Civil Pro Reviewer

7/28/2019 Civil Pro Reviewer

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Civil Procedure Reviewer

Rule 15: MOTIONS

Motion application for relief other than by pleading- Cannot pray for judgment EXCEPT:1. Motion for Judgment on pleadings2. Motion for Summary Judgment3. Motion for J on Demurrer to Evidence

Requirements:

1. In writing EXCEPT made in open court (hearing/trial)Motion for continuanceMotion to Strike out answer of witness

2. Hearing of motion - EXCEPT when court may act w/oprejudicing to adverse party.

3. Notice of hearinga. Addressed to all parties concernedb. Specify time and date of hearing not later than 10 days

after filing4. Hearing and notice must be served in a way to ensure

receipt by the other party 3 days before trial.EXCEPTIONS to 3 day rule:a. Ex-parte motionb. Urgent motions

c. Short period agreed upon by partiesd. Motion for summary judgment at least 10 days before

hearing5. Proof of Service

Contents:1. Relief sought to be obtained2. Grounds upon which it is based3. Affidavits & other papers if required by RoC or necessary to

prove facts alleged therein

Motion day - Friday afternoon, EXCEPT requiring immediate action

Omnibus Motion motion that attacks a pleading, order,

udgments, or proceedings

Omnibus Motion rule shall include all objections, otherwise,deemed waived

Motion for leave accompanied by the pleading or motion soughtto be admitted

Form:1. Caption 3. Signature2. Designation 4. Other matters of form

Kinds of Motion1. Motion ex-parte because question not debatable2. Motion of Course remedy sought is a matter of discretion of

the court

3. Litigated motion to give opportunity to oppose4. Special Motion addressed to the court discretion

RULE 16: MOTION TO DISMISSbefore filing an answer- Disrupts period to file responsive pleading- Not a responsive pleading

Grounds:1. Court has no Jurisdiction over the defending party2. Court has no Jurisdiction over the subject matter3. Venue is improperly laid4. Plaintiff has no Legal Capacity to sue5. There is another action pending between the same parties for

the same cause (Litis Pendentia)

6. Cause of action is barred by prior judgment(res judicatastatute of limitations

7. Pleading states no Cause of action from facts alleged8. Claim in the pleading has been paid, waived, abando

Extinguished9. Claim is unenforceable under statute of frauds10. Condition precedent 4 filing claim has not been complied 11. Presciption if complaint shows on its face

Hearing of Motion evidence presented shall automatically be of the evidence of the party presenting the same

Resolution of the motion - state clearly and distinctly the reason 1. Dismiss the action or claim2. Deny the motion balance of pd. to file answer(> 5days

*Reiterate affirmative defenses in answer(deemed waive3. Order amendment of the pleading w/in pd. to file ans

from receipt of amended pleading, UNLESS court prova longer period

No Refiling if dismissal is: Remedy, appeal1. Res judicata or statute of limitations(prescription)2. Claim in the pleading has been paid, waived, abando

Extinguished3. Claim is unenforceable under statute of frauds

If no motion has been filed, the grounds may be pleadedaffirmative defense in the answer. A hearing may be had atdiscretion of the court as if a motion was filed.

Remedies:1. Improper venue ask for prelim. hearing for improper venu2. No J over defendant serve summons3. States no cause of action amendment4. No capacity to sue amend, otherwise, cure capacity5. Precedent compliance actual compliance then amend

Types of dismissal of action1. Motion to dismiss before answer2. Motion to dismiss:

a. Upon notice by plaintiff

b. Upon motion by plaintiffc. Due to fault of plaintiff

3. Motion to dismiss on demurrer to evidence4. Dismissal on appeal

Requisites of Litis Pendentia1. Identity of parties substantial2. Substantial identity of cause of action3. Judgment in one case renders res judicata in another cas

Requisites of Res Judicata philosophy is that parties should

be allowed to litigate the same issue more than once.

1. Previous final judgment2. Proper jurisdiction by court rendering judgment over

subject matter and the parties3. Identity of subject matter, parties and cause of action

Res Judicata w/o trial1. Judgment on pleadings2. Summary judgment3. Order of dismissal

Kinds of Dismissal1. Without prejudice refile complaint2. With prejudice appeal3. Grant is interlocutory certiorari and prohibition


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If there is a counter claim, DO NOT FILE MtoDismiss, insteadfile ANSWER w/ counterclaim as affirmative defense. If case isdismissed, file a separate action for the counterclaim.

Dismissal is w/o prejudice to counterclaim

Contents:1. Questions of facts present evidence2. Questions of law present arguments

Failure to state cause of action Lack of cause of action

Insufficiency of allegations Insufficiency of factual basis foraction

raised in a motion to dismiss Raised at any time

At earliest stage of action After resolving questions of fact

Lack of legal capacity to sue Lack of legal personality tosue

not in the exercise of civil rights Not the real-party in interest

Not have necessary qual. toappear

Ground for dismissal: states nocause of action

Not have character he claims

Prescription Laches

Concerned w/ fact of delay Concerned w/ effect of delay

A matter of time A matter of equity

statutory Non-stautory

Applies to law Applies to equity

Based on fixed time Not based on fixed time

RULE 17: DISMISSAL OF ACTIONS

1. Dismissal upon notice by plaintiff requires COURT ORDERconfirming dismissal- matter of right beforea. Service of answer

b. Motion for summary judgment

Dismissal is without prejudice, EXCEPT:1. Notice of dismissal states it to be w/ prejudice2. Plaintiff has dismissed previously the same case in a

court with competent jurisdiction (TWO DISMISSALRULE)

Applies to counterclaim, cross claim or 3rd

party complaint.If there is no responsive pleading or M for summary J,notice shall be before introduction of evidence at the trial

3. Dismissal upon motion of plaintiff- Generally without prejudice EXCEPT if provided in the

motion to dismiss or the order of the court

- Subject to discretion of the court and upon such termsand conditions as may be just

W/o prejudice to counterclaim (compulsory / permissive);defendant may manifest preference to resolve in the samecase (w/in 15 days)

A class suit shall not be dismissed or compromised w/ocourt approval

4. Dismissal due to fault of plaintiff- Upon motion of defendant or courts own motion- w/o prejudice to prosecute counterclaim- effect of adjudication upon the merits (res judicata), unless

otherwise declared

Grounds:1. failure to appear on date of presentation of evidence in c

of the compliant2. failure to prosecute for an unreasonable length of time3. failure to comply w/ RoC or any order of the court

order of dismissal silent, deemed with prejudice failure to appear at trial after presentation of evidence is a m

waiver of right to cross-examine and not a ground for dismiss

Two-dismissal Rule notice of dismissal may operate as

adjudication of the case upon the merits when filed by plaintiff has once dismissed in a competent court an action based onincluding the same claim

RULE 18: PRE-TRIAL a MANDATORY conference and persconfrontation before the judge bt. the parties and their counsel.

Preliminary Conference pre-trial proper

When: after filing and serving of last pleading or expiration of perWho: plaintiff moves ex-parte to set case for pre-trialNature: mandatory

Purposes:1. Possibility of amicable settlement or other modes of dis

resolutiona. Arbitration voluntary dispute resolution by arbitratorsb. Mediation mediator facilities negotiationc. Conciliationd. Early neutral evaluation parties&lawyers in pre-trial phe. Mini-trial merits of case are argued before a panelf. Any combination, like mediation-arbitration

2. Simplification of issues3. Necessity or desirability of amendments to pleading4. Possibility of obtaining stipulations/admissions of fact

docus to avoid unnecessary proof5. Limitation of # of witnesses6. Advisability of a preliminary reference of issues t

commissioner7. Propriety of rendering judgment on the pleading, or summ

judgment, or of dismissing the action on valid grounds8. Advisability or necessity of suspending the proceeding9. Other matters for prompt disposition of the action

Notice of pre-trial to COUNSEL, or if there none, to party

Non-Appearance is excused only when:1. There is valid cause, AND2. A representative appears with authority in writing to:

a. Enter into an amicable settlementb. Submit to alternative modes of dispute resolutionc. Enter into admissions/stipulations of facts & docus

Motion for reconsideration for non-appearance FAME

Effects of failure to Appear on Pre-trial (Remedy: MotionRecon)

1. Plaintiff dismissal with prejudice unless otherwise provide2. Defendant allow plaintiff to present evidence ex-part

court to render judgment on the basis thereof

Pre-trial Brief (3 day rule) must strictly be complied Contents:1. Willingness to enter amicable settlement indicating terms2. Summary of admitted facts & proposed stipulations of facts3. Issues to be resolved4. Docus to be presented, stating their purpose5. Manifestation to avail discovery procedures/referral

commissioners6. # and names of witnesses and substance of their testimon


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7. Manifestation to avail of discovery procedure8. Available trial dates of counsel

Failure to file pre-trial brief has SAME EFFECT as failure toappear at pre-trial.

Order issued after Pre-trial recites in details:1. Matter taken up in the conference2. Actions taken thereon3. Amendments allowed to the pleadings4. Agreements or admissions made by the parties

Limits the issues to be tried Contents shall control the subsequent course of the action,

UNLESS modified before trial to prevent injustice.

Mediations:1. Court Annex Mediation proceeding for which the parties

will enter into mediation proceedings2. Judicial Dispute Resolution

Proceedings taken if all mediation fails:1. Referral to clerk of court for preliminary conference2. Continuation of the pre-trial by the judge

Pre- trial order after termination of pre-trial conference

Contents: reciting details on1. Matters on pre-trial conference2. Actions taken on the matters3. Amendments allowed in the pleadings4. Agreements/admissions made by parties5. Defining and limiting the issues

- Shall control the subsequent course of action

* second pre-trial is void; but if with consent of parties, its validitycannot be challenge

RULE 19: INTERVENTION with leave of courta. Complaint-in-interventionb. Answer-in-intervention

- Not allowed in land registration case

Who may intervene? A person who:

1. Has interest in the subject matter in litigation2. Has interest in the success of either of the parties3. Has Interest against both parties4. Is to be adversely affected by a distribution or other

disposition of property in the custody of the court.- Must be actual, direct or material

When: before rendition of judgment, EXCEPT if intervenor is an

ndispensable party: anytime, even during appeal

How:1. motion to intervene attaching pleading-in-intervention

a. complaint-in-intervention claim against parties- answer to filed in 15days fr notice admitting the same

b. answer-in-intervention unites w/ defending party2. serve on the original parties

Requisites of Intervention:1. Whether intervention will unduly delay or prejudice the

adjudication of the rights of the original parties2. Whether the intervenors rights may be fully protected in a

separate proceeding3. Has legal interest in the (who above)

Remedies fordenial of intervention:1. Appeal2. Mandamus grave abuse of discretion

Remedy forgranting of intervention:1. Certiorari improper granting of intervention

RULE 20: CALENDAR OF CASESClerk of court shall keep calendar of cases with preference to

1. habeas corpus,2. election,3. special civil cases &4. those reqd by law

Assignment shall be done by raffle in open session af

interested parties opportunity to present

RULE 21: SUBPOENAprocess directed to a person requiring

to attend and testify at the hearing, or any investigation conductecompetent authority, or the taking of his deposition.

Subpoena ad testificandumattend and to testify:

1. at the hearing or the trial of an action2. at an investigation conducted by competent authority3. for taking his deposition

Subpoena duces tecum - a process directed to a person requhim to bring books, docus, or other things under his control

Subpoena to prisoner must be for valid purpose, with permisof court where his case is pending; if prisoner sentenced w/ deLI, or RP shall be subpoenaed ONLY w/ authority of the SC.

Who issues:1. court before whom the witness is required to attend2. court of the place where deposition is to be taken3. officer or body authorized by law in connection with

investigation conducted by said body4. justice of the SC or SC in any cases or investiga

pending w/in the Phil.

Contents:1. Name of the court2. Title of the action or investigation

3. Directed to the person whose attendance is required4. For duces tecum, shall contain reasonable description of

books, docus or things demanded

How to Quash Subpoena Duces Tecum:1. Motion promptly made2. Proof that:

a. unreasonable or oppressiveb. Relevancy of the books, docus or things does not appeac. There is failure to advance the reasonable cost of prodnd. Witness fees and kilometrage allowed by the Rules w

not tendered when subpoena was served

How to Quash Subpoena ad Testificandum:1. The witness is not bound thereby

2. Witness fees and kilometrage allowed by the Rules weretendered when subpoena was served

How served:1. Personal service of summons2. Substituted service of summons

a. Original is exhibited while copy is delivered to the personb. tendering him the fees for one days attendance

kilometrage, EXCEPT f issued by or on behalf of the RP oofficer or agency thereof.

c. Must be made to allow reasonable time for preparation travel

d. If Subpoena duces tecum, tender reasonable cosproduction of books, docus, or other things


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A person present in court may be required to testify as if he wascalled by subpoena

Failure to appear before court issuing subpoena:1. If willful and without justifiable cause

a. Warrant for the arrest of the witness, plusb. pay cost of warrant and seizure

2. if without adequate cause in contempt of court

When witness not bound by subpoena:1. witness resides 100 km from place where to testify by ordinary

course of travel2. if detention prisoner, no permission from court where his caseis pending

3. prisoner sentence to death, RP, or life imprisonment &confined in a penal institution consent of SC

Viatory Rightright not to be bound by the subpoena residing 100km from place of trial.

How to compel witness invoking viatory right?1. Take it not more than 100 km from his place2. With reasonable notice to every other party3. Proof of service of notice to clerk of court at place of deposition4. Clerk shall issue the subpoena5. Subpoena to be served on the witness

Rule 22: Computation of Time

exclude the day of act or event and include the day ofperformance

if last is Saturday, Sunday, or legal holiday in the place wherecourt sits, time shall be the next working day.

in case of interruption, time starts from day after notice

Rules of Discovery

Discovery disclosure of facts resting in the knowledge of the

defendant, or is the production of deeds, writings or things in hispossession or power, in order to maintain the right or title of the partyasking it, in a suit or proceeding.

Purpose: to enable the parties to obtain the fullest possibleknowledge of the issues and evidence long before the trial to preventsuch trial from being carried on in the dark.

Modes of Discovery intended to be cumulative & not alternativeor mutually exclusive

- NOT MANDATORY but failure to avail carries sanctions

1. deposition pending action2. deposition before action or pending appeal3. interrogatories to parties4. admission by adverse party5. production or inspection of docus or things6. physical and mental examination of person

Depositions of witness may be taken even if such witnesseswill be presented during the trial.

Deposition outside the country may be refused if evidencesought would only be corroborative or cumulative.

Deposition upon Written inte. Written Interrogatories

May be a party or not Only adverse party may answer

Taken before an officer Simply answer in writing & underoath

RULE 23: DEPOSITIONS PENDING ACTION

Depositiona written testimony of a witness given not during or hearing upon oral examination or written interrogatories where an opportunity is given for cross-examination.

Purpose: means to compel disclosure of facts resting in

knowledge of a person which is relevant in the proceeding.

When may be taken:1. with leave of court

a. after obtaining jurisdiction over defendant/property subjecthe action- before service of answer by plaintiff- if after answer, no need for leave, notice to make depo

b. person confined in prison, on terms as court prescribe2. without leave of court

a. after an answer has been served, testimony, whethparty or not may be taken at the instance of any partyoral exam or written interrogatories.

Deposition may be taken upon order of the court for good cashown

Scope of deposition: any matters relevant

Manner of taking deposition:1. oral examination

- give reasonable notice in writing to every party- state time and place- name & address of each person to be examined- if not known, general description sufficient to identif

group or class to which he belongs2. written interrogatories propounded by deposition officer

- submitted to deposition office- adverse party must submit cross-interrogative(10days- re-direct interrogatory (5 days to serve)- re-cross (3days)

Record of Examination:1. Put witness under oath

2. Record testimony of the witness3. Taken stenographically

Objections to the deposition proceedingshall be noted

When Deposition may be Used:1. at the trial2. upon the hearing of:

a. motionb. interlocutory proceeding

Refusal to answer a question, the one propounding must obcourt order directing the deponent to answer, IF N

ANSWERED yet, will be cited in DIRECT CONTEMPT

Before whom taken

1. w/in the Phil.a. any judgeb. notary publicc. any person authorized to administer oath, at stipula

of the parties2. foreign country

a. on notice before a secretary of embassy/legation, cogen., consul, v-consul, or consular agent of RP

b. before person appointed by commissioner or uletters rogatory only when necessary & convenient

c. any person authorized to administer oath, at stipulatiothe parties


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Shall not be taken before1. relative w/in 6

thdegree by consanguinity/affinity

2. employee/counsel of any of the parties3. relative w/in same degree or employee of such counsel4. financially interested in the action

Purpose of Deposition:

1. To contradict/impeach a witness credibility of a witness isdestroyed by a prior contradicting statement(confront a lyingwitness)

2. for any purpose admission, proof of facts

2.1 by an adverse party- deponent is a party- deponent, at time of taking depo, was an officer, director,

etc. of a public/private corp., partnership, or asso. whichis a party

2.2 by any party- witness is dead- resides more than 100km from place of trial, or is outside

the Phil., unless it appears that his absence is procuredby the party offering deposition

- witness is unable to attend or testify because of age,sickness, infirmity, or imprisonment

- party offering deposition has been unable to procureattendance of witness by subpoena

- exceptional circumstances, in the interest of justice

- If only a part of the deposition is offered as evidence,adverse party may require the introduction of all which isrelevant.

Effect of substitution of parties: depositions previously taken maybe used in another action involving:

1. same subject2. same parties, or representatives, or successor in interest

Objections to admissibility: may be made at trial or hearing toreceive evidence

Effects:1. taking a deposition does not make him a witness2. using deposition

a. if used in impeachment does not make the deponenthis own witness

b. if used other than impeachment - makes the deponenta witness of the party introducing the deposition

If deponent is of the adverse party, deposition is for admissionbut not become your witness, deponent is not bound by hisother statements.

Objections before the deposition shall be submitted to the court

When to file Motion to terminate/limit examination:1. Any time during the taking of deposition2. On motion of any party or deponent3. Upon showing that the deposition is:

a. in bad faithb. unreasonably to annoy, embarrass, or oppress

deponent or party

if ordered to terminate, shall resume upon order of courtwhere case is pending

upon demand of the objecting party or deponent, shall besuspended

Effect of error & irregularities in deposition1. As to notice waived unless written objection is served upon

party giving notice2. As to disqualification of officer waived unless made b4

deposition begins or as soon as disq. becomes known3. As to competency & relevancy of evidence NOT waived by

failure to make them b4 or during the taking of deposition

unless the ground of objection is 1 w/c might have bobviated / removed if presented at that time.

4. As to oral examination waived unless reasonable objectis made during taking of deposition

5. As to form of written interrogatories waived unless servewriting upon the party propounding w/in time allowed

6. As to manner of preparation waived unless a motiosuppress the deposition after such defect is ascertained.

Against whom to be used: To any person who:1. Was present at the taking of the deposition

2. was represented at the taking of the deposition3. had due notice of the taking of deposition

Deposition upon Written interrogatories:

- served with notice to all parties within:a. 10 days to serve cross interrogatoriesb. 5 days to serve re-directc. 3 days to serve re-cross

RULE 24: DEPOSITIONS BEFORE ACTION OR PENDAPPEALPurpose: to perpetuate the testimony of a witness for future us

Nature of Deposition here is:

1. taken conditionally, used at trial only if deponent is available

2. do not prove existence of a right3. testimony is not conclusive for existence of right nor facts4. can be controverted at trial

EXCEPT, if not objected to, the testimony is prima facie pof facts

Petition may be filed by any person who:1. wants to perpetuate his own testimony2. wants to perpetuate the testimony of another person

may be availed of ONLY in civil cases

Contents:1. entitled in the name of the petitioner

2. shall show:a. petitioner expects to be a party but is unable to brinb. subject matter of the expected action & his interestc. facts desired to be established and his reasons whyd. names/descriptions of expected adverse party &

addressese. names & addresses of persons to be examine

substance of their testimony3. ask for order authorizing petitioner to perpetuate

testimony of the persons named therein.

Notice and Service1. serve notice to each person named therein as expe

adverse party together with a copy of petition stating the petitioner will apply for the order described therein

2. notice be served 20days b4 hearing to(as in summons):a. partiesb. prospective deponents

if court finds that the perpetuation of testimony may prevfailure or delay of justice, it shall make order:1. designating the persons whose deposition may be taken2. specifying subject matter of examination3. whether deposition may be taken by oral exam or wr

interrogatories

Use of deposition (here):1. admissible in evidence2. may be used in any action involving same subject matte


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DEPOSITIONS PENDING APPEAL (after/before taking appeal)Use: in the event of further proceedings in the COURT OF ORIGINor APPELLATE COURT

RULE 25: INTERROGATORIES TO PARTIES addressed to theother party

Purpose of WRITTEN interrogatories: to elicit facts from anyadverse party (answers may be a judicial admission)

Failure to serve written interrogatories, cannot make him awitness during trial

Vagueness in evidentiary facts must be thru written interrogatorynot bill of particulars

When may be taken Sec 1, Rule 23:1. with leave of court

a. after obtaining jurisdiction over defendant/propertysubject of the action

- before service of answer by plaintiff- if after answer, no need for leave, notice to make depo

b. person confined in prison, on terms as court prescribes2. without leave of court

a. after an answer has been served, testimony, whether aparty or not may be taken at the instance of any party, byoral exam or written interrogatories.

When to file answerto interrogatories:1. w/in 15 days after service2. UNLESS the court extends/shorten the time upon:

a. motion &b. for good cause

answer to interrogatories may be basis of summary judgment

Interrogatories vs. Bill of particulars1

st: seek disclosure of matters of proof & may be made part of the

record of evidence2

nd: seek disclosure only of matters w/c define the issues & become

part of the pleading

Objections to interrogatories: w/in 10 days after service thereof,with notice as in the case of motion. Answers shall be deferred until

objections are resolved, which shall be at the earliest possible time.

Number of interrogatories: only 1 set, for succeeding sets, mustask leave of court

Scope: any matters relevant ( Sec 2, Rule 23)Use: ( Sec. 4, Rule 23)

1. contradicting/impeaching a witness2. for any purpose

Effect of failure to serve written interrogatory:1. cannot be compelled to give testimony in open court2. cannot be compelled to give deposition pending appealEXCEPT: court allows for GOOD CAUSE and to prevent afailure of justice

Deposition uponwritten

interrogatories

Interrogatories

As todeponent

Party or ordinarywitness

Party only

As toprocedure

W/ intervention of theofficer authorized totake deposition

No intervention. Writteninterrogatories aredirected to the partyhimself

As to scope Direct, cross, redirect,re-cross

Only 1 set ofinterrogatories

Interrogatories No fixed time 15 days to answerunless extended or

reduced by the court

RULE 26: ADMISSION BY ADVERSE PARTY

When made: any time after issues have been joined (aresponsive pleading have been served)

Written request for admissionPurpose: to expedite trial and relieve the parties of the c

of proving facts which will not be disputed on trial & the truth of can be ascertained by reasonable inquiry.

What may include:

1. admission of the genuineness of any material & relevant doc2. admission to the truth of any material & relevant matter of fac3. a matter of fact not related to any docus may be presente

the other party for admission/denial

Matters to consider:a. request must be served on the party, not only to counselb. counsel may answer the request for admissionc. no need of second deniald. it is the law, not the court, that determines the consequence

failure to make / allow discovery.

Request for admission vs. Actionable document

1st

: proper when genuineness of an evidentiary doc

sought to be admitted. Ifnot denied under oath, deemed admit2

nd: a copy of actionable docu must be attached to

complaint. Ifnot denied under oath, genuineness & due execuis impliedly admitted.

Effect of failure to make a reply to a request for admissDeemed admitted

Remedy: file motion to be relieved of the consequences of impadmission

Admission1. Effect: admission is for the purpose of the pending ac

ONLY and cannot be used in other proceedings.

2. Withdrawal: express/implied, upon such terms as may be

* Failure or refusal to request admission of facts is prevented fthereafter presenting evidence thereon, UNLESS allowed by cou

* Request must be served on the party, not to the counsel, counsel may answer for the request for admission

* No need for 2nd

denial of the request* It is the law, not the court, that determines the consequencefailure to make or allow discovery.

Commission inst. issued by a court of justice or competribunal, to authorize a person to take depositions, or any otherby such authority of court or tribunal

Letters rogatory - inst. in the name & by the authority of a judgcourt to another, requesting the latter to cause be examined, uinterrogatories filed in a cause pending before the court or judgwitness within jurisdiction of the judge or court to whom such lettaddressed.

Commission Letters rogatory

Addressed tooffice designated

Addressed to judicial authority in a forcountry

Issued after commission is returned unexecu


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RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS ORTHINGS- Affords more opportunity for discovery than a subp. duces tecum

Application:1. Rule - only to pending action, upon motion2. Documents & things only those w/in the possession, control,

or custody of a party

Use of Order: not for dragnet or any fishing expedition1. To produce & permit inspection & copying or photographing

2. To permit entry upon property in his possession for (above)

Petition for Prodn of papers & docus: they must be sufficientlydescribes & identified, otherwise, petition cannot prosper.

Documents to be produced:1. Should not be privileged2. Should constitute evidence material to the action3. In the possession, custody, or control of the party ordered

Prodn / Inspn ofDocus/Things

Subpoena Duces Tecum

Essentially a mode of discovery Means of compelling prodn ofevidence

Rules is limited to the parties to

the action

Directed to a person whether a

party or notOrder is issued only uponmotion w/ notice to the adverseparty

May be issued upon an ex-parteapplication

* it must specify w/ particularity the docus to be produced* cannot compel prodn of privileged matters, including trade secrets

RULE 28: PHYSICAL & MENTAL EXAMINATION OF PERSONS(pending action, in the courts discretion)

When may be ordered: When mental (guardianship) or physical(physical injuries) condition of a party is in controversy

- Not covered by physician-patient privilege (made public)

Requisites for an Order for P&M Exam:

1. Motion fileda. Must Good cause for examinationb. Shall specify the time, place, manner, conditions,&

scope of examination and persons by whom it is made2. Notice to the party to be examined & to all other parties

Report of FindingsIf the party examined request a copy of the result of the

examination, the party causing the examination shall be entitled,upon request, to the previous & subsequent report about the mental& physical condition of the person examined.

If party examined refuses to deliver, the court on motion &notice may make an order, and if physician fails or refuses to makesuch report, the court may exclude his testimony if offered at trial.

Waiver of Privilege

By requesting or obtaining a report of the examination, theparty examined waives the privilege he may have in that action orany other involving same controversy, regarding the testimony ofpersons who examined or may examine him in respect to samephysical or mental examination.

RULE 29: REFUSAL TO COMPLY WITH MODES OF DISCOVE

Refusal to answer:1. Oral Examination / Interrogatory

- Examination is adjourned or completed on other matters- Apply for order to compel an answer

a. Application Granted Refusal w/0 substantial justification

- Pay expensesin obtaining the order, including attys fees

b. Application Denied Application filed w/o substantial justification((party

counsel)- Pay the refusing party amt. of expenses including a

fees

2. After the being directed by court: contempt of court3. Subject matter of the questions asked be deemed establish4. Refuse disobedient party to support / oppose claims / defens

Prohibit him from introducing evidence5. Striking out his pleadings or parts thereof

Staying further proceedings until order is obeyedDismissing the action or proceeding or any part thereofRenderingjudgment by default against disobedient party

6. Arrest of the disobedient party or his agent EXCEPT orde

submit to a physical / mental examination.

Willful Failure to attend or serve answers: Consequences- Despite due notice

1. Strike out his pleadings or parts thereof2. Dismiss the action or proceeding or any part thereof3. Enter ajudgment by default against that party4. in the courts discretion, order to pay reasonable expen

including attorneys fees ( not to be imposed upon RP)

RULE 30: TRIALjudicial process of investigating and determithe legal controversies, starting with the plaintiff introducing evideand ending with his closing arguments.

General Rule: Decisions on issues should not be made w/o trial,EXCEPT:

1. Judgment on the pleadings2. Summary judgment3. Judgment on compromise4. Judgment by confession5. Dismissal with prejudice, order of dismissal6. Judgment on stipulation of facts7. Judgment governed by Summary procedures

Notice of Trial: ensure the receipt at least 5 days before trial date

Adjournments and Postponements:Gen. Rule: may be from day to day, at any stated time, as

expeditious & convenient transaction of business may require.

LIMITATIONs:1. No power to adjourn for a longer period than 1month each2. No power to adjourn for a longer period than 3months in a

EXCEPT: when authorized in writing by the SC

Requisites of motion to postpone trialGrounds:

A. ABSENCE of Evidence1. Motion for postponement stating such ground2.Affidavit showing

a. Materiality or relevancy of such evidenceb. Due diligence has been used to procure it.


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No postponement of trial when: adverse party admits the facts tobe given in evidence, even if he objects or reserves right toobject to its admissibility

B. ILLNESS of party or counsel

1. Motion for postponement stating such ground2.Affidavit or sworn certification showing that:

a. Presence of party / counsel at the trial is indispensableb. His illness renders his non-attendance excusable

An attorney handling 2 cases set at same trial date and timemay postpone one if were set without his consent.

Order of trial

NOTE: the trial shall be limited to the issues stated in the pre-trialorder, UNLESS the court, for special reasons, otherwise directs.

Reverse Order of Trial defendant presents evidence first, aswhen defendant relies upon an affirmative defense in his answer.

Stipulation of facts agreement made in writing of the factsnvolved in the litigation and submitted for judgment without

ntroduction of evidence.- Must not be contrary to law, morals, good customs,

public order and public policy.- NOT PERMITTED in ANNULMENT of marriage &

LEGAL SEPARATION

Statement of Judgeshould be recorded in stenographic notes forthe appreciation of appellate court

Suspension of actions:Art 2030 of Civil Code: every civil action shall be suspended:

1. If willingness to possible compromise is expressed by 1 or both2. If before the commencement of the action 1 party offered a

possible compromise but was refused.

Gen. Rule: Judge must personally receive & resolve evidenceHOWEVER: delegation may be made:

1. In default or ex-parte proceeding, or agreement by parties2. Reception shall be made only by the clerk of court

a. who is a member of the Phil. Bar.b. who shall have no power to rule on objections to

questions or to admission of evidencec. shall submit his reports & transcripts of the proceedi

plus objections to be resolved by the court, withindays.

* Parties may agree upon the facts involved and submit for judgm1. must be in writing2. not allowed in:

a. legal separationb. annulment of marriagec. declaration of nullity of marriage- no judgment by default- no judgment of pleadings- no summary judgment- no judgment upon confession- no judgment upon compromise- no judgment upon stipulation of facts

Receipt of Evidence: only by judge; may be delegated to clercourt who is a member of the bar but cannot:

1. resolve objection2. cannot make findings of facts

RULE 31:

Consolidation upon motion of party, several actions hacommon question of law or fact may be jointly tried.

- Discretionary upon the courtEXCEPT: 1. Cases are pending before same judge

2. Cases are filed w/ different branches same R& 1 of such cases has NOT been partially tried.

Requisites for Consolidation:1. Involves common question law or fact2. Pending before same court

IF filed with DIFFERENT court, authorization from SC

Ways of Consolidation1. Recasting the cases already instituted2. Consolidating existing cases3. Hearing only the principal case, suspending others

judgment is rendered in the principal case (TEST-CAMETHOD)

Consolidation of cases on appeal assigned on different divisof SC& CA may also be authorized.

Purpose:1. Avoid multiplicity of suits2. Guard against oppression or abuse3. Prevent delay4. Clear congested dockets5. In short, the attainment of justice w/ the least expense

vexation to the parties litigants

Severance a single action having a number of clacounterclaims, cross-claims, 3

rd-party complaints, or issues may

separately tried.

Plaintiff presents evidence

Def. presents evidence to

support his

defense/counterclaim/cros

s claim/3

rd

party complaint

Defendant files demurrer toevidence

Decision

Rebuttal evidence by

parties

3r

partydefendantpresents

evidence, ifan

If court grantsmotion: renders

dismissal

Ifcourt denies

motion:continues with

the hearin

After presentation of evidence:

1. Oral arguments2. Submission of

memoranda


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RULE 32: TRIAL BY COMMISSION can make findings of facts &aw & make rule on objections even if not a lawyer.

- Sworn in witnesses- Issue subpoena

Reference to commisioner1. By written consent of the parties - commissioner is agreed

upon by parties or appointed by court

Irregularity on appointment must be raised seasonably in trial,but can be waived by consent, express or implied.

2. Ordered on motionno consent of partiesa. Examination of a long accountb. Taking of an account is necessaryc. Question of facts, other than upon the pleading arisesd. Carrying a judgment or order into effect

Commissioner whom a case is referred to take testimony, hearparties & report to court; whose report judgment is rendered.

- Includes referee, auditor and an examiner

Powers of Commissionerdefined in the order

1. Regulate the proceedings before him2.All acts & all measures necessary for the efficient performance

of duties

3. Issue subpoena & subpoena duces tecum4. Swear witnesses5. Rule upon admissibility of evidence, unless provided in the order

Disobedience to a subpoena issued by commissioner contempt of court

Upon filing of the report of the commissioner:1. Parties shall be notified by the clerk2. 10 days to object to findings of the report

Objections to them report grounds which were available to theparties during the proceedings before the commissioner shallnot be considered by the court, UNLESS they were made beforethe commissioner.

Hearing upon the report w/in 10 days after issuance of the report

Stipulations of findings when parties stipulate that findings shallbe final, only questions of law shall be considered after.

RULE 33: DEMURRER TO EVIDENCE

When: after presentation of evidence by the plaintiff and rests,Ground: upon motion for insufficiency of evidence (claimant is not

entitled to relief)

Effects:1. If denied defendant has right to present evidence2. If granted dismiss

If reversed on appeal - losses right to present evidence (waived)

RULE 34: JUDGMENT ON PLEADING (3 day-notice)When: defendant failed to tender an issue or admits materialallegations (express admission/implied- failure to deny)

A. On motion by the claimant party when:- Waives claims for unliquidated damages

Remedy: claims must be alleged and proved1. Answer fails to tender an issue

a. General denial of the material allegationsb. Insufficient denial of the material allegations

2. Admits the material allegations in the complaint

B. Motu Propio by the court- If court finds that a judgment is proper at the pre-trial

EXCEPTIONS to judgment on Pleading:1. Annulment of marriage2. Legal separation3. Declaration of nullity of marriage4. Rule in default

* Only plaintiff is entitled to judgment on pleadings

RULE 35: SUMMARY JUDGMENT (10-day notice)

- Granted by the court where there exists NO GENU

issue as to any material fact, EXCEPT as to amount of damages.- Cannot be entered into motu propio

When filed:

1. Plaintiff after the answer has been served and isshave been joined

2. Defendant before or after filing answer

Judgment is possible even with a pending 3rd

party complain

Judgment is still possible even if the movant is the defenparty; actual, moral, exemplary & attys fees are awarded

When there are disputed facts, the issues cannot be triedmere affidavits.

Bases of Summary Judgment:

1. Affidavits made on personal knowledge2. Depositions of the adverse party or a 3

rdparty

3. Admissions of the adverse party4. Answers to interrogatories; all intended to show that:

a. No genuine issue as to any material fact, exdamages which must always be proved

b. The movant is entitled to a judgment as matter of la

Requirements:1. Motion for summary judgment

2. With affidavits, depositions, or admissions to showgenuine issue

Partial Judgments - not appealable because it is interlocutory; when all issues are resolved

Summary judgment Judgment on thepleadings

Judgment bdefault

Based on pleadings,depos, admissions &affidavits

Based solely on thepleadings

Based on compand evidenrequired)

Available to bothPlaintiff & defendant

Available toPlaintiff, UNLESS

defendantcounterclaims

Available to plai

No genuine issue answer fails totender issue oradmission ofmaterial allegation

No issue as answer filed

10-day noticerequired

3-day noticerequired

3-day norequired

May be interlocutoryor on merits

On the merits On the merits

Available on actions:-recover a debt-liquidated sum ofmoney-declaratory relief

Available in anyaction, EXCEPTannulment/legalseparation

Available in action, EXCannulment/legaseparation


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11/25

Motion for Reconsideration: motion to extend not allowed1. Deny the motion2. Amend the judgment

- No 2nd

motion for recon is allowed a judgment or final order- 2

ndmotion may be allowed in interlocutory order

When to resolve?

1. MTC/RTCwithin 30 days from time of submission for reln2. CA 90 days fr time it declares submission for resoln3. SCnot applicable

Effect of denial of MR or MNT1. Not appealable2. Remedy: appeal from the judgment/final order

Motion to Re-open Trialfiled before rendering a judgment for thereception of further evidence for the interest of justice which isdiscretionary upon the courts

* Motion for Recon is not required as a condition precedent for anappellate review but REQUIRED in cases of custody of minors,declaration of nullity or annulment of marriage.

RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER

PROCEEDINGS- Applies only to MTC and RTC

When: after judgment has become final & executoryGrounds: FAME, petition praying that such judgment be set aside

Time to Avail:1. within 60 days from knowledge of judgment2. not more than 6 months from entry of judgment

Where to File: in same case, same court that rendered judgmentSubject:judgment, final order, or any order denying an appeal

Forms and Contents:

1. must be verified

2. must be with affidavit showing the FAME3. affidavit of merit with facts of good & substantial cause

When affidavit of merits is not necessary:1. no jurisdiction over the defendant2. no jurisdiction over the subject matter3. judgment was taken by default4. judgment was entered by mistake or by fraud5. other similar case

Two Hearing Rule:1. to determine whether judgment shall be set aside2. on the merits of the case

Remedy for an Appeal taken out of time:

- Petition for relief to give due course to appeal

Motion for New Trial Petition for Relief from Judg.

Before judgment becomes final After finality of judgment

Applies to final orders orudgments only

Applies to final J, final order &proceedings

Grounds: FAME & newlydiscovered evidence

Grounds: FAME

Filed within 15 days 60 days; 6 months

Remedy when denied: appealfrom judgment

No more appeal

Legal remedy Remedy in equity

No need for verification Must be verified

Petition for Relief allowed only under exceptional circumstanof FAME

- Can be availed of only if other remedies are not avail

an affidavit of merit serves as the jurisdictional basis for court to entertain petition for relief. But it is not a fatal defecdeny the petition so long as the facts required to be set appear in the verified petition.

Preliminary injunction pending proceedings may be grato preserve rights of the parties, upon filing of a bond in favo

adverse party. But shall not discharge any lien the advparty may have acquired upon the property.

Not a proper case

Transferor pendent lite has the legal personality to file petitio

RULE 39: EXECUTION, SATISFACTION AND EFFECT JUDGMENTS

Executionremedy to enforce a final judgmentTo whom issued: against a party

Where to file motion for execution1. Trial court that rendered judgment2. If appealed from to the court of origin thru motion

judgment obligee with:a. Certified true copy of the final order sought to be enfob. Entry of judgment or final order

Writ of Executionjudicial writ issued to an officer authorizing to execute judgment

Essential Requisite: must conform to the decision or judgment

Kinds of Execution1. Compulsory Execution as a matter of right, upon J/FO2. Discretionary Execution execution pending appea

exceptional executionHow to stay: file supersedeas bond, or resort to certiora

GEN. RULE: Execution cannot issue on interlocutory oEXCEPT on an order for support pendent lite.

Deterioration of vessel is a good ground for executionjudgment

A corporation which obtained favorable judgment cannot mfor execution on ground of impending bankruptcy.

CA cannot order execution pending appeal of its own decisio

Judgment cannot be confined on its face but extends to thnecessary thereto.

Final Order one that disposes of the whole subject matteterminates a particular proceeding, leaving nothing to be done bu

enforce by execution what has been terminated

Interlocutory Order one that does not dispose of a ccompletely, but leaves something more to be done upon its merit

Effect of timely appeal: stays the judgment, EXCEPT (immediaexecutory)

1. Injunction2. Receivership3. Accounting4. Support5. Judgment against defendant under ejectment cases6. Judgments by QJA, appealable to CA

Effect of reversal of execution judgment: restitution/reparation


12/25

Modes of Enforcing a Final Order not applicable in landregistration case and other special proceedings

1. Motion within 5 years from date of entry of judgment2. Action to revive judgment after lapse of 5 years but within

10 years before it is barred by statute of limitations(prescription)

- After lapse of 5 years, execution may be granted bymere motion if agreed upon by parties

- Suspension of the 5 or 10 year periodi. By agreement of parties

ii. Institution of proceedings supplementary to executioniii. Delay was caused by debtors initiative

Levy on sale validly made maybe within 5 years but notafter 10 years

Judgment for support does not prescribe or becomedormant, and maybe executed by motion, but accruedsupport may prescribe.

Remedy when writ of execution is denied by trial court:1. Mandamus (ministerial duty)2. If the case was appealed and finally resolved, file a motion

to the appellate court to direct the trial court to issue writ

Instances where a writ of execution may not be issued:1. Supervening events subsequent to the judgment which

makes the execution inequitable2. No compelling urgency for the execution for not being

justified by the circumstances3. Where judgment has become dormantfailure to have the

judgment executed within 5 years from entry

Requisites of Execution Pending Appeal1. Motion by the prevailing party w/ notice to adverse party2. Good reason for the execution pending appeal

a. Appeal was for delayb. Support is urgentc. Insolvency of the judgment debtord. But, posting a bond is not a good reason, only on

actual or compensatory damages, but not on award ofmoral & exemplary damages

3. The good reason must be stated in a special order

Where to file motion for execution pending appeal?1. Trial Court

a. Has jurisdiction over the case and in possession oforiginal records/records on appeal

b. Lost jurisdiction but prior to transmission of records

2. Appellate Courta. Trial court has lost jurisdiction

An execution pending appeal may be stayed by filingsupersedeas bond which shall be approved by the court.

Execution in case of death of Party

1. Judgment Obligee who dies enforced upon application ofhis executor/administrator/successorin-interest

2. Judgment Obligor dies enforced against hisadministrator/executor/successor in interest, if judgment befor recovery of real/personal prop or interest thereon

3. Judgment obligor dies after execution is actually leviedupon any of his property, the same may be sold forsatisfaction of the obligation.

Third-party claimant one who claims title to, or right ofpossession of the property levied upon by the sheriff

Remedies of a 3rd

Party claimant (cumulative-cannot claim >1

1. File 3rd

party claim(terceria) by making affidavit:a. showing his title or right of possession,b. grounds of such title or rightc. serve upon the sheriff and a copy to the judgment oblige

Sherriff is not bound to keep the property unless J credposts a bond equal to value of property

Husband is a 3rd

party claimant over a conjugal proplevied against his wife

2. if judgment obligee filed a bond, file action against the bw/in 120 days from date of filing of bond3. file separate action to vindicate claim over the property

Appeal or certiorari is not available since not a party

Intervention is only before judgment

Prior filing of terceria is not necessary in filing sepaaction

Right of redemption not available to personal property, only re- exercised within 1 year from registration of cert. of sa

Who can redeem?1. Judgment obligor no further redemption from him allow2. Redemptioner creditor having lien by virtue of attachm

judgment, or mortgage on the property sold, or some

thereof, subsequent to the lien under which the propwas sold.

- A redemption of another redemptioner must be withidays from last redemption

Period of Redemption1 yr from registration of sale, if agreeddifeerent period, legal redemption becomes conventiredemption.

- Income during this period belongs to the J obligor- Possession shall be given to redemptioner or purch

UNLESS 3rd

party is holding adverse to J obligor

During period of Redemption

1. Income shall belong to the judgment obligor2. Judg. obligor is entitled to possession and not reqd to pay re

Reasons for Failure to Recover possession by Purchaser

1. Irregularities in the proceedings concerning the sale2. Judgment has been reversed or set aside3. Property is exempt from execution4. 3

rdperson has vindicated his claim over the property

Remedies of the Purchaser in Cases Above1. Recover price from oblige thru:

a. Separate actionb. Motion on same action

2. On motion, revive the original judgment in his name agathe judgment obligor for the whole price plus interest

Steps in Execution of a Final and Executory judgment

1. File motion for execution with the trial court2. Trial court issues order of execution3. Clerk of court issues writ of execution4. Sherriff enforces execution by levying properties5. Sheriff causes posting & publication of notice of sale with c

to the judgment obligor6. Sheriff conducts sale on date, time & place specified7. Sheriff issues certificate of sale8. Certificate of sale is registered with Register of Deeds9. Redemption of property w/in 1 year from registration of ce

sale10. If no redemption, issue final certificate of sale (conveya

&possession)


13/25

Judgments for Money: How enforced1. Immediate payment upon demand

a. Cash, certifies bank check payable to J oblige or anyother form acceptable to him

b. Deliver directly to J oblige or representative if present or ifnot, to clerk of court within same day

No need to give J debtor time to raise cash because the propmight be in danger of loss

2. Satisfaction by levya. Judgment debtor has option to chooseb. If not exercised, sheriff shall choose personal then real

3. Garnishment of debts and credits in possession of 3

rd

personsa. Noticeb. Garnishee submits report w/in 5 days stating sufficient

credits w/ him. If not sufficient, state amt. in possessionc. Notice to deliver to J creditor win 10 days from notice

If more than 2 garnishee, choice belong to debtor, if not, Cr

Judgment for specific acts: how enforced

1. Conveyance, delivery of deeds, or other acts vesting title- Maybe done by another party if party disobeyed- Conveyance maybe ordered by the court- Contempt is not a remedy

2. Sale of real property3. Delivery or restitution of real property

a. Demand to vacate w/in 3 working days

b. Place J creditor in possession4. Removal of improvements on property

- Only upon Special Order, after filing motion, hearing andafter reasonable period given to party affected

- Maybe effected beyond 5 yr period as long as notice wasserved within 5 yr period

5. Delivery of personal property

Execution of special judgment- Writ of execution with certified copy of decision- Failure to obey, punishable by contempt- Garnishment is not available for enforcement

Effect of Levy on Execution as to 3rd

parties- Creates lien binding against 3

rdperson subject to existing lien

Properties exempt from execution

1. Family home/homestead2. Ordinary tools in trade, employment, livelihood3. 3 horses, cows, carabaos or beast necessarily used in

ordinary occupation4. Necessary clothing, articles for ordinary personal use5. Household furniture not exceeding 100k6. Family or individual provision for 4 months7. Professional lib & equipt not exceeding 300k8. 1 fishing boat and accessories not to exceed 100k9. Salaries for his personal service w/in 4 mos. Preceeding

levy for support for his family10. Lettered gravestone11. Life insurance proceeds12. Right to receive support, gratuity from government13. Properties exempt by law

- Does not apply for recovery of the price of the article or uponjudgment upon foreclosure of mortgage thereon.

Return of Writw/in 30 days, report every 30 days

Notice of Sale on Execution

1. Posting in 3 conspicuous places(m/city hall, public mkt, postofficea. Personal P reasonable time(perishable), others(> 5 days)b. Real P 20 days posting

- Publication (if assessed value is > 50k) 1s a week for 2

consecutive weeks

2. Written notice to judgment debtor

Posting and publication is essential to validity of sale

Remedy of judgment obligee1. Post a bond2. Sue the 3

rdparty in same/separate action for bein

frivolous or spurious 3rd

party claim.

How property is sold: by public auction

Refusal of purchaser to pay: resale at public auction or court

order him to pay, otherwise, contempt

Conveyance to purchaser1. Personal Property capable of manual delivery2. Personal Property incapable of manual delivery

- Certificate of sale3. Real property

- Certificate of sale merely a memorial fact of sale does not confer ownership.

- Final deed of sale executed after expirationredemption period is the effective conveyance

Motion to vacate the sale remedy against irregular sale, filesame court and in same case

Redemption no redemption in judicial sale of personal properti Right of redemption may be sold, but cannot be attached

creditor

Case filed to fix redemption money toll expirationredemption period if done in good faith and redemption mois consigned.

Satisfaction of Judgment

1. Upon return of execution satisfied2. Filing admission of entry of satisfaction of judgment3. Upon indorsement of such admission on the face of

record of judgment4. Upon order of the court upon notice and motion

Judgment against Surety

1. Principal is bound from time he had notice2. Cross claim maybe filed by surety when both are sued3. If principal is sued only, he has no action against surety

Effects of Judgment

1. Against a specific thing conclusive as title of the thing2. Probate of a will or administration of the estate o

deceases conclusive as to will or administration- Only prima facie evidence of death of testator/intestat

3. Personal, political, legal condition or status of a person- Conclusive as condition, status or relationship

Bar by former judgment Conclusiveness of judgme

Identity of parties, subject matter& cause of action

Only identity of parties subject matter

1st

judgment is an absolute barto all matters directly adjudged &those that might have beenadjudged

1st

judgment is conclusive as to matters adjudgedactually litigated. 2

ndaction

be prosecuted.

Law of the case a rule that when an appellate court passes oquestion and remands the case to the lower court for furproceedings, the question there settled becomes the law of the csubsequent appeal.


14/25


15/25

Court to rule an appeal frivolous/dilatory1. Appellate court dismiss for failure to prosecute2. Trial court dismissal

a. Prior to transmittal of record on appealb. Motu propio/on motion, appeal out of time or for non-

payment of docket & other lawful fees

Appeal from judgment of the RTC1. Original Jurisdiction appeal to

a. CA for questions of fact or of law or bothb. SC petition for review on certiorari for pure ?s of law

2. Appellate Jurisdictionpetition for review for ?s of law orfact or both to the CA

When may SC review findings of FACTS of the CA?1. When conclusion is grounded entirely on speculation,

surmises, or conjectures2. When inference made is manifestly absurd, mistaken, or

impossible3. When there is a grave abuse of discretion in appreciation of

facts4. When J is premised on misapprehension of facts5. When the findings of facts are conflicting6. When findings of facts are contrary to admissions of parties

Withdrawal of Perfected Appeal1. As a matter of rightbefore filing of appellees brief2. at the courts discretion after filing of appellees brief

Annulment of Judgment- file with RTC for decisions of MTC- filed with CA for decisions of RTC- could not be resorted t if other remedies are available &

were not availed of w/o sufficient justification- direct attack on a judgment

Requirements:1. petition must be verified2. certified true copy of the J must be attached

Grounds:1. Extrinsic fraud/ collateral it is where litigant commits acts

outside of the trial of the case, which prevent a party fromhaving a trial, a real contest, or from presenting all of his caseto the court, or where it operates upon matters not to the

judgment itself but to the manner it was procured so that thereis no fair submission to the controversy.

Not a valid ground if availed of in a motion for new trial orpetition for relief

2. Lack of Jurisdiction

Period for Filing Action for annulment of judgment1. Extrinsic Fraud - 4 years from its discovery2. Lack of Jurisdiction before barred by laches/estoppels

How to set aside final and executor orders1. Petition for Relief from Judgment (Rule 38)2. Action for Annulment of Judgment (Rule 47)3. Direct action for Certiorari(Rule 65) or collateral attack

against the judgment of void on its face or its own recitals

Extraneous evidence evidence not found in the records of thecase

- Admissible if the ground is based on extrinsic fraud

CA has jurisdiction for Annulment of Judgment on final orders bythe RTC, not to quasi-judicial bodies.

Gross negligence of counsel may be ground to annul order if itprevented client from fairly presenting his defense.

Annulment of J does not apply to J on1. levy & sale at public auction2. writ of execution interlocutory

a 3rd

person adversely affected may file annulment of J, buton relief from J

RULE 57: PRELIMINARY ATTACHMENT

Purpose: security for satisfaction of judgmentWho may file: plaintiff or other party claimantWhen to file: anytime before entry of judgment

A writ of prelim attachment may be issued ex-parte upon1. Filing of an affidavit2. Filing of bond

But the implementation of the writ or the levy shall be vamade with summons to the defendant to acquire jurisdiction

Prior or Contemporaneous Rule(Rule on Prior Contemporaneous Jurisdiction)- States that no levy on attachment shall be enforced unless

preceded, or contemporaneously accompanied by:1. service ofsummons to the defendant, together with a copy

2. complaint,3. application for attachment,4. applications affidavit and5. bond6. order7. writ of attachment.

- It shall not apply in the following instances:1. Where the summons could not be served personally o

substituted service despite diligent efforts2. The defendant is a resident of the Phil & temporarily ab

therefrom3. The defendant is a non-resident of the Phil4. The action is in rem or quasi in rem

When to apply for this writ (grounds)?1. Action for recovery of a specified amount of mone

damages other than moral & exemplary against a pabout to depart from the Phil. With intent to defrcreditors

2. Action for money/property embezzled to his own usepublic officer or officer of a corp. in the courseemployment

3. Action to recover the possession of property unjustly tak4. Action against a party who has been guilty of frau

contracting the obligation5. Action against a party who has disposed of his propert

defraud creditors6. Action against a party who does not reside and is not fo

in the Philippines

Order of attachments may be lifted if grounds are not fotrue and defect is not cured.

Hearing of grounds on motion which is the same as thathe complaint would be tantamount to hearing on the act

Grounds to dissolve attachment:

1. Attachment was improperly issued or enforced2. Bond is insufficient3. Attachment is excessive(discharge shall be limited

excess)

Even if these grounds are not present, he may still movdischarge by making a cash deposit or filing counter-bon

Motion to discharge is not allowed if the based on a gro

which is at the same time the applicants cause of action


16/25

Kinds of Attachment1. Preliminary attachment provisional remedy for the

defendants property to be held by the sheriff2. Garnishment (Personal prop) to subject the property(credit

or other incorporeal rights) of the defendant in the hands ofa 3

rdperson(garnishee)

3. Final attachment (Levy on Execution) to enforce ajudgment that has become final and executory

Preliminary Attachment Garnishment

2 persons involved

Obligor & obligee

3 persons involved Obligor, oblige,

garnisheeProperty is seized by sheriff No actual seizure, prop shall remainin possession of garnishee

Property in Custodia Legis may be attached by:

1. Filing a copy of the writ of attachment w/ the proper court orquasi-judicial agency

2. Serve a notice of the attachment upon the custodian of prop

When attached property may be sold before entry of J:1. If perishable2. Serve the interest of the parties

Manner:1. Real Property file with the register of deeds:

a. Copy of the orderb. Description of the propertyc. Notice that the property is attached

- Leave a copy of the order, description and notice to theoccupant

2. Personal Propertya. Capable of manual delivery take custodyb. Not capable of manual delivery leave copy of writ and

noticei. President/managing agent, stock/sharesii. Persons owing such debts who has control of itiii. Executor/administrator and to office of clerk of

courtiv. Property in custodia legis, to court or QJ agency

Effects of attachment

1. All debts/credits(service of writ of garnishment)- Liable to applicant until attachment is discharged

2. Interest in property belonging to estate of decedent- When there is order of distribution, property shall be

delivered

in judgment against the defendant, he can recover damages inhis counterclaim for damages of the attachment was improper,irregular, or excessive.

RULE 58: PRELIMINARY INJUNCTION

Gen. Rule : does not apply to consummated acts, EXCEPT to re-establish and maintain a PRE-EXISTING continuing relation betweenparties.

When granted: at any stage of an action prior to J/FORequirements: verified application, bondPurpose: to order to REFRAIN from a particular act or requirePERFORMANCE of an act

Requisites:1. Existence of a right to be protected entitled to relief demanded2. The act to which the injunction is to be directed is violative of

such right

Denial outright:1. upon showing of its insufficiency2. applicant is entitled but he can be compensated while p

enjoined would suffer irreparable damage AND penjoined post a bond.

Preliminary Injunction cannot be issued ex-parte, and m

COMPLY with the following:1. Hearing on the application for injunction2. Reception of evidence w/ opportunity to cross-examine3. The prohibited act are threatened to be committed

- Injury will follow- Greater injury to the applicant than defendant- No other adequate remedy at law- Public officers charged with the duty are unable

provide adequate protection to the applicant

Preliminary Mandatory Injunctionperformance of a particularRequisites:

1. Clear legal right2. Violation and invasion is material and substantial3. Urgent and permanent necessity to prevent serious dam

Temporary Restraining Order upon summary hearing1. 20 days from service to the party enjoined if grea

irreparable injury will result before hearing the matter

2. 72-hour forurgency and applicant will suffer grave injus& irreparable injury; issued ex-parte

Lifetime of TROdoes not exclude sun, sat, and holidays, excethe last day falls on such day

1. MTC or RTC issued 20 days from service on the penjoined

- If 72-hr TRO, shall not exceed 20 days, including the 72

2. CA issued effective for 60 days from date of service3. SC issued effective until further order

Limitations on the Issuance1. Cannot be issued to acts done outside its territorial distr2. Cannot be issued if in effect it should dispose of the m

case without trial

An order discharging the writ of injunction is immediately effect

A court cannot interfere by injunction with judgments or decreeanother court with concurrent or coordinate jurisdiction possesequal power, EXCEPT when a 3

rdclaimant is involved.

PD 1818 court cannot issue injunction in cases involinfrastructure projects against administrative acts involexercise of discretion in technical cases.

Gen. Rule: injunctions are not available to take possession outhe possession & control of one party & place it in possessioanother EXCEPT:

1. The applicant has clearly established his right to the pro2. The defendant is clearly a mere intruder3. To prevent a purchaser in public auction from molesting

debtors co-owners rights

RULE 59: RECEIVERSHIPRequisites:

1. Hearing2. Bond

Receiver representative of the court appointing him for purpose of preserving or conserving the property under receiverand preventing its possible destruction or dissipation

- acts in fiduciary capacity and with imparttowards all interested persons

- cannot be appointed ex-parte


17/25

Who appoints a Receiver?1. Court where case is pending2. CA3. SC4. Or a member thereof in the following instances

a. Party applying has an interest in the prop or fund which isin danger of being lost, removed or materially injured

b. Mortgaged prop is in danger of being wasted or dissipatedor materially injured

c. To preserve prop pending an appeal or to dispose of itaccording to the judgment or to aid execution for unsatisfied

return of executiond. When it appears to be the most convenient and feasiblemeans of preserving, administering or disposing of theproperty in litigation

Grounds for denial/discharge of application1. Counterbond

- If insufficient, receiver shall be appointed2. Appointment was obtained without sufficient cause3. Bond is insufficient in amount

General Powers of a receiver:

1. To bring and defend in his own name2. To take and keep possession of the property3. To receive rents

4. To collect debts due5. Make transfers6. Pay outstanding debts7. Divide money or property among persons legally entitled8. Acts as the court may authorize

- Investment of funds may only be by order of the courtupon written consent of the parties.

No action may be filed against the receiver w/o leave of courtwhich appointed him.

Liability for refusal or neglect to deliver prop to receiver:1. Contempt2. Liable to receiver for value of prop plus damages

RULE 60: REPLEVINavailable only for recovery of possession ofpersonal property

Requirements:1. Affidavit

Contents:a. That the applicant is the owner of the property or is

entitled to possessionb. That the property is wrongfully detained by the adverse

party, alleging the cause of detention according to thebest of his knowledge, information, and belief

c. That he property has not beeni. distrained or taken for tax assessment or a fine

pursuant to law,

ii. seized under execution or prelim attachmentiii. placed under custodial legis, or if so seized, is

exempt from such seizure or custodyd. actual market value of the property(double the value)

- if disputed by the defendant, the court shall fix it2. bond

Nature:

1. Principal remedy and a provisional relief2. Mixed action

a. partly in rem and ( recovery of specific personal prop)b. partly in personam ( claim for damages)

Who may apply? Party praying for recovery of possessionWhen may he apply?Anytime before defendant files his answer

The sheriff in replevin cases must keep the property w/in 5 dPurpose: (alternative)

1. to give the defendant the opportunity to object to sufficiency of plaintiffs bond

2. to require the return of the property by filing a counter-bo

writ of replevin issued by the RTC or MTC may be seranywhere in the Philippines.

A copy of the order shall be served by the sheriff upon

adverse party which contains: Application, Affidavit, BOrder and Writ of Replevin.

Redelivery Bondfiled to require the return of the object beforedelivery to the applicant

Delivery of the property to the applicant

1. 5 days after the property was taken and the adverse pdoes not object to the sufficiency of the bond

2. The adverse party objects but the court affirms the approf the bond or a new bond

3. Adverse party required the return of the property butbond is objected to & found insufficient & he does not filapproved bond

Property claimed by 3rd

person1. Affidavit of 3

rdparty claim

2. Claim damages against the bond w/in 120 days3. Vindicate claim(in same or separate case)

Judgment1. Deliver the property2. Deliver its value if cannot be delivered

Replevin Attachment

Principal action is recovery ofpersonal property

Recovery of property may be incidental to the relief soug

The defendant is in actualpossession of the property

A 3r

person may be possession of the property

Cannot be availed of whenproperty is in custodia legis

Can be availed of even if property is in custodia legis

Available before defendantanswers

Available from commencembut before entry of judgment

Bond is double the value ofproperty

Bond is fixed by court

Personal property Personal/real property

RULE 61: SUPPORT PENDENTE LITE

When may be filed: at the commencement of the proaction/proceeding, or at any time prior to the judgment or final ord

- Comment shall be filed w/in 5 days or period fixed by

- Hearing shall start not more than 3 days after comme

Who may file?Any party

Requisites in claim for Support in Criminal action Pendent el

1. child is born to the offended party allegedly because ofcrime

2. civil liability arising from crim action includes support3. civil aspect for crim action has not been waived, reser

or instituted prior to filing of crim action

Order fixing amount of support is not final in charactersubject to modification depending on conditions affecting liability to pay the amount fixed for support.


18/25

Remedy for refusal to pay support pendent lite:1. File a motion for execution of the order granting support(

may be motu propio)2. File a motion to cite the adverse party in contempt

RULE 62: INTERPLEADER

Who may file interpleader?- A person against whom conflicting claims are asserted

by several claimants over the same subject matterPurpose: to compel several claimants to interplead and litigate theirseveral claims among themselves

Requisites of interpleader(NETO)1. Plaintiff claims no interest on the subject matter or his claim

is not disputed2. Parties to be interpleaded must make effective claims3. Two or more conflicting claims4. Subject matter must be one and the same

Interpleader may file counterclaims, cross-claims, 3rd

partycomplaints and responsive pleadings thereto.

Costs, expenses & attys fees incurred by plaintiff in actionshallconstitute a lien upon subject matter and is recoverable from

defendant who loses the action and who is found to havecaused the unnecessary litigation.

Interpleader cannot be availed of to resolved issues of breach ofundertaking

Grounds for Dismissal of Interpleader1. Impropriety of the interpleader (action is not a proper

interpleader case)2. Other grounds in Rule 16

interpleader intervention

An original action Ancillary action

Plaintiff has no interest in subjmatter or has interest that is notdisputed

1. Has interest in the matter2. Interest in success of either

parties3. Interest against both4. Adversely affected by

disposition of property

Defendants are sued tonterplead them

Defendants are original partiesto the pending action

the docket and lawful fess, costs and expenses shall constitutea lien over the subject matter of the action.

RULE 63: DECLARATORY RELIEF AND SIMILAR REMEDIES- Under jurisdiction only of RTC

Declaratory Reliefspecial civil action filed in the RTC

Who:1. by a person who is interested under a deed, will, contract, or

other written instrument, or2.whose rights are affected by a statute, executive order,

ordinance, or other govt regulation, before breach thereof, After breach or violation, the action may be converted into

an ordinary cause of action3. all persons who have claim which would be affected by the

declaration

Purpose: asking the court to determine any question of constructionor validity arising, and for a declaration of his rights or other duties,thereunder.

the breach or violation should be impending, imminent, oleast threatened.

A person who is not a party to the contract cannot file petition

Justiciable Controversy is a definite and concrete dis

touching in the legal relations of parties having adverse linterests, which may be resolved by a court of law throughapplication of law.

An issue is ripe for judicial determination when litigatioinevitable. Or when administrative remedies have bexhausted.

Actions that may be brought under this rule:1. Reformation of an instrument2. Quieting of title to real property or remove clouds3. Consolidation of ownership

Essential requisites:1. Justiciable controversy2. Controversy is between persons whose interests

adverse3. Party seeking relief has a legal interest in the controvers4. Issue is ripe for judicial determination

Who to give notice to:1. Local Govt ordinance involve prosecutor2. Statute is involve solicitor General

Special Civil actions for declaratory relief:1. action for reformation of an instrument2. action to quiet title to real property or remove clouds3. action to consolidate ownership over real property3. If, during the pendency of the special civil action, there

breach or violation it is converted into an ordinary action.

During the pendency of this action for declaratory relief, aparty complaint cannot be allowed. But after its conversio

may be allowed.

A compulsory-counterclaim is allowed in declaratory relief ac

Even if questions of law is involved, the SC cannot tjurisdiction

Court has discretion to declare rights and to construe an

instrument where a decision would not terminate the uncerta

or controversy.

RULE 64: REVIEW OF Js AND FOs OF THE COMELEC AND C

How? By special civil action of certiorariWhat J or FO may be reviewed by SC? Only those made en baWhen to file? Not later than 30 days from notice of J

Motion for recon is allowed and shall interrupt the period Fresh period rule does not apply

Effect of filing: does not stay the execution of judgment

RULE 65: CERTIORARI, PROHIBITION, AND MANDAMUS- does not interrupt the course of the principal c

unless TRO or writ of Preliminary injunction agarespondent from proceeding with the case.

- Must be meritorious on its face


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Time to file: within 60 days from notice of the assailed judgment If motion for reconsideration is filed, 60 days starts from

notice of decision on such motion.

Extention of timeonly for compelling reasons- Not to exceed 15 days

Common Considerations:

1. Condition: no appeal, or any plain, speedy, and adequateremedy is available in ordinary course of law

No appeal, in case of interlocutory orders2. Filed with the SC, RTC, CA, Sandiganbayan CA only if it involves acts or omissions of a quasi-judicial

agency In election cases involving act of MTC/RTC, file w/

COMELEC

Attachments

1. Certified true copy of the J, order/resolution2. Copies of all relevant and pertinent pleadings & docus3. Sworn statement of non-forum shopping

Respondents:1. Private Respondent appear and defend, in his and in

behalf of public respondent

2. Public Respondent nominal parties & shall not appearunless directed.

Order to comment within 10 days

Dismissal of the court of petitione:1. Patently w/o merit2. Prosecuted manifestly for delay3. Questions raised are too unsubstantial to require

consideration

Requisites of CERTIORARI

1. There must be a controversy2. Respondent is exercising judicial or quasi-judicial functions

3. Respondent acted without or in excess of its jurisdiction oracted with grave abuse of discretion amounting to lack of

jurisdiction4. There must be no appeal or other plain, speedy and

adequate remedy

Writ of Certiorari from superior court directing an inferior court,tribunal, or officer exercising judicial or quasi-judicial functions tocorrect errors of jurisdiction.

- Petition for certiorari must append a copy of the motion forreconsideration they filed before the respondent.

- Motion for reconsideration is a condition precedent in order forthe lower court to afford opportunity to correct its errors.

- 2nd

motion for recon is merely pro forma, hence period to filepetition for certiorari is not suspended.

Who may file?Aggrieved party by the acts of the respondent

Documents to be attached in the petition for certiorari:

1. 1st

set - Certified true copies of the J or order2. 2

ndset copies of the pleadings, portions of the case

record and other documents material and pertinent to thepertition

3. certification of non-forum shopping

Petition for Review onCertiorari

Special Civil Action forCertiorari

Based on question of law Issue as to whether lower cacted in w/o or in excess

jurisdiction or w/ grave abusdiscreation

Involves review of judgment onmerits

Directed against an interlocuorder prior to appeal or whereother plain, speedy/adeqremedy

Made within reglementary period

of appeal

Filed not later than 60 days f

notice of J denying motionrecon

Stays the judgment Does not stay the challeproceeding

Petitioner & respondent are theoriginal parties

Aggrieved is the petitioner court/judicial bodies, prevailing parties are respondent

Prior motion for recon is notrequired

Motion for recon is condprecedent

Appellate court is in the exerciseof appellate jurisdiction andpower of review

Exercise of original jurisdicunder its power of ctrl oproceedings of lower court

Filed only with the SC May be filed with RTC, CASC

Instances where motion for recon may not be resorted to becertiorari:

1. order is patent nullity, court a quo has no jurisdiction2. questions raised in the certiorari have been duly raised

passed upon by the lower court3. urgent necessity for the resolutiona. delay would prejudice interest of the govt/petitionerb. subject of the action is perishable4. under the circumstances, motion for recon is useless5. petitioner was denied due process and there is extr

urgency for relief6. in criminal case, relief from order of arrest is urgent

granting of such relief by trial court is improbable7. proceeding in the lower court are a nullity for lack if

process8. the proceeding was ex-parte9. issue raised is purely of law or public interest is involved

Requisites of PROHIBITION:1. there must be a controversy2. respondent is exercising judicial, quasi-judicial or minist

functions3. respondent acted w/o or in excess of jurisdiction or acte

grave abuse of discretion amounting to lack of jurisdictio4. there must be no appeal or other plain, speedy

adequate remedy

Writ of prohibitionfrom a superior court directing an inferior co

corp., board, officer or other judicial or ministerial functions forpurpose ofpreventing the latter from usurping jurisdiction wis not legally vested.

Where the principal relief sought is to invalidate an IRR, the proremedy is an ordinary action for nullification in the RTC and not aof prohibition.

Certiorari Prohibition

To correct respondents act byannulling the proceedings

To prevent commission of act by stopping the proceedin

The acts assailed have alreadybeen done

The acts assailed are aboube done or are being done

Respondent is performing ajudicial or quasi0judicial function

Respondent is performjudicial, quasi-judicial, ministerial functions


20/25

Writ of Mandamuswrit issued in the name of the State, to annferior tribunal, corporation, board or person, COMMANDING thePERFORMANCE of an act which the law enjoins as a duty resultingfrom an office, trust or station.

Two aspects:

1. Respondent unlawfully neglects the performance of an actwhich the law enjoins as a duty resulting from an office,trust, or station.

2. Respondent unlawfully excludes another from the use and

enjoyment of a right which such other is entitled.

Requisites:1. A clear legal right or duty2. Act to be performed is practical within the powers of the

respondent to perform3. Respondent must be exercising a ministerial dutya duty

which is absolutely & imperative & involves merelyexecution

4. Duty or act to be performed must be existing5. No appeal or other plain, speedy & adequate remedy in the

ordinary course of law.

Mandamus Certiorari Prohibition

Respondent is

performing ministerialfunction

R is performing

judicial or quasi-jfunctions

R is performing

judicial, quasi- j orministerial functions

R unlawfully neglectsperformance orexcludes another fromuse & enjoyment of aright

R acted w/ojurisdiction or inexcess of its

jurisdiction or w/grave abuse of D

R is acting or isabout to act w/o Jor in excess of J, orw/ grave abuse ofdiscretion

Purpose is to compel Rto act

To correct Rs act To preventcommission of act

Mandamus is not proper to enforce contractual o