R ule 62   Interpleader

1.   Interpleader

1. Original action2. Presupposes that the plaintiff has no interest in the subject matter of the action or has

an interest therein which, in whole or part, is not disputed by the other parties to the action;

3. Complaint in interpleader must be answered 15 days from service of summons.

Rule 63  Declaratory Relief and Similar Remedies

1.  Requisites for action for declaratory relief:

1. Subject matter of controversy is a deed, will, contract, or other written instrument, statute, executive order, or regulation, or ordinance;

à  Court may refuse to adjudicate where decision would not terminate the uncertainty or

controversy which gave rise to the action OR where the declaration is not necessary and

proper at the time;

2. Terms and validity thereof are doubtful and require judicial construction;3. No breach of the document, otherwise ordinary civil action is the remedy;

à  Must be before breach is committed, as in the case where the petitioner paid under

protest the fees imposed by an ordinance.  Declaratory relief still proper because the

applicability of the ordinance to future transactions still remains to be resolved,

although the matter could be threshed out in an ordinary suit for the recovery of the

fees paid.

4. There is an actual justiciable controversy between persons whose interests are adverse;

5. The same is ripe for adjudication;6. Adequate relief is not available through other means or other forms of action or

proceeding.

Rule 64     Review of Judgments and Final Orders or Resolutions of the

Commission on Elections and The Commission on Audit

à  For petition for review of judgments and final orders of the COMELEC and COA –

period to file is 30 days to be counted from notice of the judgment or final order or

resolution sought to be reviewed and not from the receipt of the denial of the Motion for

Reconsideration; the period to file petition is merely interrupted by the filing of the

Motion for Reconsideration and continues to run again for the remaining period which

shall not be less than 5 days from notice of denial.

Rule 65  Certiorari, Prohibition and Mandamus1. 1.    Certiorari1. Purpose – to correct an act performed by respondent;2. Act sought to be controlled – discretionary acts;3. Respondent – one who exercises judicial functions and acted with grave abuse of

discretion or in lack or excess of jurisdiction.4. Generally directed against an interlocutory order of the court prior to appeal from the

judgment in the main case;5. Need merely be filed seasonably (within 60 days), without undue delay and before the

act, order, or proceedings, sought to be reviewed or set aside has become fait accompli such that any reversal thereof shall have become academic;

6. Unless a writ of preliminary injunction shall have issued, does NOT stay the challenged order;

7. Parties are the aggrieved parties against the lower court or quasi-judicial agency and the prevailing parties;

8. Motion for reconsideration is a condition precedent, subject to certain exceptions;9. Higher court exercises original jurisdiction under its power of control and supervision

over the orders of lower courts.

à If CA reverses the judge, the latter may not go the SC via a petition for certiorari.  He

is merely a nominal party, and he should not seek the reversal of a decision that is

unfavorable to the action taken by him.

à Professional Regulation Commission vs. CA – It is well settled that the remedies of

ordinary appeal and certiorari are mutually exclusive, not alternative or successive. 

However, it has also been held that after a judgment has been rendered and an appeal

therefrom had been perfected, a petition for certiorari relating to certain incidents

therein may prosper where the appeal does not appear to be a plain, speedy and

adequate remedy.  In this case, the SC noted that, while petitioners tried to justify their

recourse to both an appeal and to a petition for certiorari by claiming that their appeal

would not constitute a plain, speedy and adequate remedy, they did not see fit to

withdraw or abandon said appeal after filing the petition.  Thus, both the CA and SC are

reviewing the same decision of the RTC at the same time.  Such a situation would lead

to absurdity and confusion in the ultimate disposition of the case.1. 2.    Prohibition2. 3.    Mandamus3. 4.    When SC allows the writ of certiorari even when appeal is available and proper:4. 5.    Cases where Motion for Reconsideration is NOT condition precedent for certiorari:

1. 6.    The period for filing any of the 3 actions is not later than 60 days from notice of judgment, order, or resolution sought to be reviewed.

1. Purpose – to prevent the commission or carrying out of an act;2. Act sought to be controlled – discretionary and ministerial acts;3. Respondent – one who exercises judicial or non-judicial functions.1. Purpose – to compel the performance of the act desired;

2. Act sought to be controlled – ministerial act;3. Respondent – one who performs judicial or non-judicial functions.1. Appeal does not constitute a speedy and adequate remedy;2. Orders were issued either in excess of or without jurisdiction;3. For certain special considerations, such as public welfare or policy;4. Where in criminal actions, the court rejects rebuttal evidence for the prosecution, as in

acquittal;5. Where the order is a patent nullity;6. Where the decision in the certiorari case will avoid future litigation.1. Order is a patent nullity;2. Questions raised in the certiorari proceeding were duly raised and passed upon by the

lower court, or are the same as those raised and passed upon in the lower court;3. Urgent necessity for the resolution of the question and any further delay would

prejudice the interests of the government;4. Under the circumstances, a motion for recon would be useless;5. Petitioner was deprived of due process and there is extreme urgency for relief;6. Where in a criminal case, relief from order or arrest is urgent and the granting of such

relief by the trial court is improbable;7. Proceedings in the lower court are null for lack of due process;8. Proceeding was ex parte or in which petitioner had no opportunity to object;9. Issue raised is one purely of law or where public interest is involved.

à  In case a motion for reconsideration or new trial is timely filed, whether such motion

is required or not, the 60-day period shall be counted from notice of the denial of said

motion.  (SC Circular 56-2000, effective September 1, 2000)

à                                                                                            No extension of time to file

the petition shall be granted except for compelling reason and in no case exceeding 15

days. (SC Circular 56-2000)

Rule 66  Quo Warranto1. 1.    Quo Warranto distinguished from Election Contest:

Quo WarrantoElection Contest

Basis is that occupant is disqualified from holding office by reason of ineligibility or disloyalty

Challenge rights of a person to hold office on the ground of irregularities in the conduct of the election

If successful, respondent is ousted but petitioner shall not automatically assume the office vacated

Successful protestant will assume office if he had obtained plurality of valid votes

Rule 67  Expropriation1. In expropriation, the complaint must be verified.

2. The defendant can only file an answer instead of a motion to dismiss1. The final order of expropriation is appealable, but the lower court may

determine the just compensation to be paid.

à The power of eminent domain is exercised by the filing of a complaint which shall join

as defendants all persons owning or claiming to own, or occupying, any party of the

expropriated land or interest therein.  If a known owner is not joined as defendant, he is

entitled to intervene in the proceedings; or if he is joined but not served with process

and the proceeding is already closed before he came to know of the condemnation, he

may maintain an independent suit for damages.

Rule 70  Forcible Entry and Unlawful Detainer1. 1.    Forcible entry distinguished from Unlawful detainer

Forcible entry Unlawful detainer

Possession of land is unlawful from the beginning due to force, intimidation, threat, strategy or stealth

Possession of defendant is inceptively lawful but becomes illegal by reason of termination of right of possession

No requirement of previous demand for defendant to vacate premises Demand is jurisdictional

Plaintiff must prove that he was in prior physical possession until he was deprived thereof by defendant

Plaintiff need not have been in prior physical possession

1-year period counted from date of actual entry or when plaintiff learned thereof. 1-year period from date of last demand

2.  When prior demand in unlawful detainer actions not required;

1. When purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract;

2. Purpose of suit is not for ejectment but for enforcement of terms of contract;3. When defendant is not a tenant but a pure intruder

à In all other cases, there must be a demand:

1. To pay or to comply with the conditions of the lease; AND2. To vacate by written notice on the person in the premises or by posting such notice on

the premises if no person is found thereon and this is a condition precedent to the filing of the case; ORAL demand is not permitted.

1. If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by the Rules.

3.   When the defendant raises the issue of ownership in his pleadings and the question

of possession cannot be resolved without deciding the issue of ownership, the latter

issue shall be resolved only to determine the issue of possession.

à A forcible entry/unlawful detainer action has an entirely different subject matter from

that of an action for reconveyance.  The former involves material possession, and the

latter, ownership.  Thus, the pendency of an action for reconveyance does not divest

the MTC of its jurisdiction over an action for FE/UD, nor will it preclude execution of

judgment in the ejectment case where the only issue involved is material possession.

Rule 71  Contempt1. 1.    Criminal contempt2. 2.    Civil Contempt3. 3.    Direct Contempt (contempt in facie curiae)4. 4.    Indirect Contempt1. Purpose is to vindicate public authority;2. Conduct directed against the dignity or authority of the court.1. Purpose is to protect and enforce civil rights and remedies for the litigants;2. Failure to do something ordered by the court for the benefit of a party.1. Committed in the presence of or so near a court or judge;2. Punished summarily without hearing;3. No appeal may be taken but the party adjudged in contempt may avail himself of

actions of certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixed by the court is filed.

1. Not committed in the presence of the court;2. Punished only after hearing – complaint in writing or motion or party or order of court

requiring person to appear and explain, opportunity to appear and show cause.

 

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Civil Procedure – Rules 51 –   60 DEC 19

Posted by Magz

Rule 51  Judgment1. Memorandum decisions are permitted in the CA.

2. After judgment or final resolution of the CA and dissenting or separate opinions if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies to be served upon parties or counsel.

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

RULE 56  Procedure in the Supreme Court1. 1.    Original cases cognizable – exclusive list:1. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;2. Disciplinary proceedings against judges and attorneys;3. Cases affecting ambassadors, other public ministers, and consuls.

2.   An appeal to SC can only be taken by petition for review on certiorari, except in

criminal cases where the penalty imposed is death, reclusion perpetua, or life

imprisonment.

3.   Grounds for dismissal of appeal by SC

1. Failure to take appeal within the reglementary period;2. Lack of merit in the petition;3. Failure to pay the requisite docket fee and other lawful fees or to make deposit for

costs;4. Failure to comply with the requirements regarding proof of service and contents of and

the documents which should accompany the petition;5. Failure to comply with any circular, directive or order of the SC without justifiable

cause;6. Error in choice or mode of appeal7. Case is not appealable to the SC.1. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.2. General Rule: Appeal to SC by notice of appeal shall be dismissed.

Exception: In criminal cases where the penalty imposed is life imprisonment, or when a

lesser penalty is imposed but involving offenses committed on the same occasion or

arising out of the same occurrence which gave rise to the more serious offense for

which the penalty of death or life imprisonment is imposed (Section 3, Rule 122)1. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the

CA for decision or appropriate action, without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 45.

 

Provisional Remedies

Provisional remedies (ancillary/auxiliary)

à  Writs and processes available during the pendency of the action which may be

resorted to by a litigant to preserve and protect rights and interests therein pending

rendition, and for the purpose of ultimately affecting a final judgment in the case.

à PROVISIONAL – constituting temporary measures availed of during the pendency of

the action.

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

Rule 57  Preliminary Attachment1. 1.    Preliminary Attachment1. Available even if the recovery of personal property is only an incidental relief sought in

the action;2. May be resorted to even if the personal property is in the custody of a third person;3. Extends to all kinds of property, real or personal or incorporeal;4. To recover possession of personal property unjustly detained, presupposes that the

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

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

2.   Grounds

1. Recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the Phils with intent to defraud creditors;

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

3. Recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or disposed of to prevent is being found or taken;

4. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;

5. Action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;

6. Action against party who is not a resident of the Phils and cannot be found therein or upon who service by publication can be made.

3.   PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

Enforcement of writ of preliminary attachment must be preceded by or simultaneously

accompanied by service of summons, copy of complaint, application and affidavits for

the attachment and the bond upon the adverse party; BUT the requirement of prior or

contemporaneous service of summons shall not apply where the summons could not be

served despite diligent efforts, or the defendant is a resident of the Phils temporarily

absent therefrom, or the defendant is a non-resident of the Phils or the action is in

rem or quasi in rem.1. 4.    When preliminary attachment is discharged

1.         a.    Debtor posts a counterbond or makes requisite cash deposit- if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court; in all other cases, amount of counterbond should be equal to the amount fixed in the order of attachment.

à  CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT

THAT ATTACHING PARTY MAY RECOVER

1.         b.    Applicant’s bond is insufficient or sureties fail to justify;2.         c.    Attachment was improperly or irregularly issued;3.         d.    Property attached is exempt from execution;4.         e.    Judgment is rendered against attaching party;5.          f.    Attachment is excessive – discharge is with respect to the excess

5.   Application for discharge may only be filed with the court where the action is

pending and may be filed even before enforcement of the writ so long as there has

been an order of attachment.

6.  When to apply for damages against the attachment bond

1. Before trial;2. Before appeal perfected;3. Before judgment becomes executory;4. In the appellate court for damages pending appeal, before judgment becomes

executory.1. 7.    When judgment becomes executory, sureties on counterbond to lift attachment

are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing.  There is no need to first execute judgment against the judgment obligor before proceeding against sureties.

2. 8.    Claims for damages cannot be subject of independent action except:1.         a.    When principal case is dismissed by the trial court for lack of

jurisdiction without giving the claiming party opportunity to prove claim for damages;

2.         b.    When damages sustained by a third person not a party to the action.

Rule 58  Preliminary Injunction1. 1.    Preliminary injunction distinguished from Prohibition

Preliminary Injunction Prohibition

Generally directed against party to the Directed against a court, tribunal, or

action but may be against any person person exercising judicial powers

Does NOT involve the jurisdiction of the court

May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction;

May be main action itself or just a provisional remedy in the main action

Always a main action

2.  Grounds for Preliminary Injunction

1. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction);

2. The commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff;

3. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual.

3.   Injunction may be refused or dissolved when:

1. Complaint is insufficient;2. Defendant is permitted to post a counterbond it appearing that he would sustain great

and irreparable injury if injunction granted or continued while plaintiff can be fully compensated;

3. Plaintiff’s bond is insufficient or defective

4.  No Preliminary Injunction or TRO may be issued without posting of bond and notice

to adverse party and hearing.

5.  PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

à  When an application for a writ of preliminary injunction or a temporary restraining

order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-

sala court, shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse

party or the person to be enjoined.  In any event, such notice shall be preceded, or

contemporaneously accompanied by service of summons, together with a copy of the

complaint and the applicant’s affidavit and bond, upon the adverse party in the Phils;

BUT the requirement of prior or contemporaneous service of summons shall NOT apply

where the summons could not be served despite diligent efforts, or the defendant is a

resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of

the Phils

à  Difference with principle in preliminary attachment – In attachment, the principle

applies only in the implementation of the writ, while in applications for injunction or

TRO, this principle applies before the raffle and issuance of the writs or TRO.

6.  TRO good for only 20 days from service; 60 days for CA; until further orders from SC.

7.  TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer

grave injustice and irreparable injury.  Good for 72 hours from issuance, within which

judge must comply with service of summons, complaint, affidavit and bond, and hold

summary hearing to determine whether TRO should be extended for 20 days.  In no

case can TRO be longer than 20 days including 72 hours.

8.   No TRO, preliminary injunction or preliminary mandatory injunction may issue

against the government in cases involving implementation of government infrastructure

projects. (Garcia vs. Burgos, reiterated in Administrative Circular no. 7-

99, promulgated June 25,1999)

Rule 59  Receivership1. 1.    When receiver may be appointed:2. 2.    When receivership may be denied/lifted1. Party has an interest in the property or fund subject of the action and such is in danger

of being lost, removed, or materially injured;2. Action by mortgagee for foreclosure of mortgage when the property is in danger of

being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in the contract of mortgage;

3. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment.

4. When appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation.

1. Appointment sought is without sufficient cause;2. Adverse party files sufficient bond for damages;3. Applicant or receiver’s bond is insufficient.

3.   Both the applicant for the receivership and the receiver appointed must file

separate bonds.

4.   In claims against the bond, it shall be filed, ascertained and granted under the same

procedure as Section 20, Rule 57, whether is be damages against the applicant’s bond

for the unlawful appointment of the receiver or for enforcing the liability of the sureties

of the receiver’s bond by reason of the receiver’s management (in the latter case, no

longer need to file a separate action).

 

Rule 60  Replevin1. 1.    Replevin2. 2.    Defendant entitled to return of property taken under writ if:1. Available only where the principal relief sought in the action is the recovery of

possession of personal property;2. Can be sought only where the defendant is in the actual or constructive possession of

the personal property involved.3. Extends only to personal property capable of manual delivery;4. Available to recover personal property even if the same is NOT being concealed,

removed, or disposed of;5. Cannot be availed of if property is in custodia legis, as where is it under attachment, or

was seized under a search warrant or distrained for tax assessment.1. He seasonably posts redelivery bond2. Plaintiff’s bond is insufficient or defective3. Property is not delivered to plaintiff for any reason.

à Replevin bond is only intended to indemnify defendant against any loss that he may

suffer by being compelled to surrender the possession of the disputed property pending

trial of the action.  Thus, surety not liable for payment of judgment for damages

rendered against plaintiff on a counterclaim for punitive damages for fraudulent or

wrongful acts committed by the plaintiffs which are unconnected with the defendant’s

deprivation of possession by the plaintiff.

Special Civil Actions

1.   Types of Special Civil Actions

1. Mandamus2. Interpleader3. Certiorari4. Contempt5. Prohibition6. Eminent Domain7. Declaratory Relief8. Quo warranto9. Partition of real estate10. Foreclosure of mortgage11. Unlawful detainer12. Forcible Entry

 

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Tags: Civil Procedure - Rules 51 - 60

Civil Procedure – Rules 41 –   50 DEC 19

Posted by Magz

Rule 41  Appeal from the RTC1. Appeal may be taken from a judgment or final order that completely disposes of the

case or of a particular matter therein.2. No appeal may be taken from:1. Order denying a motion for new trial or recon;2. Order denying a petition for relief or any similar motion seeking relief from judgment;3. Interlocutory order;4. Order disallowing or dismissing an appeal;5. Order denying a motion to set aside a judgment by consent, confession, compromise

on the ground of fraud, mistake, or duress, or any other ground vitiating consent;6. Order of execution;

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

execution is not in accord with the dispositive portion, remedy is certiorari under Rule

65.

7. Judgment or final order for or against one or more of several parties or in separate claims, while the main case is pending, unless the court allows an appeal therefrom;

8. Order dismissing an action without prejudice;

à In all these cases, aggrieved party may file an appropriate civil action under Rule 65.

1. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of appeal with the RTC within 15 days from notice of its judgment.  Record on appeal required only for special proceedings and where multiple appeals allowed filed within 30 days.

2. Motion for extension of time to file a motion for new trial or reconsideration is prohibited.

3. Contents of Notice on appeal:1. Names of the parties to the appeal;2. Specify judgment or final order or part thereof appealed from;3. Court to which the appeal is being taken;4. Material dates showing timeliness of appeal;

6.  Contents of Record on appeal:

1. Full names of all parties to the proceedings shall be stated in the caption;2. Include judgment or final order from which appeal taken;3. In chronological order, copies of only such pleadings, petitions, etc. and all

interlocutory orders as are related to the appealed judgment;4. Data showing that appeal perfected in time – material data rule;5. If an issue of fact is to be raised, include by reference all the evidence, oral or

documentary, taken upon the issues involved.

7.  Appeal from decision of RTC in appellate jurisdiction is by petition for review filed

with CA.

8.  Where only questions of law are raised, by petition for review on certiorari with SC.

9.  Notice of Appeal and Record of Appeal distinguished:

Notice of Appeal Record of Appeal

Party’s appeal by notice of appeal deemed perfected as to him upon the filing of the notice of appeal in due time

Deemed perfected as to appellant with respect to the subject matter upon the approval of the record on appeal filed in due time

Court loses jurisdiction over case upon perfection of the appeals filed in due time and expiration of time to appeal of other parties

Court loses jurisdiction only over subject matter upon approval of records on appeal filed in due time and expiration of the time to appeal of other parties.

10. Failure to pay appellate docket fees within the reglamentary period is ground for

dismissal of appeal.

11. General Rule: An ordinary appeal stays the execution of a judgment

Exceptions:        a.            Decisions of quasi-judicial body appealed to the CA

b.   Executions pending appeal

c.   Cases covered by Summary Procedure

Rule 42  Petition for Review from the RTC to the CA1. 1.    Form and contents of petition for review (from RTC to CA)

In 7 legible copies:

1. Full names of parties to case, without impleading the lower courts or judges thereof;2. Indicate specific material dates showing it was filed on time;3. Concise statement of matters involved, issues raised, specification of errors of fact or

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

4. Accompanied by clearly legible duplicate originals or true copies of the judgments or final order of both MTC and RTC;

5. Certification under oath of non-forum shopping.1. 2.    Contents of comment

In 7 legible copies, accompanied by certified true copies of material portions of record

and other supporting papers:

1. State whether or not appellee accepts the statement of matters involved in the petition;

2. Point out such insufficiencies or inaccuracies as he believes exists in petitioner’s statement of matters;

3. State reasons why petition should not be give due course.

3.  CA may:

1. Require respondent to file a comment; or2. Dismiss the petition if it finds:1. Patently without merit2. Prosecuted manifestly for delay3. Questions raised are to insubstantial to require consideration

Rule 43  Appeals from the CTA and Quasi-Judicial Agencies to the CA1. 1.    Appeals from judgments and final orders of the Court of Tax Appeals and quasi-

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

2. 2.    Quasi-judicial agencies covered:1. Civil Service Commission;2. Central Board of Assessment Appeals;3. Securities and Exchange Commission;4. Office of the President;5. Land Registration Authority;6. Social Security Commission;7. Civil Aeronautics Board;8. Bureau of Patents, Trademarks and Technology Transfer;9. National Electrification Administration;10. Energy Regulatory Board;

11. National Telecommunications Commission;12. Department of Agrarian Reform under RA No. 6657;13. GSIS;14. Employees Compensation Commission;15. Agricultural Inventions Board;16. Insurance Commission;17. Construction Industry Arbitration Commission;18. Voluntary arbitrators

à St. Martin’s Funeral Home vs. NLRC – DECISIONS OF THE NLRC – ORIGINAL ACTION

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

à  Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in

administrative disciplinary cases should be taken to the CA under Rule 43.

Æ   According to A.M. no. 99-2-02-SC (promulgated February 9, 1999), any appeal by

way of petition for review from a decision, final resolution or order of the Ombudsman,

or special civil action relative to such decision, filed with the SC after March 15, 1999

shall no longer be referred to the CA, but shall be dismissed.

Rule 45  Appeal by Certiorari to the Supreme Court

1.  Question of Law –  exists when doubt or difference arises as to what the law is, based

on a certain state of facts

Question of Fact  – exists when doubt or difference arises as to the truth or the

falsehood of alleged facts

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

1. The conclusion is a finding grounded entirely on speculations, surmises, or conjectures;

2. The inference made is manifestly mistaken, absurd, or impossible;3. There is grave abuse of discretion;4. The judgment is based on misapprehension of facts;5. Findings of fact of trial court and CA are conflicting;6. The CA, in making its findings, went beyond the issues of the case and the same is

contrary to the admissions made;7. CA manifestly overlooked certain relevant facts not disputed by the parties and which,

if properly considered, would justify a different conclusion.

3.  Certiorari as mode of appeal:

From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law,

or other courts whenever authorized by law, by filing a petition for review on certiorari

with the SC within 15 days from notice of judgment.

4.  Rule 45 and Rule 65 distinguished:

Rule 45 Rule 65

No need for Motion for Recon Motion for Recon generally required

Relates to final judgmentsApplies to interlocutory orders rendered in excess/lack of jurisdiction

An appeal Not an appeal in the strict sense

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

à Kho vs. Camacho:  An RTC judge has no right to disapprove a notice of appeal on the

ground that the issues raised involve a pure question of law, and that the mode of

appeal is erroneous.  That is the prerogative of the CA, not the RTC judge.  A notice of

appeal need not be approved by the judge, unlike a record on appeal.

Rule 47  Annulment of Judgments or Final Orders and Resolutions1. Grounds for annulment of judgment of RTC in civil cases:

1. Petition for annulment available only if ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies no longer available through no fault of the Petitioner.

1. Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or petition for relief

2. Lack of jurisdiction.

3.  Periods:

1. For extrinsic fraud – four years from discovery;2. Lack of jurisdiction – must be filed before action barred by laches.

4.  Effects of judgment of annulment – gives the CA authority to order the trial court on

motion to try the case if the ground for annulment is extrinsic fraud, but not if it is lack

of jurisdiction.

à Prescriptive period for refiling the original action is suspended unless the extrinsic

fraud is attributable to the plaintiff in the original action.

Rule 50  Dismissal of Appeal1. 1.    Grounds for dismissal of appeal by the CA:1. Failure of the record on appeal to show on its face that the appeal was taken within

the reglamentary period;2. Failure to file the notice of appeal or record on appeal within the period;3. Failure of the appellant to pay the docket and other lawful fees;4. Unauthorized alterations, omissions, or additions in the approved record on appeal;5. Failure of the appellant to serve and file the required number of copies of his brief or

memorandum within the time provided;

6. Absence of specific assignment of errors in appellants brief or page references to the record;

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

8. Failure of appellant to appear at the preliminary conference or to comply with orders, circulars, or directives of the court without justifiable cause

9. Judgment or order appealed from is not appealable.

 

Reference:

Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001Posted in Civil Procedure

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Tags: Civil Procedure - Rules 41 - 50

Civil Procedure – Rules 31 –   40 DEC 19

Posted by Magz

Rule 31  Consolidation or Severance1. 1.    CONSOLIDATION – the court may order a joint hearing or trial of any or all matters

in issue when actions involving a common question of law or fact are pending before the court.

2. 2.    BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, in furtherance of convenience or in the interest of justice.

Rule 32  Trial by Commissioner

Trial by commissioner:

1. 1.    Reference by consent of both parties2. 2.    Reference by motion of one of the parties or motu proprio:1. Trial requires examination of a long account of either side2. Taking of an account is necessary for the information of the court before judgment or

for carrying a judgment order into effect3. Question of fact, other than upon the pleadings, arises upon motion or otherwise, in

any stage of the case.

Rule 33  Demurrer to Evidence

Demurrer to evidence is made by the defendant after the plaintiff has completed the

presentation of his evidence where the defendant moves for dismissal on the ground

that upon the facts and the law the plaintiff has shown no right to relief.

1. 1.    If motion denied – defendant has the right to present evidence

2.  If motion granted, but reversed on appeal – defendant deemed to have waived the

right to present evidence.

Rule 34  Judgment on the Pleadings

1.  Judgment on the Pleadings is proper:

1. If answer fails to tender an issue; or2. If answer otherwise admits the material allegations of the adverse party’s pleading

à  Then court may, on motion of that party, direct judgment on the pleadings

2.  However, the material facts alleged in the complaint shall always be proved in

actions for:

1. Declaration of nullity of marriage2. Annulment of marriage3. Legal separation

Rule 35  Summary Judgments

Summary judgment:

1. 1.    Proper if no genuine issue as to any material fact (except as to damages recoverable) and if moving party is entitled to a judgment as a matter of law

2. 2.    Based not only on pleadings but also on affidavits, deposition, and admissions of the parties showing that, except as to the amount of damages, there is no genuine issue.

3. 3.    Motion shall be served at least 10 days before the time specified for the hearing.1. 4.    May be asked for by a party seeking to recover upon a claim, counterclaim,

cross-claim or to obtain a declaratory relief.

5.  Although Rule does not specifically provide, also unavailable in actions for

annulment of and declaration of nullity of marriage, and for legal separation since Sec.

1 refers to actions “to recover upon a claim”, or to recover a debt or a liquidated

demand for money, or “to obtain declaratory relief.”

6.  Judgment on the pleadings and summary judgment distinguished:

Judgment on the Pleadings Summary judgment

Proper when there is no genuine issue between the parties

Proper even if there is an issue as to the damages recoverable

Based exclusively on the pleadings without introduction of evidence

Based not only on pleadings but also on affidavits, depositions and admissions of the parties

Available in any action, except the 3 exceptions

Proper only in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

à Motions for summary judgment may be filed by the claimant or by the defending

party.  The defending party may file such motion, pursuant to Rule 35, §2“at any time”,

as distinguished from §1 where the claimant may file the motion at any time after the

answer is filed.

Rule 36  Judgments, Final Orders and Entry Thereof1. 1.    The date of the finality of the judgment or final order shall be deemed to be the

date of its entry.  The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or consideration is filed within 15 days

2. 2.    Several Judgments

In action against several defendants, the court may render judgment against one or

more of them, leaving the action to proceed against the others.

1. 3.    Separate judgments

Judgment rendered to dispose of one of the several claims for relief presented in an

action, made at any stage, upon a determination of the issues material to a particular

claim and all counterclaims arising out of the transaction or occurrence which is the

subject matter of the claim, which terminates such claim.  Action shall proceed as to

other claims

Rule 37  New Trial or Reconsideration1. 1.    Motion for new trial or reconsideration filed within 15 days from notice of

judgment and resolved by the court within 30 days from submission for resolution.2. 2.    Grounds: Motion for New Trial1. Fraud, accident, mistake, or excusable negligence;2. Newly discovered evidence

à Requisites:

1. Discovered after trial2. Could not have been discovered and produced at trial despite the exercise of

reasonable diligence3. If presented, could probably alter the result of the action

3.   Grounds: Motion for Reconsideration

1. Damages awarded are excessive2. Evidence is insufficient to justify the decision or final order3. Decision is contrary to law

4.   Motion for new trial shall be in writing, and supported by affidavits of merit if the

ground is FAME; for newly-discovered evidence, it must be supported by affidavits of

witnesses by whom such evidence is expected to be given, or by duly authenticated

documents to be introduced.

Motion for reconsideration shall specifically point out the findings or conclusions of the

judgment which are unsupported by evidence or contrary to law, with express reference

to the testimonial or documentary evidence or the provisions of law alleged to be

contrary to such findings.

5.   Pro forma motion for new trial or reconsideration shall not toll the period for appeal.

6.   No second motion for reconsideration allowed.  Second motion for new trial must be

based on a ground not existing or available when the first motion was made, which may

be filed during the remainder of the 15-day period.

Rule 38  Relief From Judgments, Orders, or Other Proceedings1. 1.    Petition for relief from judgment filed within 60 days after learning of judgment

and not more than 6 months after such judgment

à Must be supported by affidavit showing the FAME and the facts constituting the

petitioner’s good or substantial cause of action or defense

1. 2.    Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied.  The two remedies are exclusive of one another.

2. 3.    Grounds:1. Judgment or final order is rendered and party has been prevented by FAME from

taking an appeal1. Judgment or final order entered against a party by FAME; or

à For fraud to be extrinsic, the losing party must never have had a chance to controvert

the adverse party’s evidence.

à Uniform procedure for relief from judgments of MTC and RTC

1. 4.    After petition is filed, court shall order adverse parties to answer within 15 days from receipt.  After answer is filed or expiration of period therefor, court shall hear the petition.

2. 5.    If granted, judgment set aside and court shall proceed as if timely motion for new trial has been granted; if granted against denial of appeal, court shall give due course to appeal.

Rule 39  Execution, Satisfaction and Effect of Judgments1. 1.    Execution as a matter of right

On motion with notice, upon a judgment or order that disposes of the action or

proceeding upon the expiration of the period to appeal therefrom if no appeal has been

duly perfected.

à  For so long as there is a certificate of entry of judgment, execution may already be

issued by the court of origin or directed to do so by the CA.

1. 2.    Discretionary execution – pending period to appeal or during appeal; may issue only upon good reasons to be stated in a special order after hearing.

1. By trial court – even after the perfection of the appeal for so long as the motion for execution was filed while the TC has jurisdiction over the case and is in possession or the records, upon motion of the prevailing party with notice to the adverse party

2. Appellate court – after the TC has lost jurisdiction

à Example:

P receives judgment: June 3

D receives judgment: June 1

D files notice of appeal: June 5

When does trial court lose jurisdiction? June 18

BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that

date.

à  Execution with respect to appealed cases- there is no need to await remand of the

records.

à Execution with respect to consequential and exemplary damages should be

postponed until such time as the merits of the case have been finally determined in the

regular appeal, as the amounts remain uncertain and indefinite pending resolution.

3.  a.   Motion for execution of final and executory judgment should be served on

adverse party and set for hearing;

b.   In case of appeal, motion is filed with court of origin supported by certified true

copies of final judgment of appellate court.

3. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No. 24-94, 4/18/94)

4.  Judgments NOT stayed by appeal (immediately executory, unless court provides

otherwise)

1. Actions for injunction2. Receivership3. Accounting4. Support5. Judgments declared immediately executory

5.  A final and executory judgment may be executed on motion within 5 years from

entry.  May be revived and enforced by action after lapse of 5 years but before 10 years

from entry.  Revived judgment may be enforced by motion within 5 years from entry

and thereafter by action before barred by statute of limitations – file motion within 10

years from the finality of the revived judgment.

6.   Execution in case of party’s death:

1. Death of judgment obligee – application of his executor or administrator or successor-in-interest

2. Death of judgment obligor -1. Against his executor, etc. if the judgment be for recovery of real or personal property

or the enforcement of a lien thereon.2. If death after execution is actually levied upon his property, it may be sold for

satisfaction of the obligation.

à If the judgment obligor dies after the entry but before levy, execution will issue if it be

for the recovery of real or personal property.  However, if judgment is for a sum of

money, and the judgment obligor dies before levy, such judgment cannot be enforced

by writ of execution but must be filed as a claim against his estate.

7.   Writ of execution:

1. Shall issue in the name of the Republic of the Phils from court which granted the motion

2. State the name of the court, case number and title, dispositive portion of the judgment order

3. Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms

8.   Manner of executing writ:

1. If judgment against property of the judgment obligor – out of real or personal property with interest

2. If against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor – out of that property, with interest

3. If for sale of real or personal property – to sell property, describing it and apply the proceeds in conformity with judgment.

4. If for delivery of possession of property – deliver possession of the same to the party entitled to it, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and out of real property if sufficient personal property cannot be found.

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

à  Judgment obligor is given option to choose which property may be levied on sufficient

to satisfy the judgment.

9.   Property exempt from execution

1. Family home as provided by law, homestead in which he resides, and land necessarily used in connection therewith;

2. Tools and implements used in trade, employment, or livelihood;3. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;4. Necessary clothing and articles for ordinary personal use, excluding jewelry;5. Household furniture and utensils necessary for housekeeping not exceeding P3,000;6. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding

P300,000;7. One fishing boat and accessories not more than P100,000 owned by a fisherman and

by which he earns his living;8. Salaries, wages, or earnings for personal services within the 4 months preceding the

levy which are necessary for the support of the family;9. Lettered gravestones;10. Money, benefits, annuities accruing or in any manner growing out of any life

insurance;11. Right to receive legal support or any pension or gratuity from the government;12. Properties especially exempted by law.

à  Exemption does not apply if execution upon a judgment for its purchase price or for

foreclosure of mortgage.

à  Right of Exemption is a personal right granted to the judgment creditor.  The sheriff

may thus not claim it.

10. Third party claims:

1. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not the sheriff or officer;

2. Amount of bond not less than value of property levied on;3. Sheriff not liable for damages if bond is filed;4. Judgment obligee or plaintiff may claim damages against third-party claimant in the

same or a separate action.5. 3rd Party claimant may vindicate his claim to property levied in a separate action

because intervention is no longer allowed since judgment already executory; in preliminary attachment and replevin, 3rd party claimant may vindicate his claim to the property by intervention since the action is still pending.

11. Who may redeem real property sold:

1. Judgment obligor or his successor in interest in the whole or any part of the property;2. Creditor having lien by virtue of an attachment, judgment, or mortgage on the

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

12. Judgment obligor has one year from the date of the registration of the certificate of

sale to redeem property sold by paying the purchaser the amount of his purchase, with

1% per month interest plus any assessments or taxes which he may have paid thereon

after purchase with interest on said amount at 1% per month.

Redemptioners have one year to redeem from the date of registration of the certificate

of sale.  They may also redeem beyond one-year period within 60 days after the last

redemption, with 2 % interest on the sum to be paid on the last redemption.  The

judgment obligor’s right to redeem within 60 days from last redemption is limited to the

one-year period, beyond which he can no longer redeem.

à  Purchaser or redemptioner not entitled to receive rents and income of property sold

inasmuch as these belong to the judgment obligor until the expiration of the period of

redemption.

13. Effect of judgment or final orders

1. In case of judgment against a specified thing, probate of will, or administration of estate or legal condition or status, it is conclusive on the title or condition, status, relationship, will or administration.

2. In other cases/matters directly adjudged, or matters relating thereto that could have been raised subsequent to commencement of action, judgment is conclusive between parties and their successors in interest.

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

14. Effect of foreign judgment

1. Judgment upon a specific thing, conclusive upon title to the thing;2. If against a person, judgment is presumptive evidence of a right as between the

parties and their successors in interest;

15. When foreign judgment may be repelled

1. Evidence of want of jurisdiction2. Want of notice to party3. Collusion4. Fraud5. Clear mistake of law.

16. Requisites for res judicata1. Final former judgment2. Judgment is on the merits3. Rendered by a court of competent jurisdiction4. Between first and second actions, identity of subject matter, parties and cause of

action.

17. When quashal of writ of execution proper

1. Improperly issued2. Defective in substance3. Issued against the wrong party4. Judgment was already satisfied5. Issued without authority6. Change of the situation of the parties renders execution inequitable7. Controversy was never validly submitted to the court8. Writ varies the terms of the judgment9. Writ sought to be enforced against property exempt from execution10. Ambiguity in the terms of the judgment

18. SPECIAL JUDGMENT – requires the performance of any other act than the payment

of money or the sale or delivery of real or personal property.

 

19. Remedies against executory judgments or orders:

1. Petition for relief2. Direct attack3. Collateral attack – judgment is null on its face or court had no jurisdiction

20. When court may order execution even before an executory judgment and pending

an appeal

1.         a.    Lapse of time would make the ultimate judgment ineffective;

2.         b.    Appeal is clearly dilatory;3.         c.    Judgment is for support and the beneficiary is in need thereof;4.         d.    Articles subject of the case are perishable;5.         e.    Defendants are exhausting their income and have no other property aside

from the proceeds from the subdivision of lots subject of the action;6.          f.    Movants were in extreme need of the premises subject of the suit and the

bond to answer for damages in case of reversal on appeal (supersedeas bond) was posted by them;

7.         g.    Judgment debtor is in imminent danger of insolvency;8.         h.    Prevailing party is of advanced age and in a precarious state of health and

the right in the judgment is non-transmissible being for support;9.           i.    Prevailing party posts sufficient bond to answer for damages in case of

reversal of judgment

à  But in most cases, the mere filing of a bond is not sufficient justification for

discretionary execution.

21. Order granting writ of execution ONLY appealable when:

1. Order varies terms of the judgment2. When vague and court renders what is believed to be wrong interpretation.

22. Garnishment – act of appropriation by the sheriff if the property involved is money,

stocks, or other incorporeal property in the hands of third persons; merely sets apart

such funds but does not constitute the creditor the owner of the garnished property.

23. Persons disqualified from participating in the execution sale:

1. Officer conducting the execution sale or his deputy;2. Guardian with respect to the property under his guardianship;3. Agents, the property entrusted to them, unless with principal’s consent;4. Executors and administrators, the property of the estate under administration;5. Public officers and employees, the property of the State or any subdivision thereof, or

any GOCC, the administration of which has been entrusted to them;6. Justices, judges, prosecuting attorneys, clerks of courts, and other officers and

employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions;

7. Lawyers, the property and rights which may be the subject of litigation in which they take part by virtue of their profession;

8. Others specifically disqualified by law. (e.g. seller of goods who exercise right of resale of goods).

Rule 40  Appeal from MTC to RTC1. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over

the area to which MTC pertains.  File notice of appeal with the MTC which rendered decision appealed from within 15 days after notice of such judgment.

2. Record on appeal is filed within 30 days and required only for special proceedings3. Appellate docket fees paid to clerk of court of MTC – payment not a condition

precedent for perfection of appeal but must nonetheless be paid within the period for taking appeal;

4. Procedure for appeal from cases dismissed without trial for lack of jurisdiction:1. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it

has original jurisdiction;2. If reversed, the case shall be remanded to the MTC;3. If the first level court tried the case on the merits without jurisdiction, the RTC should

not dismiss the case but shall decide it in the exercise of original jurisdiction.

 

Reference:

Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001Posted in Civil Procedure

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Tags: Civil Procedure - Rules 31 - 40

Civil Procedure – Rules   21-30 DEC 19

Posted by Magz

Rule 21  Subpoena1. 1.    Subpoena issued by:1. The court before whom witness is required to attend;2. The court of the place where the deposition is to be taken;3. The officer or body authorized by law to do so in connection with its investigations;4. Any Justice of the SC or CA in any case or investigation pending within the Phils

2.  No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is

confined in any penal institution shall be brought outside said institution for appearance

or attendance in any court unless authorized by the SC.1. 3.    Grounds for quashing subpoena duces tecum2. 4.    Ground for quashing subpoena ad testificandum1. It is unreasonable or oppressive2. The articles sought to be produced do not appear to be relevant3. Person asking for subpoena does not advance cost of production1. The witness is not bound thereby – if witness resides more than 100 km from the place

where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending

à  This is known as the “viatory right” of the witness; NOTE, however, that the right is

available only in CIVIL cases

2. Witness fees and kilometrage allowed by rules not tendered when subpoena served.1. 5.    Service of subpoena made in the same manner as personal or substituted service

of summons.2. 6.    Person present in court before a judicial officer may be required to testify as if he

were in attendance upon a subpoena.3. 7.    Failure by any person without adequate cause to obey a subpoena served upon

him shall be deemed a contempt of the court from which subpoena issued.

Rule 22  Computation of Time1. 1.    Computing for any period of time:  day of the act or event from which designated

period of time begins to run is to be excluded and the date of performance included.2. 2.    If last day of period falls on Saturday, Sunday or legal holiday in place where court

sits, the time shall not run until the next working day.3. 3.    If there is effective interruption of period, it shall start to run on the day after

notice of the cessation of the cause of the interruption.  The day of the act that caused the interruption is excluded in the computation of the period.

Rule 23  Depositions Pending Action

DEPOSITIONS DE BENE ESSE – taken for purposes of pending action1. 1.    Depositions pending action

1. 2.    Scope of examination – deponent may be examined regarding any matter not privileged relevant to the subject of the action

2. 3.    Examination and cross-examination proceeds as in trials3. 4.    Depositions and Affidavits distinguished

1. Taken by leave of court after court obtains jurisdiction over any defendant or property subject of the action

2. Taken without leave after an answer has been served3. Upon the instance of any party4. May be deposition upon oral examination or written interrogatories

Depositions Affidavits

Written testimony of witness in course of judicial proceedings, in advance of trial and hearing Mere sworn written statements

Opportunity for cross-examination No cross-examination

Can be competent testimonial evidence Little probative value (hearsay)

1. 5.    Use of depositions

à  Any part or all of a deposition which is admissible in evidence may be used against

any party who was present or represented during the taking of the deposition or who

had notice thereof as follows:

Deposition of May be used byPurpose

A witness Any partyTo contradict or impeach the deponent’s testimony as a witness

Any party, or anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation

An adverse party For any purpose

Of any witness, whether a party or not Any party

For any purpose, IF court finds that:1. Witness is dead;2.     b.    Witness resides at a

distance more than 100 km from place of trial, UNLESS absence procured by party offering the deposition

3.     c.    Witness is unable to testify because of age, sickness, infirmity, or imprisonment;

4.     d.    Party offering the deposition has been unable to procure the attendance of the witness by subpoena; OR

5.     e.    Other exceptional circumstances make it desirable to allow deposition to be used.

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

à  If only part of the deposition is introduced, adverse party may require that all of it

which is relevant to the part introduced be introduced.

6.   Persons before whom depositions may be taken

a.   Within the Philippines

1. Judge2. Notary public3. Any person authorized to administer oaths if the parties so stipulate in writing

b.   In foreign countries

1. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-consul, consular agent of the Phils

1. Before such person or officer as may be appointed by commission or under letters-rogatories

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

Commission – addressed to any authority in a foreign country authorized therein to take

down depositions; the taking of such depositions is subject to the rules laid down by the

court issuing the commission

Letters Rogatory – addressed to judicial authority in the foreign country; the taking of

the depositions is subject to the rules laid down by such foreign judicial authority.

7.  Persons disqualified to take depositions

1. Relative within 6th degree of consanguinity or affinity of any party2. Employee of any party3. Counsel of any party4. Relative within the same degree of party’s counsel5. Employee of party’s counsel6. Anyone financially interested in the action

8.   Depositions upon written interrogatories

à  Party desiring to take such deposition shall serve them upon every other party with a

notice stating the name and address of the person who is to answer them and the name

and descriptive title of the officer before whom the deposition is to be taken;

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

thereafter

à  Re-direct interrogatories served within 5 days

à  Re-cross interrogatories served within 3 days

9.   Effects of errors and irregularities in the depositions

1. As to notice – waived unless written objection is promptly served upon the party giving the notice

2. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence

3. As to competency or relevancy of evidence – NOT waived by failure to make them before or during the taking of the deposition, unless ground is one which might have been obviated or removed if presented at that time

4. As to oral exam and other particulars – Errors occurring at the oral exam in the manner of taking the deposition, in the form of questions and answers, in oath or affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition.

5. As to form of written interrogatories – waived unless served in writing upon party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the service of the last interrogatories authorized.

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

à A deposition, in keeping with its nature as a mode of discovery, should be taken

before and not during trial.  IN fact, the rules on criminal practice – particularly on the

defense of alibi – states that when a person intends to rely on such a defense, that

person must move for the taking of the deposition of his witness within the time

provided for filing a pre-trial motion.

Rule 24  Depositions Pending Action

DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for

purposes of an anticipated action or further proceedings in a case or appeal.1. 1.    Depositions before action

A person desiring to perpetuate his own testimony or that of another person regarding

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

in the court of the place of the residence of any expected adverse party, which petition

shall be entitled in the name of the petitioner and shall show:

1. That petitioner expects to be a party to an action in a court of the Phils but is presently unable to bring it or cause it to be brought;

2. The subject matter of the expected action and his interest therein;3. The facts which he desires to establish by the proposed testimony and his reasons for

desiring to perpetuate it;4. The names or description of the persons he expects will be the adverse parties and

their addresses so far as known;5. The name and addresses of the persons to be examined and the substance of the

testimony which he expects to elicit from each.1. 2.    Use of deposition

If deposition to perpetuate testimony is taken under this rule or if not so taken is still

admissible in evidence may be used in any action involving the same subject matter

subsequent brought in accordance with the provisions of Rule 23.

Rule 25  Interrogatories to Parties1. Interrogatories and the answers thereto should be filed in court and served on adverse

parties, so that the answers may constitute judicial admissions.2. Effect of failure to serve written interrogatories – a party not served with such may

NOT be compelled by the adverse party to give testimony in open court or deposition pending appeal.

Rule 26  Admission by Adverse Party1. 1.    Request for admission

A written request for the admission of the other party of the genuineness of any

material or document or request for the truth of any material and relevant matter of

fact set forth in the request may be filed and served upon the other party at any time

after issues have been joined.

1. 2.    Implied admission

Each of the matter requested to be admitted shall be deemed admitted within a period

designated in the request, which shall not be less than 15 days after service thereof or

within such further time as the court may allow on motion, UNLESS, party requested

serves upon the party requesting a sworn statement either specifically denying or

setting forth in detail the reasons why he cannot truthfully either admit or deny those

matters.

1. 3.    Effect of admission

Admission is only for the purpose of the pending action and shall NOT constitute an

admission for any other person nor may it be used against him in any other proceeding.

1. 4.    A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon,

Rule 27  Production or Inspection of Documents or Things1. Any party may move for the court in which the action is pending to order any party to:

1. Produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which:

1. Constitute or contain evidence material to any matter involved in the action AND

2. Are in his possession, custody or control.

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

2. The order:1. Shall specify the time, place and manner of making the inspection and taking

copies AND2. May prescribe such terms and conditions which are just.

Rule 28  Physical and Mental Examination of Persons1. If the mental or physical condition of a party is in controversy, the court may order him

to submit to a physical or mental examination by a physician.2. The party examined waives any privilege he may have in that action regarding the

testimony of the person who has examined or may examine him with respect to that same mental or physical examination by:

1. Requesting and obtaining a report of the examination so ordered OR2. Taking the deposition of the examiner.

Rule 29  Refusal to Comply with the Modes of Discovery

1.  If a party/deponent refused to answer:

1. The examination may be completed on other matters2. The examination may be adjourned3. The proponent may apply to the court for order to compel answer

à  The court may then order:

1. The refusing party or his counsel to pay the expenses incurred in obtaining the order, including the attorney’s fees (if it finds the refusal to answer without substantial justification)

2. The proponent or his counsel to pay the expenses incurred in opposing the application, including attorney’s fees (if it finds the application to be without substantial justification)

2.  If a party/witness refuses to be sworn or to answer after being directed to do so by

the court, the refusal may be considered contempt of that court.

1. If a party/officer or managing agent of a party refuses to obey an order requiring him:

a.  To answer designated questions

b.  To produce a thing for inspection or to permit entry upon property

1. To submit to a physical or mental examination

à   the court may order:

1. That the matters regarding which the questions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to be established.

2. The disallowance of the disobedient party’s claims3. The prohibition of the disobedient party to present evidence4. The striking out of the pleadings or parts thereof5. The dismissal of the action or parts thereof6. Rendering judgment by default against the disobedient party OR7. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical

or mental examination.

4.   If a party refuses to attend or serve answers, the court may:

1. Strike out all or any part of any pleading of that party.2. Dismiss the action or any part thereof.3. Enter a judgment by default against that party, OR/AND4. Order that party to pay reasonable expenses incurred, including attorney’s fees.

5.  The Republic of the Philippines cannot be required to pay expenses and attorney’s

fees under this Rule.

Rule 30  Trial1. 1.    Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shall proceed as

follows:

1. The plaintiff shall adduce evidence in support of his complaint;2. The defendant shall adduce evidence in support of his defense, counterclaim, cross-

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

cross-claim, and 4th party complaint;4. The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded

by them;5. The parties against whom any counterclaim or cross-claim has been pleaded, shall

adduce evidence in support of their defense, in the order to be prescribed by the court;

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

7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings.

1. 2.    Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case where the parties so agree in writing, the court may

delegate the reception of evidence to its clerk of court who is a member of the bar.  The clerk shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from the termination of the hearing.

 

Reference:

Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001Posted in Civil Procedure

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Tags: Civil Procedure - Rules 21-30

Civil Procedure – Rules   11-20 DEC 19

Posted by Magz

Rule   11   When to File Responsive Pleadings1. 1.    Answer to complaint – 15 days from service, unless different period fixed by the

courts;2. 2.    Answer of defendant foreign private juridical entity – when service of summons is

made on the government official designated by law, answer to be filed within 30 days from receipt of summons by such entity.

3. 3.    Answer to amended complaint – if amended as a matter of right, 15 days from being served with copy thereof

à  If amended not as a matter of right, 10 days from notice of order admitting the same

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

à Applicable to amended counterclaim, cross, third, etc,

1. 4.    Answer to counterclaim or cross-claim – within 10 days from service.2. 5.    Answer to 3rd party complaint – 15 days from service3. 6.    Reply – may be filed within 10 days from service of the pleading responded to.

Rule 12  Bill of Particulars1. 1.    Bill of particulars1. Period of filing motion – before responding to a pleading; if pleading is a reply, within

10 days from service thereof;2. Order for bill must be complied with in 10 days from notice OR period fixed by court3. After service of bill or denial of motion – party has balance of time he was entitled to

file responsive pleading, but not less than 5 days

à Motion for Bill of Particulars may NOT call for matters which form part of the proof of

the complaint.  Thus, motion should not be granted if the complaint, while not very

definite, nonetheless already states a sufficient cause of action.

Rule 13  Filing and Service of Pleadings, Judgments and Other Papers1. 1.    Kinds of service of pleadings:1. Personal service – to be done whenever practicable (Most preferred mode)2. Service by mail (ordinary if no registered mail)3. Substituted service (delivering copy to clerk of court with proof of failure of 1st 2

modes)

à Except with respect to papers emanating from the court, a resort to other modes must

be accompanied by a written explanation why the service or filing was not done

personally.

à Violation of rule may be cause to consider the paper as not filed.

1. 2.    Kinds of service of final orders:1. Personal2. Registered mail3. Publication (if summons by publication)

3.  Proof of personal service

1. Written admission of party served;2. Official return of the server; or3. Affidavit of party serving, containing a full statement of the date, place and manner of

service.

Rule 14  Summons1. 1.    Contents of summons2. 2.    Kinds of service of summons:3. Handing a copy to the defendant in person; OR

1. If he refuses to receive and sign for it, by tendering it to him2. Substituted:

1. Leave copies at his residence, with person of suitable age and discretion residing therein; OR

2. Leave copies at defendant’s office/regular place of business, with competent person in charge thereof.

3. 3.    By whom served:4. 4.    When extraterritorial service allowed:5. 5.    Kinds of extra territorial service6. 6.    When service by publication in a newspaper of general publication

allowed:1. Signed by the clerk under the seal of the court2. Name of the court and that parties to the action3. Direction that the defendant answer within the time fixed by these rules

4. Notice that unless defendant so answers, plaintiff will take judgment by default1. Personal:3. By publication1. Sheriff2. Other proper court officer3. Any suitable person specially authorized by the judge1. Defendant is a non-resident and is not found in the Philippines and action affects

plaintiff’s personal status2. Subject of action is property within the Philippines in which the defendant has or

claims a lien or interest3. Where relief demanded consists in whole or in part in excluding the defendant from

any interest in such property4. When property of defendant has been attached within the Philippines1. Personal service2. Publication and summons sent by registered mail to last known address3. Any other matter the court may deem sufficient1. Identity of defendant unknown2. Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry

à (a) and (b), applies to ANY action, even actions in personam3. Defendant is non-resident and the suit is quasi in rem4. Defendant is temporarily out of the country and the suit is quasi in rem1. 7.    Service upon private domestic juridical entity – refers to corporation, partnership,

or association organized under Phil. Laws with a juridical personality:2. 8.    Service upon private foreign juridical entity transacting business in the Phils:1. President2. Managing partner3. General manager4. Corporate secretary5. Treasurer6. In-house counsel1. Resident agent designated in accord with Law2. If no such agent, on government official designated by law OR3. On any of its officers or agents within the Phils

NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE SEC.1. 9.    Newspaper of general circulation (RA 4883, PD 1079)1. Published for the dissemination of local news and general information2. Has a bona fide subscription list of subscribers3. Published at regular intervals4. Not published for nor devoted to the interest of a particular group of persons5. Must have been regularly published for at least 2 years before the date of the

publication in question.

à Mere filing of an answer per se should not be automatically treated as a voluntary

appearance by the defendant for the purpose of sumons.  It should be noted that when

the appearance of the defendant is precisely to object to the jurisdiction of the court

over his person, it cannot be considered as an appearance in court.

Rule 15  Motions1. 1.    All motions must be in writing except:2. 2.    Exceptions to the three-day notice rule:1. Those made in open court; OR2. Those made in the course of a hearing or trial.1. Ex parte motion2. Urgent motion3. When court sets hearing on shorter notice for good cause4. Motion for summary judgment (must be served at least 10 days before the hearing)

à              A prudent judge would, in the absence of the opposing party in the hearing of

a motion, inquire from the other party or inquire from the records the proof of the

service of notice rather than proceed with the hearing.  He should not rely on a party’s

undertaking to notify the adverse party of a scheduled hearing.  The judge must

demand what the rule requires, i.e., proof of such notice on the adverse party. 

Otherwise, a contentious motion should be considered a mere scrap of paper which

should not have even been received for filing.

à Subsequent service of the motion on the adverse party may be considered substantial

compliance with the Rule 15, § 6.  Failure to attach to the motion proof of service

thereof to the adverse party is not fatal when the adverse party had actually received a

copy of the motion and was in fact present in court when the motion was heard.

Rule 16  Motion to Dismiss1. 1.    Motion to Dismiss must be filed within the time for and before the filing of an

answer to complaint.2. 2.    Grounds for motion to dismiss:1. Court has no jurisdiction over the person of the defendant- unlike old rule, inclusion in

motion to dismiss of other grounds aside from lack of jurisdiction over the person does NOT constitute a waiver of the said ground or voluntary appearance;

2. Court has no jurisdiction over the subject matter of the claim;3. Venue is improperly laid;4. Plaintiff has no legal capacity to sue;5. There is another action pending between the same parties for the same cause;

à Requisites of litis pendentia:1. Identity of parties/interest2. Identity of rights asserted and prayed for/relief founded on the same facts;3. Identity of the 2 cases (such that judgment in one would amount to res judicata in the

other)6. Cause of action is barred by a prior judgment or by statute of limitations;

à Requisites of res judicata:1. Final judgment or order

2. Rendered by court of competent jurisdiction3. On the merits (even without trial, such as cases decided by Judgment on the

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

4. Identity of the parties7. Pleading asserting claim states no cause of action;8. Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned,

extinguished;9. Claim on which action is founded is unenforceable under the statute of frauds;10. Condition precedent for filing has not been complied with (this includes prior recourse

to barangay conciliation, or failure to make attempts to reach a compromise in cases between members of the same family)

à  The court shall not defer the resolution of the motion for the reason that the ground

relied upon is not indubitable.

3.  Actions that court may take on a Motion to Dismiss:

1. Grant it – remedy: appeal2. Deny – NOT appealable; but may avail of certiorari, prohibition and mandamus3. Order amendment of the pleading

4.  If denied, defendant must file answer within the balance of the 15-day period, but

not less than 5 days from the time he received notice of the denial;

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

refiling:

1. a.    Res judicata2. Extinguishment of claim or demand3. Prescription4. Unenforceability under the Statute of Frauds

6.  The dismissal of the complaint shall be without prejudice to the prosecution in the

same or separate action of a counterclaim pleaded in the answer.

à A motion to dismiss on the ground of failure to state a cause of action in the complaint

must hypothetically admit the truth of the facts alleged in the complaint.  The

admission, however, is limited only to all material and relevant facts which are well

pleaded in the complaint.  The demurrer does not admit the truth of mere epithets

charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law;

nor matters of evidence; nor to legally impossible facts.

Rule 17  Dismissal of Actions1. 1.    Dismissal by the plaintiff

1. Notice of dismissal any time before service of the answer or a motion for summary judgment;

à  Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, which operates as

adjudication on the merits when filed by same plaintiff who has once dismissed an

action based on or including said claim.1. If answer or motion for summary judgment already served, dismissal by a Motion for

Dismissal, which shall require approval of the court; shall be without prejudice unless otherwise specified by the court

à If counterclaim has been pleaded by a defendant prior to the service upon him of

plaintiff’s motion to dismiss, dismissal is limited to the complaint; dismissal is without

prejudice to defendant’s right to prosecute counterclaim in a separate action or, if he

makes a manifestation within 15 days from notice of the motion, to prosecute CC in

same action.

1. 2.    Dismissal due to plaintiff’s fault – the following must be without justifiable cause1. If plaintiff fails to appear on the date of presentation of his evidence in chief;2. Plaintiff fails to prosecute claim for an unreasonable length of time3. Plaintiff fails to comply with the Rules of Court or any order of the court

à Complaint may be dismissed upon defendant’s motion or motu proprio.

à  Unless otherwise declared by the court, dismissal has effect of adjudication upon the

merits.

RULE ON SEVERANCE OF COMPULSORY CC:  Dismissal of principal action upon plaintiff’s

motion or due to plaintiff’s fault does not necessarily carry with it the dismissal of the

compulsory CC; defendant is also given option to prosecute the same in same or

separate action.1. 3.    Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must be made by

claimant before a responsive pleading or a motion for summary judgment is served, or if there is none, before the introduction of evidence.

Rule 18  Pre-Trial

1.   What to consider in pre-trial (with notice to counsel or party without counsel)

1. Possibility of amicable settlement or arbitration2. Simplification of the issues3. Amendments to the pleadings4. Stipulations or admissions of facts and documents5. Limitation of number of witnesses6. Preliminary reference of issues to a commissioner7. Propriety of judgment on the pleadings, summary judgments, or dismissal of action8. Other matters for the prompt disposition of the action

1. 2.    It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial.  However, if plaintiff answers the defendant’s counterclaim, it will be the latter’s duty to set the pre-trial.

2. 3.    Failure of plaintiff to appear shall be cause for dismissal of the action.  Non-appearance of defendant is cause to allow plaintiff to present evidence ex parte and the court to render judgment on basis thereof.

3. 4.    Non-appearance of party excused only if:1. 5.    Must file pre-trial brief so as to ensure that other party receives it at least 3

days before pre-trial.  Failure to file brief has same effects as failure to appear at pre-trial.

2. 6.    Proceedings recorded, and court shall issue an order reciting in detail matters taken up.

1. A valid cause is shown therefor OR2. If representative shall appear in his behalf fully authorized in writing to enter into an

amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents,

Rule 19  Intervention1. 1.    Grounds for intervention2. 2.    Motion may be filed at any time before rendition of judgment.

1. 3.    Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint.

2. 4.    Motion for intervention will be granted if it will not unduly delay or prejudice adjudication of rights or original parties and if the intervenor’s rights may be fully protected in separate proceedings.

3. 5.    Complaint in intervention is merely collateral to the principal action.  Hence, it will be dismissed if main action is dismissed.

4. 6.     A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action.  Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief.  The petition will be preserved and heard regardless of the disposition of the main action.

1. Legal interest in the matter in litigation2. Interest in the success of either or both parties or interest against both3. Party is so situated as to be adversely affected by the distribution of the court4. Disposition of property in the custody of the court or of an officer thereof.

Rule 20  Calendar of Cases

1.   Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those

whose trials adjourned or postponed and those with motions set for hearings.

1. 2.    Preference given to habeas corpus, election cases, special civil actions and those so required by law.

 

Reference:

Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001Posted in Civil Procedure

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Tags: Civil Procedure - Rules 11-20

Civil Procedure – Rules 1 –   10 DEC 19

Posted by Magz

CIVIL PROCEDURE

Rule 1  General Provisions

1.  Civil action  – one by which a party sues another for the enforcement or protection of

a right, or the prevention or redress of a wrong; may be ordinary or special

      Criminal action  – one by which the state prosecutes a person for an act or omission

punishable by law

      Special proceeding – remedy by which a party seeks to establish a status, a right, or

a particular fact

2.  Rules of Court shall NOT be applicable to the following, except by analogy or in a

suppletory character, and whenever practicable and convenient1. Election cases;2. Land registration;3. Cadastral proceedings;4. Naturalization proceedings; and5. Insolvency proceedings

Rule 2     Cause of Action

1.   Cause of action – an act or omission by which a party violates the right of another

2.   Requisites of Joinder of Causes of Action:

1. The party joining the causes of action shall comply with the rules on joinder of parties;2. The joinder shall NOT include special civil action or actions governed by special rules;3. Where the causes of action are between the same parties but pertain to different

venues or jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of the RTC and the venue lies therein;

3.   Where the claims in all the causes of action are principally for recovery of money,

the aggregate amount claimed shall be the test of jurisdiction.

4.   Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion

ormotu proprio, be severed and proceeded with separately.

Rule 3  Parties to Civil Actions

1.   Claims that Survive the Death of a Party:

1. Actions to recover real and personal property against the estate;2. Actions to enforce liens thereon;3. Actions to recover for injury to persons or property by reason of tort;4. Actions to recover money arising from contract, express or implied.

2.  Death of defendant in action on contractual money claims before judgment of RTC

NOT ground for dismissal.  Action continues until entry of final judgment.  Any judgment

against estate of deceased will be enforced as money claim.  Writ of preliminary

attachment, if any, not dissolved.

3.  Requisites of Permissive Joinder of Parties:

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

2. There is a question of law or fact common to all the plaintiffs and defendants;3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction

and venue.

4. Requisites of a Class Suit:

1. Subject matter of the controversy is one of common or general interest to many persons;

2. Parties affected are so numerous that it is impracticable to bring them all to the court;3. Parties bringing the class suit are sufficiently numerous or representative of the class

and have the legal capacity to file the action.

5.   Transfer of Interest

      à  Action may be continued by or against the original party, unless the court, on

motion, directs the transferee to be substituted in the action or joined with the original

party; however, if transfer is made before commencement of the action, the transferee

must necessarily be the party, since only he is the real party in interest.

Rule   4   Venue Of Actions

* Uniform rule on venue in RTC and MTC

1.   Venue of real actions – in the proper court which has jurisdiction over the area

whereinreal property involved or a portion thereof is situated.

2.   Venue for forcible entry and detainer actions – in the MTC of the municipality or city

wherein the real property or a portion thereof is situated.

3.   Venue of personal actions – where the plaintiff or any of the principal plaintiffs

resides, or where the defendant or any of the principal defendants resides, or in the

case of a non-resident defendant where he may be found, at the election of the plaintiff.

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

NOT mean permanent home or domicile.

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

1. Action Affects the Plaintiff’s Personal Status – in the court of the place where the plaintiff resides.

2. Action Affects Any Property of the Defendant in the Philippines – where the property or any portion thereof is situated or found.

5.   Rules on Venue shall NOT apply:

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

2. Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.

à  In this instance, the action can only be filed in the place agreed upon even if the

other place is the place of residence of the parties or the location of the real property

involved.

Rule 5  Uniform Procedure in Trial Courts

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

2.   Uniform Procedure shall NOT be applicable:

1. Where a particular provision expressly or impliedly applies only to either of said courts.

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

Rule 6  Kinds of Pleadings

1.   Negative Defense – specific denial of the material fact or facts alleged in the

pleading of the claimant essential to his cause of action.

2.   Affirmative defense – an allegation of a new matter which, while hypothetically

admitting the material allegations in the pleading of the claimant, would nevertheless

prevent or bar recovery by him.  Includes:1. Fraud2. Statute of limitations3. Release4. Payment

5. Illegality6. Statue of frauds7. Estoppel8. Former recovery9. Discharge in bankruptcy10. Any other matter by way of confession or avoidance.

3.  Compulsory counterclaim – Requisites:1. Arises out of or is necessarily connected with the transaction or occurrence which is

the subject matter of the opposing party’s claim;2. Does not require for its adjudication the presence of 3rd parties of whom the court

cannot acquire jurisdiction; and3. Must be within the jurisdiction of the court both as to the nature and the

amount, except that in an ORIGINAL action in the RTC, the counterclaim may be considered regardless of the amount.

à Agustin vs. Bacalang

A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in

excess of its jurisdiction.  A counterclaim beyond the court’s jurisdiction may only be

pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s

claim, but NOT to obtain affirmative relief.  MOREOVER, the amount of judgment

obtained by the defendant on appeal cannot exceed the jurisdiction of the court in

which the action began.  Since the trial court did not acquire jurisdiction over the

counterclaim in excess of the jurisdictional amount, the appellate court likewise did not

have jurisdiction over the same.  In such a case, the award in excess of the jurisdiction

of the trial court is void.

à Calo vs. Ajax

A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of

the inferior court, will only be considered permissive.  Hence, fact that it is not set-up in

the inferior court will not bar plaintiff from instituting a separate action to prosecute it.

Rule 7  Parts of a Pleading1. 1.    Formal Requirements of Pleadings:2. 2.    Signature of the lawyer constitutes a certification by him that:1. Caption2. Title3. Body divided into headings and paragraphs4. Body divided into headings and paragraphs5. Signature and address6. Verification in some cases1. He has read pleading2. To the best of his knowledge, information, and belief, there is good ground to support

it3. It is not interposed for delay.

3.  How a Pleading is Verified: By an affidavit stating that

1. Affiant (person verifying) has read the pleading2. Allegations therein are true and correct as of his personal knowledge or based on

authentic records. (SC Circular 48-2000, effective May 1, 2000)

4.   A pleading required to be verified which:

1. Contains a verification based on “information and belief”, OR2. Contains a verification based on “knowledge, information and belief,” OR3. Lacks a proper verification

àShall be treated as an unsigned pleading.

1. 5.    What pleadings have to be verified:1. Petition for relief from judgment (38.3)2. Appeal by certiorari from CA to SC (45.1)3. Complaint with prayer for preliminary attachment (57. 3)4. Complaint for injunction (58.4)5. Complaint for replevin (60.2)6. Petition for certiorari (65.1)7. Petition for prohibition (65.2)8. Petition for mandamus (65.3)9. Complaint for forcible entry or unlawful detainer (70.4)10. Petition for appointment of general guardian (93.2)11. Petition for leave to sell or encumber property of estate or guardian (95.1)12. Petition for declaration of competency of the ward (97.1)13. Petition for habeas corpus (102.3)14. Petition for change of name (103.2)15. Petition for voluntary dissolution of a corporation (104.1)16. Petition for cancellation or correction of entries in the civil registry (108.1)17. Petition to take deposition in perpetuam rei memoriam (before action or pending

appeal) (24.2)18. Motion to set aside a default order of an inferior court19. Motion for dissolution of preliminary injunction on the ground of irreparable damage to

the movant while the adverse party can be fully compensated20. Petition for appointment of receiver21. Petition for review of the decision of an RTC in cases within the exclusive original

jurisdiction of the inferior court, by and elevated to the CA.22. Pleadings that need not be verified but must be under oath:23. Denial of the genuineness and due execution of an actionable document (8.8)24. Denial of allegations of usury (8.11)25. Answer to written interrogatories (25.2)26. Answer to request for admission (26.2)27. Notice of appeal from administrative tribunals to the CA

6.   Supporting affidavits of merit required:

1. Motion to postpone for absence of evidence (30.3)2. Motion to postpone for illness of a party or counsel (30.4)3. Motion for summary judgment or opposition thereto (35.1,2,3,5)4. Motion for new trial on the ground of FAME or opposition thereto (37.2)5. Petition for relief from judgment (38.3)6. Third-party claim (39.16)7. Proof required of a redemptioner (39.30)8. Motion for preliminary attachment (57.3)9. Motion for dissolution of preliminary injunction (58.6)10. Application for writ of replevin (60.2)11. Claim against the estate of the decedent (86.9)12. Motion for new trial based on newly discovered evidence in criminal cases (121.4)

7.   Certification against Forum-Shopping: Plaintiff or principal party shall certify under

oath in the complaint or other initiatory pleading or in a sworn certification annexed and

filed therewith:

1. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency; to the best of his knowledge no such other claim or action pending;

2. If there is such other pending action, a complete statement of the present status thereof;

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

NOTE:  FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT

OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE;

IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE

FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE AND

CONSTITUTE DIRECT CONTEMPT.

à For Forum-Shopping to exist, there must be:

1. Same transactions involved;1. Same essential facts and circumstances; and2. Actions raise identical cause of action, subject matter, and issues.

Rule 8  Manner of Making Allegations in Pleadings

1.  Allegations of capacity

1. Capacity of party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association that is made a party must be averred;

2. To raise an issue as to the legal existence of a party or the capacity of a party in a representative capacity, do so by specific denial, including such supporting particulars as are peculiarly within the pleader’s knowledge.

2.   Action or defense based on document

1. Substance of such document set forth in the pleading;2. Original or copy attached to the pleading as exhibit and deemed to be part of the

pleading; OR3. Copy may be set forth in the pleading with like effect.1. 3.    How to contest actionable document: Genuineness and due execution of

instrument deemed admitted unless adverse party:1. Specifically denies them under oath;2. Sets forth what he claims to be the facts.

à  Requirement of an oath does NOT apply:

1. When diverse party does not appear to be a party to the instrument; or2. When compliance with an order for an inspection of the original instrument is refused.

à Admission of genuineness and due execution:

1. Party whose signature appears admits that he signed it, or that it was signed by another with his authority

2. Was in words and figures as set out at the time it was signed3. Document was delivered4. Any formal requisites required by law which it lacks are waived by him

à  The following defenses are cut-off by admission of genuineness and due execution of

the document:

1. Signature is a forgery2. Signature is unauthorized3. Corporation is not authorized under its charter to sign the instrument

1. Party charged signed the instrument in some other capacity than that alleged in the pleading setting it out

2. Document was never delivered.3. 4.    Specific Denial

1. Defendant must specify each material allegation of fact the truth of which he does not admit;

2. Defendant must set forth the substance of the matters upon which he relies to support his denial, whenever practicable;

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

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

à Negative pregnant – a denial which at the same time involves an admission of the

substantial facts in the pleading responded to.

5.   Allegations not specifically denied, other than those as to amount of unliquidated

damages deemed admitted.

Rule 9  Effect of Failure to Plead

1.  General Rule: Defenses and objections not pleaded in answer or motion to dismiss

are deemed waived  (Omnibus Motion Rule).

Exception: Court shall dismiss the claim, even without allegation in answer or motion to

dismiss, if any of the following appear from the pleadings or the evidence on record:1. Lack of jurisdiction over the subject matter;2. Litis pendentia between same parties for the same cause;3. Res judicata4. Action barred by statute of limitations.1. 2.    Declaration of Default1. Defendant entitled to notice of motion to declare him in default and of order of default;2. Motion to set aside order of default may be filed after notice and before judgment;3. Party may make motion, under oath, to set aside order of default upon proper showing

that failure to answer was due to FAME;4. Effect of order of default – party in default entitled to notice of subsequent

proceedings but not to take part in trial;5. Partial default – if several defending parties and not all in default, the court shall try

the case against all upon the answers thus filed and evidence presented;6. After declaration of default, court may render judgment on the basis of the complaint

or require claimant to submit evidence;7. Judgment against party in default shall not exceed the amount or differ in kind from

that prayed for nor award unliquidated damages;8. No defaults in action for annulment or declaration of nullity of marriage or for legal

separation.

Rule 10  Amended and Supplemental Pleadings

1.   Amendments of pleadings may be made once as a matter of right:

1. At any time before responsive pleading is served2. In the case of a reply, anytime within 10 days after service.

à Plaintiff may amend complaint as a matter of right even after defendant files a Motion

to Dismiss, since the same is not a “responsive pleading.”

1. 2.    Substantial amendments may be made only with leave of court, except as provided above.

2. 3.    An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. (NOT judicial admissions anymore; thus, must be formally offered)

3. 4.    Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived.

5.  Amended and Supplemental pleadings distinguished:

Amended Supplemental

Refers to facts existing at the time of the commencement of the action

Refers to facts arising after the filing of the original pleading

Results in the withdrawal of the original pleading

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

Can sometimes be made as a matter of right Always filed with leave of court

 

Reference:

Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001Posted in Civil Procedure

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Tags: Civil Procedure - Rules 1 - 10

Civil Procedure: Rules 40 –   56 DEC 19

Posted by Magz

Appeals

Rules 40 – 56

NOTES ON APPEAL:

Appeal is a matter of right created by statutes. Once denied, one can avail of the

constitutional right to due process

Appeal is asking appellate court to correct errors in the exercise of jurisdiction

Errors of jurisdiction corrected by review on certiorari.

 

Question of fact (Qf): existence of a particular issue of fact.

Issue: which evidence is credible?

Whether or which particular situations exists.

As the case goes higher in court hierarchy, court deal with evidence as part of record,

hence becomes farther and farther from the source.   For this reason, Trial courts are

accorded high respect in their findings of questions of fact.

Questions of law: characterization of facts as shown by the evidence, correct

characterization of fact based on a provision of law.  Which law is applicable given a set

of circumstances

 

Several Modes of Appeal:

1. Mandatory – appellate court must accept

2. Discretionary – appellate court can deny

Normally:

First appeal – always mandatory; as a matter of statutory right

Second appeal – discretionary

Third appeal – discretionary (however, if originating fr. MTC, may not be discretionary)

Exercise of jurisdiction – subject matter of appeal

Questions of jurisdiction – file an entirely new case; subject matter of special civil

actions

In Appeals – title of the case remains the same

Plaintiff/Defendant only  becomes Appellant/Appellee

Issue of jurisdiction – file entirely a different case by filing special civil action attaching

as a ground, abuse of discretion

Appeal can focus in the issue of law or fact or both.

Execution, Satisfaction and Effect of Judgments

Rule 39

Special Civil Actions

Rules 62 – 71

NOTES ON SPECIAL CIVIL ACTIONS:

Certiorari – means discretion

Appeal by certiorari – Rule 45 – title does not change

Petition for  review on certiorari – title does not change

Special civil action for certiorari – Rule 65 – title does not change because it is an

entirely different case

Rule 45 is a mode of appeal while Rule 65 is an entirely different action

Petition for Relief from Judgment – title does not change, judge is not a party

 

On old rule, the Record on Appeal  are merely summary of proceedings while the new in

the rules, the entire records are elevated to the appellate court, esp. if only one appeal

is possible.

Remedies where more than 1 appeal is allowed e.g., Special Civil Action of Eminent

Domain (Mun of Biñan)

2 orders:

(1) condemnation of the property, Q of just taking,  RTC original and exclusive

jurisdiction

(2) order of whether there is just compensation

(final order: right to take and use prop)

(final order: value of prop)

Note: In the appeal of the 1st order, the court cannot elevate the entire records since

the court must still rule on the 2nd order. The appellant summarizes records on appeal

which must be approved by the RTC then such will be elevated with exhibits and

relevant documents. Therefore Record on Appeal (in Eminent Domain) substitutes the

entire records.

Effect:  time periods differ

a. elevation of records – after notice, records are elevated in 15 days

b. records on appeal – 30 days appellee can object within 5 days only upon approval of

record.

Note: always institute action at the lowest court to maximize appeals

MTC to RTC – Rule 40

Multiple appeals – notice and record of appeal

Go directly to the SC when appeal contains only questions of law.

Start with CA – action to annul and special civil actions

Only one mode of appeal to SC – Appeal by certiorari.

6-9 – Appeal; execution of judgments – Interpleader, declaratory relief; special civil

actions

Ordinary civil actions – record on appeal; in situations when you can take multiple

appeals

Special civil actions – eminent domain; record on appeal also essential

Record on appeal substitutes for the records.

Ordinary appeals – entire records are elevated

SC

Original  jurisdiction MTC- mode: only appeals by certiorari Rule 45; discretionary on the

part of the SC; raise only questions of law

 

Stay the judgment of the CA; [15] extendible for compelling reasons for 30 days

Gen Rule: All appeals stay execution of judgment

Exception: Rule 43    

CA

Mode: Petition for review by cert; [15] extendible for 15 days and no second extension

unless compelling reasons [15 days]; must raise questions of fact with questions of law

or questions of fact alone (Habaluyas case: a Bar Q, classmates).

Rule 42- file petition not with court of origin but with the CA; summarizes the case,

facts, the issues and puts in the arguments.

RTC

mode:    file notice of appeal [15]

Ordinary

appeal                                                    Ordinary civil actions- partial new trial

Rule 41  record on appeal [30]                                                   several judgments

No extension; avail only                                                 separate judgments;

Where mult. Appeals are                                                where appeal is allowed

Avail;  raise Q fact & Q law               Special civil actions- eminent domain

partition

now: an appeals bond is not             Special proceedings- only under Rule 109

required

MTC

C

Rule 43; in cases originating from Quasi-Judicial Agency, the CA having appellate

jurisdiction, the CA does not stay the execution of Judgment

Quasi-judicial

Agency

Rule 45- Appeal by certiorari (18 copies)

From RTC to SC possible only when questions of law are raised. [15] days extendible for

30 days

Appeals from MTC to RTC – original appellate jurisdiction

Rule 45- errors of exercise of jurisdiction

Rule 65- errors in jurisdiction

SC

Rule 45 Questions of law

Mode: Appeal by cert. Only Ql

CA

Mode: Ordinary appeals

Multiple appeals – notice with record on appeal

Raises Qf/Ql

RTC       (exercises original jurisdiction)

SC – discretionary; may wish not to entertain appeal

Rule 45;  Questions of law

Appeal by certiorari

CA – Court of origin

Or Annulment of judgment

Nullification of judgment

Special civil actions

Habeas corpus

SC

Mode: Appeal by cert.; raise only Ql; [15] extension [30 days;

Rule 45, furnish 18 copies

RTC

Rule                             41                                            42                                          45

MTC                                      RTC                                       CA                                         

SC

45

QJA                                        CA                                          SC

43 45

APPEAL (PROCESS)

MTC }                   Ordinary appeal by filing notice of appeal with court of origin within

RTC }                    15 days from notice of order Rule 41

Periods not                            a. notice of appeal  [15 days]

Extendible                             b. notice with record on appeal [30 days]

Original and concurrent jurisdiction

SC –        Ordinary civil action – cases involving ambassadors and consuls;

Special civil actions

CA –        Ordinary civil actions          annulments/nullification of judgment

Special civil actions                             cert, mandamus, prohibition, h. corpus

Ordinary appeal

Court of origin – where notice of appeal is filed

Perfection:            when notice is filed

For defendants that did not file an appeal: when the period to

appeal had lapsed

From date of perfection of appeal- court loses jurisdiction over the parties

After appeal is perfected- court of origin may still act prior to transmission of records

Not contentious points

Approve compromises

Permit appeals of indigent litigants

Eg. Subject matter is perishable

Appellate Court – has jurisdiction to dismiss the case only for reasons provided in ROC,

it is nor discretionary on their part

MTC to RTC- appellant’s memorandum/ appellee’s memorandum

RTC to CA- appellant’s brief/ appellee’s brief

Petition for review -

Nothing is filed at the court of origin; always filed with the appellate court; summarizes

facts

Court has the option to dismiss the petition outright not on the procedural ground but

on the merits because grounds are not substantions (Rule 42, Rule 43)

Other parties required to file only a Comment

Rule 42 & 43 period to file memoranda; not extendible

Rule 45 period to file memoranda; extendible

Ordinary Appeal – Record on Appeal

Should be written by the judge; but burden of drafting the record falls on the appellant

TC losses jurisdiction, with respect to the party filing the appeal, upon its approval of

the Record of Appeal

Other party may object within 5 days from receipt of record on appeal

After approval; notice, record on appeal, exhibits, etc. are elevated to the appellate

court

Concept of Multiple Appeals -

Eminent Domain

Concept of Record of Appeal (Summary of the case, looks like a Pre-Trial Brief)- should

be written by the Judge but the burden falls on the appellant, subject to approval of the

court.  Period: within 30 days

Court of Origin loses jurisdiction upon the approval of record of appeal

MODES OF APPEAL

Ordinary Appeal  Notice                    (1 Appeal)

Notice with record of appeal (Multiple Appeal)

Petition for Review              42

43

Appeal by Certiorari

Notice: Rule 65 is not an Appeal

Concept of an APPEAL

Errors of jurisdiction                           Rule 65

Subject matter

Errors in the exercise           Appeal

Of jurisdiction

Q: When is appeal by cert under rule 65 available?

A: After a judgment or final order

It is not available if there is already a final judgment (Eternal Gardens) or a final order

Substitutes for an appeal

Gen Rule: No . MNT/MR is technically not a substitute

Excep’n:  Presco v. CA, SCA by cert.

 

PROVISIONAL REMEDIES

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

Purpose

To have property of adverse party attached as security for the satisfaction of judgment that may be recovered in cases falling under Sec 1, Rule 57.

To require a party or a court, agency or a person to refrain from doing a particular act or acts or to require the performance of a particular act or acts.

To place the property subject of an action or proceeding under the control of a third party for its preservation and administration litis pendentia

To recover possession of personal property

To compel adverse party to provide support while action is pending in court

When applied/granted

At the commencement of the action or at any time prior to the entry of judgment

At any stage prior to  the judgment or final order

At any time prior to satisfaction of judgment

At the commencement of the action but before answer is filed

At the commencement of the action  or at any time prior to the judgment or final order

How applied for

File affidavits and applicant’s bond

File verified application and applicant’s bond; if application is included in the initiatory pleading, the adverse party should be served with summons

File verified application and applicant’s bond; application may also be included in initiatory

File affidavits and applicant’s bond

File verified application; bond not required

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

together with a copy of the initiatory pleading and the applicant’s bond

pleading in actions for foreclosure of mortgage

Who may grant

Court where action is pending, the CA or the SC even if action is pending in the lower court.

Only the Court where the action is pending; Lower Court, Ca or SC provided action is pending in the same court which issues the injunction.

Court where action is pending, the CA or the SC even if action is pending in the lower court. Appellate court may allow application for receivership be decided by the court of origin.

Only in the court where action is pending

Court of origin and appellate court. (See Ramos v. CA)

Requisites for granting application

Sufficient cause of action

Case is covered by section 1 Rule 57

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

No other sufficient security for the claim exists

Amount due to applicant or value of property he is entitled to recover is equal to the sum for which the order of attachment is granted

Applicant is entitled to the relief demanded

Act/s complained of would work injustice

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

to the applicant if not enjoined

Acts sought to be enjoined probably violates applicants rights respecting the subject of the action or proceeding

Applicant has interest in the property or fund subject matter of the action or proceeding

Property or fund is in danger of being lost removed

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

or materially injured

Appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation

Applicant is the owner of the property claimed or is entitled to the possession of the same

Property is wrongfully detained

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

by the adverse party

Property is not distrained or taken for a tax assessment or a fine pursuant to law

Affidavits, depositions or other documents should show, at least provisionally, that the applicant is entitled to receive support

Where property is claimed by third person

When third-party claimant makes an affidavit of his title to the

When third-party claimant makes an affidavit of

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

property or his right to the possession thereof, and serves such affidavit to the sheriff and a copy thereof to the attaching party, the sheriff shall not be bound to keep the property unless the attaching party files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. Claim for damages for the taking or keeping the property must be filed within 120 days from filing of the bond.

his title to the property or his right to the possession thereof, and serves such affidavit to the sheriff and a copy thereof to the attaching party, the sheriff shall not be bound to keep the property under replevin unless the applicant files a bond approved by the court to indemnify the third-party claimant in a sum not less than double the value of the

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

property levied upon. Claim for damages for the taking or keeping the property must be filed within 120 days from filing of the bond.

Bond requirement

Bond executed to the adverse party in the amount fixed by the court to cover the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the granting of provisional remedy prayed for, if the court shall finally adjudge that the applicant was not entitled thereto

Bond executed to the adverse party in double the value of the property for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse

No bond required

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

party of such sum as he may recover from the applicant of the action

Discharge of remedy

By counter-bond: Party against whom the provisional remedy is availed of, may move for the discharge of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court or equal to the value of the property if with respect to a particular property to secure the payment of any judgment that the adverse party may recover in the action

                  Not applicable.

Cash deposit may be made in lieu of the counter-bond

Filing of counter-bond made only upon showing that the issuance or continuance thereof would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer ; counter-bond alone will not suffice to discharge the injunction.

Amount of counter-bond should also bedouble the value of the property

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

Other grounds: improper or irregular issuance or enforcement or insufficiency of the bond

Insufficiency of the application

Appointment was obtained without sufficient cause

Damages in case applicant for any of the provisional remedies not entitled thereto or for any irregularity in the procurement of provisional remedy

Owner of property attached must file before trial or before perfection of appeal application for damages

Party who availed of provisional remedy and his surety or sureties must be notified , showing right to damages and amount thereof

Damages awarded only after proper hearing; included in judgment of the main case

If judgment of appellate court is favorable to the party against whom

provisional remedy was effected:

Application must be filed with the appellate court before the judgment of the appellate court becomes executory

 Appellate court may allow application to be heard and decided by the trial court

If bond or deposit given by the party availing of the provisional remedy

be insufficient or fail to satisfy the award:

Adverse party may recover damages in the same action

When judgment or final order finds the person who has been providing support pendente lite not liable therefor:

Court shall order  the recipient to return the amounts already received with interest from the dates

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

of actual payment

Recipient may obtain reimbursement from the person legally obliged to give support (separate action must be filed for the purpose)

If recipient fails to reimburse the amount,

Preliminary

Attachment

Preliminary

Injunction/Preli

minary

Mandatory

Injunction

Receiversh

ip Replevin

Support

Pendente Lite

person who provided the same may seek reimbursement from the person legally obliged to give the support (separate action must be filed for the purpose)

SPECIAL CIVIL ACTIONS

Interpl

Decla

rator

y

Relie

f

Ce

rti

or

ari

(C

O

Certiora

ri

Prohibit

ion

Manda

mus

Quo

Warr

anto

Expro

priati

on

Fo

re

clo

su

re

of

Part

itio

n

F

o

r

ci

bl

e

D

et

ai

n

er

Cont

empt

eader

M

EL

E

C

an

d

C

O

A)

Re

al

Es

tat

e

M

or

tg

ag

e

E

n

tr

y

Purpose

Compel conflicting claimants to litigate their claims among themselves

Declaration of rights and duties (reformation of instrument, quieting of title, consolidation of ownership)

Correcting errors

of jurisdiction

Remove a usurper

Taking of private property for public use

Satisfy creditor based upon security

Division of real property among the parties claiming rights thereto

Recover

possessi

on in

fact

Protect judicial system from unwarranted intrusion

Requisites

C

S

P

P

N

J

Certiorari:

Any tribu

A person

Direct contempt:

A

S

A nal, board or officer exercising judicial or quasi judicial functions has

usurps, intrudes into, or unlawfully holds

Indire

ct

conte

mpt:

M

D

A

I

P

F

rendered judgment

Such tribunal, etc. has acted without or in excess

or exercises office, position, or franchise

A

of its jurisdiction

Prohibit

ion: P

roceedings in a tribunal, corporation, board,

public officer does or suffers an act which

officer or person exercising judicial, quasi judicial or ministerial functio

, by the provision of law, constitutes a gro

ns are conducted without or in excess of its jurisdiction

Manda

mus: W

hen an

und for the forfeiture of his office;

An asso

y tribunal, corporation, board, officer or person unlawfully neglects

ciation acts as a corporation within the Phi

performance of an act which the law specifically enjoins

Common

requisite:

Ther

lippines without being legally incorporated

e is no appeal or any plain, speedy, and adequate remedy in the ordi

or without lawful authority so to act

Propert

nary course of law

y  owned by a private party

Taking by governm

ent for public use

Just compensation

A person

owes another a loan

Loan is secured by mortga

ge of real property

Debtor defaulted in payme

nt

Final demand has been made

Procedure

C

S

P

P

C

Note:

Dock

et

fees

A

A

N

N

C

If

1

If

V

Pe

Pl

D

C

If

O

C

paid

by

comp

laina

nt

consti

tute a

lien

upon

subje

ct

matte

r of

the

actio

n

P

S

R

S

P

C

C

C

C

C

V

P

R

C

J

P

C

Cl

In

C

Ju

C

C

If

C

If

C

Jurisdiction RTC RTC

SC

SC, CA, RTC, Sandiganbayan

SC, CA, RTC

 

Reference:  University of the PhilippinesPosted in Civil Procedure

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Tags: Civil Procedure: Rules 40 - 56

Civil Procedure: Rule   61 DEC 19

Posted by Magz

Support Pendente Lite

Rule 61

Sec. 1. Application. – At the commencement of the proper action or proceeding, or at

any time prior to the judgment or final order, a verified application of support pendente

lite may be filed by any party stating the grounds for the claim and the financial

conditions of both parties, and accompanied by affidavits, depositions or other

authentic documents in support thereof.

What is support pendente lite?

It is a provisional remedy which grants a person entitled to support an amount enough

for his “sustenance, dwelling, clothing, medical attendance, education and

transportation” (Art. 194, Family Code) while the action is pending in court. It may be

availed of by any of the parties in the action for support or in a proceeding where one of

the reliefs sought is support for the applicant. The capacity of the person who will

provide the support and the needs of the one entitled to be supported are taken into

consideration in setting the amount of support to be granted.

Support pendente lite can be availed of at the commencement of the action or at any

time before the judgment or final order is rendered in the action or proceeding.

The one claiming for support must establish before the court the relationship between

the parties as to entitle one to receive support from the other.

 

The following are obliged to support each other:

1. The spouses;

2. Legitimate ascendants and descendants;

3. Parents and their legitimate children and the legitimate and illegitimate children of

the latter;

4. Parents and their illegitimate children and the legitimate and illegitimate children of

the latter; and

5. Legitimate brothers and sisters, whether of the full or half-blood. ( Art. 195, Family

Code)

Sec. 2. Comment. – A copy of the application and all supporting documents shall be

served upon the adverse party, who shall have five (5) days to comment thereon unless

a different period is fixed by the court upon his motion. The comment shall be verified

and shall be accompanied by affidavits, depositions or other authentic documents in

support thereof.

The application for support pendente lite is responded to not by an answer but by a

verified comment accompanied by affidavits, depositions or other authentic documents

in support of the facts set forth in the comment.

Sec. 3. Hearing. – After the comment is filed, or after the expiration of the period for

its filing, the application shall be set for hearing not more than three (3) days thereafter.

The facts in issue shall be proved in the same manner as is provided for evidence on

motions.

Hearing on the application is mandatory. It shall be held not later than three (3) days

from the receipt of the comment or from the expiration of the period to file the same.

Sec. 4. Order. – The court shall determine provisionally the pertinent facts, and shall

render such orders as justice and equity may require, having due regard to the probable

outcome of the case and such other circumstances as may aid in the proper resolution

of the question involved. If the application is granted, the court shall fix the amount of

money to be provisionally paid or such other forms of support as should be provided,

taking into account the necessities of the applicant and the resources or means of the

adverse party, and the terms of payment or mode for providing the support, If the

application is denied, the principal case shall be tried and decided as early as possible.

Ramos v. Court of Appeals

45 SCRA

Held: Where the trial court ruled that the claim of filiation and support has been

adequately proven, alimony pendente lite can be validly granted pending appeal of

such decision.

Trial court’s refusal to grant support pendente lite does not deprive the appellate court

the authority to grant the same especially so where, in view of the poverty of the child,

it would be a travesty of justice to refuse him support until the decision of the judge is

sustained on appeal.

Reyes v. Ines-Luciano

81 SCRA

Facts:

Held: Where petitioner failed to present evidence on the alleged adultery of his wife

when the action for legal separation is heard on the merits, the grant of support

pendente lite is valid. Adultery is a good defense and if properly proved and sustained

will defeat the action. However, the alleged adultery of the wife must be established by

competent evidence. Mere allegation would not suffice to bar her from receiving support

pendente lite.

In determining the amount to be awarded as support pendente lite it is not necessary to

go fully into the merits of the case, it being sufficient that the court ascertain the kind

and amount of evidence which it may deem sufficient to enable it to justly resolve the

application, one way or the other, in view of the merely provisional character of the

resolution to be entered. Mere affidavits may satisfy the court to pass upon the

application for support pendente lite. It is enough that the facts be established by

affidavits or other documentary evidence appearing in the record.

Sec. 5. Enforcement of order. – If the adverse party fails to comply with an order

granting support pendente lite, the court shall, motu propio or upon motion, issue an

order of execution against him, without prejudice to his liability for contempt.

            When the person ordered to give support pendente lite refuses or fails to do so,

any third person who furnished that support to the applicant may, after due notice and

hearing in the same case, obtain a writ of execution to enforce his right of

reimbursement against the person ordered to provide support.

 

Sec. 6. Support in criminal cases. – In criminal actions where the civil liability

includes support for the offspring as a consequence of the crime and the civil aspect

thereof has not been waived, reserved or instituted prior to its filing, the accused may

be ordered to provide support pendente lite to the child born to the offended party

allegedly because of the crime.  The application therefor may be filed successively by

the offended party, her parents, grandparents or guardian and the State in accordance

with the procedure established under this Rule.

 

Sec. 7. Restitution. – When the judgment or final order of the court finds that the

person who has been providing support pendente lite is not liable therefor, it shall order

the recipient thereof to return to the former the amounts already paid with legal

interest from the dates of actual payment, without prejudice to the right of the recipient

to obtain reimbursement in a separate action from the person legally obliged to give

support.  Should the recipient fail to reimburse said amounts, the person who provided

the same may likewise seek reimbursement thereof in a separate action from the

person legally obliged to give such support.

JUDGMENTS AND FINAL  ORDERS

FORM

Rule 36, Sec. 1.  Rendition of final judgements and final orders.  — A judgement or final

order determining the merits of the case shall be in writing personally and directly

prepared by the judge, stating clearly and distinctly the facts and the law on which it is

based, signed by him, and filed with the clerk of court.

Concept of Final Judgement and Final Order

Rule 41, Sec. 1.  Subject of appeal. – An appeal may be taken from a judgement or final

order  that completely disposes of the case,   or of a particular matter therein  when

declared by these Rules to be appealable.

 

No appeal may be taken from:

(a)   An order denying a motion for new trial or reconsideration;

(b)  An order denying a petition for relief or any similar motion seeking relief from

judgement;

(c)   An interlocutory order;

(d)  An order disallowing or dismissing an appeal;

(e)   An order denying a motion to set aside a judgement by consent, confession or

compromise on the ground of fraud, mistake or duress, or any other ground vitiating

consent;

(f)    An order of execution;

(g)  A judgement or final order for or against one or more of several parties or in 

separate claims, counter-claims, cross-claims and third-party complaints, while the main

case is pending, unless the court allows an appeal therefrom; and

(h)  An order dismissing an action without prejudice.

In all the above instances where the judgement or final order is not appealable, the

aggrieved party may file an appropriate special civil action under Rule 65.

Ceniza v. CA, 218 SCRA 390

Facts: CA, in a resolution, dismissed petitioner Ceniza’s appeal on the ground of

delayed filing of appellants’ brief. Issue here is WON this resolution was a final order?

Held: Yes. A final order or judgment is one w/c either TERMINATES the action itself or

operates to vest  some right in such a manner as to put out of the power of the ct.

making the order to place in the parties in their original conditions. A final order

disposes of the whole subject matter or terminates proceedings/action, LEAVING

NOTHING TO BE DONE BUT TO ENFORCE BY EXECUTION. However, a final order is

appealable.

KINDS

As to finality

Rendition of Judgement

Rule 36, Sec. 1, supra.

Rule 40, Sec. 2.  When to appeal. – An appeal may be taken within fifteen (15) days

after notice to the appellant of the judgement or final order appealed from.  Where a

record on appeal is required, the appellant shall file a notice of appeal and a record on

appeal within thirty (30) days after notice of the judgement or final order.

The period of appeal  shall be interrupted by a timely motion for new trial or

reconsideration.  No motion for extension of time to file a motion for new trial or

reconsideration shall be allowed.

Rule 41, Sec. 3.  Period of ordinary appeal – The appeal shall be taken within fifteen

(15) days from notice of the judgement or final order appealed from.  Where a record on

appeal is required, the appellant shall file a notice of appeal and a record on appeal

within thirty (30) days from notice of the judgement or final order.

The period of appeal shall be interrupted by a timely motion for new trial or

reconsideration.  No motion for extension of time to file a motion for new trial or

reconsideration shall be allowed.

Rule 42, Sec. 1.  How appeal taken; time for filing – A party desiring to appeal from a

decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction

may file a verified petition for review with the Court of Appeals, paying at the same time

to the clerk of said  court the corresponding docket and other lawful fees, depositing the

amount of P 500.00 for costs, and furnishing the Regional Trial Court  and the adverse

party  with a copy of the petition.  The petition shall be filed and served within fifteen

(15) days from notice of the decision sought to be reviewed or of the denial of

petitioner’s motion for new trial or reconsideration filed in due time after judgement. 

Upon proper motion and the payment of the full amount of the docket and other lawful

fees and the deposit for costs before the expiration of the reglementary period, the

Court of Appeals may grant an additional period of fifteen (15) days only within which to

file the petition for review.  No further extension shall be granted except for the most

compelling reason and in no case to exceed fifteen (15) days.

Entry of judgement

Rule 36, Sec. 2.  Entry of judgements and final orders. – If no appeal or motion for new

trial or reconsideration is filed within the time provided in these Rules, the judgement or

final order shall forthwith be entered by the clerk in the book of entries of judgements. 

The date of finality of the judgement or final order shall be deemed to be the date of its

entry.  The record shall contain the dispositive part of the judgement or final order and

shall be signed by the clerk, with a certificate that such judgement or final order has

become final and executory.

Rule 38, Sec. 3.  Time for filing petition; contents and verification. – A petition

provided for in either of the preceding sections of this Rule must be verified, filed within

sixty (60) days after the petitioner learns of the judgement, final order, or other

proceeding to be set aside, and not more than six (6) months after such judgement or

final order was entered, or such proceeding was taken; and must be accompanied with

affidavits showing the fraud, accident, mistake, or excusable negligence relied upon,

and the facts constituting the petitioner’s good and substantial cause of action or

defense, as the case may be.

Rule 39, Sec. 6.  Execution by motion or by independent action. – A final and

executory judgement or order may be executed on motion within five (5) years from the

date of its entry.  After the lapse of such time, and before it is barred by the statute of

limitations, a judgement may be enforced by action.  The revived judgement may also

be enforced by motion within five (5) years from the date of its entry and thereafter by

action before it is barred by the statute of limitations.

Entry of Satisfaction of Judgement

Rule 39, Sec. 44.  Entry of satisfaction of judgement by clerk of court. – Satisfaction of

a judgement shall be entered by the clerk of court in the court docket, and in the

execution book, upon he return of a writ of execution showing the full satisfaction of the

judgement executed and acknowledged in the same manner as a conveyance of real 

property by the judgement obligee or by his counsel unless a revocation of his authority

is filed, or upon the endorsement of such admission by the judgement obligee or his

counsel on the face of the record of the judgement.

Sec. 45.  Entry of satisfaction with or without admission. – Whenever a judgement is

satisfied in fact, or otherwise than upon an execution, on demand of the judgement

obligor, the judgement obligee or his counsel must execute and acknowledge, or

indorse, an admission of the satisfaction as provided in the last preceding section, and

after notice and upon motion the court may order either the judgement obligee or his

counsel to do so, or may order the entry of satisfaction to be made without such

admission.

As to process of procuring

Judgement of the Pleadings

Rule 34, Sec. 1.  Judgement on the pleadings. – Where an answer fails to tender an

issue, or otherwise admits the material allegations of the adverse party’s pleading, the

court may, on motion of that party, direct judgement on such pleading.  However, in

actions for declaration of nullity or annulment of marriage or for legal separation, the

material facts alleged in the complaint shall always be proved.

Judgement on Demurrer to Evidence

Rule 33, Sec. 1.  Demurrer to evidence. – After the plaintiff has completed the

presentation of his evidence, the defendant may move for dismissal on the ground that

upon the facts and the law the plaintiff has shown no right to relief.  If his motion is

denied, he shall have the right to present evidence.  If the motion is granted but on

appeal the order of dismissal is reversed he shall be deemed to have waived the right 

to present evidence.

Summary Judgements

Rule 35

Sec. 1.  Summary judgement for claimant. – A party seeking to recover upon a claim,

counter-claim, or cross-claim or to obtain a declaratory relief may, at any time after the

pleading in answer thereto has been served, move with supporting affidavits,

depositions or admissions for a summary judgement in his favor upon all or any part

thereof.

Sec. 2.  Summary judgement for defending party. – A party against whom a claim,

counter-claim, or cross-claim is asserted or a declaratory relief is sought may, at any

time,  move with supporting affidavits, depositions or admissions for a summary

judgement in his favor as to all or any part thereof.

Sec. 3.  Motion and proceedings thereon. – The motion shall be served at least ten (10)

days before the time specified for the hearing.  The adverse party may serve opposing

affidavits, depositions, or admissions at least three (3) days before the hearing.  After

the hearing, the judgement sought shall be rendered forthwith if the pleadings,

supporting affidavits, depositions, and admissions on file, show that, except as to the

amount of damages, there is no genuine issue as to any material fact and that the

moving party is entitled to a judgement as a matter of law.

Sec. 4.  Case not fully adjudicated on motion. – If on motion under this Rule, judgement

is not rendered upon the whole case or for all the reliefs sought and a trial is necessary,

the court at the hearing of the motion, by examining the pleadings, and the evidence

before it and by interrogating counsel shall ascertain what material facts exist without

substantial controversy and what are actually and in good faith controverted.  It shall

thereupon make an order specifying the facts that appear without substantial

controversy, including the extent to which the amount of damages or other relief is not

in controversy, and directing such further proceedings in the action as are just.  The

facts so specified shall be deemed established, and the trial shall be conducted on the

controverted facts accordingly.

Sec. 5.  Form of affidavits and supporting papers. – Supporting and opposing affidavits

shall be made on personal knowledge, shall set forth such facts as would be admissible

in evidence, and shall show affirmatively that the affiant is competent to testify to the

matters stated therein.  Certified true copies of all papers or parts thereof referred to in

the affidavit shall be attached thereto or served therewith.

Sec. 6.  Affidavits in bad faith. — Should it appear to its satisfaction at any time that

any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely

for the purpose of delay, the court shall forthwith  order the offending party or counsel

to pay to the other party the amount of the reasonable expenses which the filing of the

affidavits caused him to incur, including attorney’s fees.  It may, after hearing, further

adjudge the offending party or counsel guilty of contempt.

Rule 29, Sec. 3.  Other consequences. – If any party or an  officer or managing agent

of a party refuses to obey an order made under section 1 of this Rule requiring him to

answer designated questions, or an order under Rule 27 to produce any document or

other thing for inspection, copying, or photographing or to permit it to be done, or to

permit entry upon land or other property, or an order made under Rule 28 requiring him

to submit to a physical or mental examination, the court may make such orders in

regard to the refusal as are just, and among others the following:

(a)   An order that the matters regarding which the questions were asked, or the

character or description of the thing or land, or the contents of the paper, or the

physical or mental condition of the party, or any other designated facts shall be taken to

be established for the purposes of the action in accordance with the claim of the party

obtaining the order;

(b)  An order refusing to allow the disobedient party to support or oppose designated

claims or defenses or prohibiting him from introducing in evidence designated

documents or things or items of testimony, or from introducing evidence of physical or

mental condition;

(c)   An order striking out pleadings or parts thereof, or staying further proceedings until

the order is obeyed, or dismissing the action or proceeding or any part thereof, or

rendering a judgement by default against the disobedient party; and

(d)  In lieu of any of the foregoing orders or in addition thereto, an order directing the

arrest of any party or agent of a party for disobeying any of such orders except an order

to submit to a physical or mental examination.

Default Judgements

Rule 9, Sec. 3.  Default; declaration of. – If the defending party fails to answer within

the time allowed therefor, the court shall, upon motion of the claiming party with notice

to the defending party, and proof of such failure, declare the defending party in default. 

Thereupon, the court shall proceed to render judgement granting the claimant such

relief as his pleading may warrant, unless the court in its discretion requires the

claimant to  submit evidence.  Such reception of evidence may be delegated to the

clerk of court.

(a)   Effect of order of default. – A party in default shall be entitled to notice of

subsequent proceedings but not to take part in the trial.

(b)  Relief from order of default. – A party declared in default may at any time after

notice thereof and before judgement file a motion under oath to set aside the order of

default upon proper showing that his failure to answer  was due to fraud, accident,

mistake or excusable negligence and that he has a meritorious defense.  In such case,

the order of default may be set aside on such terms and conditions as the judge may

impose in the interest of justice.

(c)   Effect of partial default. – When a pleading asserting a claim states a common

cause of action against several defending parties, some of whom answer and the others

fail to do so, the court  shall try the case against all upon the answers thus filed and

render judgement upon the evidence presented.

(d)  Extent of relief to be awarded. – A judgement rendered against a party in default

shall not exceed the amount or be different in kind from that prayed for nor award

unliquidated damages.

(e)   Where no defaults allowed. – If the defending party in an action for annulment or

declaration of nullity of marriage or for legal separation fails to answer, the court shall

order the prosecuting attorney to investigate whether or not a collusion between the

parties exists, and if there is no collusion, to intervene for the State in order to see to it

that the evidence submitted is not fabricated.

Judgements after ex parte presentation of Evidence

Rule 18, Sec. 5.  Effect of failure to appear. – The failure of the plaintiff to appear

when so required pursuant to the next preceding section shall be cause for dismissal of

the action.  The dismissal shall be with prejudice, unless otherwise ordered by the

court.  A similar failure on the part of the defendant shall be cause to allow the plaintiff

to present his evidence ex parte and the court to render judgement on the basis

thereof.

Compromise Judgement

Order for Dismissal

Motion to Dismiss (See Rule 16)

Dismissals under Rule 17 (Dismissal of Actions)

Dismissals under Rule 18, Sec. 5

Rule 18, Sec. 5.  Effect of failure to appear. – The failure of the plaintiff to appear

when so required pursuant to the next preceding section shall be cause for dismissal of

the action.  The dismissal shall be with prejudice, unless otherwise ordered by the

court.  A similar failure on the part of the defendant shall be cause to allow the plaintiff

to present his evidence ex parte and the court to render judgement on the basis

thereof.

Dismissals under Rule 29, Sec. 5

Rule 29, Sec. 5.  Failure of party to attend or serve answers. – If a party or an officer or

managing agent of a party wilfully fails to appear before the officer who is to take his

deposition, after being served with a proper notice, or fails to serve answers to

interrogatories submitted under Rule 25 after proper service of such interrogatories, the

court on motion and notice, may strike out all or any part of any pleading of that party,

or dismiss the action or proceeding or any part thereof, or enter a judgement by default

against that party, and in its discretion, order him to pay reasonable expenses incurred

by the other, including attorney’s fees.

As to parties

As against one or more several parties

 

Rule 36, Sec. 3.  Judgement for or against one or more of several parties. – Judgement

may be given for or against one or more of several plaintiffs, and for or against one or

more of several defendants.  When justice so demands, the court may require the

parties on each side to file adversary pleadings as between themselves and determine

their ultimate rights and obligations.

Several Judgement

Rule 36, Sec. 4.  Several judgements. – In an action against several defendants, the

court may, when a several judgement is proper, render judgement against one or more

of them, leaving the action to proceed against the others.

Rule 9, Sec. 3 (c). Effect of partial default. – When a pleading asserting a claim states

a common cause of action against several defending parties, some of whom answer and

the others fail to do so, the court  shall try the case against all upon the answers thus

filed and render judgement upon the evidence presented.

Against entity without juridical personality

Rule 36, Sec. 6.  Judgement against entity without juridical personality. – When

judgement is rendered against two or more persons sued as an entity without juridical

personality, the judgement shall set out their individual or proper names, if known.

As to claims

At various stages or separate judgements

Rule 36, Sec. 5.  Separate judgements. – When more than one claim for relief is

presented in an action, the court, at any stage, upon a determination of the issues

material to a particular claim and all counter-claims arising out of the transaction or

occurrence which is the subject matter of the claim, may render a separate judgement

disposing of such claim.  The judgement shall terminate the action with respect to the

claim so disposed of and the action shall proceed as to the remaining claims.  In case a

separate judgement is rendered, the court by order may stay its enforcement until the

rendition of a subsequent judgement or judgements and may prescribe such conditions

as may be necessary to secured the benefit thereof to the party in whose favor the

judgement is rendered.

Rule 31. Sec. 2.  Separate trials. – The court, in furtherance of convenience or to avoid

prejudice, may order a separate trial of any claim, cross-claim, counter-claim, or third-

party complaint, or of any separate issue or of any number of claims, cross-claims,

counter-claims, third-party complaints or issues.

Rule 41, Sec. 1 (g). No appeal may be taken from: x x x  x A judgement or final order

for or against one or more of several parties or in  separate claims, counter-claims,

cross-claims and third-party complaints, while the main case is pending, unless the

court allows an appeal therefrom; and x x x x

As to how executed

Judgements not stayed on appeal

Rule 39, Sec. 4.  Judgements not stayed by appeal. – Judgements in actions for

injunction receivership, accounting, support, and such other judgements as are now or

may hereafter be declared to be immediately executory, shall be enforceable after their

rendition and shall not be stayed by an appeal taken therefrom, unless otherwise

ordered by the trial court.  On appeal therefrom, the appellate court in its discretion

may make an order suspending, modifying, restoring or granting the injunction,

receivership, accounting, or award of support.

The stay of execution shall be upon such terms as to bond or otherwise as may be

considered proper for the security or protection of the rights of the adverse party.

Judgements for money

Rule 39, Sec. 9.  Execution of judgements for money, how enforced. –

(a)   Immediate payment on demand. – The officer shall enforce an execution of a

judgement for money by demanding from the judgement obligor the immediate

payment of the full amount stated in the writ of execution and all lawful fees.  The

judgement obligor shall pay in cash, certified bank check payable to the judgement

obligee, or any other form of payment acceptable to the latter, the amount of the

judgement debt under proper receipt directly to the judgement obligee or his authorized

representative if present at the time of payment.  The lawful fees shall be handed under

proper receipt to the executing sheriff who shall turn over the said amount within the

same day to the clerk of court of the court that issued the writ.

(b)  If the judgement obligee or his authorized representative is not present to receive

payment, the judgement obligor shall deliver the aforesaid payment to the executing

sheriff.  The latter shall turn over all the amounts coming into his possession within the

same day to the clerk of court of the court that issued the writ, or if the same is not

practicable, deposit said amounts to a fiduciary account in the nearest government

depository bank of the Regional Trial Court of the locality.                       .                 

The clerk of said court shall thereafter arrange for the remittance of the deposit to the

account of the court that issued the writ whose clerk of court shall then deliver said

payment to the judgement obligee in satisfaction of the judgement.  The excess, if any,

shall be delivered to the judgement obligor while the lawful fees shall be retained by the

clerk of court for disposition as provided by law.  In no case shall the executing sheriff

demand that any payment by check be made payable to him.

(b)  Satisfaction by levy. – If the judgement obligor cannot pay all or part of the

obligation in cash, certified bank check or other mode of payment acceptable to the

judgement obligee, the officer shall levy upon the properties of the judgement obligor of

every kind and nature whatsoever which may be disposed of for value and not

otherwise exempt from execution giving the latter the option to immediately choose

which property or part thereof may be levied upon, sufficient to satisfy the judgement. 

If the judgement obligor does not exercise the option, the officer shall first levy on the

personal properties, if any, and then on the real properties if the personal properties are

insufficient to answer for the judgement.

The sheriff shall  sell only a sufficient portion of the personal or real property of the

judgement obligor which has been levied upon.

When there is more property of the judgement obligor than is sufficient to satisfy the

judgement and lawful fees, he must sell only so much of the personal or real property

as is sufficient to satisfy the judgement and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, may be levied

upon in like manner and with like effect as under a writ of attachment.

(c)   Garnishment of debts and credits. – The officer may levy on debts due the

judgement obligor and other credits, including bank deposits, financial interests,

royalties, commissions and other personal property not capable of manual delivery in

the possession or control of third parties. Levy shall be made by serving notice upon the

person owing such debts or having in his possession or control such  credits to which

the judgement obligor is entitled.  The garnishment shall only cover such amount as will

satisfy the judgement and all lawful fees.

The garnishee shall make a written report to the court within five (5) days from service

of the notice of garnishment stating whether or not the judgement obligor has sufficient

funds or credits to satisfy the amount of judgement.  If not, the report shall state how

much funds or credits the garnishee holds for the judgement obligor.  The garnished

amount in cash, or certified bank check issued in the name of the judgement obligee,

shall be delivered directly to the judgement obligee within ten (10) working days from

service of notice on the said garnishee requiring such delivery, except the lawful fees

which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to

satisfy the judgement, the judgement obligor, if available, shall have the right to

indicate the garnishee or garnishees who shall be required to deliver the amount due;

otherwise, the choice shall be made by the judgement obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with

respect to delivery of payment to the judgement obligee.

Judgements for specific acts

 

Rule 39, Sec. 10.  Execution of judgements for specific acts. –

(a)   Conveyance, delivery of deeds, or other specific acts; vesting title. – If a judgement

directs a party to execute a conveyance of land or personal property, or to deliver

deeds or other documents, or to perform any other specific act in connection therewith,

and the party fails to comply within the time specified, the court may direct the act to

be done at the cost of the disobedient party by some other person appointed by the

court and the act when so done shall have like effect as if done by the party.  If real or

personal property is situated within the Philippines, the court in lieu of directing

conveyance thereof may by an order divest the title of any party and vest it in others,

which shall have the force and effect of a conveyance executed in due form of law.

(b)  Sale of real or personal property. – If the judgement be for the sale of real or

personal property, to sell such property, describing it, and apply the proceeds in

conformity with the judgement.

(c)   Delivery or restitution of real property. – The officer shall demand of the person

against whom the judgement for the delivery or restitution of real property is rendered

and all persons claiming rights under him to peaceably vacate the property within three

(3) working days, and restore possession thereof to the judgement obligee; otherwise,

the officer shall oust all such persons therefrom with the assistance, if necessary, of

appropriate peace officers, and employing such means as may be reasonably necessary

to retake possession, and place the judgement obligee in possession of such property. 

Any costs, damages, rents or profits awarded by the judgement shall be satisfied in the

same manner as a judgement for money.

(d)  Removal of improvements on property subject of execution. – When the property

subject of the execution contains improvements constructed or planted by the

judgement obligor or his agent, the officer shall not destroy, demolish or remove said

improvements except upon special order of the court, issued upon motion of the

judgement oblige after due hearing and after the former has failed to remove the same

within a reasonable time fixed by the court.

(e)   Delivery of personal property. – In judgements for the delivery of personal property,

the officer shall take possession of the same and forthwith deliver it to the party entitled

thereto and satisfy any judgement for money as therein provided.

Special Judgements

Rule 39, Sec. 11.  Execution of special judgements. – When a judgement requires the

performance of any act other than those mentioned in the two preceding sections, a

certified copy of the judgement shall be attached to the writ of execution and shall be

served by the officer upon the party against whom the same is rendered, or upon any

other person required thereby, or by law, to obey the same, and such party or person

may be punished for contempt if he disobeys such judgement.

Effect of Judgements and Final Orders

Local

Rule 39, Sec. 47.  Effect of judgements or final orders. – The effect of a judgement or

final order rendered by a court of the Philippines, having jurisdiction to pronounce the

judgement or final order, may be as follows:

(a)   In case of a judgement or final order against a specific thing, or in respect to the

probate of a will, or the administration of the estate of a deceased person, or in respect

to the personal, political, or legal condition or status of a particular person or his

relationship to another, the judgement or final order is conclusive upon the title to the

thing, the will or administration, or the condition, status or relationship of the person;

however, the probate of a will or granting of letters of administration shall only be prima

facie evidence of the death of the testator or intestate.

(b)  In other cases, the judgement or final order is, with respect to the matter directly

adjudged or as to any other matter that could have been raised in relation thereto,

conclusive between the parties and their successors in interest by title subsequent to

the commencement of the action or special proceeding, litigating for the same thing

and under the same title and in the same capacity; and

(c)   In any other litigation between the same parties or their successors in interest, that

only is deemed to have been adjudged in a former judgement or final order  which

appears upon its face  to have been so adjudged, or which was actually and necessarily

included therein or necessary thereto.

Foreign

Rule 39, Sec. 48.  Effect of foreign judgements or final orders. – The effect of a

judgement or final order of a tribunal of a foreign country, having jurisdiction to render

the judgement or final order is as follows:

(a)   In case of a judgement or final order upon a specific thing, the judgement or final

order is conclusive upon the title of the thing; and

(b)  In case of a judgement or final order against a person, the judgement or final order

is presumptive evidence of a right as between the parties and their successors in

interest by a subsequent title.

In either case, the judgement or final order may be repelled by evidence of a want of

jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

NOTES ON JUDGMENT AND FINAL ORDERS:

Rule 36 § 1. Rendition of judgment and final orders.  A judgment or final order

determining the merits of the case shall be:

(1) in writing

(2) personally and directly prepared by the judge

(3) stating clearly and distinctly the facts and the law on which it is based.

(4) Signed by him

(5) And filed with the Clerk of Court.

Rule 36 § 3. Judgment for or against one or more of several parties.

Judgment is rendered in favor of party A; based on particular judgment is rendered only

against

Final order – Court has nothing else to do.

Order granting a MTD – a Final Order

Only final orders and judgment are subjects of appeal.   Interlocutory orders are not

subject of appeal.

Rendition of judgment – upon the clerk receiving the copy

Book of entry of judgment – date of the lapse of the fifteen (15) days; not on the date of

entry.

Book of satisfaction of judgment

Entry of judgment – important for counting of petition for entry of judgment, among

others.

First Sense – terminates action

Second Sense of finality – final and executory.

Final judgment under new rules – that which can already be executed

Nunc pro tunc – “then as now”

Final & executory – even if ground is substantial can no longer be modified, except:

1. Clerical errors

2. Nunc pro tunc

3. Annulment of judgment based on extrinsic fraud (Jep Management Co.)

4. Void judgment (Paluwagan and Vda de Macoy) a void judgment never prescribes.

Difference between Motion for Re-open and MNT (taken within the period for taking

appeal):

To re-open trial – make use of ordinary prudence, rules on motions

MNT – extrinsic fraud – basis of the cause of action, performance of a contract

Content of the action itself.

Extrinsic Fraud – one of the parties prevented the other by fraudulent acts to be given

his day in court.

Amendment of judgment

Before it becomes final and executory

Eternal Gardens Memorial v. IAC

165 SCRA 439

Facts: A Land Development Agreement  was executed between Eternal & Mission.

Mission owned the property & Eternal was to develop it into a memorial park.

Thereafter, a Deed of Absolute Sale w/ mortgage was executed. BUT Maysilo claimed

ownership over the land. Thus, Eternal filed w/ the CFI a complaint for interpleader vs.

Mission & Maysilo Estate. It alleged that, in view of the conflicting claims & to protect its

interests, defendants should be required to interplead & litigate between themselves.

Mission filed a Motion for placing on judicial deposit the amounts due & unpaid fr.

Eternal. Motion was DENIED. The contract was declared ineffective on the ground that

the subject matter of the sale was not existing.

Mission then filed a Motion to Dismiss the Interpleader. TC ordered Eternal to comply w/

the contract EXCEPT w/ regard to the interpleader of Maysilo Estate. Maysilo filed Motion

for Recon w/c was GRANTED by the TC. Hearings on the merits were ordered BUT

Mission filed for Writ of Execution. This was DENIED. On appeal, CA dismissed & this was

affirmed by the SC. The order became final & executory.

In 1983, heirs of Singson spouses filed an action for quieting of title where Eternal &

Mission were defendants. This case is still pending.

In the present case, Mission filed a petition for certiorari w/ the CA for the setting aside

of RTC orders regarding the setting of the hearing on the merits. CA dismissed BUT later

on reversed. Eternal filed a Motion for Recon w/c was again DENIED.

Held: Courts have the power to amend their judgments, to make them conformable to

the applicable jurisprudence PROVIDED said judgments ARE NOT YET FINAL. In the CAB,

Eternal admitted it still has to pay whoever will be declared as owner. Therefore, there

was no plausible reason for petitioner’s objections to the deposit order after having

asked the ct. by complaint for interpleader whose deposit is not only required but is a

contractual obligation.

Finally,  there is no res judicata here bec. there was no judgment on the merits. Also,

there was no identity of issues. One case involved the propriety of motion for recon w/o

a hearing & the denial of the motion for execution. The other case involved the

propriety of a CA order that Eternal shall deposit what was required of it pending the

trial on the merits.

After it becomes final and executory

David v. CA< 214 SCRA 644

Facts: SUPRA

Held: The filing of the petition for relief fr. judgment w/ the TC was an unequivocal

admission on Afable’s part that his period to appeal fr. the decision had already expired.

When a final judgment has become executory, it thereby becomes immutable &

unalterable. The judgment MAY NO LONGER BE MODIFIED in any respect even if the

modification is meant to correct what is perceived to be an erroneous conclusion of fact

or law, & regardless of whether the modification is attempted to be made by the ct.

rendering it or by the highest ct. of the land.

The only recognized EXCEPTIONS are:

1. Correction of clerical errors

2. Judgment Nunc Pro Tunc

            3. Where the judgment is VOID

These are entries w/c cause NO INJURY to any party.

Judgments nunc pro tunc

Cardoza v. Singson, 181 SCRA 45

Annulment of judgment

Top Management Programs v. CA

 222 SCRA 763

Facts: Gregorio promised to give a large tract of land to Trinidad & Fajardo if a case

bet. Greggy & Velasquez regarding the lot will be successful. Trini & Fajards then filed

an action to ENFORCE the agreement & the TC ruled in their favor. Trini & Fajards then

filed a motion for the issuance of a writ of execution w/c was granted by the TC. The

Register of Deeds, however, informed the ct. that the deed of conveyance cannot be

issued in favor of Trini & Fajards bec. the land had already been sold to other persons.

However, the TC directed the Register of Deeds to issue separate titles in favor of the

two. Top Management then filed this petition to annul the orders of the TC on the

ground of extrinsic fraud. It claimed the it has title to the same parcel of land w/c was

being levied upon since it bought the same fr. the heirs of Greggy. The CA dismissed

the petition for annulment.

HELD: Extrinsic fraud is one the effect of w/c PREVENTS a party fr. having a trial or real

contest or fr. presenting all of his case to the ct. or where it operates upon matters

pertaining NOT TO THE JUDGMENT ITSELF but of the MANNER in w/c it was procured so

that there is not a fair submission of the controversy.

In other words, EXTRINSIC FRAUD refers to any fraudulent act of the prevailing party in

the litigation w/c is committed OUTSIDE OF THE TRIAL of the case, whereby the

defeated party has been PREVENTED fr. exhibiting FULLY his side of the case, by fraud,

deception or deception practiced upon him by his opponent.

The relief is granted on the theory that by reason of the extrinsic fraud preventing a

party fr. fully trying his case, there has never been a real contest before the ct. on the

subject matter of the action.

The allegations that the judge had no jurisdiction to order the sheriff to levy on

execution since the judge had full knowledge that Top Management & not Greggy who

owned the land, that the writ vs. the prop. was not justified bec. Top Management was

not a party to the case–These DO NOT CONSTITUTE FRAUD.

Top Management has not pointed to any act w/c prevented it form fully ventilating its

case. If ever there was any failure in the presentation of its case, it was caused by its

own inaction.

Paluwagan ng Bayan v. King, 172 SCRA 60

Vda. De Macoy v. CA, 206 SCRA 244

Motion for New Trial/Reconsideration

Grounds and nature, Rule 37, Sec. 1

Motion for new trial, Rule 37, Sec. 1, par 1

Distinguished from Motion to reopen trial

Agulto v. CA, 181 SCRA 30

Facts: Agulto was convicted of bigamy.  He filed a motion to reopen trial due to newly

discovered evidence AFTER THE PARTIES HAD RESTED BUT BEFORE JUDGMENT.  His

new evidence was a photocopy of a marriage certificate of his second wife to another

man.  (His theory was that if his second wife had been previously married,  he could not

have validly married her, therefore, no bigamy).

Held:  The MNT may be filed AFTER judgment but w/in the period of perfecting an

appeal for the grounds stated in S1,R37 & S2R121.

A Motion to Reopen Trial may be presented only after either or both parties have

formally offered & closed their evidence but BEFORE judgment.  The reopening of a trial

for the reception of new evidence is not a grant of a new trial.  There is no specific

provision in the rules w/c governs.  It is only a recognized procedural recourse deriving

validity fr. long established rules.  The governing rule is paramount interests of justice

resting entirely on the sound judicial discretion of the trial ct..   Therefore, the

grant/denial is not subject to certiorari under grave abuse of discretion.

On the merits, the SC decided that the new evidence had defects & it failed to show

that the 2nd wife’s marriage was still existing when she married Agulto.

Grounds

Velasco v. Ortiz, 184 SCRA 303

Facts: The ward of the spouses Velasco was able to w/draw money of the dead

husband of P Velasco (the latter was diagnosed as disabled).  The ward argued that she

was instructed by the decedent to w/draw money.  The TC ruled in favor of Velasco. 

Copy of the decision was given to the 1st counsel of the ward.  The NEW counsel filed

an  MNT based on newly discovered evidence (a certification fr. a doctor that the

decedent can still properly communicate)

Held:  For Velasco.  There is no dispute that at the time the MNT was filed, the

reglementary period to appeal had lapsed, & the decision had become final &

executory.  A judgment w/c has become final & executory can no longer be altered &

modified, mush less set aside by the ct. w/c rendered it since such ct. has already lost

jurisdiction over the case.  Thereafter, the power & prerogative to order suspension of

the rules of procedure is reposed, not in the ct. w/c had rendered such decision but

rather in an appellate ct. & ultimately in the SC, & then only upon a showing that

otherwise the imperious demands of substantial justice will be thwarted.

Where the reglementary period to appeal had expired, the remedy is an MNT.  If it has

become final & executory, one can file a petition for relief under R 38  or a petition for

annulment of judgment.

An MNT upon the ground of newly discovered evidence is properly granted where there

is concurrence of the following requisites:

1. the evidence had been discovered after trial;

2. the evidence could not have been discovered & produced during trial even w/

exercise of reasonable diligence

3. the evidence is material & not merely corroborative, cumulative or impeaching.

What is essential is not so much the time when the evidence offered first sprang into

existence not the time when it first came to the knowledge of the party now submitting

it; what is essential is, rather, that the offering party had exercised reasonable diligence

in seeking to locate such evidence before or during trial but had not nonetheless failed

to secure ( it must have been searched for but not found during trial. )

In the CAB, the new evidence was already presented as evidence in a criminal case vs.

the ward for falsification.  Therefore, she had already come across that evidence before.

Moreover, it is in the nature of an impeaching evidence for it seeks merely to weaken or

controvert previous evidence;  it is not material or corroborative.

Tumang v. CA 172 SCRA 332

Facts: Tumang filed for an annulment of a deed of sale bec. there was no

consideration.  The trial ct. rule for her.  The defendant filed an MFR & an MNT based on

the ground that the decision was based on insufficiency of evidence & that it was

contrary to law.  As evidence, D presented receipts proving consideration.  Tumang

assails the decision of the CA w/c granted the motion of D by saying that it was

FORGOTTEN EVIDENCE (it had existed at trial & w/c could have been discovered by D if

due diligence was exercised.

Held:  NEWLY DISCOVERED EVIDENCE:  need not be newly created evidence.  May &

does commonly refer to evidence already in existence prior or during the trial but w/c

could not have been secured & presented during the trial despite reasonable diligence.

FORGOTTEN EVIDENCE:  evidence already in existence or available before or during the

trial, w/c was known to & obtainable by the party  offering it w/c could have been

presented seasonably were it not for the oversight or forgetfulness of such party or his

counsel.

In the case at bar, the receipts were found during a gen. cleaning, w/c goes to show that

the it could hardly have been located w/ the exercise of reasonable/average diligence.

The receipts are           MATERIAL bec. they are of such import that a reasonably

prudent man would have searched for them.  There would be a great benefit to D if he

presents it in trial, therefore, there is no reason why did not try to locate it.

Motion for reconsideration, Rule 37, Sec. 1, par. 2

Periods. Rule 37, Sec. 1

For filing

Effect of Motion for Extension of Time to File

See also Rule 41, Sec. 3, par. 2; Rule 40, Sec. 2, par. 2

Habaluyas v. Japson, 142 SCRA 208

This a resolution on a Motion for Reconsideration on the SC’s 2nd division decision.

Held:  In S 39 of BP 129, the period of appeal in the RTC was reduced fr. 30 to 15 days

for appeals fr. final orders, resolution, awards, judgment or decision.  But only 48 hours

for habeas corpus cases.

Only notice of appeal is required.  Record is not required except in (a) appeals in spl.

proc.; (2) where multiple appeals are allowed.  In these cases, the period is 30 days. 

According to the Interim Rules, no appeal bond in necessary for appeal.  Its S 4

disallows a second MFR of a final order or judgment.

The purpose of such is to avoid procedural delays.  But the Rules does not expressly

prohibit a motion for extension of time to file a MFR of a final order or judgment.

The interest of justice  would be better served if the ruling in the original decision

(denying extension) were applied prospectively fr. the time herein stated.  It would be

unfair to deprive parties of their right to appeal simply bec. they availed themselves of a

procedure w/c was not expressly prohibited or allowed by the law or Rules.

On the other hand, an MNT or MFR is not a prerequisite to an appeal, a petition for

review or a petition for review on certiorari, & since the purpose is to expedite the final

disposition of cases, a strict but prospective application of said ruling is in order

From June 30, 1986, the rule shall be strictly enforced that no motion for extension of

time to file an MNT or MFR, may be filed w/ the MeTC, MTC, RTC, & IAC.  Such a motion

may be filed only in cases pending w/ the SC as the ct. of last resort, w/c may in its

sound discretion either grant or deny the extension requested.

In appeals in spl. proc. under R 109 & in other cases wherein multiple appeals are

allowed, a motion for extension of time to file the record on appeal may be filed w/in the

reglementary period of 30 days.  If the ct. denies the motion for extension, the appeal

must be taken w/in the original period since such a motion does not suspend the period

for appeal.

The TC may grant said motion after the expiration of the period for appeal provided it

was filed w/in the original period.

Not required for appeal

Director of Lands v. Aquino, 192 SCRA 296

Facts: Abra Industrial applied for registration of a piece of land w/c was granted.  The

Director opposed saying that the land was mineral & unalienable.  Within one year fr.

the issuance of the registration decree, Director filed a petition for review the decrees of

registration.

Held:  An MNT or MFR is not a pre-requisite to an appeal for review or petition for

review on certiorari.  The reglementary period for filing a petition for review on certiorari

in the instant case was 30 days fr. notice of order or judgment subject of review w/c

period, parenthetically, is now 15 days pursuant to S 39 of BP129.  The Director having

been granted a total of 60 days w/in w/c to file the petition, the same was timely filed.

Second Motion for New Trial, Rule 37, Sec. 5, par. 1

Second Motion for Reconsideration, Rule 37, Sec. 5, par. 2

For Resolution, Rule 37, Sec. 4

Contents of Motion for New Trial, Rule 37, Sec. 2

In general, Rule 37, Sec. 2; see also Rule 15

Motion for New Trial, Rule 37, Sec. 2, par. 2

Motion for Reconsideration, Rule 37, Sec. 2, par. 3

Pro forma motion and its effects, Rule 37, Sec. 2, par. 4

Pojas v. Gozo-Dadole, 192 SCRA 575

Facts: The plaintiff filed a complaint for recovery of possession.  The TC ruled for the

plaintiff & ordered the defendant to vacate.  The defendant filed an MFR  BUT IT FAILED

TO MENTION THE DAY THE MOTION IS TO BE RESOLVED (no notice of hearing).  Later,

the defendant filed a notice of appeal.

Held:  Notice of appeal denied.  The MFR was a mere scrap of paper & therefore, pro

forma.  It did not contain the day when the motion is to be heard, violating S5 R15.  As

such it does not suspend the running of the period of appeal.  The notice of appeal filed

out of time.

Action upon Motion for New Trial

Options in general, Rule 37, Sec.  3

Granting, Rule 37, Sec. 6

Effect in general, Rule 37, Sec. 5

Fernan v. CA, 142 SCRA 208

Facts: Fernan was suspected of having stolen a wallet.  The TC ruled against the

plaintiff store & awarded damages to Fernan.  The CA affirmed the TC but upon the MFR

of the plaintiff, the TC was reversed.

Held.  The appeal of the store raises no question of law but of fact  Review of facts is

not a function of the CA.  An exception to this rule is when manifestly correct findings

has been unwarrantedly rejected or reversed.   In the CAB, the CA reversed the TC. 

These instances of conflict of findings between the CA & TC is a basis of recourse to the

SC.

There must be a showing on the face of the record of gross or extraordinary

misperception or manifest bias.

In the CAB, there was no substantial reason given by Fernan refuting the assessment of

the CA w/c ruled that her testimony had contradictions & inconsistencies.

Partial New Trials, Rule 37, Sec. 6, 7

Denying

Remedies, Rule 37, Sec. 9; Rule 41, Sec. 1 (a)

NOTES ON MOTION FOR NEW TRIAL & MOTION FOR RECONSIDERATION:

Judgment is vacated.

On appeal – accept evidence as it is; attach the evidence as it is.

New trial is not de novo, only those affected

Denial of MNT – appeal the judgment within the remaining time to file an appeal even if

less than five (5) days.

MNT- not supported by evidence, not supported by law, damages are excessive.

There can be a second MNT only when ________

Order granting MNT – first judgment is vacated for purposes of entering new evidence.

When judgment may be vacated in part – in case of separate and several judgments.

Motion to Re-open – governed by rules on Motions.

Options after judgment: but not yet final & executory:

1. Appeal

2. Motion for new trial            FAME/good & substantial grounds for saying so

Discovery after J is ren

Newly discovered evidence    Not discovered with reasonable evidence

Not merely colorative

3. Motion for reconsideration

(a) evidence

(b) law

(c) award of damages is excessive

After final & executory:

1. Nunc pro tunc

2. Petition for relief from judgment

3. Annulment of judgment

4. Remedies during execution

Final judgment – 16th day after notice

No prescriptive period in actions to nullify

Estoppel – by act

Laches – by negligence

Petition for relief from judgment- equitable remedy; only very highly discretionary on

the part of the court.

Action to annul – separate action. Res judicata may be raised.

Any kind of order for Petition for relief, if  granted, not appealable.

If not granted, not appealable – only special civil actions

Relief from Judgments, Orders or other Proceedings

Grounds and nature, Rule 38, Secs. 1, 2

Grounds

Garcia v. CA, 202 SCRA 228

Facts:  Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the

Certificate of Title to a land actually owned by the spouses Garcia.  He did this by

misinforming the ct. of the spouses’ address so that the notices wont reach them

thereby depriving them of the opportunity to participate in the trial.  Garcia further

made further recovery of the land difficult by conveying the land to another.  The couple

filed a petition for relief (PFR) fr. said judgment but failed to categorically allege

extrinsic fraud in their affidavit of merit.  The PFR was dismissed by CA saying that

extrinsic fraud should be expressly alleged in the affidavit of merit for the petition to

lie.  The SC said that since in case at bar, the spouses were able to allege facts leading

to extrinsic fraud, express allegation of such is not necessary.

Held:  Where fraud is the ground, the fraud must be extrinsic or collateral & the facts

upon w/c the extrinsic fraud is based must have not been controverted or resolved in

the case where the judgment sought to be annulled  was rendered.  For this purpose,

fraud is regarded as extrinsic or collateral where it has prevented a party fr. having a

trial or fr. presenting all of his case to the ct..  Intrinsic fraud takes the form of acts of

the party in a litigation during the trial, such as the use of forged instruments of

perjured testimony w/c did not affect the presentation of the case but did prevent a  fair

& just determination of the case.

Conde v. IAC, 144 SCRA 144

Facts:  Petitioners alleged fraud.  Gutierrez was able to make it appear that he was the

son of  Esteban & Fermina Gutierrez & as a necessary consequence of such filiation,

was the absolute owner by succession of the prop. in Q.

Held:  Petition should be dismissed for lack of merit bec. the fraud allegedly

perpetuated by G is only intrinsic in nature & not extrinsic.  Fraud is regarded as

extrinsic or collateral where it has prevented a party fr. having a trial or fr. presenting

all of his case to the ct..  In the case at bar, the fraud was in the nature of documents

allegedly manufactured by G to make it appear he was the rightful heir of the disputed

property.  Hence the fraud is intrinsic in nature.

Meralco v. CA, 187 SCRA 200

Facts:  Meralco, after failing to appear at a pre-trial conference, was declared in

default.  Thereafter, Meralco made the following steps: 1) Filed a MFR to Lift Order of

Default & to Vacate Judgment by Default – bec. of counsel’s influenza.  Denied.  2)

Petition for Relief fr. Judgment . Dismissed. 3) Petition for Certiorari. Propriety of this last

action is the issue in this case.

Held:  Certiorari is not proper.  Such remedy had already been lost bec. of Meralco’s

neglect or error in the choice of remedies.  Certiorari shall not lie to shield Meralco fr.

the adverse consequences of such neglect or error.  Relief under Rule 38 is of equitable

character & is allowed only in exceptional cases where there is no other available or

adequate remedy.  Meralco could have proceeded by appeal to vacate or modify the

default judgment.  Relief will not be granted when the loss of remedy at law was due to

his own negligence or a mistaken mode of procedure, otherwise the petition for relief

will be tantamount to the right of appeal already.  Further, when other lawyers could

have appeared & moved for postponement, sickness of counsel is not excusable.

Requires final judgment or loss of appeal

Villa Rey Transit v. Far East Motor Co., 81 SCRA 298

Facts:  Villa Rey  failed to answer w/in the reglementary period even after denial of its

motion to extend time to answer. Hence, & order of default was rendered.  Thereafter it

filed a MTQ Service of Summons, Motion to Lift Order of Default & To Set Aside

Judgment.  This was denied.  The 30-day appeal period expired w/o any appeal.  Villa

Rey contends the motion it filed should be considered as Petition for Relief.

Held:  This is untenable.  A petition for relief presupposes a final & unappealable

judgment.  In this case, judgment has not yet become final & unappealable at the time

of the filing of the motion.

David v CA, 214 SCRA 644

Facts:  An RTC decision was affirmed by CA w/ slight modification to reflect the date for

the computation of the interest to be awarded.  This was done after denying the

petitioner’s relief fr. judgment.

Held:  CA. In sustaining the RTC decision to deny the petition for relief fr. judgment the

respondent Court cannot at the same time modify the decision sought to be overturned

by such a petition.  The filing of the petition for relief fr. judgment w/ the trial ct. was an

unequivocal admission on the private respondent’s that his period to appeal fr. the

decision had already expired. A petition for relief fr. judgment under Rule 38

presupposes a final judgment or loss of the right to appeal.  The affirmance of the CA of

the denial of the petition is a confirmation of the existence of a final & executory

judgment.  CA can neither amend nor modify it.  When a final judgment becomes

executory it becomes immutable & unalterable, even if modification is meant to correct

an erroneous conclusion of fact or law.  Only corrections of clerical errors or the making

of so-called NUNC PRO TUNC entries & other judgment w/c cause no prejudice to any

party are the exceptions to this rule, otherwise any other modifications of a final &

executory judgment is VOID.

Time for Filing, Rule 38, Sec. 3

Strictly followed

First Integrated Bonding v. Hernando, 199 SCRA 796

Facts:  FIB was impleaded as the insurance agency of defendant who figured in an

accident killing one person.  FIB failed to answer so it was declared in default.  FIB took

no positive step to vacate the order of default.  Instead it chose to file a petition for

relief fr. judgment almost five months fr. its receipt of copy of the amended decision.

Held:   The petition for relief fr. judgment was filed out of time.  The rules require that

such petition should be filed w/in 60 days after receipt of judgment & not more than six

months after entry of judgment.  Period required by R 38 is non-extendible & never

interrupted.  It is not subject to any cond. or contingency, bec. it is itself devised to

meet a condition or contingency.  The remedy under the Rule 38 was an act of grace,

designed to give the party one last chance.  Being in the position of one who begs, such

party’s privilege is not to impose conditions, haggle, or dilly-dally, but to grab what is

offered him.

Contents

Affidavit of Merit, Rule 38, Sec. 3

Garcia v. CA, 202 SCRA 228

Facts:  Eduardo Garcia was able to secure a judgment fr. the trial ct. issuing to him the

Certificate of Title to a land actually owned by the spouses Garcia.  He did this by

misinforming the ct. of the spouses’ address so that the notices wont reach them

thereby depriving them of the opportunity to participate in the trial.  Garcia further

made further recovery of the land difficult by conveying the land to another.  The couple

filed a petition for relief fr. said judgment but failed to categorically allege extrinsic

fraud in their affidavit of merit.  The PFR was dismissed by CA saying that extrinsic fraud

should be expressly alleged in the affidavit of merit for the petition to lie.  The SC said

that since in case at bar, the spouses were able to allege facts leading to extrinsic

fraud, express allegation of such is not necessary.

Held:  CA denied PFR for want of express allegation of extrinsic fraud.  SC reversed

saying that since Rule 38 Sec 3  (FAME as ground in affidavit of merit for PFR) & that in

case at bar, petitioners were able to show extrinsic fraud, affidavit is not necessary. 

HELD: The affidavit of merit serves as a jurisdictional basis for a ct. to entertain a

petition for relief.  But it admits of exceptions, i.e. Where the attachment of the affidavit

of merit in the petition for relief is unnecessary.  The affidavit of merit is essential bec. a

new trial would be a waste of court’s time if the complaint turned out to be groundless. 

Thus, where there was no jurisdiction over the defendant on the subject matter of the

action, where a judgment was taken by default before defendant’s time to answer had

expired, where it was entertained by mistake, or was obtained by fraud & other similar

cases, as when the applicant had no notice of the trial, we ruled that an affidavit is not

necessary.

When motion for reconsideration considered as petition for relief

Dulos v. CA, supra

Facts:  Nocom spouses filed forcible entry case v Dulos spouses in the MTC Las Piñas. 

Pre-trial was set but the Nocoms still filed another case for annulment & a writ of

preliminary injunction in Makati.  Dulos’ motion for suspension on forcible entry case

was dismissed there being no prejudicial question.  Pre-trial saw that the Dulos spouses

were in default despite the presence of a purported representative (Rectra) who held a

special power of attorney executed by said spouses.  Judgment on forcible entry case

for the Nocoms.  The Dulos’ filed a motion for reconsideration of said judgment w/c was

denied & the aggrieved spouses went to the Supreme Court via special civil action for

certiorari, w/c the Supreme Court dismissed.  Nocoms filed for a writ of demolition w/c

was countered by petitioner spouses by filing for a petition for certiorari, prohibition &

preliminary injunction, w/c was granted by the CA.  Hence, this appeal.

Held:  A motion for reconsideration of a judgment of default may be considered a

petition for relief fr. judgment under R38 S2 only if it is a)verified, b) filed w/in 60 days

fr. time petitioner learns of the decision but not more than 6 months fr. entry of

judgment & c) if in case of failure to file an answer the motion must be accompanied by

an affidavit of merit.  It may be considered as a motion for new trial under R27 S2 only if

it is accompanied by an affidavit of merit.

Action of Court before Answer

Power to Deny, Rule 37, Sec. 4

Remedies after denial, see Rule 41, Sec. 1(b)

Service Specialists v. Sheriff of Manila, 145 SCRA 139

Facts:  Service Specialists & counsel failed to appear at a pre-trial & was declared in

default.  Service filed a petition for relief fr. judgment.  The lower ct. dismissed the

petition for relief for lack of jurisdiction to hear & determine the same.  Service filed a

notice of appeal to the IAC.

Held:  Service filed its petition for relief also w/ the RTC Manila but not in the same case

but in another case.  This is erroneous.  A judgment or order denying relief under Rule

38 is final & not appealable, unlike an order granting such relief w/c is interlocutory. 

However, in such an appeal, the appellate ct. is only to determine the existence of any

of the grounds relied upon (fraud, accident, mistake or excusable negligence) & the

merit of the petitioner’s cause of action or defense, as the case may be.  Moreover,

Service merely filed a notice of appeal to the IAC fr. the order of the lower ct. w/c

dismissed his petition for relief.  The appeal should have been made to this Court

through a petition for review on certiorari.

Prelimnary Injunction pending proceedings, Rule 38, Sec. 5

Order to file an answer, Rule 38, Sec. 4

Procedure

Order to file an answer, Rule 38, Sec. 4

Availability of preliminary injunction, Rule 38, Sec. 5

Proceedings after answer is filed, Rule 38, Sec. 6

Where denial of appeal is set aside, Rule 38, Sec. 7

Action of court after giving due course

Granting of petition for relief, Rule 38, Sec. 7

Remedies

            David v. CA, 214 SCRA 644

Facts:  An RTC decision was affirmed by CA w/ slight modification to reflect the date of

computing interest.  This was done after denying the petitioner’s relief fr. judgment.

Held:  The remedy under R41 w/c provides that a judgment denying relief under R38 is

subject to appeal, & in the course thereof, a party may also assail the judgment on the

merits, upon the ground that it is not supported by the evidence or it is contrary to law. 

This provision, however, can’t be construed as allowing the review of the decision on

the specific ground therein indicated, if the denial of  the petition for relief by the TC is

sustained by the Appellate Court.  It may only be done if the appellate ct. overturns

such denial.  The CA, after sustaining the trial court’s denial of the petition for relief

should have dismissed the appeal & to declare the lower court’s decision as firm, final &

executory.

Cheesman v. IAC, 193 SCRA 93

Facts:  Thomas Cheesman attempted to annul the sale by his Filipino wife of a

residential lot & building to Padilla.  The sale was declared void ab initio.  However,

judgment was set aside as regards Padilla on a petition for relief filed by her ground on

fraud, accident, mistake or excusable negligence w/c had seriously impaired her right to

present her case adequately.  The petition for relief fr. judgment was given due course

& a new judge presided over the case. Padilla filed a motion for summary judgment w/c

was granted.  The judgment declared sale as valid.  Cheesman questions the propriety

of such judgment.

Held:  An order of the CFI granting a petition for relief under Rule 38 is interlocutory &

is not appealable.  Once the petition for relief is granted & the judgment  subject

thereof set aside, & further proceedings are thereafter had, the ct. in its judgment on

the merits may properly grant the relief sought in the petitioner’s basic pleadings,

although different fr. that stated in his petition for relief.  Therefore, since both CFI &

IAC found that the facts adequately proved fraud, mistake or excusable negligence by

w/c Padilla’s rights have been substantially impaired, the sale was declared valid.

Denying petition for relief, Rule 41, Sec. 1 (b)

Service Specialists v. Sheriff of Manila, supra

Facts:  Petitioner filed an action for replevin & damages against private respondents.  A

pre-trial conference was set but private respondent & counsel failed to appear w/c

resulted in the issuance of an order & judgment of default against respondents.  Private

respondent then moved for relief fr. judgment & order of default.  This motion was

opposed by a motion to dismiss filed by petitioner.  The Lower ct. dismissed the petition

for relief on the ground of lack of jurisdiction.  Respondent filed a notice of appeal but a

writ of execution was nevertheless filed.  This case stems fr. the deputy sheriff’s refusal

to proceed w/ the auction of respondent’s properties.

Held:   A judgment or order denying relief under Rule 38 is final & appealable, unlike an

order granting such relief w/c is interlocutory.  However, in the appeal the ct. may not

reverse or modify the judgment on the merits.  The judgment fr. w/c relief is sought is

already final & executory.  This remedy only enables the appellate ct. to determine not

only the existence of any of the grounds relied upon whether it be fraud, accident,

mistake or excusable negligence, but also & primarily, the merit of the petitioner’s

cause of action or the defense, as the case may be.  If the appellate ct. finds that one of

the grounds exist & that the petitioner has a good cause of action or importance, it will

reverse the denial or dismissal, set aside the judgment in the main case & remand the

case to the lower ct. for a new trial in accordance w/ Sec 7 Rule 38.  Finally, a notice of

appeal fr. the order of the lower ct.  w/c dismissed his petition for relief fr. judgment “for

lack of jurisdiction to hear & determine the same” should have been made to the SC

through a petition for review on certiorari & not to the IAC.

Remedies after petition for relief expires

            Ramirez v. CA, 187 SCRA 153

Facts:  Ramirez, as a plaintiff in a suit over an airstrip failed to do the following:  furnish

a copy of the notice of hearing to other party; appear at the pre-trial; file appeal instead

of seeking relief; & seasonably file a motion for reconsideration. After the judgment in

(favor of Ramirez’s opponent) had become final & executory. Ramirez filed a petition for

relief fr. judgment even if the period for filing the same had expired.

Held: There is no  means whereby the defeated party may procure a final & executory

judgment to be set aside w/ a view to the removal of the litigation beyond the period for

seeking relief, fr. a final order of judgment under Rule 38 unless A) judgment is void for

want of jurisdiction or for lack of due process of law or B) it has been fraud. (In other

words, period for filing of PFR is mandatory but admits of exceptions – lack of J & fraud.)

Reopening not allowed

            Alvendia v. IAC, 181 SCRA 252

Facts: Alvendia defaulted on his obligation to pay Bonamy. Alvendia did not do

anything fr. the filing of the complaint against him up to the time that the judgment

became final & executory. Execution has been ordered & his property has been levied.

He moved for extension of time to file petition for review.

Held: It is axiomatic that there is no justification in law & in fact for the reopening of a

case w/c has long become final & w/c in fact has been executed. Time & again this ct.

has said that the doctrine of finality of judgment is grounded on fundamental

considerations of public policy & sound practice that at the risk of occasional error, the

judgments of cts. must become final at some definite date fixed by law – Alvendia

cannot invoke equity to reopen case since they have been given opportunity but failed.

 

Reference:  University of the PhilippinesPosted in Civil Procedure

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Tags: Civil Procedure: Rule 61

Civil Procedure: Rule   60 DEC 19

Posted by Magz

 Replevin

Rule 60

Sec. 1. Application – A party praying for the recovery of possession of personal

property may, at the commencement of the action or at any time before answer, apply

for an order for the delivery of such property to him, in the manner hereinafter

provided.

 

Sec. 2. Affidavit and bond. – The applicant must show by his own affidavit or that of

some other person who personally knows the facts:

            (a) That the applicant is the owner of the property claimed, particularly

describing it, or is entitled to the possession thereof;

            (b) That the property is wrongfully detained by the adverse party, alleging the

cause of detention thereof according to the best of his knowledge, information, and

belief;

            (c) That the property has not been distrained or taken for a tax assessment or a

fine pursuant to law, or seized under a writ of execution or preliminary attachment, or

otherwise placed under custodia legis, or if so seized, that it is exempt from such

seizure or custody; and

            (d) The actual market value of the property.

            The applicant must also give a bond, executed to the adverse party in double

the value of the property as stated in the affidavit aforementioned, for the return of the

property to the adverse party if such return be adjudged, and for the payment to the

adverse party of such sum as he may recover from the application in the action.

 

Sec. 3. Order. – Upon the filing of such affidavit and approval of the bond, the court

shall issue an order and the corresponding writ of replevin describing the personal

property alleged to be wrongfully detained and requiring the sheriff forthwith to take

such property into his custody.

 

Sec. 4. Duty of the sheriff. – Upon receiving such order, the sheriff must serve a copy

thereof on the adverse party, together with a copy of the application, affidavit and

bond, and must forthwith take the property, if it be in the possession of the adverse

party, or his agent, and retain it in his custody. If the property or any part thereof be

concealed in a building or enclosure, the sheriff must demand its delivery, and if it be

not delivered, he must cause the building or enclosure to be broken open and take the

property as herein  provided, he must keep it in a secure place and shall be responsible

for its delivery to the party entitled thereto upon receiving his fees and necessary

expenses for taking and keeping the same.

 

Sec. 5. Return of property. – If the adverse party objects of the sufficiency of the

applicant’s bond, or of the surety or sureties thereon, he cannot immediately require

the return of the property, but if he does not so object, he may, at any time before the

delivery of the property to the applicant, require the return thereof, by filing with the

court where the action is pending a bond executed to the applicant, in double the value

of the property as stated in the applicant’s affidavit for the delivery thereof to the

applicant, if such delivery be adjudged, and for the payment of such sum to him as may

be recovered against the adverse party, and by serving a copy of such bond on the

applicant.

 

Sec.  6. Disposition of property by sheriff. – If within five (5) days after taking the

property by the sheriff, the adverse party does not object to the sufficiency of the bond,

or the surety or sureties thereon; or if the adverse party so objects and the court affirms

its approval of the applicant’s bond or approves a new bond, or if the adverse party

requires the return of the property but his bond is objected to and found insufficient and

he does not forthwith file an approved bond, the property shall be delivered to the

applicant. If for any reason the property is not delivered to the applicant, the sheriff

must return it to the adverse party.

 

Sec. 7. Proceedings where property claimed by third person. – If the property

taken is claimed by any third person other than the party against whom the writ of

replevin had been issued or his agent, and such person makes an affidavit of his title

thereto, or right to the possession thereof, stating the grounds therefor, and serves

such affidavit upon the sheriff while the latter has possession of the property and a copy

thereof upon the applicant, the sheriff shall not be bound to keep the property under

replevin or deliver it to the applicant unless the applicant or his agent, on demand of

said sheriff shall file a bond approved by the court to indemnify the third-party claimant

in a sum not less than the value of the property under replevin as provided in section 2

hereof. In case of disagreement as to such value, the court shall determine the same.

No claim for damages for the taking or keeping of the property may be enforced against

the bond unless the action therefor is filed within one hundred twenty (120) days from

the date of the filing of the bond.

            The sheriff shall not be liable for damages, for the taking or keeping of such

property, to any such third-party claimant if such bond shall be filed. Nothing herein

contained shall prevent such claimant or any third person from vindicating his claim to

the property, or prevent the applicant from claiming damages against a third-party

claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.

            When the writ of replevin is issued in favor of the Republic of the Philippines, or

any officer duly representing it, the filing of such bond shall not be required, and in case

the sheriff is sued for damages as a result of the replevin, he shall be represented by

the Solicitor General, and if held liable therefor, the actual damages adjudged by the

court shall be paid by the National Treasurer out of the funds to be appropriated for the

purpose.

 

Sec. 8. Return of papers. – The sheriff must file the order, with his proceedings

indorsed thereon, with the court within ten (10) days after taking the property

mentioned therein.

 

Sec. 9. Judgment. – After trial of the issues, the court shall determine who has the

right to the possession to and the value of the property and shall render judgment in

the alternative for the delivery thereof to the party entitled to the same, or for its value

in case delivery cannot be made, and also for such damages as either party may prove,

with costs.

 

Sec. 10. Judgment to include recovery against sureties. – The amount, if any, to

be awarded to any party upon any bond filed in accordance with the provisions of this

Rule, shall be claimed, ascertained, and granted under the same procedure as

prescribed in section 20 of Rule 57.

 

Reference:  University of the PhilippinesPosted in Civil Procedure