COMMENTARIES (Aguilar, Regalado, Herrera, Albano) & JURISPRUDENCE

RULE 23Definition of Discovery

Discovery, in general, is defined as the disclosure of facts resting in the knowledge of the defendant, or as the production of deeds, writings, or things in his possession or power, in order to maintain the right or title of the party asking it, in a suit or proceeding. (Insular Life Assurance Co. Ltd. v. CA, 238 SCRA 88, citing Bouviers Law Dictionary)

Object of Discovery

The object of discovery is to make it possible for all the parties to a case to learn all the material and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or motions may not suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and completely laid before the Court, without omission or suppression. (Dasmarinas Garments, Inc. v. Reyes, 225 SCRA 622)

Purpose of Discovery

The rules on discovery (Rules 24, 25, 26, 27, 28 and 29 of the Revised Rules of Court) are intended to enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions to obtain knowledge of material facts or admissions from the adverse party through written interrogatories; to obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admission; to inspect relevant documents or objects and lands or other property in the possession or control of the adverse party; and to determine the physical or mental condition of a party when such is in controversy. This mutual discovery enables a party to discover the evidence of the adverse party and thus facilitates an amicable settlement or expedites the trial of the case. (Koh v. IAC, 144 SCRA 259)

Principal Benefits of Discovery

The other principal benefits derivable from the availability and operation of a liberal discovery procedure are the following:

1. It is of great assistance in ascertaining the truth and in checking and preventing perjury. The reasons for this are:

(a) The witness (including a party) is examined while his memory is fresh;

(b) The witness (including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous. Where the examination is upon written interrogatories, however, it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare his answers in advance;

(c) A party or witness whose deposition has been taken at an early stage in the litigation cannot, at a later date, readily manufacture testimony in contradiction to his deposition;

(d) Testimony is preserved, so that if a witness unexpectedly dies or becomes unavailable at the trial, his deposition is available.

2. It is an effective means of detecting and exposing false, fraudulent, and sham claims and defenses.

3. It makes available in a simple, convenient, and often inexpensive way facts which otherwise could not have been proved, except with great difficulty and sometimes not at all.

4. It educates the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements out of court.

5. It expedites the disposal of litigation, saves the time of the courts, and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried.

6. It safeguards against surprise at the trial, prevents delays, and narrows and simplifies the issues to be tried, thereby expediting the trial.

7. It facilitates both the preparation and the trial of cases. (Fortune v. CA, 229 SCRA 355)

Discovery is not mandatory

Recourse to discovery procedures is not mandatory. If the parties do not choose to resort to such procedures, the pre-trial conference should be set pursuant to the mandatory provisions of Section 1 of Rule 20. (Koh v. IAC, 144 SCRA 259)

Applicability of Discovery in CIR

Modes of discovery are applicable to proceedings the Court of Industrial Relations. (East Asiatic Company, Ltd. v. CIR, 40 SCRA 521)Fishing Expedition not a defenseNo longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise." (Republic v. Sandiganbayan, 358 SCRA 284)Definition of Deposition

A Deposition," in its technical and appropriate sense, is the written testimony of a witness given in the course of a judicial proceeding, in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination. (Republic v. Sandiganbayan, 358 SCRA 284)

A deposition is "the testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution. A pretrial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. (People v. Webb, 312 SCRA 573, citing Blacks Law Dictionary)Function of a Deposition

Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. (Pajarillaga v. CA, 570 SCRA 347)

Purpose of a Deposition

The purposes of taking depositions are to:

1.) Give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury;2.) Provide an effective means of detecting and exposing false, fraudulent claims and defenses;3.) Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty;4.) Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; 5.) Expedite litigation; 6.) Safeguard against surprise; 7.) Prevent delay; 8.) Simplify and narrow the issues; and9.) Expedite and facilitate both preparation and trial. (People v. Webb, 312 SCRA 573, citing 23 Am Jur 2d 493)

Taking versus Use of Depositions

No limitations other than relevancy and privilege have been placed on the taking of depositions, while the use at the trial is subject to circumscriptions looking toward the use of oral testimony wherever practicable. (Fortune v. CA, 229 SCRA 355)Discovery Still Applies Even If Motion for Bill of Particulars DeniedA bill of particulars may elicit only ultimate facts, not so called evidentiary facts. The latter are without a doubt proper subject of discovery. (Herrera)

Limitations to Discovery

The liberty of a party to avail itself of this procedure, as an attribute of discovery, is well-nigh unrestricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law. (Republic v. Sandiganbayan, 204 SCRA 212)Broader Meaning of RelevancyRelevant is synonymous with the word germane. The law contemplates examination, not only for use as evidence but also to discover information which may be useful in the preparation for trial. (Herrera, citing Francisco)

The relevancy of evidence sought at the taking of deposition should be determined at the trial and not with motion to terminate or limit the examination unless it plainly appears in such motion that the evidence can have no possible bearing on the issues. (Herrera, citing Union Central Life Ins. v. Burger)

When Leave of Court is necessary

Leave of court is not necessary to take a deposition after an answer to the complaint has been served. It is only when an answer has not yet been filed (but jurisdiction has been obtained over any defendant or over property subject of the action) that prior leave of court is required. The reason for this is that before filing of the answer, the issues are not yet joined and the disputed facts are not clear. Before service of such answer, leave of court may be granted but only in exceptional or unusual situations. (Republic v. Sandiganbayan, 358 SCRA 284)

Inadmissibility of Deposition

Where the witness is available to testify and the situation is not one of those excepted under Sec. 4 of the ROC, his deposition theretofore taken is inadmissible in evidence and he should in lieu thereof be made to testify. (Regalado)

Introduction of DepositionGR: The introduction of the deposition binds the party who introduces it since he thereby makes the deponent his witness.

EX:

1. If it is introduced to impeach or contradict the witness, or

2. If it is the deposition of an opposing party. (Regalado)

The deposition must be formally offered in evidence although it need not actually be read in court. (Baron v. David, 51 Phil. 1)

Definition of a Commission

A commission may be defined as "(a)n instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal." (Dasmarinas Garments, Inc. v. Reyes, 225 SCRA 622, citing Feria, J.)

Definition of a Letters Rogatory

Letters rogatory may be defined as "(a)n instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed." It may be may be applied for and issued only after a commission has been "returned unexecuted." (Dasmarinas Garments, Inc. v. Reyes, 225 SCRA 622, citing Feria, J.)

On such terms and with such directions as are just and appropriate under Sec. 12

What matters is that the deposition is taken before a Philippine official acting by authority of the Philippine DFA and by virtue of a commission duly issued by the Philippine Court, in which, the case is pending and in accordance with the Philippine ROC pursuant to which opportunity for cross examination of the deponent will be fully accorded to the adverse party. (Herrera, citing Dasmarinas Garments, Inc. v. Reyes)

Orders for the protection of the parties, when it may be granted

The provision explicitly vesting in the court the power to order that the deposition shall not be taken connotes the authority to exercise discretion on the matter. However, the discretion conferred by law is not unlimited. It must be exercised, not arbitrarily or oppressively, but in a reasonable manner and in consonance with the spirit of the law. (Northwest Airlilnes, Inc. v. Cruz, 317 SCRA 761)

Mere failure to observe the behavior of witnesses is not a ground to refuse the taking of a deposition. (Lopez v. Maceren, 95 Phil. 456)

Definition of Good CauseThe matter of good cause is to be determined by the court in the exercise of judicial discretion. Good cause means a substantial reason one that affords a legal excuse. Whether or not substantial reasons exist is for the court to determine, as there is no hard and fast rule for determining the question as to what is meant by the term "for good cause shown." The requirement, however, that good cause be shown for a protective order puts the burden on the party seeking relief to show some plainly adequate reasons for the order. A particular and specific demonstration of facts, as distinguished from conclusory statements, is required to establish good cause for the issuance of a protective order.What constitutes good cause furthermore depends upon the kind of protective order that is sought. (Fortune v. CA, 229 SCRA 355)

No Power to Rule on Objections

The officer before whom the deposition is taken does not have the power to rule upon objections to the questions. (Regalado)

Time and Place for taking Deposition upon Written Interrogatories

No express requirement that the notice state the time and place for taking the deposition. (Herrera)

Right to Cross Examination in Written InterrogatoriesThere is a right to cross examine orally even if examination is based on written interrogatories. (Herrera, citing Alitalia v. De Borja, 19 SCRA 366)

Cumulative Application of Discovery RulesThe fact that a party has resorted to a particular method of discovery will not bar subsequent use of other discovery devices, as long as the party is not attempting to circumvent a ruling of the court, or to harass or oppress the other party. The various modes of discovery under the Rules are clearly intended to be cumulative, and not alternative or mutually exclusive. Availability of the proposed deponent to testify in court does not constitute good cause to justify the courts order that his deposition shall not be taken. (Fortune v. CA, 229 SCRA 355)

Inapplicability of Rule 23 to criminal cases

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that the criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise. (Vda. de Manguerra v. Risos, 563 SCRA 499)RULE 24

Applicability of Rule 24 to Criminal Actions

It is submitted that Sec. 1 may not be availed of in criminal cases, but the procedure in Sec. 7 is available in all actions, including criminal cases. (Regalado)

Perpetuation of Testimony as Proof

Depositions taken under this Rule do not prove the existence of any right and the testimony therein perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. (Regalado, citing Alonso v. Lagdameo, 7 Phil 75)

However, in the absence of any objection to the taking thereof and even if the deponent did not testify at the hearing of the case, the perpetuated testimony constitutes prima facie proof of the facts referred to in his deposition. (Regalado, citing Rey v. Morales, 35 Phil. 230)

RULE 25

Written Interrogatories under Section 25, Rule 23 and Rule 1, Section 25Under Rule 23, interrogatories are delivered to officer duly authorized to take the deposition who shall take note the answer thereto. Under Rule 25, interrogatories are served directly to the adverse party only. (Herrera, citing Moran)

Effect of order in defaultA defendant who has been declared in default cannot be permitted to propound interrogatories. (Herrera)

Judgment by Default may be grantedA judgment by default may be rendered against a party who fails to serve his answer to written interrogatories. (Regalado, citing Cason v. San Pedro, 65 SCRA 46)

Who are required to make Answer to InterrogatoriesAnswers cannot be made by an agent or attorney, answers not made by the parties are nullities.

Order disallowing InterrogatoriesAn order disallowing interrogatory is interlocutory and remedy is to raise question of admissibility on appeal from final judgment. (Araneta v. Rodas, 81 Phil. 507). It does not binding against co-parties for lack of notice. (Herrera)

Effect of Failure/Refusal to Resort to Discovery ProceduresWhere a party unjustifiedly refuses to elicit facts material and relevant to his case by addressing written interrogatories to the adverse party to elicit those facts, the latter may not thereafter be compelled to testify thereon in court or give a deposition pending appeal. The sanction adopted by the Rules is not one of compulsion in the sense that the party is being directly compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him. (Regalado)

RULE 26Primary Function of Rule 26 as a Mode of Discovery

Rule 26 as a mode of discovery contemplates of interrogatories that would clarify and tend to shed light on the truth or falsity of the allegations in a pleading. That is its primary function. It does not refer to a mere reiteration of what has already been alleged in the pleadings. (Concrete Aggregates Corporation v. CA, 266 SCRA 88)

Request must be served directly upon the party

The request for admission must be served directly upon the party; otherwise, the party to whom the request is directed cannot be deemed to have admitted the genuineness of any relevant document in and exhibited with the request or relevant matters of fact set forth therein, on account of failure to answer the request for admission. (Briboneria v. CA, 216 SCRA 607)

Contents of a Request for Admission

A party should not be compelled to admit matters of fact already admitted by his pleading and concerning which there is no issue, nor should he be required to make a second denial of those already denied in his answer to the complaint. A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party's pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party's cause of action or defense. Unless it serves that purpose, it is" pointless, useless," and "a mere redundancy. (Po v. CA, 164 SCRA 668)

Answer to Request made by Lawyer

The answer to a request for admission under this Rule may be made by the lawyer of the party and not necessarily the party himself.(PSFC Financial Corp. v. CA,GR 106094)

Effect of Failure to AnswerA Trial Court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be; it is the law which makes that determination; and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. (Diman v. Alumbres, 101 SCAD 246)

When Summary Judgment may be grantedIt is a settled rule that summary judgment may be granted if the facts which stand admitted by reason of a party's failure to deny statements contained in a request for admission show that no material issue of fact exists.By its failure to answer the other party's request for admission, petitioner has admitted all the material facts necessary for judgment against itself. (Allied Agri-Business Development Co., Inc. v. CA, 299 SCRA 680)

Implied Admission Cannot be Set Aside by Amended Complaint

Where the plaintiff failed to answer a request for admission filed under this Rule, based on its allegations in its original complaint, the legal effects of its implied admission of the facts stated in the request cannot be set aside by its subsequent filing of an amended complaint. It should have filed a motion to be relieved of the consequences of said implied admission. (Regalado, citing Bay View Hotel, Inc. v. Kerr & Co. Ltd., L-28237)

RULE 27

Test to be appliedThe test to be applied by the trial judge in determining the relevancy of documents and the sufficiency of their description is one of reasonableness and practicability. (Regalado, citing Line Corp v. Moran, 59 Phil. 176)

Liberal Construction of the RulesIn passing on a motion for discovery of documents, the court should be liberal in determining whether or not documents are relevant to the subject matter of the action. (Regalado, citing Hercules Power Co. v. Haas Co.)

Good Cause under this Rule

Good cause does not relate to the substance in the documents, but to the reason for producing relevant or material matters, therein; so that the enforcement of the rule entails exercise of sound judicial discretion. The burden is on the moving party to demonstrate the need for the documents sought beyond the relevancy or materiality of the substance therein. (Herrera, citing Martin)

Discovery and Inspection of Things

Possession, custody or control is sufficient, and need not necessarily be in actual possession or custody. Designation of documents demanded for inspection is sufficiently definite if it informs the adverse party what it is required to produce. (Herrera, citing Keone v. Lohmaier)

Rule applies even if documents already exhibited in court

When there is nothing secret or confidential about the documents sought to be inspected, no serious objection can therefore be presented to the desire of the requesting party to have copies of those documents in order to study them some more or otherwise use them during the trial for any purpose allowed by law. (Republic v. Sandiganbayan, 204 SCRA 232)

Similarity with the Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights (AM No. 02-1-06-SC) (Relevant provisions only)SEC. 2.The writ of search and seizure. Where any delay is likely to cause irreparable harm to the intellectual property right holder or where there is demonstrable risk of evidence being destroyed, the intellectual property right holder or his duly authorized representative in a pending civil action for infringement or who intends to commence such an action may applyex partefor the issuance of a writ of search and seizure directing the alleged infringing defendant or expected adverse party to admit into his premises the persons named in the order and to allow the search, inspection, copying, photographing, audio and audiovisual recording or seizure of any document and article specified in the order.

SEC. 3.Where application filed. The application shall be filed with any of the Regional Trial Courts of the judicial region designated to try violations of intellectual property rights stationed at the place where the alleged violation occurred or is to occur, or the place to be searched, at the election of the applicant:Provided, however, that where the complaint for infringement has already been filed, the application shall be made in the court where the case is pending.

SEC. 6.Grounds for the issuance of the order. Before the Order can be issued, the evidence proffered by the applicant and personally evaluated by the judge must show that:

(a) the applicant is the right holder or his duly authorized representative;

(b) there is probable cause to believe that the applicants right is being infringed or that such infringement is imminent and there is a prima facie case for final relief against the alleged infringing defendant or expected adverse party;

(c) damage, potential or actual, likely to be caused to the applicant is irreparable;

(d) there is demonstrable risk of evidence that the alleged infringing defendant or expected adverse party may destroy, hide or remove the documents or articles before any applicationinter partescan be made; and

(e) the documents and articles to be seized constitute evidence of the alleged infringing defendants or expected adverse partys infringing activity or that they infringe upon the intellectual property right of the applicant or that they are used or intended to be used as means of infringing the applicants intellectual property right.

SEC. 7.When writ may issue. If the judge is satisfied with the proof of facts upon which the application is based, he shall issue the writ requiring the search, inspection or copying of the subject documents or articles or commanding the sheriff to take them into his custody subject to the control of the court. The enforcement of the writ shall be supervised by an independent Commissioner to be appointed by the court.

SEC. 13.Search to be conducted in the presence of defendant, his representative, person in charge of the premises, or witnesses. The premises may not be searched except in the presence of the alleged infringing defendant, expected adverse party or his representative or the person in charge or in control of the premises or residing or working therein who shall be given the opportunity to read the writ before its enforcement and seek its interpretation from the Commissioner. In the absence of the latter, two persons of sufficient age and discretion residing in the nearest locality.

SEC. 14.Manner of search and seizure; duties of the sheriff. Upon service of the writ in accordance with section 11 hereof, the sheriff, under the supervision of the Commissioner, shall search for the documents and articles specified in the writ, and take them in his custody subject to the control of the court.

If the subject articles are not capable of manual delivery, the sheriff shall attach to them a tag or label stating the fact of seizure and warning all persons from tampering with them.

The sheriff shall, in the presence of the applicant or his representative, and under the supervision of the Commissioner, prepare a detailed list of the seized documents and articles. He shall give an accurate copy of the same to the alleged infringing defendant, expected adverse party, his agent or representative, to the person in charge or in control of the premises or residing or working therein in whose presence the search and seizure were made. In the absence of the person in charge or in control of the premises or residing or working therein, the sheriff must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a copy of the receipt in the place in which he found the seized property. Where no witnesses are available in the same locality, the copy of the receipt shall be left by the sheriff in the presence of two witnesses residing in the nearest locality The applicant or his representative and the Commissioner shall also be given a copy of the receipt.

After the sheriff has taken possession of the documents and articles, he shall deliver them to a bonded warehouse or government warehouse for safekeeping. The applicant or his representative shall be allowed access to said materials for the purpose of examining them.

The applicant shall be responsible for the necessary expenses incurred in the seizure and safekeeping of the documents and articles in a bonded warehouse or government warehouse.

SEC. 15.Use of reasonable force to effect writ. The sheriff, if refused admittance to the premises after giving notice of his purpose and authority or in the absence of the alleged infringing defendant or expected adverse party, his agent or representative, or person in charge or in control of the premises or residing or working therein who is of sufficient age and discretion, may use reasonable force to gain entry to the premises or any part of the building or anything therein, to enforce the writ or to liberate himself or any person lawfully aiding him when unlawfully detained therein.

SEC. 16.Seizure of computer disks or other storage devices. The seizure of a computer disk or any storage device may be executed in any of the following manner:

(a) by the physical taking thereof,

(b) by copying its contents in suitable device or disk provided by the applicant; or

(c) by printing out the contents of the disk or device with the use of a printer.

When the computer disks or storage device cannot be readily removed from the computer to which they are fitted, the sheriff may take the subject computer from the custody of the alleged infringing defendant, expected adverse party or person in charge or in control of the premises or residing or working therein.

SEC. 18.Discharge of writ by the defendant or expected adverse party. Without waiting for the return to be filed by the sheriff, the defendant, expected adverse party or the party whose property has been searched, inspected, copied or seized may file a motion with the court which issued the writ for its discharge with prayer for the return of the documents and articles seized.

The writ may be discharged on any of the following grounds:

(a) that the writ was improperly or irregularly issued, or excessively enforced;

(b) that the bond is insufficient;

(c) that the safeguards provided in the writ have been violated by the applicant or the sheriff; or

(d) that the documents and articles seized are not infringing copies or means for making the materials alleged to infringe the intellectual property right of the applicant.

The writ may be discharged in a summary hearing by the court after notice to the applicant, the sheriff and the Commissioner.

If the court finds that the bond is insufficient, it shall order a new bond to be filed by the applicant within a reasonable time. The discharge of the writ based on the insufficiency of the bond may only be made if the applicant fails to post the new bond within the period fixed by the court.

SEC. 20.Failure to file complaint. The writ shall also, upon motion of the expected adverse party, be set aside and the seized documents and articles returned to the expected adverse party if no case is filed with the appropriate court or authority within thirty-one (31) calendar days from the date of issuance of the writ.

SEC. 22.Judgment. If it appears after trial that the seized documents and articles are bound to infringe the intellectual property right of the applicant or that they constitute the means the means for the production of infringing goods, the court shall order their destruction or donation to charitable, educational or religious institutions with the prohibition against bringing the same in to the channels of commerce. In the latter case, infringing trademarks or trade names found on labels, tags and other portions of the infringing materials shall be removed or defaced before the donation. In no case shall the infringing materials be returned to the defendant.

If the court finds no infringement, the seized material shall be immediately returned to the defendant.

RULE 28

Blood Grouping Test in a Paternity SuitA blood grouping test may be ordered and conducted under this Rule on a child subject of a paternity suit. While the Rule speaks of an examination of a party, such child is considered a party for purposes thereof as the action is brought for its benefit. (Regalado, citing Beach v. Beach)

Not covered by Physician-Client PrivilegeSince the results of the examination are intended to be made public, the same are not covered by the physician-client privilege. Furthermore, such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physical or mental condition. (Regalado)

RULE 29

Dismissal of an action is discretionary

Section 5, Rule 29 of the Rules of Court warrants the dismissal of the complaint when the plaintiff fails or refuses to answer the written interrogatories. If plaintiff fails or refuses to answer the interrogatories, it may be a good basis for the dismissal of his complaint for not-suit unless he can justify such failure or refusal.It should be noted that it is discretionary on the court to order the dismissal of the action. (Santiago Land Development Company v. CA, 258 SCRA 535)

Sanctions imposed

Where a party willfully fails to appear or fails to serve answers to interrogatories, the sanctions are:

1. Strike out all or any part of pleading of that party;2. Dismiss the action;3. Judgment by default; and4. Payment of reasonable expenses including attorneys fees. (Herrera)Imposition of sanction rests on sound discretionFailure in good faith to answer written interrogatories on ancillary matters such as to determine whether or not plaintiffs are pauper litigants which although may be inquired into through the proper modes of discovery are not directly related to the main issues of the suit excused from the harsh sanction of dismissal. Mere order to answer with warning is sufficient. (De la Torre v. Pepsi Cola, 100 SCAD 491)

Nature of Failure to Answer Interrogatories

GR: Apply only if a party refuses to answer the whole set of written interrogatories, and not just a particular question.

EX: Where the party upon whom the written interrogatories is served, refuses to answer a particular question despite an order compelling him to answer the particular question, still refuses to obey the order. (Riano, citing Zepeda v. China Banking Corp., GR 172175)RULE 30

Postponements are discretionaryPostponements are addressed to the sound discretion of the court and, in the absence of grave abuse of discretion, cannot be controlled by mandamus. (Olsen v. Fressel & Co., 37 Phil. 121)

When trial is unnecessary

1. Judgment on the Pleadings

2. Summary judgment

3. Compromise on Judgment

4. Dismissed with prejudice (Rule 7, Sec. 5; Rule 16, Sec. 5; Rule 17, Sec. 3)

5. Summary Procedure

6. Parties agree in writing and submit the case for judgment on the facts agreed upon (Rule 30, Sec. 6)

Rule on Medical CertificatesGR: A mere medical certificate is generally insufficient. It must be under oath or in the form of an affidavit.

EX: In the interest of justice (Sarmiento v. Juan, GR 55605)

Submission of the Case for a DecisionIf the trial court allows oral argument or submission of memoranda, the period shall be correspondingly extended after such proceedings have been conducted or such memoranda submitted. (Regalado)

Admission of Additional EvidenceAdditional evidence may be offered at the rebuttal stage if it was newly discovered, or omitted through mistake or inadvertence, or where the purpose is to correct evidence previously offered, subject to the discretion of the court. (Regalado, citing Lopez v. Loboro, 81 Phil. 429)Oral Stipulation of FactsThe parties may also stipulate verbally in open court. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown. (Ortua v. Rodriguez, 63 Phil. 809)

But counsel cannot stipulate on what their respective evidence consists of and ask that judgment be rendered on the basis of such stipulation. (Arzadon v. Arzadon, 15 Phil. 77)

RULE 31

When Consolidation of Cases is permitted

The rule on consolidation of cases generally applies only to cases pending before the same judge, not to cases pending in different branches of the same court or in different courts (PAL v. Teodoro, 97 Phil. 461), and also applies to special proceedings (Salazar v. CFI, 64 Phil. 785)

Generally the case which was appealed later and bearing the higher docket number is consolidated with the case having the lower docket number. (Regalado)

When Consolidation is Discretionary and MandatoryGR: The consolidation of several cases involving the same parties and subject matter is discretionary with the trial court.

EX: Consolidation becomes a matter of duty if two or more cases are tried before the same judge or, if filed with different branches of the CFI, one of such cases has not been partially tried. (Raymundo v. Felipe, L-30887)

RULE 32

Hearing is MandatoryThe order of reference may direct the commissioner to perform different acts in and for purposes of the proceedings but, whatever may be the case, the requirement for him to hold a hearing cannot be dispensed with as this is the essence of due process. (Aljems Corp v. CA, GR 122216)Filing the Report and Notifying the PartiesGR: The failure to grant the parties, in due form, this opportunity to object, may constitute a serious error in violation of their substantial right.(effect of lack of notice)

EX: If the parties who appeared before the commissioner were duly represented by counsel and given an opportunity to be heard. (Manila Trading and Supply Co. v. Phil. Labor Union, 71 Phil. 539)

Extent of the Effect of the Commissioners Report Upon the Court

The commissioners report is not binding upon the court which is free to adopt, modify or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions. (Baltazar v. Limpin, 49 Phil. 39)

RULE 33

Definition of a Demurrer to EvidenceA demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests his case. (Regalado)

A demurrer to evidence may be issued where, upon the facts and the law, the plaintiff has shown no right to relief. (Heirs of Santioqui v. Heirs of Calma, GR 160832)

Remedies on the grant or denial of the demurrerWhere the defendants motion is sustained and the case is dismissed, such order would be an adjudication on the merits. Where the demurrer is denied, the denial order is interlocutory in nature. Such denial is not controllable by certiorari unless GAD or oppressive exercise of judicial authority.(Nepomuceno v. COMELEC,GR 60601)

Denial of Demurrer to EvidenceWhere a court denies a demurrer to evidence, it should set the date for the reception of the defendants evidence in chief. It should not proceed to grant the relief demanded by the plaintiff. (Northwest Airlines Inc. v. CA, 284 SCRA 408)

RULE 34

Basis of Judgment on the PleadingsThe judgment is based exclusively upon the allegations appearing in the pleadings of the parties and the annexes thereto, if any, without consideration of any evidence aliunde. (Regalado)

Court may render judgment on the pleadings motu proprio

If at the pre-trial, the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. (Regalado)

JUDGMENT ON THE PLEADINGSSUMMARY JUDGMENTJUDGMENTS BY DEFAULT

No genuine issue between the partiesResorted to only where are (1) no questions of fact in issue, or (2) material allegations of the pleadings are not disputed, or (3) the defense interposed by the defendant is not a valid defense.Genuine issues of fact and/or law are normally involved; Defendant filed no answer

Based exclusively upon the pleadings without introduction of evidenceBased on the pleadings and the affidavits, depositions and admissions of the parties showing that, except as to the amount of damages, there is no genuine issueEvidence must be introduced on the material allegations, albeit ex parte, except in cases covered by the rule on summary procedure

Available in any action, except (1) declaration of nullity or annulment of marriage and legal separation; (2) unliquidated damages; (3) admission of the truth allegations of adverse partyOnly in actions to recover a debt, or for a liquidated sum of money, or for declaratory reliefAll cases except for annulment or declaration of nullity of marriage or legal separation

Subject only to the 3-day notice rule and where all the material averments of the complaint are admitted, such motion may even be made ex parteRequires prior 10-day noticeMay be filed ex parte , except under the rule on summary procedure wherein upon failure of defendant to answer, the court, motu proprio or on plaintiffs motion, shall render the corresponding judgment

Entire case may be terminatedMay only be partial

RULE 35

Definition of Genuine Issue

A genuine issue means an issue of fact which calls for the presentation of evidence. (Manufacturers Hanover Trust Co. v. Guerrero, GR 136804)

Absence of Notice of HearingThe absence of a written notice did not divest the trial court of authority to pass on the merits of the motion made in open court. The order of the court granting the motion for summary judgment and its execution thereof despite the absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings. (Monterey Foods Corp. v. Eserjose, GR 152126)

Test to be applied for the grant of the judgmentThe test for the propriety of a motion for summary judgment is whether the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the action or the claim is clearly meritorious. (Estrada v. Consolacion, L-40948)

When Affidavits Need Not be SubmittedWhere the motion for summary judgment is duly verified and is based on facts admitted by the adverse party, affidavits on such matters need not be submitted. (Motor Service Co. v. Yellow Taxicab Co., 96 Phil. 688)

When Judgment May Granted as a Matter of Right

Where all the facts are within the judicial knowledge of the court, summary judgment may be granted as a matter of right. (Regalado, citing Miranda v. Malate Garage & Taxicab, 99 Phil. 670)

Nature of Partial Summary Judgment

A partial summary judgment is interlocutory in nature and is not a final and appealable judgment. The appeal from the partial and appealable judgment should be taken together with the judgment in the entire case after the trial shall have been conducted on the material facts on which a substantial controversy exists. (Guevarra v. CA, L-49017)

Summary Judgment and CounterclaimsA summary judgment may be rendered if the counterclaim is for a sum of money larger than that demanded in the complaint provided the counterclaim is valid. (Sugay v. IAC, 198 SCRA 349)

If the counterclaim is a sham, then summary judgment may not be rendered. (Albano)

Summary Judgment and Counter-Affidavits

GR: Summary judgment should be rendered if failed to file counter-affidavits.

EX: If there is factual issues. (Consunji v. Jamandre, 64 SCRA 1)When Summary Judgment is ProperSummary judgment is proper when there is failure to deny under oath the genuineness and due execution of notes attached to the complaint as this is deemed to be an admission of the existence and validity of the liability of the defendant.

However, there can be no summary judgment if a statement of account is not denied. (Kalilid Wood Industries v. IAC, GR 75502)

Burden of ProofA party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, and any doubt as to the existence of such an issue is resolved against the movant. (Dino v. Valencia, L-43886)RULE 36

Conflict between the Dispositive Portion and the BodyGR: Where there is a conflict between the dispositive portion of the decision and the body thereof, the dispositive portion controls irrespective of what appears in the body of the decision.

EX:

1. Where the inevitable conclusion from the findings of fact and in the opinion is so indubitable and clear as to show that there was a mistake in the dispositive portion. (Aguirre v. Aguirre, L-33080)

2. Where explicit discussion and settlement of the issue is found in the body of the decision. (Millare v. Millare, 106 Phil. 293)

Definition of JudgmentIt is the final consideration and determination by a court of the rights of the parties as those rights which presently exist, upon matters submitted in an action or proceeding. (Gotamco v. Chan Seng, 46 Phil. 542)

Definition of Rendition of JudgmentIt is the filing of the signed decision with the clerk of court and not its pronouncement in open court, that constitutes rendition of judgment. (Ago v. CA, 6 SCRA 530) If the decision is sent by the judge by registered mail, it is considered filed in court as of the date of its receipt by the clerk, and not the date of its posting or mailing.

Definition of Promulgation of the Decision

It is the process by which a decision is published, officially announced, made known to the public or delivered to the Clerk of Court for filing, coupled with notice to the parties or their counsel. (Neria v. Com. Of Immigration, 23 SCRA 812)

Definition of Interlocutory OrderIt refers to something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy. An interlocutory does not terminate nor does it finally dispose of the case; it does not end the task of the court in adjudicating the parties contentions and determining their rights and liabilities as against each other but leaves something yet to be done by the court before the case is finally decided on the merits. (Albano)

Definition of Final OrderAn order is deemed final when it finally disposes of the pending action so that nothing ore can be done with it in the lower court. (Albano)

Special Forms of Judgment1. Judgment by default

2. Judgment on the pleadings

3. Summary judgment

4. Several judgment (Sec. 4, Rule 36)

5. Separate judgment (Sec. 5, Rule 36)

6. Judgment for specific acts (Sec. 10, Rule 39)

7. Special judgment (Sec. 11, Rule 39)

8. Judgment upon confession

9. Judgment upon compromise, or on consent/agreement

10. Clarificatory judgment

11. Judgment nunc pro tunc

(7) and (8) immediately executory. (Samonte v. Samonte, L-40683), unless otherwise provided in the judgment, as may be prayed for or agreed upon by the parties.

Definition of a Several JudgmentA several judgment is proper where the liability of each party is clearly separable and distinct from that of his co-parties such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect the others. (Regalado)

GR: If the obligation is solidary and their defenses are common, the interest are not separate; hence, several judgment is not allowed.

EX: Where one solidary debtor has a defense which is personal to him. (Albano)

Definition of Separate JudgmentThis kind of judgment presupposes that there are several claims for relief presented in a single action. (Riano)

Definition of Judgment Upon a Confession (Cognovit actionem)This is judgment rendered by the court when a party expressly agrees to the other partys claim or acknowledges the validity of the claim against him. (Riano)

Definition of a Judgment upon a CompromiseThis is a judgment rendered by the court on the basis of a compromise agreement entered into between the parties to the action. (Riano)

Appeal from a Judgment on CompromiseTo be entitled to appeal from a judgment on compromise, a party must not only move to set aside the judgment but must also move to set aside or annul the compromise agreement itself. (Regalado)

A judgment rendered pursuant to a compromise is not appealable (Montejo v. Urotia, L-27187), and has the effect of res judicata from the moment it is rendered.

Where a judgment based on a compromise is sought to be enforced against a person who was not a party thereto, he may file an original petition for certiorari to quash the writ of execution. (Jacinto v. Montesa, L-23098)

Definition of Clarificatory Judgment

Where the judgment is ambiguous and difficult to comply with, the remedy is to file a motion for a so-called clarificatory judgment. (Almendras v. Del Rosario, L-20158)

Definition of Judgment Nunc Pro TuncA judgment nunc pro tunc is rendered to enter or record such judgment as had been formerly rendered but has not been entered as thus rendered. Its only function is to record some act of the court which was done at a former time, but which was not then recorded, in order to make the record speak the truth, without any changes in substance or in any material respect. (Lichauco v. Tan Pho, 51 Phil. 682)

Definition of Conditional Judgment

It is one the effectivity of which depends upon the occurrence or the non-occurrence of an event. Such a judgment is generally void because of the absence of a disposition. (Cu Unjieng v. Mabalacat Sugar Co., 70 Phil. 384)

Definition of a Sin Perjuicio JudgmentIt is one that makes reservation in favor of some parties as to the right to do something in a separate and further proceedings. It is not a binding one. (Gatus v. CA, 95 SCRA 531)

Definition of an Incomplete JudgmentIt is one that does not dispose of all the issues of a case validly raised. It is not final until it is completed. (Albano)

Void Judgments

GR: If a decision is void, it has no legal effect at all.

EX: Doctrine of operative facts. (Tan v. Barrios, 190 SCRA 386)

Definition of Judgment on the MeritsA judgment is on the merits when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts. There could be a judgment on the merits even if there is no trial. (Riano)

Definition of Erroneous JudgmentA judgment contrary to the express provisions of law is erroneous but it is not void. Once it becomes final and executor, it is binding and effective as any judgment and, though erroneous, will be enforced as a valid judgment in accordance with its dispositions. (Mercado v. CA, L-44001)

Difference between Amended Judgment and Supplemental JudgmentIn an amended and clarified judgment, the court makes a thorough study of the original judgment and renders the amended and clarified judgment only after considering all the factual and legal issues. Such amended and clarified decision is an entirely new decision which supersedes the original decision.

A supplemental decision does not take the place of or extinguish the original; it only serves to bolster or add something to the primary decision. (Esquivel v. Alegre, GR 79425)

Definition of Obiter Dictum

It is an opinion expressed by a court upon some question of law which are not necessary to the decision of a case before it. (Hian v. CTA, 59 SCRA 110)

Doctrine of the Law of the CaseWhatever is once irrevocably established as the controlling legal rule or decision between the same parties in the case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (Riano)

Rule of Stare DecisisWhen the SC has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. (Riano)

Minute Resolution allowedThe SC has the discretion to decide whether a minute resolution should be used in lieu of a full-blown decision in any particular case and that minute resolution of dismissal of a petition for review on certiorari constitutes an adjudication on the merits of the controversy or subject matter of the petition. (Smith Bell & Co. v. CA, GR 56294)

Nature of Memorandum DecisionsA memorandum decision should actually embody the factual findings and legal conclusions in an annex attached to and made an integral part of the decision. Also, such decisions should be sparingly used and may be resorted to only in cases where the facts are accepted in the main by the parties, are easily determinable by the judge, and do not involve doctrinal complications requiring extended discussion. (Yao v. CA, GR 132428)

Judgment in a Naturalization CaseIt becomes final only after the issuance of the naturalization certificate and compliance by the applicant with RA 530, but it does not really become executor and a certificate of naturalization may be cancelled on grounds subsequent to the granting thereof. (Regalado, citing Ao Sun v. Republic and Republic v. Guy)

Definition of MittimusIt is the final process for carrying into effect the decision of the appellate court and the transmittal to the court a quo. It is predicated upon the finality of the judgment. (De Guzman v. Reyes, 114 SCRA 596)

Transferred Judge Can Still Render Decision

A judge permanently transferred to another court of equal jurisdiction can render a decision on a case in his former court which was totally heard by him and submitted for a decision, with the parties having argued the case. (Valentin v. Sta. Maria, L-30158)

Judgment penned by a judge who had ceased to be a judge

A decision penned by a judge after his retirement cannot be validly promulgated and cannot acquire a binding effect. In like manner, a decision penned by a judge during incumbency cannot be validly promulgated after his retirement. (Nazareno v. CA, 378 SCRA 28)

Modification of JudgmentsGR: Before the lapse of the period to appeal, the judge can change the judgment, or even make a new one. A decision that has acquired finality becomes immutable and unalterable. (Doctrine of Conclusiveness or Immutability of Judgments)EX:

1. Correction of clerical errors

2. Nunc pro tunc entries which cause no prejudice to any party

3. Void judgments

4. Whenever circumstances transpire after the finality of the decision making its execution unjust and inequitable. (Regalado)

RULE 37

NOTICE OF APPEALRECORD ON APPEAL

Taken by filing a notice of appealTaken by filing the notice of appeal and the record on appeal

Perfected upon the expiration of the last day to appeal by any partyPerfected upon the approval of the record on appeal

Definition of the Berry RuleIt is incumbent on a party who asks for a new trial, on the ground of newly discovered evidence, to satisfy the court:

1. Evidence has come to his knowledge since the trial;

2. It was not owing to the want of due diligence that it did not come sooner;

3. It is material that it would produce a different verdict, if the new trial were granted;

4. It is not cumulative only;

5. The affidavit of the witness himself should be produced, or its absence accounted for; and

6. A new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness. (Dinglasan, Jr. v. CA, GR 145420, citing Berry v. State of Georgia)Definition of a Pro Forma MotionIt is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings. (Marikina Development Corporation v. Flojo, 251 SCRA 87)

Nature of a Pro Forma Motion for New TrialIf a motion for new trial does not satisfy the requirements of this rule, it is pro forma and does not suspend the period to appeal. (Regalado, citing Francisco v. Caluag)

It is based on the same ground as that raised in a preceding motion for new trial or reconsideration which has already been denied.

It contains the same arguments and manner of discussion appearing in the prior opposition to the motion to dismiss and which motion was granted.

The new ground alleged in the second motion for new trial already existed, was available and could have been alleged in the first motion for new trial which was denied.

It is based on the ground of insufficiency of evidence or that the judgment is contrary to law but does not specify the supposed defects in the judgment.

It is based on the ground of fraud, accident, mistake or excusable negligence but does not specify the facts constituting these grounds and/or is not accompanied by an affidavit of merits.

EX: Motion invokes the further ground that its decision awards excessive damages, with a certification of the courts findings and conclusions

Definition of Pro Forma Motion for Reconsideration

Where a motion for reconsideration is but a reiteration of reasons and arguments previously set forth in the movants memorandum and which the trial court had already considered, weighed and resolved adversely before it rendered its decision now sought to be considered, that motion is pro forma.(Dacanay v. Alvendia, L-22633)

Where the circumstances of a case do not show an intent on the part of the pleader to delay the proceedings, and his motion reveals a bona fide effort to present additional matters or to reiterate his arguments in a different light, the courts should be slow to declare the same outright as pro forma. (Guerra Enterprises v. CFI, L-28310)

Applicability of Pro Forma Motion for Reconsideration

It is properly directed against a final judgment or order, and not those against an interlocutory order. (BA Finance v. Pineda, GR 61628)

Same rule applies for second MRs. (Phil Green Trading Construction Co. v. CA)

When MR and MNT Same Grounds

A MR, if based on the same grounds as that for a new trial, is considered a MNT and has the same effect. (Rodriguez v. Rovira, 63 Phil. 476) However, where the MNT is based on the last par. of Sec. 1, it is properly a MR. (City of Cebu v. Mendoza, L-26321)

Nature of a Motion for Reopening the TrialA motion to reopen may properly be presented only after either or both parties have formally offered and closed their evidence before judgment. It is controlled by no other rule than the paramount interest of justice, resting entirely on the sound discretion of a trial court. (Regalado, citing Alegre v. Reyes and Agulto v. CA)Contents of an Affidavit of Merits1. Nature or character of the fraud, accident, mistake or excusable negligence on which the motion for new trial is based;

2. Facts constituting the movants good and substantial defenses or valid causes of action; and

3. Evidence which he intends to present if his motion is granted. (Regalado)

When Affidavits of Merits may be Dispensed withAffidavits of merits may be dispensed with when the judgment is null and void.

No jurisdiction over the defendant or the subject matter

Procedurally defective

Defendant was unreasonably deprived of his day in court

Not required in MR

When Second MNT may be allowed

A second MNT may be entertained where the ground therefor was not available or existing at the time when the first motion was filed. (Regalado)

When Second MR may be allowed

GR: Second MR is not allowed.

EX:

1. For extraordinarily persuasive reasons and only upon express leave first obtained (Ortigas and Company Limited Partnership v. Velasco)

2. Meritorious on its face

3. Substantial justice

Single Motion Rule

A party shall not be allowed to file a second MR of a judgment or a final order.

Nature of a Second MRThe concept of a second MR is one which seeks a further reconsideration of an order or resolution which denied the first MR. (Gonzales v. Sandiganbayan)

Compatibility of Appeal and Certiroari

Where defendants MNT was denied by the trial court, it has been held that he can perfect an appeal from the judgment and also proceed on certiorari to set aside the order denying his MNT. There is no incompatability between the two remedies as one is directed against the judgment and other, against the order denying the new trial. (Banco Filipinas Savings & Mortgage Bank v. Campos, L-39905)

Effect of the Absence of Notice of HearingNotice is mandatory. It cannot be cured by a belated filing of a notice of hearing. (People v. CA, 296 SCRA 418)

RULE 38

Court which may grant the petition

Petition for relief from judgment can only be filed in the MTC or RTC despite the wording in the law that it can be filed in "any court."(Redena v. CA, 514 SCRA 389)Applicability of the petition in other casesIt is applicable to all kinds of special proceedings, such as land registration, intestate settlement, and guardianship proceedings. (Regalado)

When petition for relief is availableA petition for relief is an equitable remedy and is allowed only in exceptional cases from final judgments or orders where no other remedy is available. (Palmares v. Jimenez, 90 Phil. 773)

It does not apply to an interlocutory order. (Balite v. Cabangon, L-24105)

Periods for filingThe two periods for filing of a petition for relief are not extendible and never interrupted. (Quijano v. Tameta, L-16473).

These periods cannot be subject to a condition or a contingency. (Vda. de Salvatierra v. Garlitos). Both periods must be complied with. (Regalado)

60-day period

The 60-day period is reckoned from the time the party acquired knowledge of the order, judgment or proceedings and not from the date he actually read the same. (Perez v. Araneta, 103 Phil. 1141)

6-month periodThe 6-month period is computed from the date of the entry of the order or judgment. (Date of the finality of judgment or final order is deemed to be the date of its entry).

Date of Entry of JudgmentA judgment is entered on the date it becomes final and executory. Normally, it is 15 days from the time the parties received the notice of the written judgment where no appeal has been made or perfected. (Albano)

Who may availThe petition is available only to parties in a proceeding where the assailed judgment is rendered. A person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment. (Alaban v. CA, 470 SCRA 697)Order of default, not applicableFailure to file an answer to the petition for relief does not constitute default as, even without an answer, the court will still have to hear the petition and determine its merits. (Regalado)

Nature of Petition for Relief

An order granting a petition for relief from judgment is interlocutory and non-appelable.

Mistake as a Ground

Mistake must be some unintentional act, omission or error arising from ignorance, surprise, imposition or misplaced confidence. It is the result of ignorance of law of fact that has misled a person to commit that which, if he had not been in error, he could have done it. (Albano, citing Blacks Law Dictionary)

Accident as a Ground

Accident is when the party seeking it had exercised ordinary diligence to ascertain the facts which it is claimed to have surprised or prevented said party from presenting his case. (Albano, citing Sunico v. Villapando, 14 Phil. 352)

Negligence of a LawyerGR: Clients are bound by the mistakes or omissions of their counsel.

EX: When the mistake of counsel is so palpable that it amounts to gross negligence.

EX to EX: Petitioners have squandered the various opportunities available to them at the different stages of the case.

RULE 39

Meaning of ExecutionIt is the remedy afforded for the satisfaction of a judgment. (Cagayan de Oro Coliseum v. CA, 310 SCRA 731)

Definition of Final OrderFor purposes of binding effect or whether it can be subject of execution, an order is final or executor after the lapse of the reglementary period to appeal and no appeal has been perfected. (Regalado)

Execution as a Matter of RightSec. 1 is the rule on when judgments or orders may be executed as a matter of right, that is, it becomes the mandatory or ministerial duty of the court to issue a writ of execution to enforce the judgment. This happens when the judgment becomes executory. (Regalado, citing Far Eastern Surety & Insurance Co. v. Vda. de Hernandez, L-30359)

An ex parte motion for the issuance of the writ would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. (Regalado)

Under Sec. 8, the writ of execution must of necessity be issued by the court where the judgment or order was entered, that is, the court of origin. (Regalado)

Execution is Discretionary

Under Sec. 2, execution may issue in the discretion of the court even the lapse of the period to appeal, that is, even before the judgment or order has become executory. (Regalado)

Court of Appeals has no authority to issue immediate execution pending appeal of its own decisions therein. Once final and executor, the judgment on appeal must be remanded to the lower court, where a motion for execution may be filed only after its entry. (Heirs of Reyes v. CA, GR 135280-81)

Requisites for Discretionary Execution1. Motion filed by the prevailing party with notice to the adverse party;

2. Hearing of the motion;

3. Good reasons to justify the discretionary execution; and

4. Good reasons must be stated in a special order. (Riano)

Exception to Execution

GR: Where the judgment or order has become executory, the court cannot refuse to issue a writ of execution.

EX:

1. When subsequent facts and circumstances transpire which render such execution unjust or impossible;

Ex. Defendant bank was placed under receivership

2. Equitable grounds, as when there has been a change in the situation of the parties which makes execution equitable;

3. Where the judgment has been novated by the parties;

4. When a petition for relief or an action to enjoin the judgment isfiled and a preliminary injunction is prayed for and granted;

5. When the judgment has become dormant;

6. Where the judgment turns out to be incomplete, or is conditional. (Regalado)When Execution Will Be Denied1. Judgment has already been executed by the voluntary compliance thereof by the parties;

2. Judgment has been novated by the parties;

3. Petition for relief is filed and a preliminary injunction is granted;

4. Judgment sought to be executed is conditional;

5. Judgment sought to be executed is incomplete;

6. Facts and circumstances transpire which wound render execution inequitable or unjust;

7. Execution is sought more than 5 years from its entry without judgment having been revived;

8. Execution is sought against property exempt from execution;

9. Refusal to execute the judgment has become imperative in the higher interest of justice. (Riano)

When Quashal of Writ is Proper1. Improvidently issued;2. Defective in substance;

3. Issued against the wrong party;

4. Judgment has already satisfied;

5. Issued without authority;

6. Change in the situation of the parties renders execution inequitable;

7. Controversy was never validly submitted to the court;

8. Writ varies the terms of the judgment;

9. Where it is sought to be enforced against property exempt from execution;

10. Ambiguity in the terms of the judgment. (Regalado)

When Writ is a NullityWhere there is substantial variance between the judgment and the writ of execution issued to enforce the same, said writ is a nullity. (Malacora v. CA, GR 51042)

Appeal not Allowed

No appeal may be taken from an order of execution. (Reliance Surety and Insurance Co. Inc. v. Amante, Jr., 462 SCRA 399)

Remedies Against an Executory Judgment/Order1. Petition for Relief

2. Direct attack

Made through (1) an action or proceeding the main object of which is to annul, set aside, or enjoin the enforcement of such judgment, if not yet carried into effect; (2) if the property has been disposed of, the aggrieved party may sue for its recovery. (Banco Espanol-Filipino v. Palanca, 37 Phil. 921)

Grounds:

1) Lack of jurisdiction

2) Fraud

3) Contrary to Law

3. Collateral Attack

Made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action.

Ground: Patent lack of jurisdiction of the court

4. Annulment of Judgment

The fraud must be extrinsic and committed by the adverse party.

Any person adversely affected thereby can enjoin its enforcement and have it declared a nullity on the ground of extrinsic fraud and collusion used in obtaining such judgment. (Militante v. Edrosolano, L-27940)

Jurisdiction: (BP 129)

1) CA Exclusive original jurisdiction to annul the judgment of RTC

2) RTC Jurisdiction to annul judgments of inferior courts in the regionDefinition of SupersedeasIt is an auxiliary process designed to superseddde enforcement of a trial courts judgment brought up for review, and its application is limited to the judgment from which an appeal is taken. (Regalado, citing Mascot Pictures Corp. v. MC of LA)

The term is used synonymously with a stay of proceedings, and designates the effect of an act or proceeding which in itself suspended the enforcement of a judgment. (Regalado, citing Dulin v. Coal Co.)

Execution and InjunctionGR: Appeal does not stay the execution of a judgment decreeing dissolution of a preliminary injunction.

EX: Judgment in an action for prohibition. (Regalado)

Execution of Judgment May Be Enjoined1. Petition for relief from judgment with prayer for an injunction or TRO;

2. Annulment of judgment;

3. Novation of judgment. (Albano)

Execution Upon Good Reasons

Even before judgment has become executor and before appeal was perfected, the court, in its discretion, may order execution upon good reasons to be stated in a special order, such as:

1. Where the lapse of time would make the ultimate judgment ineffective, as where the debtors were withdrawing their business and assets from the country;

2. Where appeal is clearly dilatory;

3. Where judgment is for support and the beneficiary is in need thereof;

4. Where the articles subject of the case would deteriorate;

5. Where defendants are exhausting their income and have no other property aside from the proceeds from the subdivision lots subject of the action;

6. Where the judgment debtor is in imminent danger of insolvency, or is actually insolvent;

Not apply where, assuming that one of the judgment debtors is insolvent, the other judgment co-debtor is not and, under the terms of the judgment, the liability of the latter is either subsidiary to or solidary with the former. (PNB v. Puno, GR 76018)

7. Where the prevailing party is of advanced age and in a precarious state of health, and the obligation in the judgment is non-transmissible;

8. Where there is uncontradicted evidence showing that, in order to house machineries which they were forced to place on a public street, movants were in extreme need of the premises subject of the suit and the possession whereof was adjudged to them in the trial courts decision, and the corresponding bond to answer for damages in case of reversal on appeal had been posted by them;

9. Where the case involved escrow deposits and the prevailing party posts sufficient bond to answer for damages in case of reversal of the judgment.

Mere filing of a bond is not a good reason for the execution of a money judgment pending appeal. (Belfast Surety & Insurance Co. v. Solidum). The factual context in which such orders were allowed must also be taken into consideration. (Roxas v. CA, GR 56960)10. Preventing irreparable injury to the consumers of an electric cooperative;11. Goods subject of the judgment will perish or deteriorate during the pendency of the appeal;

12. Failure in an unlawful detainer case to make the required periodic deposits to cover the amount of rentals due under the contract or for payment of the reasonable value of the use and occupation of the premises, or the failure to post a supersedeas bond.

Certiorari lies against an order granting execution pending appeal where the same is not founded upon good reasons. (Jaca v. Davao Lumber Co., L-25771)

Suspension of Writ as a Matter of Right

Filing of supersedeas bond does not entitle the judgment debtor to the suspension of execution as a matter of right. (Regalado)

When to File Motion for ExecutionAs long as such motion is filed before the appeal is perfected, the writ may issue after the period for appeal. (Universal Far East Corp. v. CA, GR 64931)

Order for Execution and CounterbondsAn order for execution of a judgment pending appeal can be enforced on a counterbond which was posted to lift the writ of preliminary attachment issued by the trial court. (Phil. British Association Co. v. IAC, GR 72005)

Effect of Reversal of Executed Judgment1. In the property is still in the possession of the judgment creditor

Return the property plus compensation to judgment debtor

Effected by motion to the trial court

2. If restitution is not possible

Purchaser at the public action was the judgment creditor

= Pay full value of the property at the time of its seizure, plus interest

Purchaser at the public action was a third person

= Judgment creditor must pay the judgment debtor the amount realized from the sale of said property at the sheriffs sale, with interest

Judgment award was reduced on appeal

= Judgment creditor return to judgment debtor only the excess which he received over and above that to which he is entitled under the final judgment, with interest on such excess. (Po Pauco v. Tan Juco, 49 Phil. 349)

Modes of Execution of a Judgment1. Execution by motion if the enforcement of the judgment is sought within 5 years from the date of its entry; and

2. Execution by independent action if the 5-year period has elapsed and before it is barred by the statute of limitations. (Riano)

5-year Period and Date of Entry (Sec. 6)The 5-year period is to be counted not from the date the judgment became final in the sense that no appeal could be taken therefrom but when it became executor in the sense that it could already be enforced. (Tan Ching Ji v. Mapalo, L-21933)However, if it is a judgment based on a compromise which is immediately final and executor, prescription runs from the date of its rendition and not from the date of entry. (Jacinto v. IAC, GR 66478)

If a writ of execution was issued and levy made on the property within the 5-year period, the sale of the property thereafter will be valid provided it is made within the 10-year period. (Regalado)

Failure to object to a writ of execution issued after 5 years from judgment does not validate the writ. (Regalado)

When 5-year Period May Be Extended1. Financial difficulties of the debtor;

2. Suspended by agreement of the parties, especially if it was with court approval;

3. Repealed refusal or failure of the sheriff to enforce the same;

4. Suspended by order of the court;

5. Interrupted by the filing of a motion for examination of the judgment debtor and an action for mandamus by the judgment creditor;

6. Due to the acts of the judgment debtor;

7. Judgment creditors had complied with virtually all the requirements, and delay was imputable to the government agencies involved. (Regalado)

When 5-year period Is Interrupted1. Causes clearly attributable to the judgment debtor as when he employs legal maneuvers to block the enforcement of the judgment;

2. Agreement of the parties. (Riano)

Action for Revival of JudgmentAfter 5 years and within 10 years from entry of the judgment, such judgment becomes a mere right of action and if unsatisfied, the prevailing party can file an action for revival of judgment. (Regalado)

The 10-year period for revival of judgment is counted from the date of its finality. (PNB v. Deloso, L-28301)If an amendatory or calrificatory judgment was rendered, it is from the date of the entry thereof that the 10-year period is reckoned. (Sta. Romana v. Lacson, L-27754)The 10-year period is to be reckoned from the finality of the original judgment; hence, if within that period a judgment reviving the original judgment was obtained but again remained unsatisfied, a second revival action beyond the prescriptive 10-year period is not allowed. (PNB v. Deloso)An action to revive a judgment is a personal one and not quasi in rem. (Regalado)Instances where Sec. 6 does not apply1. Judgments for support

EX: Support in arrears beyond 10 years from the date they become due

2. Contempt orders by reason of unauthorized reentry on the land by the ejected defendant

3. Writs of possession in foreclosure cases within the statute of limitations

4. Special proceedings like land registration cases (Regalado)

Judgments Which May be RevivedSec. 6 makes no distinction as to the kind of judgment which may be revived by ordinary independent action.Jurisdiction to Change Judgment versus Jurisdiction to Enforce Judgment

JURISDICTION TO CHANGE JUDGMENTJURISDICTION TO ENFORCE JUDGMENT

Terminates when the judgment becomes finalContinues even after the judgment has become final

Rules 39, Section 1Rule 39, Section 6

Stay of ExecutionGR: An appeal perfected in due time stays the execution of judgment.

EX:

1. Judgments which by express provision of the rules are immediately executory and are not stayed on appeal; and

2. Judgments that have become the object of discretionary execution.

Immediately Executory JudgmentsThere must be a motion to that effect and a hearing called for that purpose. (Lou v. Siapno, 335 SCRA 181)

Substantial errors in a judgment which could not be amended after the judgment has already become final and executory1. Error in the time fixed by a judgment for the payment of a certain sum of money;

2. Error in the judgment ordering the payment of interest;

3. Error in the judgment declaring the liability of the defendants to be joinedt instead of in solidum;

4. Error in the judgment ordering petitioner a different piece of land;

5. Error in including the moratorium clause in the judgment;

6. Error in declaring the plaintiff merely as the owner of the land, and failing to eject the defendant as well;

7. Error in the judgment ordering the defendant to pay only P11,717.48 instead of the correct amount of P14,030;

8. Error in the judgment fixing the rate to be charged by a public service;

9. Error in failing to make an award of back wages which should have been made after the court found the employer guilt of unfair labor practice. (Albano)

When Judgment Obligor DiesIf he dies after the entry of judgment but before levy on his property, execution will issue if it be for the recovery of real or personal property. If the judgment is for a sum of money, such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate. (Paredes v. Moya, L-38051)

If he dies after levy has been made, the execution sale may proceed. It is the actial date of levy on execution which is the cutoff date. (Evangelista v. La Proveedora, L-32834)

Void Writs of ExecutionA writ of execution must conform with the judgment and if it is different from or exceeds the terms of the judgment, it is a nullity. (Villoria v. Piccio, 95 Phil. 802)

A writ of execution is void when issued for a greater sum than is warranted by the judgment despite partial payment thereof. The exact amount due cannot be left to the determination of the sheriff. (Windor Steel Mfg. v. CA, L-34332)Subject of ExecutionGR: The portion of the decision that becomes subject of execution is that ordained or decreed in the dispositive part thereof.

EX:

1. Where there is ambiguity or uncertainty, the body of the opinion may be referred to for purposes of construing the judgment;

2. Where extensive and explicit discussion and settlement of the issue is found in the body of the decision. (Regalado)

Instances When Writ of Possession May be Issued1. Land registration proceedings

2. Extrajudicial foreclosure of real estate mortgage

3. Judicial foreclosure of real estate mortgage, provided the mortgagor is in possession of the mortgaged property and no third person, not a party to the foreclosure suit, had intervened

4. Execution sales. (Mabale v. Apalisok, L-46942)

Remedy for Issuance of Writ of ExecutionAppeal is the remedy from an order denying the issuance of a writ of execution. (Socorro v. Ortiz) However, an order granting the issuance of a writ of execution is not appealable, except where (1) order varies the terms of the judgment; (2) being vague, the court renders what is believed to be a wrong interpretation of judgment.When Appeal is not PermittedA party who has voluntarily executed a judgment, or who voluntarily acquiesces in or ratifies, the execution of such judgment, is not permitted to appeal it. (PVTA v. De los Angeles, L-30085)Remedy When a Party Refuses to Yield Possession of a Property Ordered by a Writ of Execution

Contempt is not the remedy. The sheriff must oust said party from the property but if demolition is involved, there must be a hearing on motion and due notice for the issuance of a special order. (Regalado)

A writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a habere facias possessionem and authorizes the sheriff, without the need of securing a break open order, to break open the premises where there is no occupant therein. (Arcadio v. Ylagan, AC 2734)

Definition of Special Judgment under Sec. 12It is one which requires the performance of any act, other than the payment of money or the sale or delivery of real or personal property, which a party must personally do because his personal qualifications and circumstances have been taken into consideration. Refusal to comply is punishable by contempt. (Chinese Commercial Property CO. v. Martinez, L-18565)

Definition of Judgment for Specific Acts under Sec. 10It directs a party to execute conveyance of land, or to deliver deeds or other documents, or to perform any other specific acts in connection therewith but which acts can be performed by persons other than said party. The disobedient party incurs no liability for contempt. (Regalado)

Definition of LevyIt means the act/s by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale. (Regalado)

Without a valid levy having been made, any sale of the property thereafter is void. (Valenzuela v. Aguilar, L-18083)Definition of GarnishmentIt is the act of appropriation by the sheriff where the property involved is money, stocks or other incorporeal property in the hands of third persons. (Regalado, citing De la Rama v. Villarosa, L-19727)

Garnishment of a bank deposit of the judgment is not a violation of RA 1405 (on secrecy of bank deposits). (China bank v. Ortega, L-34964)

Execution for a judgment for the delivery or restitution of real property

The 3-day notice is required even if judgment against the defendant is immediately executory. (Manuel v. Escalante, GR 134141)

Exemption from Execution May be WaivedThese exemptions must be claimed, otherwise they are deemed waived. (Herrera v. McMicking, 14 Phil. 641). It is not the duty of the sheriff to set off the exemptions on his own initiative. (Regalado)

Other properties exempt from execution1. Property mortgaged to the DBP (CA 45);

2. Property taken over by the Alien Property Administration (US Trading With the Enemy Act);

3. Savings of national prisoner deposited with the Postal Savings Bank (Act 2489);

4. Backpay of pre-war civilian employees (RA 304);

5. Philippine Government backpay to guerillas (RA 897);

6. Produce, work animals and farm implements of agricultural lessess, subject to limitation (RA 6389);

7. Benefits from private retirement systems of companies and establishments, with limitations (RA 4917);

8. Laborers wages, except for debts incurred for food, shelter, clothing and medical attendance (Art 1708 of CC);

9. Benefit payments from the SS (RA 1161);

10. Copyrights and other rights in intellectual property (RA 8293);

11. Bonds issued under RA 1000 (NASSCO v. CIR, L-17874).

Liability under Third-Party ClaimWhere a third-party claim has been filed in due form, the prevailing party can compel the sheriff to proceed by the filing of a bond to answer for damages that may be incurred as a consequence of the execution. (Regalado)

If the sheriff proceeds with the sale without such bond, he will be personally liable for such damages as may be sustained by and awarded to the third-party claimant. (Bayer Phil. v. Agana, L-38701)

Rights of Third-Party ClaimantsThe rights of third-party claimants should not be decided in the action where the third-party claims are presented, but in a separate action which the court should direct the claimants to file. (San Francisco Oil & Paint Co. v. Bayer Phil, L-38801)

Action for Damages and SuretyIn the action for damages upon the bond filed by the judgment creditor, the surety must be impleaded, otherwise the judgment therein cannot be enforced against the bond. (Montojo v. Hilario, 58 Phil. 372)

Remedies of a Third-Party Claimant1. Summary hearing before the court which authorized the execution;

2. Terceria or thid-party claim filed with the sheriff;

3. Action for damages on the bond posted by the judgment creditor;

4. Independent reivindicatory action.

These are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. (Regalado)

Claim of Impropriety, who can file

A separate case, distinct from that in which the execution was issued, is proper if instituted by a stranger to the latter suit.

If the claim of impropriety in t he execution is made by a party to the action, not a stranger thereto, any relief therefrom may only be applied for and obtained from the executing court. (Regalado)

Sale Without NoticeThe sale is null and void. (Ago v. CA, L-17898), and subjects the officer to liability for damages. (Regalado)

The creditor who induced the sheriff to sell without notice will be solidarily liable with the tortfeasor. (Campomanes v. Bartolome, 38 Phil. 808)

Persons Who are Disqualified from Bidding and Purchasing at the Public Auction1. Officer conducting the execution sale or his deputy

2. See Article 1491 of CC

3. Seller of goods who exercises the right of resale

Remedy against Irregular SaleThe remedy is a motion to vacate or set aside the sale to be filed in the court which issued the writ of execution. (Regalado)

Effects of Inadequate Price

A shocking inadequacy of price at a judicial sale warrants the setting aside thereof and such sale is null and void, but this rule does not apply to conventional sales.

Mere inadequacy of price is not material since the judgment debtor may reacquire the property or sell his right to redeem and thus recover any loss he claims to have suffered by reason of the price obtained at the execution sale. (Regalado)

Measure of Damages by Judgment CreditorHe is entitled to the difference between the amount which would have been realized were it not for the illegal intervention (but not to exceed the judgment account) and the total amount which he actually recovered on the judgment from all sources, including the amount realized at the auction sale, plus the expenses incurred as a consequence of the illegal intervention. (Mata v. Lichauco, 36 Phil. 809)

Pay in Cash

When there is a third-party claim, the judgment creditor must pay his winning bid in cash. (Filipinas Colleges v. Timbang, L-12812)

Right of RedemptionThere is no right of redemption where the property sold at judicial sale is personal property.

Where the property sold is real property, the period of redemption is one year from and after the registration of the certificate of sale. If said certificate is not registered, the period of redemption does not run. (Regalado)

Where the parties agreed on the date of redemption, the period is that agreed upon. (Lazo v. Republic Surety & Insurance Co., L-27365) also known as Conventional RedemptionThe right of redemption is transferable and may be voluntarily sold, but said right cannot be levied upon by the judgment creditor so as to deprive the judgment debtor of any further rights to the property. (Regalado)The periods for redemption in Sec. 28 are not extendible or interrupted. (Regalado)

Nature of Certificate of SaleIt is merely a memorial of the fact of sale and does not confer any right to the possession, much less the ownership, of the real property purchased. It is the deed of sale executed by the sheriff at the expiration of the period of redemption which constitutes effective conveyance of the property sold and entitles the purchaser to possession of the property sold. (Gonzales v. Calimbas, 51 Phil. 358)

Definition of Successor In InterestIt includes a person to whom the judgment debtor has transferred his right of