatories served within 3 days9. Effects of errors and irregularities in the depositionsa. As to notice waived unless written objection is promptly served upon the party

giving the noticeb. As to disqualification of officer waived unless made before the taking of the

deposition begins or as soon thereafter as the disqualification becomes known orcould be discovered with reasonable diligence

c. As to competency or relevancy of evidence - NOT waived by failure to makethem before or during the taking of the deposition, unless ground is one whichmight have been obviated or removed if presented at that time

d. As to oral exam and other particulars - Errors occurring at the oral exam in themanner of taking the deposition, in the form of questions and answers, in oath oraffirmation, or in conduct of parties, and errors of any kind which might beobviated, removed, cured if promptly prosecuted are waived unless reasonableobjection is made at the taking of the deposition.

e. As to form of written interrogatories - waived unless served in writing upon partypropounding them within the time allowed for serving succeeding cross or otherinterrogatories and within 3 days after the service of the last interrogatoriesauthorized.

f. As to manner of preparation - errors as to manner in which the testimony istranscribed or the deposition is prepared, signed, certified, sealed, indorsed,transmitted, filed or otherwise dealt with by the officer are waived unless a motionto suppress the deposition or some part of it is made with reasonablepromptness after such defect is, or with due diligence might have been,ascertained.

A deposition, in keeping with its nature as a mode of discovery, should be takenbefore and not during trial. IN fact, the rules on criminal practice particularly onthe defense of alibi states that when a person intends to rely on such adefense, that person must move for the taking of the deposition of his witnesswithin the time provided for filing a pre-trial motion.

RULE 24 DEPOSITIONS PENDING ACTION

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DEPOSITIONS IN PERPETUAM REI MEMORIAM taken to perpetuate evidence forpurposes of an anticipated action or further proceedings in a case or appeal.

1. Depositions before actionA person desiring to perpetuate his own testimony or that of another person

regarding any matter that may be cognizable in any court of the Phils may file a

verified petition in the court of the place of the residence of any expected adverseparty, which petition shall be entitled in the name of the petitioner and shall show:a. That petitioner expects to be a party to an action in a court of the Phils but is

presently unable to bring it or cause it to be brought;b. The subject matter of the expected action and his interest therein;c. The facts which he desires to establish by the proposed testimony and his

reasons for desiring to perpetuate it;d. The names or description of the persons he expects will be the adverse parties

and their addresses so far as known;e. The name and addresses of the persons to be examined and the substance of

the testimony which he expects to elicit from each.2. Use of deposition

If deposition to perpetuate testimony is taken under this rule or if not so takenis still admissible in evidence may be used in any action involving the same subjectmatter subsequent brought in accordance with the provisions of Rule 23.

RULE 25 INTERROGATORIESTO PARTIES1. Interrogatories and the answers thereto should be filed in court andserved on adverse parties, so that the answers may constitute judicial admissions.2. Effect of failure to serve written interrogatories a party not servedwith such may NOT be compelled by the adverse party to give testimony in opencourt or deposition pending appeal.

RULE 26 ADMISSIONBY ADVERSE PARTY

1. Request for admissionA written request for the admission of the other party of the genuineness of

any material or document or request for the truth of any material and relevant matterof fact set forth in the request may be filed and served upon the other party at anytime after issues have been joined.

2. Implied admissionEach of the matter requested to be admitted shall be deemed admitted within

a period designated in the request, which shall not be less than 15 days after servicethereof or within such further time as the court may allow on motion, UNLESS, partyrequested serves upon the party requesting a sworn statement either specificallydenying or setting forth in detail the reasons why he cannot truthfully either admit ordeny those matters.

3. Effect of admissionAdmission is only for the purpose of the pending action and shall NOT

constitute an admission for any other person nor may it be used against him in anyother proceeding.4. A party who fails to file and serve a request for admission on the adverse party ofmaterial facts within the personal knowledge of the latter shall not be permitted topresent evidence thereon,

RULE 27 PRODUCTIONOR INSPECTIONOF DOCUMENTSOR THINGS1. Any party may move for the court in which the action is pending to orderany party to:a. Produce and permit the inspection and copying or photographing of any

designated documents, papers, books, accounts, letters, photographs, objects ortangible things, not privileged, which:i. Constitute or contain evidence material to any matter involved in the action

ANDii. Are in his possession, custody or control.

b. Permit entry upon designated land or other property in his possession or controlfor the purpose of inspecting, measuring, surveying, or photographing theproperty or any designated relevant object or operation thereon.

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2. The order:a. Shall specify the time, place and manner of making the inspection and taking

copies ANDb. May prescribe such terms and conditions which are just.

RULE 28 PHYSICALAND MENTAL EXAMINATIONOF PERSONS1. If the mental or physical condition of a party is in controversy,the court may order him to submit to a physical or mental examination by aphysician.2. The party examined waives any privilege he may have in thataction regarding the testimony of the person who has examined or may examine himwith respect to that same mental or physical examination by:

a. Requesting and obtaining a report of the examination so ordered ORb. Taking the deposition of the examiner.

RULE 29 REFUSALTO COMPLYWITHTHE MODESOF DISCOVERY1. If a party/deponent refused to answer:

a. The examination may be completed on other mattersb. The examination may be adjournedc. The proponent may apply to the court for order to compel answer

The court may then order:i. The refusing party or his counsel to pay the expenses incurred in

obtaining the order, including the attorneys fees (if it finds the refusal toanswer without substantial justification)

ii. The proponent or his counsel to pay the expenses incurred in opposingthe application, including attorneys fees (if it finds the application to bewithout substantial justification)

2. If a party/witness refuses to be sworn or to answer after being directed to do so bythe court, the refusal may be considered a contempt of that court.

3. If a party/officer or managing agent of a party refuses to obeyan order requiring him:a. To answer designated questionsb. To produce a thing for inspection or to permit entry upon propertyc. To submit to a physical or mental examination

the court may order:i. That the matters regarding which the questions wereasked, or the character of the land or the thing, or the physical and mentalcondition of the party be taken to be established.ii. The disallowance of the disobedient partys claimsiii. The prohibition of the disobedient party to presentevidence

iv. The striking out of the pleadings or parts thereof v. The dismissal of the action or parts thereof vi. Rendering judgment by default against thedisobedient party ORvii. The arrest of any party or agent EXCEPT indisobeying an order to submit to a physical or mental examination.

4. If a party refuses to attend or serve answers, the court may:a. Strike out all or any part of any pleading of that party.b. Dismiss the action or any part thereof.c. Enter a judgment by default against that party, OR/ANDd. Order that party to pay reasonable expenses incurred, includingattorneys fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorneysfees under this Rule.

RULE 30 TRIAL1. Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shallproceed as follows:a. The plaintiff shall adduce evidence in support of his complaint;

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b. The defendant shall adduce evidence in support of his defense, counterclaim,cross-claim, and third-party complaint;

c. The 3rd-party defendant, if any, shall adduce evidence of his defense,counterclaim, cross-claim, and 4th party complaint;

d. The 4th party and so forth, if any, shall adduce evidence of the material factspleaded by them;

e. The parties against whom any counterclaim or cross-claim has been pleaded,shall adduce evidence in support of their defense, in the order to be prescribedby the court;

f. The parties may then respectively adduce rebutting evidence only, unless thecourt, for good reasons and in the furtherance of justice, permits them to adduceevidence upon their original case; and

g. Upon admission of the evidence, the case shall be deemed submitted fordecision, unless the court directs the parties to argue or to submit their respectivememoranda or any further pleadings.

2. Judge should personally receive evidence EXCEPT that in default or ex partehearings and in any case where the parties so agree in writing, the court maydelegate the reception of evidence to its clerk of court who is a member of the bar.The clerk shall have no power to rule on objections to any question or to theadmission of exhibits, which objections shall be resolved by the court uponsubmission of his report and the transcripts within 10 days from the termination of thehearing.

RULE 31 CONSOLIDATIONOR SEVERANCE1. CONSOLIDATION the court may order a joint hearing or trial of any or allmatters in issue when actions involving a common question of law or fact arepending before the court.2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim,or third-party complaint, in furtherance of convenience or in the interest of justice.

RULE 32 TRIALBY COMMISSIONERTrial by commissioner:

1. Reference by consent of both parties2. Reference by motion of one of the parties ormotu proprio:

a. Trial requires examination of a long account of either sideb. Taking of an account is necessary for the information of the court before

judgment or for carrying a judgment order into effectc. Question of fact, other than upon the pleadings, arises upon motion or otherwise,

in any stage of the case.

RULE 33 DEMURRERTO EVIDENCE

Demurrer to evidence is made by the defendant after the plaintiff has completedthe presentation of his evidence where the defendant moves for dismissal on the groundthat upon the facts and the law the plaintiff has shown no right to relief.

1. If motion denied defendant has the right to present evidence2. If motion granted, but reversed on appeal defendant deemed to have waived the

right to present evidence.

RULE 34 JUDGMENTONTHE PLEADINGS1. Judgment on the Pleadings is proper:

a. If answer fails to tender an issue; orb. If answer otherwise admits the material allegations of the adverse partys

pleading

Then court may, on motion of that party, direct judgment on the pleadings2. However, the material facts alleged in the complaint shall always be proved in

actions for:a. Declaration of nullity of marriageb. Annulment of marriagec. Legal separation

RULE 35 SUMMARY JUDGMENTS

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Summary judgment:1. Proper if no genuine issue as to any material fact (except as to damagesrecoverable) and if moving party is entitled to a judgment as a matter of law2. Based not only on pleadings but also on affidavits, deposition, and admissions ofthe parties showing that, exceptas to the amount of damages, there is no genuine

issue.3. Motion shall be served at least 10 days before the time specified for

the hearing.4. May be asked for by a party seeking to recover upon a claim, counterclaim,cross-claim or to obtain a declaratory relief.

5. Although Rule does not specifically provide, also unavailable in actions forannulment of and declaration of nullity of marriage, and for legal separation sinceSec. 1 refers to actions to recover upon a claim, or to recover a debt or a liquidateddemand for money, or to obtain declaratory relief.

6. Judgment on the pleadings and summary judgment distinguished:

Judgment on the pleadings Summary judgment

Proper when there is no genuine issue

between the parties

Proper even if there is an issue as to the

damages recoverableBased exclusively on the pleadings withoutintroduction of evidence

Based not only on pleadings but also onaffidavits, depositions and admissions ofthe parties

Available in any action, except the 3exceptions

Proper only in actions to recover a debt, orfor a liquidated sum of money, or fordeclaratory relief

Motions for summary judgment may be filed by the claimant or by the defendingparty. The defending party may file such motion, pursuant to Rule 35, 2at any time,as distinguished from 1 where the claimant may file the motion at any time after theanswer is filed.

RULE 36 JUDGMENTS, FINAL ORDERSAND ENTRY THEREOF1. The date of the finality of the judgment or final order shall be deemed to be thedate of its entry. The judgment or final order shall be entered by the clerk in the bookof entries of judgments if no appeal or motion for new trial or consideration is filedwithin 15 days2. Several Judgments

In action against several defendants, the court may render judgment againstone or more of them, leaving the action to proceed against the others.3. Separate judgments

Judgment rendered to dispose of one of the several claims for reliefpresented in an action, made at any stage, upon a determination of the issuesmaterial to a particular claim and all counterclaims arising out of the transaction oroccurrence which is the subject matter of the claim, which terminates such claim.Action shall proceed as to other claims

RULE 37 NEW TRIALOR RECONSIDERATION1. Motion for new trial or reconsideration filed within 15 days from notice of

judgment and resolved by the court within 30 days from submission for resolution.2. Grounds: Motion for New Trial

a. Fraud, accident, mistake, or excusable negligence;b. Newly discovered evidence

Requisites:i. Discovered after trialii. Could not have been discovered and produced at trial despite the

exercise of reasonable diligenceiii. If presented, could probably alter the result of the action

3. Grounds: Motion for Reconsiderationa. Damages awarded are excessiveb. Evidence is insufficient to justify the decision or final orderc. Decision is contrary to law

4. Motion for new trial shall be in writing, and supported by affidavits of merit if theground is FAME; for newly-discovered evidence, it must be supported by affidavits of

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3. a. Motion for execution of final and executory judgment should be served onadverse party and set for hearing;

b. In case of appeal, motion is filed with court of origin supported by certified truecopies of final judgment of appellate court.

c. Appellate court may on motion order court of origin to issue writ of execution (SC

Circular No. 24-94, 4/18/94)4. Judgments NOT stayed by appeal (immediately executory, unless court provides

otherwise)a. Actions for injunctionb. Receivershipc. Accountingd. Supporte. Judgments declared immediately executory

5. A final and executory judgment may be executed on motion within 5 years fromentry. May be revived and enforced by action after lapse of 5 years but before 10years from entry. Revived judgment may be enforced by motion within 5 years fromentry and thereafter by action before barred by statute of limitations file motion

within 10 years from the finality of the revived judgment.6. Execution in case of partys death:

a. Death of judgment obligee - application of his executor or administrator orsuccessor-in-interest

b. Death of judgment obligor -

i. Against his executor, etc. if the judgment be for recovery of real orpersonal property or the enforcement of a lien thereon.ii. If death after execution is actually levied upon his property, it may besold for satisfaction of the obligation.

If the judgment obligor dies after the entry but before levy, execution will issue if itbe for the recovery of real or personal property. However, if judgment is for asum of money, and the judgment obligor dies before levy, such judgment cannot

be enforced by writ of execution but must be filed as a claim against his estate.7. Writ of execution:

a. Shall issue in the name of the Republic of the Phils from court which granted themotion

b. State the name of the court, case number and title, dispositive portion of thejudgment order

c. Require the sheriff or other proper officer to whom it is directed to enforce the writaccording to its terms

8. Manner of executing writ:a. If judgment against property of the judgment obligor out of real or personal

property with interestb. If against his real or personal property in the hands of the personal

representatives, heirs, devisees, legatees, tenants, or trustees of the judgmentobligor out of that property, with interest

c. If for sale of real or personal property to sell property, describing it and applythe proceeds in conformity with judgment.

d. If for delivery of possession of property deliver possession of the same to theparty entitled to it, describing it, and to satisfy any costs, damages, rents, orprofits covered by the judgment out of the personal property of the personagainst whom it was rendered, and out of real property if sufficient personalproperty cannot be found.

e. In all cases, writ of execution shall specifically state the amount of the interest,costs, damages, rents, or profits due as of date of issuance of writ, aside fromprincipal obligation.

Judgment obligor is given option to choose which property may be levied onsufficient to satisfy the judgment.

9. Property exempt from executiona. Family home as provided by law, homestead in which he resides, and land

necessarily used in connection therewith;b. Tools and implements used in trade, employment, or livelihood;c. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary

occupation;

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d. Necessary clothing and articles for ordinary personal use, excluding jewelry;e. Household furniture and utensils necessary for housekeeping not exceeding

P3,000;f. Professional libraries and equipment of judges, lawyers, physicians, etc. not

exceeding P300,000;

g. One fishing boat and accessories not more than P100,000 owned by a fishermanand by which he earns his living;

h. Salaries, wages, or earnings for personal services within the 4 months precedingthe levy which are necessary for the support of the family;

i. Lettered gravestones; j. Money, benefits, annuities accruing or in any manner growing out of any life

insurance;k. Right to receive legal support or any pension or gratuity from the government;l. Properties especially exempted by law.

Exemption does not apply if execution is upon a judgment for its purchase priceor for foreclosure of mortgage.

Right of Exemption is a personal right granted to the judgment creditor. Thesheriff may thus not claim it.

10. Third party claims:a. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party

claimant, not the sheriff or officer;b. Amount of bond not less than value of property levied on;c. Sheriff not liable for damages if bond is filed;d. Judgment obligee or plaintiff may claim damages against third-party claimant in

the same or a separate action.

e. 3rd Party claimant may vindicate his claim to property levied in a separate actionbecause intervention is no longer allowed since judgment already executory; inpreliminary attachment and replevin, 3rd party claimant may vindicate his claim tothe property by intervention since the action is still pending.

11. Who may redeem real property sold:a. Judgment obligor or his successor in interest in the whole or any part of the

property;b. Creditor having lien by virtue of an attachment, judgment, or mortgage on the

property sold subsequent to the lien under which the property was sold.(Redeeming creditor is termed a redemptioner).

12. Judgment obligor has one year from the date of the registration of the certificate ofsale to redeem property sold by paying the purchaser the amount of his purchase,with 1% per month interest plus any assessments or taxes which he may have paidthereon after purchase with interest on said amount at 1% per month.

Redemptioners have one year to redeem from the date of registration of thecertificate of sale. They may also redeem beyond one-year period within 60 daysafter the last redemption, with 2 % interest on the sum to be paid on the lastredemption. The judgment obligors right to redeem within 60 days from lastredemption is limited to the one-year period, beyond which he can no longer redeem.

Purchaser or redemptioner not entitled to receive rents and income of propertysold inasmuch as these belong to the judgment obligor until the expiration of theperiod of redemption.

13. Effect of judgment or final ordersa. In case of judgment against a specified thing, probate of will, or administration of

estate or legal condition or status, it is conclusive on the title or condition, status,relationship, will or administration.

b. In other cases/matters directly adjudged, or matters relating thereto that couldhave been raised subsequent to commencement of action, judgment isconclusive between parties and their successors in interest.

c. In any other litigation, that only is deemed to have been adjudged in a formerjudgment or which was actually and necessarily included therein.

14. Effect of foreign judgmenta. Judgment upon a specific thing, conclusive upon title to the thing;b. If against a person, judgment is presumptive evidence of a right as between the

parties and their successors in interest;15. When foreign judgment may be repelled

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f. Justices, judges, prosecuting attorneys, clerks of courts, and other officers andemployees connected with the administration of justice, the property and rights inlitigation or levied upon an execution before the court within whose jurisdiction orterritory they exercise their respective functions;

g. Lawyers, the property and rights which may be the subject of litigation in which

they take part by virtue of their profession;h. Others specifically disqualified by law. (e.g. seller of goods who exercise right of

resale of goods).

RULE 40 APPEALFROM MTC TO RTC1. Appeal from judgment or final order of MTC taken to RTC exercising

jurisdiction over the area to which MTC pertains. File notice of appeal with the MTCwhich rendered decision appealed from within 15 days after notice of such judgment.2. Record on appeal is filed within 30 days and required only for specialproceedings3. Appellate docket fees paid to clerk of court of MTC - payment not acondition precedent for perfection of appeal but must nonetheless be paid within the

period for taking appeal;4. Procedure for appeal from cases dismissed without trial for lack of

jurisdiction:a. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits

as if it has original jurisdiction;b. If reversed, the case shall be remanded to the MTC;c. If the first level court tried the case on the merits without jurisdiction, the RTC

should not dismiss the case but shall decide it in the exercise of originaljurisdiction.

RULE 41 APPEALFROMTHE RTC1. Appeal may be taken from a judgment or final order that completely

disposes of the case or of a particular matter therein.2. No appeal may be taken from:a. Order denying a motion for new trial or recon;b. Order denying a petition for relief or any similar motion seeking relief from

judgment;c. Interlocutory order;d. Order disallowing or dismissing an appeal;e. Order denying a motion to set aside a judgment by consent, confession,

compromise on the ground of fraud, mistake, or duress, or any other groundvitiating consent;

f. Order of execution;

Not appealable because execution is only the result of the judgment. If order

of execution is not in accord with the dispositive portion, remedy is certiorariunder Rule 65.

g. Judgment or final order for or against one or more of several parties or inseparate claims, while the main case is pending, unless the court allows anappeal therefrom;

h. Order dismissing an action without prejudice;

In all these cases, aggrieved party may file an appropriate civil action under Rule 65.3. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA isby filing notice of appeal with the RTC within 15 days from notice of its judgment.Record on appeal required only for special proceedings and where multiple appealsallowed filed within 30 days.4. Motion for extension of time to file a motion for new trial or

reconsideration is prohibited.5. Contents of Notice on appeal:a. Names of the parties to the appeal;b. Specify judgment or final order or part thereof appealed from;c. Court to which the appeal is being taken;d. Material dates showing timeliness of appeal;

6. Contents of Record on appeal:a. Full names of all parties to the proceedings shall be stated in the caption;

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b. Include judgment or final order from which appeal is taken;c. In chronological order, copies of only such pleadings, petitions, etc. and all

interlocutory orders as are related to the appealed judgment;d. Data showing that appeal perfected in time - material data rule;e. If an issue of fact is to be raised, include by reference all the evidence, oral or

documentary, taken upon the issues involved.7. Appeal from decision of RTC in appellate jurisdiction is by petition for review filed

with CA.8. Where only questions of law are raised, by petition for review on certiorari with SC.9. Notice of Appeal and Record of Appeal distinguished:

Notice of Appeal Record of Appeal

Partys appeal by notice of appeal deemedperfected as to him upon the filing of thenotice of appeal in due time

Deemed perfected as to appellant withrespect to the subject matter upon theapproval of the record on appeal filed indue time

Court loses jurisdiction over case uponperfection of the appeals filed in due timeand expiration of time to appeal of otherparties

Court loses jurisdiction only over subjectmatter upon approval of records on appealfiled in due time and expiration of the timeto appeal of other parties.

10. Failure to pay appellate docket fees within the reglementary period is ground fordismissal of appeal.

11. General Rule: An ordinary appeal stays the execution of a judgmentExceptions: a. Decisions of quasi-judicial body appealed to the CA

b. Executions pending appealc. Cases covered by Summary Procedure

RULE 42 PETITIONFOR REVIEWFROMTHE RTC TOTHE CA1. Form and contents of petition for review (from RTC to CA)

In 7 legible copies:a. Full names of parties to case, without impleading the lower courts or judges

thereof;b. Indicate specific material dates showing it was filed on time;c. Concise statement of matters involved, issues raised, specification of errors of

fact or law, or both allegedly committed by the RTC, and the reasons orarguments relied upon for the allowance of the appeal;

d. Accompanied by clearly legible duplicate originals or true copies of thejudgments or final order of both MTC and RTC;

e. Certification under oath of non-forum shopping.2. Contents of commentIn 7 legible copies, accompanied by certified true copies of material portions of

record and other supporting papers:a. State whether or not appellee accepts the statement of matters involved in the

petition;b. Point out such insufficiencies or inaccuracies as he believes exists in petitioners

statement of matters;c. State reasons why petition should not be given due course.

3. CA may:a. Require respondent to file a comment; orb. Dismiss the petition if it finds:

i. Patently without meritii. Prosecuted manifestly for delayiii. Questions raised are to insubstantial to require consideration

RULE 43 APPEALSFROMTHE CTA AND QUASI-JUDICIAL AGENCIESTOTHE CA1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi-

judicial agencies in exercise of quasi-judicial functions (unless otherwise provided bylaw and the Labor Code [NLRC decisions]) shall be by petition for review to the CA,to be taken within 15 days from notice of award or judgment or from notice of thedenial of the motion for reconsideration. Only 1 Motion for reconsideration allowed2. Quasi-judicial agencies covered:

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a. Civil Service Commission;b. Central Board of Assessment Appeals;c. Securities and Exchange Commission;d. Office of the President;e. Land Registration Authority;

f. Social Security Commission;g. Civil Aeronautics Board;h. Bureau of Patents, Trademarks and Technology Transfer;i. National Electrification Administration;

j. Energy Regulatory Board;k. National Telecommunications Commission;l. Department of Agrarian Reform under RA No. 6657;m. GSIS;n. Employees Compensation Commission;o. Agricultural Inventions Board;p. Insurance Commission;q. Construction Industry Arbitration Commission;

r. Voluntary arbitrators St. Martins Funeral Home vs. NLRC- DECISIONS OF THE NLRC ORIGINAL

ACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC

Fabian vs. Desierto Appeals from decisions of the Office of the Ombudsman inadministrative disciplinary cases should be taken to the CA under Rule 43.

According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), anyappeal by way of petition for review from a decision, final resolution or orderof the Ombudsman, or special civil action relative to such decision, filed withthe SC after March 15, 1999 shall no longer be referred to the CA, but shallbe dismissed.

RULE 44 PROCEDUREINTHE COURTOF APPEALSIN ORDINARY APPEALED CASES1. Any question of law or fact that (a) has been raised in the lower court and (b) is

within the issues framed by the parties may be raised on appeal.

General Rule: Issues not raised/ventilated in the lower court cannot be raised for thefirst time on appeal.

Exceptions: a. the issue is closely related to or intimately interwoven with the errorproperly assigned

b. questions on jurisdictionc. questions concerning mere incidents of the action, e.g., cancellation

of notices of lis pendens or the grant of dissolution of provisionalremedies.

2. Ground for dismissal of the appeal: unauthorized alteration, omission, or addition inthe approved record on appeal.

3. Appellants Briefa. Period for filing: within 45 days from receipt of the notice of the clerk that all the

evidence are attached to the record.

Tan v. CA The filing of motion for new trial does not suspend the period forfiling appellants brief.

b. 7 copiesc. With proof of service thereof to appelleed. Contents: (MUST BE IN THE FOLLOWING ORDER)

i. A subject indexii. Assignment of Errorsiii. Statement of the Caseiv. Statement ofr Factsv. Statement of the Issues of Fact or Lawvi. Argumentvii. Relief/Prayerviii. If the case is not brought up by record on appeal, a copy of the judgment or

final order appealed from should be attached as an appendix.4. Appellees Brief

a. Period for filing: within 45 days from receipt of the apellants brief

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b. 7 copiesc. With proof of service upon the appellantd. Contents: (MUST BE IN THE FOLLOWING ORDER)

i. A subject indexii. Statement of Facts if appellee accepts the statement of facts in the

appellants briefCounter-Statement of Facts if appellee wants to point out such inefficiencesor inaccuracies as he believes exist in the appelants statement of facts

iii. Argument5. Appellants Reply Brief

optional, in order for appellant to answer points in the appellees brief not covered inhis main brief

Period for filing: within 20 days from receipt of the appellees brief6. Memoranda

a. Memoranda are filed, in lieu of briefs, in cases of:i. certiorariii. prohibitioniii. mandamusiv. quo warranto andv. habeas corpus

b. Period for Filing: within 30 days from receipt of the notice issued by the clerk thatall the evidence is already attached to the record.

c. Failure of appellant to file his memorandum within the period may be a ground fordismissal of the appeal.

RULE 45 APPEALBY CERTIORARITOTHE SUPREME COURT1. Question of Law exists when doubt or difference arises as to what the law is,

based on a certain state of factsQuestion of Fact exists when doubt or difference arises as to the truth or the

falsehood of alleged facts2. Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when:

a. The conclusion is a finding grounded entirely on speculations, surmises, orconjectures;

b. The inference made is manifestly mistaken, absurd, or impossible;c. There is grave abuse of discretion;d. The judgment is based on misapprehension of facts;e. Findings of fact of trial court and CA are conflicting;f. The CA, in making its findings, went beyond the issues of the case and the same

is contrary to the admissions made;g. CA manifestly overlooked certain relevant facts not disputed by the parties and

which, if properly considered, would justify a different conclusion.

3. Certiorari as mode of appeal:From judgment or final order of the CA, Sandiganbayan, RTC on pure

questions of law, or other courts whenever authorized by law, by filing a petition forreview on certiorari with the SC within 15 days from notice of judgment.

4. Rule 45 and Rule 65 distinguished:Rule 45 Rule 65

No need for Motion for Recon Motion for Recon generally requiredRelates to final judgments Applies to interlocutory orders rendered in

excess/lack of jurisdictionAn appeal Not an appeal in the strict sense

15 days from notice of judgment 60 days from notice of judgment

Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appealon the ground that the issues raised involve a pure question of law, and that themode of appeal is erroneous. That is the prerogative of the CA, not the RTC

judge. A notice of appeal need not be approved by the judge, unlike a record onappeal.

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RULE 46 ORIGINAL CASESINTHE COURTOF APPEALS1. Applies to original actions for certiorari, prohibition, mandamus, and quo warranto.

(Except as otherwise provided, actions for annulment of judgment shall be governedby Rule 47, for certiorari, prohibition and mandamus by Rule 65, and for quowarranto by Rule 66)

2. Requirements:a. Contents:

i. full names and actual addresses of all petitioners and respondentsii. concise statement of the matters involvediii. factual background of the caseiv. grounds relied uponv. relief prayed for

In actions filed under Rule 65, the material dates must be indicated showingwhen the final order was received, etc.

b. Filed in 7 copiesc. Accompanied by a clearly legible duplicate original or certified true copy of the

judgment, order, resolution or ruling, and other documents relevant thereto.d. Certification of Non-forum shoppinge. Payment of docket and other lawful fees and deposit P500 for costs

3. Failure to comply with requirements shall be sufficient ground for dismissal of thepetition.

4. Procedural Outline in Original Cases in the CAa. Filing of Petition;b. Outright Dismissal;c. Order to acquire jurisdiction over the respondent (by service on him of the

order or resolution indicating its initial action on the petition. Jurisdiction is alsoacquired by voluntary submission thereto.);

d. Comment;e. The court may require the filing of a reply and such other responsive or other

pleadings as it may deem necessary and proper;f. Determination of Due Course;g. Determination of factual issues The court may conduct hearings thereon or

delegate the reception of evidence to any of its members or to an appropriatecourt, agency or office;

h. Submission of memoranda.

RULE 47 ANNULMENTOF JUDGMENTSOR FINAL ORDERSAND RESOLUTIONS1. Grounds for annulment of judgment of RTC in civil cases:

a. Extrinsic fraud not available as a ground if availed of earlier in a motion for newtrial or petition for relief

b. Lack of jurisdiction.2. Petition for annulment available only if ordinary remedies of new trial,appeal, petition for relief or other appropriate remedies no longer available throughno fault of the Petitioner.

3. Periods:a. For extrinsic fraud four years from discovery;b. Lack of jurisdiction must be filed before action barred by laches.

4. Effects of judgment of annulment gives the CA authority to order the trial court onmotion to try the case if the ground for annulment is extrinsic fraud, but not if it is lackof jurisdiction.

Prescriptive period for refiling the original action is suspended unless theextrinsic fraud is attributable to the plaintiff in the original action.

RULE 48 PRELIMINARY CONFERENCE1. Failure of the appellant to appear at the preliminary conference is a ground to dismis

the appeal. (See 1[h], Rule 50 and 5[e], Rule 56)2. Rule 48 is applicable to the SC in original and appealed cases. (See 2 and 4,

Rule 56)

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RULE 49 ORAL ARGUMENT

MOTIONS SHALL NOT BE SET FOR HEARING; unless the court otherwise directs,no hearing or oral argument shall be alowed in support thereof. (Thus, motions filed inthe CA need not contain a notice of hearing anymore)

RULE 50 DISMISSALOF APPEAL1. Grounds for dismissal of appeal by the CA:

a. Failure of the record on appeal to show on its face that the appeal was takenwithin the reglementary period;

b. Failure to file the notice of appeal or record on appeal within the period;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 within the time provided;f. Absence of specific assignment of errors in appellants brief or page references

to the record;

g. Failure of the appellant to take necessary steps for the completion or correctionof the record within the time limited by the order;

h. Failure of appellant to appear at the preliminary conference or to comply withorders, circulars, or directives of the court without justifiable cause

i. Judgment or order appealed from is not appealable.

RULE 51 JUDGMENT1. Memorandum decisions are permitted in the CA.2. After judgment or final resolution of the CA and dissenting or separateopinions if any, are signed by the Justices taking part, they shall be delivered forfiling to the clerk who shall indicate thereon the date of promulgation and cause truecopies to be served upon parties or counsel.

3. Date when judgment or final resolution becomes executory shall bedeemed as date of entry.

RULE 52 MOTIONFOR RECONSIDERATION1. Period for filing: Within 15 days from notice of judgment or final resolution2. There must be proof of service on the adverse party.3. PENDENCY OF A MOTION FOR RECONSIDERATION STAYS THE EXECUTION

OF JUDGMENT unless the court, for good reasons, directs otherwise.

RULE 53 NEW TRIAL1. When to file: Any time after the appeal from the lower court has been perfected AND

before the CA loses jurisdiction over the case

2. Ground: newly discovered evidence ONLY3. Must be accompanied by affidavits of merit4. Same procedure followed as in new trials before the RTC

RULE 54 INTERNAL BUSINESS1. Cases of the CA are allotted among different divisions.2. When CA should sit en banc:

a. to make proper orders or rules to govern the allotment of cases among divisions;b. to make rules on the constitution of divisions;

c. to make rules on the regular rotation of Justices;d. to make rules on the filling of vacancies; ande. to make rules on other matters relating to the business of the court.

3. What constitutes quorum:a. en banc majority of actual members of the court shall constitute a quorumb. division 3 members shall constitute a quorum.

4. Number of affirmative votes necessary to pass a resolution/pronounce judgment:a. en banc affirmative votes of the majority of the members of those presentb. division affirmative votes of 3 members.

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RULE 55 PUBLICATIONOF JUDGMENTSAND FINAL RESOLUTIONS

Judgments and final resolutions of the court shall be published in the Official Gazetteand in the Reports officially authorized by the court (Philippine Reports/SCRA).

RULE 56 PROCEDUREINTHE SUPREME COURT1. Original cases cognizable exclusive list:

a. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;b. Disciplinary proceedings against judges and attorneys;c. Cases affecting ambassadors, other public ministers, and consuls.

2. An appeal to SC can only be taken by petition for review on certiorari, except incriminal cases where the penalty imposed is death, reclusion perpetua, or lifeimprisonment.

3. Grounds for dismissal of appeal by SCa. Failure to take appeal within the reglementary period;b. Lack of merit in the petition;c. Failure to pay the requisite docket fee and other lawful fees or to make deposit

for costs;d. Failure to comply with the requirements regarding proof of service and contents

of and the documents which should accompany the petition;e. Failure to comply with any circular, directive or order of the SC without justifiable

cause;f. Error in choice or mode of appealg. Case is not appealable to the SC.

4. Discretionary upon SC (and CA) to call for preliminary conference similarto pre-trial.

5. General Rule: Appeal to SC by notice of appeal shall be dismissed.Exception: In criminal cases where the penalty imposed is life imprisonment, or when

a lesser penalty is imposed but involving offenses committed on the same

occasion or arising out of the same occurrence which gave rise to themore serious offense for which the penalty of death or life imprisonment isimposed (Section 3, Rule 122)

6. Appeal by certiorari from RTC to SC submitting issues of fact may bereferred to the CA for decision or appropriate action, without prejudice toconsiderations on whether or not to give due course to the appeal as provided inRule 45.

PROVISIONAL REMEDIESProvisional remedies (ancillary/auxiliary)

Writs and processes available during the pendency of the action which may beresorted to by a litigant to preserve and protect rights and interests therein pendingrendition, and for the purpose of ultimately affecting a final judgment in the case.

PROVISIONAL - constituting temporary measures availed of during the pendency ofthe action.

ANCILLIARY - incidents in and dependent on the result of the main action.

RULE 57 PRELIMINARY ATTACHMENT1. Preliminary Attachment

a. Available even if the recovery of personal property is only an incidental reliefsought in the action;

b. May be resorted to even if the personal property is in the custody of a thirdperson;

c. Extends to all kinds of property, real or personal or incorporeal;d. To recover possession of personal property unjustly detained, presupposes that

the same is being concealed, removed, or disposed of to prevent its being foundor taken by the applicant;

e. Can still be resorted to even if the property is in custodia legis, as long as theproperty belongs to the defendant, or is one in which he has proprietary interests,AND with permission of the court

2. Grounds

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a. Recovery of specified amount of money and damages, except moral orexemplary, where party is about to depart from the Phils with intent to defraudcreditors;

b. Action for money or property embezzled or for willful violation of duty by publicofficers, officers of corporation, agent, or fiduciary;

c.

Documents

8679763 2002 Memory Aid Civil Procedure Copy