Remedial Law} Civil Procedure} Review Notes} Made 2001 (Est)} by Unkown (Daki)

8/13/2019 Remedial Law} Civil Procedure} Review Notes} Made 2001 (Est)} by Unkown (Daki)

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CIVIL PROCEDURE

A. ORDINARY CIVIL ACTIONS

1. CASE BEGINS WITH THE FILING OF COMPLAINT

a. Preliminary

1. Definition of complaint

A complaint is a pleading alleging a plaintiffs cause or causes of action. The names andresidences of the plaintiff and defendant must be stated in the complaint.1

. !e"#i$ement%

VerificationA pleading is verified by an affidavit that the affiant has read the pleading and that the

allegations therein are true and correct of his personal knowledge or based on authentic records.A pleading required to be verified which contains a verification based on "information and belief"or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as anunsigned pleading. Absence of verification when required is not a !urisdictional defect. t is !ust aformal defect which can be waived.#The verification by a lawyer is sufficient.$

Certificate against form!s"o##ingAn important component of a complaint or any initiatory pleading is the certificate of non%

forum shopping. The rule requires that the plaintiff or principal party certifies under oath in thecomplaint or other initiatory pleading asserting a claim for relief, or in a sworn certificationanne&ed thereto and simultaneously filed therewith'

1. that he has not theretofore commenced any action or filed any claim involving the sameissues in any court, tribunal or quasi%!udicial agency and, to the best of his knowledge, nosuch other action or claim is pending therein(

. if there is such other pending action or claim, a complete statement of the present statusthereof( and

#. if he should thereafter learn that the same or similar action or claim has been filed or ispending, he shall report that fact within five )*+ days therefrom to the court wherein hisaforesaid complaint or initiatory pleading has been filed.*

Natre

)a+ The required certificate of non%forum shopping is mandatory but not !urisdictional.

)b+ nitiatory pleadings are the complaint, permissive counterclaim, cross%claim, third%party )fourth%party, etc.+, complaints and complaints%in%intervention. The certificate ofnon%forum shopping should be signed by the plaintiff )permissive counterclaimant,cross%claimant, third%party, etc. - plaintiff and plaintiff%in%intervention+ and not thecounsel.

)c+ There is forum shopping when, as a result of an adverse opinion in one forum, aparty seeks a favorable opinion )other than by appeal or certiorari+ in other fora, orwhen he repetitively avails himself of "several !udicial remedies in different courts,simultaneously or successively, all substantially founded on the same issue ortransactions involving the same essential facts and circumstances, and all raisingsubstantially the same issues either pending in or resolved adversely by some othercourt."/ 0lsewise stated, forum shopping e&ists where the elements of litis pendentiaare present or where a final !udgment in one case will amount to res !udicata in theother. 2here !udgment has already become final and e&ecutory, res !udicata andnot forum shopping should be pleaded as adefense. 3orum shopping applies onlywhen two )+ or more cases are still pending.14

)d+ 3ailure to comply with the requirement of a certificate of non%forum shopping may notbe cured by mere amendment of the complaint or other initiatory pleading. Theinitiatory pleading should be dismissed without pre!udice, unless otherwise provided,upon motion and after hearing. 5owever, even if there is a certificate of non%forumshopping, if the acts of the party or his counsel clearly constitute willful and deliberateforum shopping, the same shall be ground for summary dismissal with pre!udice of

the initiatory pleading and shall constitutedirect contempt, as well as a cause foradministrative sanctions against the former.11

$. %iling of Com#laint

1. Manne$

3iling of the complaint is the act of presenting it to the 6lerk of 6ourt.1 This may be done bypresenting the original copy plainly indicated as such, personally to the clerk of court or by sending itby registered mail to the clerk of court. n personal filing, the date and hour of receipt by the clerk ofcourt as indicated on the face of the complaint is the date and hour of filing. n filing by registeredmail, the date of posting appearing on the envelope shall be considered the date of filing.1#

17ules of 6ourt, 7ule , 8ec. #.

27ules of 6ourt, 7ule , 8ec. $, as amended by A. 9. :o. 44%14%86.

3;hilippine (


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3iling of a complaint by mail other than through registry service of the government postalagency is not authoriEed. Thus, if a complaint is mailed through any private letter%forwarding agency,the date of receipt by the clerk of court is the date of filing.1$

3iling of the complaint should be distinguished from service of pleadings subsequent to thefiling of thecomplaint.1* n service of pleadings, priorities in modes of service must be strictlyobserved.1

. Pa&ment of 'oc(et an' ot)e$ la*f#l fee%

&allatan '. Cort of A##eals,1

summariEes the rules on payment of docket fees'1. The rule in this !urisdiction is that when an action is filed in court, the complaint must beaccompanied by the payment of the requisite docket and filing fees.

. n real actions, the docket and filing fees are based on the value of the property and the amountof damages claimed, if any, which must be specified in the body and prayer of the complaint.Note( Tacay v. RTC of Tagum Davao del Norte,the 8upreme 6ourt opined thata real actionmay be commenced or prosecuted without an accompanying claim for damages.1/

#. f the complaint is filed but the fees are not paid at the time of filing, the court acquires !urisdictionupon full payment of the fees within a reasonable time as the court may grant, barringprescription.

$. 2here the fees prescribed for the real action have been paid but the fees of certain relateddamages are not, the court, although having !urisdiction over the real action, may not haveacquired !urisdiction over the accompanying claim for damages.

5. Accordingly, the court may e&punge those claims for damages, or allow, on motion, a reasonabletime for amendment of complaint so as to allege the precise amount of damages and acceptpayment of the requisite legal fees.1/

6. f there are unspecified claims, the determination of which may arise after the filing of thecomplaint or similar pleading, the additional filing fee thereon shall constitute a lien on the

!udgment award.1

. The same rule also applies to third%party claims and other similar pleadings.4

Note(0ven if the value of a property is immaterial in the determination of the courts !urisdiction, itshould however be considered in the determination of the amount of docket fee.1

. CO+!T AC,+I!ES -+!ISDICTION OE! THE PA!TIES2hile the court acquires !urisdiction over the plaintiff by the latters voluntary submission to said

!urisdiction with the filing of the complaint, the court acquires !urisdiction over the defendant by hisvoluntary submission to said !urisdiction or the service of summons and a copy of the complaint upon him.

a. Mo'e% of Se$/ice of S#mmon%

There are four )$+ modes of serving summons')a+ personal service()b+ substituted service()c+ constructive )by publication+ service( and)d+ e&traterritorial service.

Personal Ser'ice2henever practicable, the summons shall be served by handing a copy thereof to the

defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. f thereare two )+ ormore defendants, each one of them should be served a copy of the summons andthe complaint.#

S$stitte) Ser'icef, for !ustifiable causes, the defendant cannot personally be served with summons within

a reasonable time, service may be effected' by leaving copies of the summons at the defendants residence with some

person of suitable age and discretion then residing therein, or by leaving the copies at the defendants office or regular place of business with

some competent person in charge thereof.

n substituted service, it is immaterial that the defendant does not in fact receive actualnotice. This will not affect the validity of the service.

There must be strict compliance with the requirements of substituted service./ 3or

substituted service to be valid, the return must show' The efforts e&erted by the sheriff to effect personal service within a reasonable period oftime( impossibility of service should be shown by stating the efforts made to find thedefendant(

That such personal service cannot be effected for !ustifiable reasons(

The service of summons was made at the defendants residence or office or regularplace of business at the time of the service, the address of the defendant to whomsummons was supposed to have been served must be indicated in the return( and

13Ibid., 8ec. #.

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The service was made with some person of suitable age and discretion residing therein, ifeffected at defendants residence, or with some competent person in charge thereof, ifeffected at defendants office or regular place of business, at the time of the service. 29

mpossibility of personal service for !ustifiable reasons must be shown. #4Ftherwise, theservice is invalid.#1The sheriffs certification that he duly served summons on a defendant doesnot necessarily mean that he validly served the summons. mpossibility of personal service mustbe established either by the return or by evidence to that effect.#

a. Ser'ice on Domestic Pri'ate *ri)ical Entity

8ervice on an agent of the corporation is not permitted. The designation ofpersons or officers who are authoriEed to accept summons for a domestic corporation islimited and more clearly specified. The rule states Ggeneral managerG instead of onlyGmanager,G Gcorporate secretaryG instead of GsecretaryG and GtreasurerG instead of Gcashier.G

Accordingly, the 6ourt ruled that the service of summons upon the


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$. Ialmonte v. 6ourt of Appeals, C. 7. :o. 14/*#/, Danuary , 1, * 867A .$#. 9ontalban v. 9a&imo, supra, note .$$. 7ules of 6ourt, 7ule 1$, 8ec. 1.

. Effect of Lac( of S#mmon%

The trial court does not acquire !urisdiction and renders null and void all subsequentproceedings and issuances in the actions from the order of default up to and including the !udgmentby default and the order of e&ecution.$*5owever, lack of summons may be waived as when the

defendant fails to make any seasonable ob!ection to the courts lack of !urisdiction over the person ofthe defendant.$

Footnote%0$*. Toyota 6ubao, nc. v. 6ourt of Appeals, C. 7. :o. 1#1, Fctober #, 1, /1 867A 1/.$.


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3. Depo%ition 4!#le 25

A deposition is not generally supposed to be a substitute for the actual testimony in opencourt of a party or witness. f the witness is available to testify, he should be presented in court totestify. f available to testify, a partys or witness deposition is inadmissible in evidence for beinghearsay.*The e&ceptions however to the inadmissibility of such deposition are provided for in 7ule#, 8ection $, as follows'

)a+ Any deposition may be used by any party for the purpose of contradicting or impeaching the

testimony of deponent as a witness()b+ The deposition of a party or of any one who at the time of taking the deposition was an officer,director, or managing agent of a public or private corporation, partnership, or association which is aparty may be used by an adverse party for any purpose(

)c+ The deposition of a witness, whether or not a party, may be used by any party for any purpose ifthe court finds'

1. that the witness is dead( or. that the witness resides at a distance more than one hundred )144+ kilometers from the

place of trial or hearing, or is out of the ;hilippines, unless it appears that his absence wasprocured by the party offering the deposition( or

#. that the witness is unable to attend to testify because of age, sickness, infirmity, orimprisonment( or

$. that the party offering the deposition has been unable to procure the attendance of thewitness by subpoena( or

*. upon application and notice, that such e&ceptional circumstances e&ist as to make itdesirable, in the interest of !ustice and with due regard to the importance of presenting thetestimony of witnesses orally in open court, to allow the deposition to be used( and

)d+ f only part of a deposition is offered in evidence by a party, the adverse party may require him tointroduce all of it which is relevant to the part introduced, and any party may introduce any otherparts.

Footnote%0

*. asmariLas Carments, nc. v. 7eyes, C. 7. :o. 14/, August $, 1#, * 867A .

6. W$itten Inte$$o7ato$ie% #pon Defen'ant 4!#le 68 Section 15

A !udgment by default may be rendered against a party who fails to serve his answer towritten interrogatories.*

f a party fails to avail of written interrogatories as a mode of discovery, the effect is providedfor in 7ule *, 8ection , to wit'

?nless thereafter allowed by the court for good cause shown and to prevent a failure of!ustice, a party not served with written interrogatories may not be compelled by the adverse party togive testimony in open court, or to give a deposition pending appeal.

Footnote%0*. 7ules of 6ourt, 7ule , 8ec. # )#+.

9. !e"#e%t fo$ A'mi%%ion

At any time after issues have been !oined, a party may file and serve upon any other party awritten request for the admission by the latter of the genuineness of any material and relevantdocument described in and e&hibited with the request or of the truth of any material and relevantmatter of fact set forth in the request. 6opies of the documents shall be delivered with the requestunless copies have already been furnished.*/

?nless thereafter allowed by the court for good cause shown and to prevent a failure of!ustice, a party who fails to file and serve a request for admission on the adverse party of material andrelevant facts which are, or ought to be within the personal knowledge of the latter, shall not bepermitted to present evidence on such facts.*

Footnote%0#$. Rules of Court, Rule %&, Sec. '.#(. Ibid, Sec. #.

:. P$o'#ction o$ In%pection of Doc#ment o$ T)in7% 4!#le :8 Section 15

This mode of discovery does not mean that the person who is required to produce thedocument or the thing will be deprived of its possession even temporarily. t is enough that therequesting party be given the opportunity to inspect or copy or photograph the document or take a

look at the thing.

;. P)&%ical an' Mental E


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Rles on Defalt

Effect of Or)er of Defalt1. A party in default loses his standing in court. 5e cannot appear therein,

adduce evidence and be heard nor take part in trial.$5e cannot file amotion to dismiss without first filing a motion to set aside the order ofdefault.*5e loses his right to present evidence, control the proceedingsand e&amine the witnesses or ob!ect to plaintiffs evidence.

. A motion to declare the defending party in default should be served uponhim. A party in default, however, shall be entitled to notice of subsequentproceedings but not to take part in the trial.

#.


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ten )14+ days from service thereof. 8uch motion shall point out the defects complained of, theparagraphs wherein they are contained, and the details desired.

The 6ourt need not wait for the date set for hearing of the motion. ?pon the filing of themotion, the clerk of court must immediately bring it to the attention of the court which may either grantor deny it or hold a hearing therein.

f the order directing the plaintiff to submit a bill of particulars is not complied with, the courtmay order the striking out of the pleading or the portion thereof to which the order was directed ormake such orders as it deems !ust./

Footnote%0

. 7ules of 6ourt, 7ule 1, 8ec. ./. Ibid., 8ec. $.

12. Motion to Di%mi%%

a. 6ron)s -Rle 780 Section 72ithin the time for but before filing the answer to the complaint or pleading asserting a

claim, a motion to dismiss may be made on any of the following grounds')a+ That the court has no !urisdiction over the person of the defending party()b+ That the court has no !urisdiction over the sub!ect matter of the claim()c+ That venue is improperly laid()d+ That the plaintiff has no legal capacity to sue()e+ That there is another action pending between the same parties for the same

cause()f+ That the cause of action is barred by a prior !udgment or by the statute of

limitations(

)g+ That the pleading asserting the claim states no cause of action()h+ That the claim or demand set forth in the plaintiffs pleading has been paid,waived, abandoned, or otherwise e&tinguished(

)i+ That the claim on which the action is founded is unenforceable under theprovisions of the 8tatute of 3rauds( and

)!+ That a condition precedent for filing the claim has not been complied with.

t is a decisional rule that in a motion to dismiss on the ground that the complaint states nocause of action, the movant hypothetically admits the truth of the allegations of the complaint whichare relevant and material to plaintiffs cause of action. This admission does not include inferences orconclusions drawn from the alleged facts nor to matters of evidence, surplasage or irrelevant mattersnor to allegations of fact the falsity of which is sub!ect to !udicial nature.

%ormal Re9isite(The motion must comply with 7ule 1*. The court is without authority toact on the motion without proof of service of the notice of hearing./4

$. Discssion of In)i'i)al 6ron)s1. 6ourt has no !urisdiction over the person of the defending party.. 6ourt has no !urisdiction over the sub!ect matter of the claim./1

#. Ienue is improperly laid.)a+ Ienue of an action depends upon the' nature of the action( residence of the parties( stipulation of the parties( and law.

)b+ Test to etermine :ature of ActionThe nature of the action is determined from the allegations of the

complaint, the character of the relief, its purpose and prime ob!ective.2hen the prime ob!ective is to recover real property, it is a real action./

)c+ 7ule that 8tipulations as to Ienue may 0ither


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)b+ 7equisites of @itis ;endentia' To prevail as a ground for a motion to dismiss, the

following elements must be present' dentity of parties, or at least such as representing the same interest in both

actions( dentity of rights asserted and prayed for, the relief being founded on the

same facts( and The identity on the preceding particulars should be such that any !udgment

which may be rendered on the other action will, regardless of which party is

successful, amount to res udicata in the action under consideration.

)c+ 2hich of the Two 6ases 8hould be ismissedMThe 7ules do not require as a ground for dismissal of a complaint that

there is a prior pending action. They provide that there is a pending action, not apending prior action. Civen, therefore, the pendency of two actions, the followingare the relevant considerations in determining which action should be dismissed' the date of the filing, with preference generally given to the first action filed to

be retained( whether the action sought to be dismissed was filed merely to preempt the

later action or to anticipate its filing and lay the basis for its dismissal( and whether the action is the appropriate vehicle for litigating the issues between

the parties.

&. Res -udicata)a+ 8tatement of the octrine

The doctrine of resudicata is a rule which pervades every well%regulatedsystem of !urisprudence and is founded upon two grounds embodied in variousma&ims of the common law, namely'

public policy and necessity which make it to the interest of the statethat there should be an end to litigation - interest reipublicae ut sitfinis litium, and

the hardship on the individual that he should be ve&ed twice for thesame cause nemo debet bis ve/ari et eadem causa. /

)b+ The requisites of res !udicata are the following' the former !udgment or order must be final( it must be a !udgment or order on the merits( the court which rendered it had !urisdiction over the sub!ect matter and

the parties( and there must be, between the first and second actions, identity of parties, of

sub!ect matter and of cause of action.

)c+ Two Aspects of Res -udicata &ar $y %ormer *)gment- when, between the first case where the

!udgment was rendered, and the second case where the !udgment isinvoked, there is identity of parties, sub!ect matter and cause of action.

Conclsi'eness of *)gment- when there is an identity of parties butnot cause of action, the !udgment being conclusive in the second case

only as to those matters actually and directly controverted anddetermined, and not as to matters invoked thereon.144

)d+ ecisional 7ulesA !udicial compromise has the effect of res udicata and is immediately

e&ecutory and not appealable.141The ultimate test in ascertaining the identity ofcauses of action is said to be to look into whether or not the same evidence fullysupports and establishes both the present cause of action and the former causeof action.14Fnly substantial, and not absolute, identity of parties is required forres udicata.14#

. 8tatute of @imitation );rescription of Action+

An action prescribes by the lapse of time fi&ed in the 6ivil 6ode )Articles 11# to 11**+.A7T. 11#. Actions prescribe by the mere lapse of time fi&ed by law.

A7T. 11$4. Actions to recover movables shall prescribe eight years from the time the possession thereofis lost, unless the possessor has acquired the ownership by prescription for a less period, according toarticle 11#, and without pre!udice to the provisions of articles **, 1*4*, and 11##.

A7T. 11$1. 7eal actions over immovables prescribe after thirty years.This provision is without pre!udice to what is established for the acquisition of ownership and

other real rights by prescription.

A7T 11$. A mortgage action prescribes after ten years.

A7T 11$#. The following rights, among others specified elsewhere in this 6ode, are not e&tinguished byprescription'1. To demand a right of way, regulated in article $(. To bring an action to abate a public or private nuisance.

A7T. 11$$. The following actions must be brought within ten years from the time the right of actionaccrues'1. ?pon a written contract(. ?pon an obligation created by law(#. ?pon a !udgment.

A7T. 11$*. The following actions must be commenced within si& years'1. ?pon an oral contract(. ?pon a quasi%contract.

A7T. 11$. The following actions must be instituted within four years'1. ?pon an in!ury to the rights of the plaintiff(. ?pon quasi%delict.

5owever, when the action arises from or out of any act, activity, or conduct of any public officerinvolving the e&ercise of powers or authority arising from 9artial @aw including the arrest, detention andNortrial of the plaintiff, the same must be brought within one )1+ year.14$

Art. 11$. The following actions must be filed within one year'1. 3or forcible entry and detainer(. 3or defamation.

A7T. 11$/. The limitations of action mentioned in articles 11$4 to 11$, and 11$$ to 11$ are withoutpre!udice to those specified in other parts of this 6ode, in the 6ode of 6ommerce and in special laws.

A7T. 11$. All other actions whose periods are not fi&ed in this 6ode or in other laws must be broughtwithin five years from the time the right of action accrues.

A7T. 11*4. The time for prescription for all kinds of actions, when there is no special provision whichordains otherwise, shall be counted from the day they may be brought.

/


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A7T. 11*1. The time for the prescription of actions which have for their ob!ect the enforcement ofobligations to pay principal with interest or annuity runs from the last payment of the annuity or of theinterest.

A7T. 11*. The period for prescription of actions to demand the fulfillment of obligation declared by a!udgment commences from the time the !udgment became final.

A7T. 11*#. The period for prescription of actions to demand accounting runs from the day the personswho should render the same cease in their functions.

The period for the action arising from the result of the accounting runs from the date when saidresult was recogniEed by agreement of the interested parties.

A7T. 11*$. The period during which the obligee was prevented by a fortuitous event from enforcing hisright is not reckoned against him.

A7T. 11**. The prescription of actions is interrupted when they are filed before the court, when there is awritten e&tra!udicial demand by the creditors, and when there is any written acknowledgment of the debt bythe debtor.

)a+ ecisional 7ules;rescription and estoppel cannot be invoked against the 8tate. 14*f the defense of

prescription has not been raised in a motion to dismiss or an answer, if the plaintiffscomplaint or evidence shows that the action had prescribed, the action shall bedismissed.14;rescription cannot be invoked as a ground if the contract is alleged to bevoid ab initio14 but where prescription depends on whether the contract is void orvoidable, there must be a hearing.14/

. ;leading Asserting 6laim 8tates :o 6ause of Action)a+ 0lements of a 6ause of Action

A cause of action e&ists if the following elements are present, namely'a.1 a right in favor of the plaintiff by whatever means and under whatever law it arises or

is created(a. an obligation on the part of the named defendant to respect or not to violate such

right( anda.# an act or omission on the part of such defendant violative of the right of the plaintiff orconstituting a breach of the obligation of the defendant to the plaintiff for which thelatter may maintain an action for recovery of damages.14

)b+ 5ypothetical Admission of Allegations of 3act in the 6omplaintt is a&iomatic that a defendant moving to dismiss a complaint on this ground is regarded as

having admitted all the averments thereof, at least hypothetically, the test of the sufficiency of thefacts found in a petition, as constituting a cause of action, being whether or not, admitting thefacts alleged, the court could render a valid !udgment upon the same in accordance with theprayer thereof. n determining the sufficiency of the statements in the complaint as setting forth acause of action, only those statements in the complaint, to repeat, may properly be considered,and it is error for the 6ourt to take cogniEance of e&ternal facts, or hold a preliminary hearing todetermine their e&istence.114

)c+ The following Allegations are not eemed 5ypothetically Admitted'c.1 allegations of which the court will take !udicial notice are not true( neither allegations of

conclusions nor allegations of fact the falsity of which the court may take !udicial noticeare deemed admitted(111

c. legally impossible facts(c.# facts inadmissible in evidence( andc.$ facts which appear by record or document included in the pleadings to be unfounded(11c.* 2hen other facts may be considered(c. 2here the motion to dismiss was heard with the submission of evidence or if

documentary evidence admitted by stipulation discloses facts sufficient to defeat theclaim11#or admitted during hearing on preliminary in!unction, 11$the facts therein adducedmay be considered(

c. All documents attached to a complaint, the due e&ecution and genuineness of which arenot denied under oath by the defendant, must be considered as part of the complaintwithout need of introducing evidence thereon(11*

c./ n resolving a motion to dismiss, every court must take cogniEance of decisions the8upreme 6ourt has rendered because they are proper sub!ects of mandatory !udicialnotice as provided by 8ection 1 of 7ule 1 of the 7ules of 6ourt. The said decisions,more importantly, Gform part of the legal system,G and failure of any court to apply themshall constitute an abdication of its duty to resolve a dispute in accordance with law, andshall be a ground for administrative action against an inferior court magistrate(11

c. 0&haustion of Administrative 7emedies. 2here plaintiff has not e&hausted alladministrative remedies, the complaint not having alleged the fact of such e&haustion, thesame may be dismissed for lack of cause of action.11

)d+ 6laim or emand 8et 3orth in the ;laintiffs ;leading 5as


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8tatute of 3rauds may be shown and determined during the hearing of the motion todismiss on said ground.11 ?nder 8ec. , 6hapter of 7A / )0%6ommerce @aw+where the law requires a writing or document, that requirement is met by an electronicdocument which maintains its integrity and reliability and can be authenticated so as tobe useable for subsequent reference.

The 6ivil 6ode on cases where compromise is not allowed'Art. 4#*. :o compromise upon the following questions shall be valid'

)1+ The civil status of persons()+ The validity of a marriage or a legal separation(

)#+ Any ground for legal separation()$+ 3uture support()*+ The !urisdiction of courts()+ 3uture legitime.

#. 7esolution of the 9otionAfter the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment

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

indubitable.n every case, the resolution shall state clearly and distinctly the reasons therefor.14

Footnote%0. e ios v.


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1/. bid., 8ec. .1. 7ules of 6ourt, 7ule 1, 8ec. .1#4. Alvero v. e @a 7osa, ;hil. $/ =1$>( IaldeE v. Fcumen, 14 ;hil. =14>( 9angali v. 6ourt of Appeals, @%$, August 1, 1/4, 867A #(@egaspi%8antos v. 6ourt of Appeals, C. 7. :o. 4*, Fc tober 11, 1/#, 1* 867A .1#1. 3D7 Carments ndustries v. 6ourt of Appeals, @%$#4, Dune , 1/$, 1#4 867A 1.

4. Conterclaim1. Definition

A counterclaim is any claim which a defending party may have against an opposing party.1#

There are two )+ kinds, the compulsory and the permissive. A compulsory counterclaim is one which,being cogniEable by the regular courts of !ustice, arises out of or is connected with the transaction oroccurrence constituting the sub!ect matter of the opposing partys claim and does not require for itsad!udication the presence of third parties of whom the court cannot acquire !urisdiction. 8uch acounterclaim must be within the !urisdiction of the court both as to the amount and the nature thereof,e&cept that in an original action before the 7egional Trial 6ourt, the counterclaim may be consideredcompulsory regardless of the amount.1##

A counterclaim which is not compulsory is a permissive counterclaim.

. Diffe$ence Bet*een Pe$mi%%i/e an' Comp#l%o$& Co#nte$claimn a permissive counterclaim, the docket and other lawful fees should be paid and the same should

be accompanied by a certificate against forum shopping and certificate to file action issued by the proper+upon Tagapamayapa. t should also be answered by the claiming party. t is not barred even if not set upin the action.

n a compulsory counterclaim, no docket fee is paid and the certificates mentioned above are notrequired.1#$f it is not raised in the answer, it shall be barred.1#*

A compulsory counterclaim that merely reiterates special defenses which are deemed controvertedeven without a reply, or raises issues which are deemed automatically !oined by the allegations of thecomplaint need not be answered.1#5owever, a compulsory counterclaim which raises issues not coveredby the complaint should be answered.1#

f the counterclaim is based on an actionable document attached to or copied in the counterclaim, thegenuineness and due e&ecution of the instrument shall be deemed admitted unless the adverse partyspecifically denies under oath its genuineness and due e&ecution.1#/

2. Co7nate !#le%#.1 A cross%claim which is not set up in the action is barred.1#

#. The dismissal of the complaint carries with it the dismissal of the cross%claim which is purelydefensive, but not a cross%claim seeking affirmative relief.1$4t does not also carry with it adismissal of the counterclaim that has been pleaded by the defendant prior to service to himof the notice of dismissal,1$1or to a dismissal due to the fault of the plaintiff.1$

#.# A party cannot, in his reply, amend his cause of action nor introduce therein new or additionalcauses of action.1$#

#.$ A third%party complaint need not arise out of or be entirely dependent on the main action as itsuffices that the former be only "in respect" of the claim of the third%party plaintiffsopponent.1$$

Footnote%01#. 7ules of 6ourt, 7ule , 8ec. .1##. Ibid., 8ec. .1#$. 8anto Tomas ?niversity v. 8urla, C. 7. :o. 11/, August 1, 1/, $ 867A #/.1#*. 7ules of 6ourt, 7ule , 8ec. .1#. @ama v. Apacible ;hil. / =1$>( :avarro v. ( Co!o v Coyala, C. 7. :o. /, Fctober #4, 14, #* 867A **.1#. 3eria, Annotated 1 7ules of 6ourt, $1.1#/. 7ules of 6ourt, 7ule /, 8ec. /.1#. 7ules of 6ourt, 7ule , 8ec. .1$4. Torres v. 6ourt of Appeals, @%*//, Danuary 1, 1#, $ 867A .1$1. 7ules of 6ourt, 7ule 1, 8ec. .1$. Ibid., 8ec. #.1$#. Anaya v. ;alaroan, @%#4, :ovember , 14, # 867A .1$$. ;ascual v.


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The !udge should avoid the undesirable practice of terminating the pre%trial as soon as the parties haveindicated that they cannot settle the controversy. 5e must be mindful that there are other important aspects ofthe pre%trial that ought to be taken up to e&pedite the disposition of the case.$. At the pre%trial conference, the following shall be done'

a. The !udge with all tact, patience and impartiality shall endeavor to persuade the parties to arrive ata settlement of the dispute( if no amicable settlement is reached, then he must effectively direct theparties toward the achievement of the other ob!ectives or goals of pre%trial set forth in 8ection , 7ule1/, 1 7ules of 6ivil ;rocedure.b. f warranted by the disclosures at the pre%trial, the !udge may either forthwith dismiss the action, ordetermine the propriety of rendering a !udgment on the pleadings or a summary !udgment.c. The !udge shall define the factual issues arising from the pleadings and endeavor to cull thematerial issues.d. f only legal issues are presented, the !udge shall require the parties to submit their respectivememoranda and thereafter render !udgment.e. f trial is necessary, the !udge shall fi& the trial dates required to complete presentation of evidenceby both parties within ninety )4+ days from the date of initial hearing.

*. After the pre%trial conference, the !udge should not fail to prepare and issue the requisite pre%trial order, whichshall embody the matters mentioned in 8ection , 7ule 1/ of the 1 7ules of 6ivil ;rocedure.. 3ailure of the plaintiff to appear at the pre%trial shall be a cause for dismissal of the action. A similar failure ofthe defendant shall be a cause to allow the plaintiff to present his evidence e/"parteand the court to render

!udgment on the basis thereof.. 3ailure to file pre%trial briefs shall have the same effect as failure to appear at the pre%trial.The !udge should encourage the effective use of pre%trial discovery procedures.1$

3. T)e P$e?T$ial O$'e$2here the case proceeded to trial with the petitioners actively participating therein without

raising their ob!ections to the pre%trial, they are bound by the stipulations at the pre%trial.1*4

;re%trial is primarily intended to make certain that all issues necessary to the disposition of a caseare properly raised, and the determination of issues at a pre%trial conference bars theconsideration of other questions on appeal.1*1

$.1 0&ceptions$.1.1 To prevent manifest in!ustice(1*

$.1. ssues that are impliedly included or necessarily connected to the e&presslydefined issues and denser parts of the pre%trial order.1*#

$.1.# ssues not included in the pre%trial order but were tried e&pressly orimpliedly by the parties.1*$

Footnote%01$*. ;ermanent 6oncrete ;roducts, nc. v. Teodoro, C. 7. :o. , :ovember , 1/, 867A ##.1$. 6ircular :o. 1%/( Administrative 6ircular :o. $, 8eptember $, 1//.1$. 9artineE v. de la 9erced, C. 7. :o. /#4, Dune 4, 1/, 1$ 867A 1/.1$/. 7ules of 6ourt, 7ule 1/, 8ec. .1$. Administrative 6ircular :o. 1 dated / Danuary 1//.1*4. 9acaraeg v. 6ourt of Appeals, C. 7. :o. $/44/, Danuary 4, 1/, 1 867A * citing @ucenta v. 6ourt of 3 irst nstance of


13/49

4%day period is to e&pire. As soon as a case is submitted for decision, it must be noted in thecalendar of the !udge( moreover, the records shall be duly collated with the e&hibits and transcriptsof stenographic notes, as well as the trial notes of the !udge, and placed in the !udges chamber.. n criminal cases, the !udge will do well to announce in open court at the termination of the trialthe date of the promulgation of the decision, which should be set within 4 days from thesubmission of the case for decision.#. All Dudges must scrupulously observe the period prescribed in 8ection 1*, Article I of the6onstitution.

This 6ircular shall take effect on 3ebruary 1,1, and the Fffice of the 6ourt Administrator shall ensurefaithful compliance therewith.

6ity of 9anila, 1* Danuary 1.

4. Some Rles1. The order of trial stated above is followed in ordinarily contested cases. 5owever, if the defendant inhis answer admits the obligation alleged in the complaint but raises special defenses, then the plaintiff isrelieved of the duty to present evidence in chief and so the defendant should start the proceeding bypresenting his evidence to support his special defenses.1**

. 2hen 6ase eemed 8ubmitted for ecision in Trial 6ourt?nder Administrative 6ircular :o. / dated Duly #,1/'

&&&)#+ A case is considered submitted for decision upon the admission of the evidence of the parties at thetermination of the trial. The ninety )4+ day period for deciding the case shall commence to run from submissionof the case for decision without memoranda( in case the 6ourt requires or allows its filing, the case shall beconsidered submitted for decision upon the filing of the last memorandum or the e&piration of the period to doso, whichever is earlier. @ack of transcript of stenographic notes shall not be a valid reason to interrupt orsuspend the period for deciding the case unless the case was previously heard by another !udge not thedeciding !udge in which case the latter shall have the full period of ninety )4+ days from the completion of thetranscripts within which to decide the same.)$+ The court may grant e&tension of time to file memoranda, but the ninety )4+ days period for deciding thecase shall not be interrupted thereby.)*+ The foregoing rules shall not apply to 8pecial 6riminal 6ourts under 6ircular 4 dated August , 1/, and

to cases covered by the 7ule on 8ummary ;rocedure in which memoranda are prohibited.&&&?nder 7ule #4, 8ection *)g+, upon admission of the evidence, the case shall be deemedsubmitted for decision, unless the court directs the parties to argue or to submit their respectivememoranda or any further pleadings.

As a general rule, no additional evidence may be presented at the rebuttal stage. 8ub!ect to thediscretion of the court, additional evidence may be submitted'

)1+ if it is merely discovered()+ omitted through mistake or inadvertence( or)#+ when the purpose is to correct evidence previously offered.1*

?nder Administrative 9atter :o. 44%%41%86 amending the 7ule 1$1 of the 7ules of 6ourt on@egal 3ees, it is provided in 8ec. )b+ that a fee shall be paid for motions for postponements, towit'

3or motions for postponement after completion of the pre%trial stage, one hundred );hp144+ pesos for thefirst, and an additional fifty );hp*4+ pesos for every postponement thereafter based on that for the immediatelypreceding motion' ;rovided, however, that no fee shall be imposed when the motion is found to be based on

!ustifiable and compelling reason.Footnote%01**. Ou v. 9apayo, :o. @%$, 9arch , 1, $$ 867A 1#.1*. @opeE v. @iboro, /1 ;hil. $ =1$/>.

2. AD*UDICATION -Rle


14/49

the findings that, as a matter of law, there is no defense to the action or the claim is clearlymeritorious.1$

. 8ummary !udgment may include a determination of the right to damages but not the amount ofdamages.1*The court cannot also impose attorneys fees in a summary !udgment in the absenceof proof as to the amount thereof.1

#. 9ere denials, unaccompanied by any fact which would be admissible in evidence at a hearing,are not sufficient to raise a genuine issue of fact sufficient to destroy a motion for summary

!udgment even though such issue was formally raised by the pleadings.12here all the facts arewithin the !udicial knowledge of the court, summary !udgment may be granted as a matter oflaw.1/

$. 6ourts are without discretion to deny a motion for summary !udgment where there is no genuineissue as to a material fact. 8ummary !udgment is available even if the pleadings ostensibly showgenuine issue which by depositions or affidavits are shown not to be genuine.1

*. istinction between summary proceedings under 7ule #$ )Dudgment on the pleadings+ and thesummary proceedings under 7ule #* )8ummary Dudgment+

A different rationale operates in the latter for it arises out of facts already established oradmitted during the pre%trial held beforehand, unlike the former where the !udgment merely relieson the merits of the movants allegations.14

. iscretion of 6ourt To 7ender Dudgment on the ;leadings?nder the 7ules, if there is no controverted matter in the case after the answer is filed, the

trial court has the discretion to grant a motion for !udgment on the pleadings filed by a party.2here there are actual issues raised in the answer, such as one involving damages, whichrequire the presentation of evidence and assessment thereof by the trial court, it is improper for a

!udge to render !udgment based on the pleadings alone.11

. A partial summary !udgment may be rendered,1 but the same is interlocutory and notappealable.1#

Footnote%01$. 0strada v. 6onsolacion, :o. @%$4$/, Dune , 1, 1 867A *#.1*. Dugador v. de Iera, $ ;hil. 4$ =1*$>.1. 2arner, .1. 3letcher v. Jrise, $ 3ed. 7ules 8ervice, *, 9arch #, 1$1.1/. 3letcher v. 0vening :ewspaper 6o., # 3ed. 7ules 8ervice, *#, Dune /, 1$4( 9iranda v. 9alate Carage K Ta&icab, nc., ;hil. 4 =1*>.1. iman v. Alumbres, C. 7. :o. 1#1$, :ovember , 1/, 867A $*.14. IelasqueE v. 6ourt of Appeals, C. 7. :o. 1$4$, Dune #4, 1, #4 867A *#.11. 8pouses 5ontiveros v. 7egional Trial 6ourt of loilo,


15/49

A motion for reconsideration or new trial may be filed within the period for taking appeal.:ote that apro forma motion for new trial or reconsideration shall not toll the reglementaryperiod. Apro formamotion for reconsideration or new trial is one which does not comply withthe requirements of 7ule # and does not toll the reglementary period to appeal.1/$

1. :o motion for e&tension of time to file motion for reconsideration or new trial is allowed.1/*

1.# A motion for reconsideration or new trial suspends the running of the period to appeal but ifdenied, the movant has only the balance of the reglementary period within which to take hisappeal.1/

1.$ 7esolution of motionA motion for new trial or reconsideration shall be resolved within thirty )#4+ days from the

time it is submitted for resolution. An order denying a motion for new trial or reconsideration isnot appealable, the remedy being an appeal from the !udgment or final order.1/

. Motion fo$ !econ%i'e$ationCrounds')1+ damages awarded are e&cessive()+ evidence is insufficient to !ustify the decision or final order( and)#+ decision or final order is contrary to law.1//

.1 A motion for reconsideration shall point out specifically the findings or conclusions of the!udgment or final order which are not supported by the evidence or which are contrary to law,making e&press reference to the testimonial or documentary evidence or to the provisions of lawalleged to be contrary to such findings or conclusions.1/

. :o party shall be allowed a second motion for reconsideration.14

2. Motion fo$ Ne* T$ial#.1 Crounds

Any of the following causes materially affecting the substantial rights of an aggrieved party'#.1.1 3raud, accident, mistake or e&cusable negligence which ordinary prudence could

not have guarded against and by reason of which such aggrieved party hasprobably been impaired in his rights( or

#.1. :ewly discovered evidence, which he could not, with reasonable diligence, havediscovered and produced at the trial, and which if presented would probably alterthe result.11

#. 3raud, as a ground for new trial, must be e&trinsic or collateral, that is, it is the kind of fraudwhich prevented the aggrieved party from having a trial or presenting his case to the court, or wasused to procure the !udgment without fair submission of the controversy. nstances of collateralfraud are acts intended to keep the unsuccessful party away from the court by a false promise ofcompromise, or purposely keeps him in ignorance of the suit, or where the attorney fraudulentlypretends to represent a party and connives at his defeat, or corruptly sells out his clientsinterest.1t is to be distinguished from intrinsic fraud which refers to the acts of a party at the trialwhich prevented a fair and !ust determination of the case1#and which could have been litigatedand determined at the trial or ad!udication of the cases, such as falsification, false testimony andso forth, and does not constitute a ground for new trial.1$

#.# 9istake generally refers to mistakes of fact but may also include mistakes of law where, ingood faith, the defendant was misled in the case. Thus, a mistake as to the scope and e&tent ofthe coverage of an ordinance,1*or a mistake as to the effect of a compromise agreement uponthe need for answering a complaint,1although actually constituting mistakes of law, have beenconsidered sufficient to warrant a new trial.

#.$ :egligence must be e&cusable and generally imputable to the party but the negligence of

counsel is binding on the client !ust as the latter is bound by the mistakes of his lawyer.1

5owever, negligence of the counsel may also be a ground for new trial if it was so great such thatthe party was pre!udiced and prevented from fairly presenting his case.1/

#.* To warrant a new trial, newly discovered evidence')1+ must have been discovered after trial()+ could not have been discovered and produced at the trial despite reasonablediligence( and)#+ if presented, would probably alter the result of the action. 19ere initial hostility of awitness at the trial does not constitute his testimony into newly discovered evidence.44

#. A motion for new trial shall be supported by affidavits of merits which may be rebutted byaffidavits. An affidavit of merits is one which states'

)1+ the nature or character of the fraud, accident, mistake or e&cusable negligence onwhich the motion for new trial is based()+ the facts constituting the movants good and substantial defenses or valid causes ofaction(41and)#+ the evidence which he intends to present if his motion is granted.

An affidavit of merits should state facts and not mere opinions or conclusions of law.4Anaffidavit of merits is required only if the grounds relied upon are fraud, accident, mistake ore&cusable negligence.4#Affidavits of merits may be dispensed with when the !udgment is nulland void as where the court has no !urisdiction over the defendant or the sub!ect matter, 4$or isprocedurally defective as where !udgment by default was rendered before the reglementaryperiod to answer had e&pired,4*or where the defendant was unreasonably deprived of his day incourt4as when no notice of hearing was furnished him in advance.4Affidavits of merits are notrequired in motions for reconsideration.4/

#. 0ffect of Cranting of 9otion 3or :ew Trialf a new trial is granted in accordance with the provisions of this 7ule, the original !udgment or

final order shall be vacated, and the action shall stand for trial de novo1 but the recorded evidencetaken upon the former trial, in so far as the same is material and competent to establish theissues, shall be used at the new trial without retaking the same.4

Footnote%01/*. 5abaluyas 0nterprises, nc. v. Dapson, :o. @%4/*, 9ay #4, 1/, 1$ 867A 4/.1/. 7ules of 6ourt, 7ule $1, 8ec. #.1/. Ibid, 8ec. $.1//. 7ules of 6ourt, 7ule #, 8ec. 1.1/. Ibid, 8ec. .14. 7ules of 6ourt, 7ule #, 8ec. *.

11. Ibid, 8ec. .1. 9agno v. 6ourt of Appeals, :o. @%/$/, 8eptember 14, 1/1, 14 867A /*.1#. ;alanca v. American 3ood 9anufacturing 6o., nc., :o. @%/, August #4, 1/, $ 867A /1.1$. Tarca v. Ida. e 6arretero, ;hil. $1 =1*>( 6onde v. ntermediate Appellate 6ourt, :o. @%4$$#, 8eptember 1*, 1/, 1$$ 867A 1$$.1*. 6ity of loilo v. ;inEon, ;hil / =?nreported> =1**>.1. 8alaEar v. 8alaEar, / ;hil. 1/# =14>.1. Caba v. 6astro, :o. @%*11, Danuary #1, 1/#, 14 867A *4*( Ayllon v. 8evilla, :o. @%$$, ecember 14, 1/, 1* 867A *.1/. ;eople v. 9anEanilla, $# ;hil. 1 =1>( cf. 7epublic v. Arro, :o. @%$/$1, Dune 11, 1/, 1*4 867A *.1. :ational 8hpiyards and 8teel 6orporation v. Asuncion, 14# ;hil. =1*/>.44. Arce v. Arce, 14 ;hil. #4 =1*>.41. 3errer v. Oap 8epeng, :o. @%###, 8eptember #4, 1$, 4 867A 1$.4. 9alipol v. Tan, :o. @%#4, Danuary , 1$, ** 867A 4( 3errer v. Oap 8epeng, supra, note 41.4#. Canaban v. .

1*


16/49

4*. ConEaleE v. 3rancisco, supra,note .4. Ialerio v. Tan, ;hil. $1 =1*>.4. 8oloria v. 6ruE, C. 7. :o. 4#/, Danuary #1, 1, 1 867A 11$( Cattoc v. 8arrenas, 14$ ;hil. 1 =1*/>.4/. 9endoEa v.


17/49

have not been paid. The court which rendered the decision cannot however deny due course to the:otice of Appeal on the ground that the appeal is frivolous or dilatory.#1

$. 7ecord on AppealA 7ecord on Appeal is required in' )a+ 8pecial ;roceedings( )b+ Fther cases of multiple or separate

appeals where the law or the 7ules so require.#

*. ;erfection of appealA partys appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time.A partys appeal by record on appeal is deemed perfected as to him with respect to the sub!ect matter thereof upon theapproval of the record on appeal filed in due time.n appeals by notice of appeal, the court loses !urisdiction over the case upon the perfection of the appeals filed in duetime and the e&piration of the time to appeal of the other parties.n appeals by record on appeal, the court loses !urisdiction only over the sub!ect matter thereof upon the approval of therecords on appeal filed in due time and the e&piration of the time to appeal of the other parties.##

. 0ffect of ;erfection of AppealThe court which rendered the appealed decision loses its !urisdiction over the case. 5owever, it may stilldo the following'

)1+ issue an order for the protection and preservation of the rights of the parties which do notinvolve any matter litigated by the appeal()+ approve compromise of the parties prior to the transmittal of the record on appeal to theappellate court()#+ permit the prosecution of indigent appeals()$+ order e&ecution pending appeal in accordance with 8ection , 7ule #( and)*+ approve withdrawal of appeal.#$

. ;eriod of time to appeal must be strictly enforced on considerations of public policy. The period ismandatory and !urisdictional#* and the failure to do so renders the questioned decision final and

e&ecutory that deprives the appellate court of !urisdiction to alter the final !udgment much less to entertainthe appeal#or motion for new trial.#The decision of the 6ourt of Appeals after e&piration of the periodto appeal is null and void.#/

Footnote%0. 7ules of 6ourt, 7ule 4, 8ec. 1.. 7ules of 6ourt, 7ule #, 8ec. ./. 7evised 7ules on 8ummary ;rocedure, 8ec. 1.. 7ules of 6ourt, 7ule #, 8ec. $.#4. 6heesman v. ntermediate Appellate 6ourt, C. 7. :o. $/##, Danuary 1, 11, 1# 867A #.#1. Frtigas K 6o. @td. ;artnership v. Ielasco, C.7. :o.14$*, August 1*, 1, 867A #$.#. 7ules of 6ourt, 7ule $1, 8ec. .##. 7ules of 6ourt, 7ule $1, 8ec. .#$. Ibid.#*. Covernment 8ervice nsurance 8ystem v. Cines, C. 7. :o. /*#, 9arch , 1#, 1 867A $.#. e 6astro, Dr. I. 6ourt of Appeals, :o. @%#41, 3ebruary , 1//, 1*/ 867A //.#. Ielaso v. FrtiE, C. 7. :o. *1#, April 1, 14, 1/$ 867A #4#.#/. Antonio v. 6ourt of Appeals, :o. @%*, August #1, 1/, 1*# 867A *.

=. E@ECUTION O% *UD6?ENTS AND %INAL ORDERS -Rle ( Papanta v. e 7otaeche, 1 ;hil. 1*$ =11>( 8alvante v. 6ruE, // ;hil. # =1*1>.$. 7efer to 7ules of 6ourt, 7ule #/, 8ec. *.$. 6unanan v. 6ourt of Appeals, :o. @%**11, 8eptember /, 1/, * 867A #.$/. el 7osario v. Iillegas, $ ;hil. #$ =1>( gnacio v. 5ilario, ;hil. 4* =1$>.$. 6u ?n!ieng e 5i!os v. 9abalacat 8ugar 6o., 4 ;hil. #/4 =1$4>.

2. W)en *$it of e


18/49

There are two )+ ways of securing e&ecution of final !udgments and orders' e&ecution by motionand e&ecution by action. 0&ecution by motion is an e&ecution obtained through a motion for e&ecutionfiled within five )*+ years from the date of its entry. *10&ecution by action is obtained through thesubstitution of an action to enforce a !udgment or order after the lapse of five )*+ years from its entryand before it is barred by the statute of limitations.*

Footnote%0*1. 7ules of 6ourt, 7ule #, 8ec. .*. Ibid.

;. S#ecific Rles1. 0&ecution of !udgment can only be issued against a party to the action*#and their privies who arethose between whom an action is deemed binding although they are not literally parties to the

said action*$or to an intervenor.**

. A !udgment becomes final and e&ecutory by operation of law, not by !udicial declaration. Theprevailing party is entitled as a matter of right to a writ of e&ecution, and the issuance thereof is aministerial duty and compellable by mandamus.*There must, however, be a motion.*

#. 7ule on e&ecution in case of the death of a partyf the !udgment debtor dies after entry of !udgment, e&ecution depends upon the nature of the

!udgment. Thus' )a+ 3or recovery of real or personal property or the enforcement of a lienthereon, e&ecution may be done against e&ecutor, administrator or successor%in%interest( )b+ 3ormoney !udgments, the !udgment should be presented as claim for payment against the estate in aspecial proceeding. 8uch a claim need no longer be proved, since the !udgment itself isconclusive.*/

$. 2hen the property sub!ect of the e&ecution contains improvements constructed or planted by the!udgment debtor or his agent, the officer shall not destroy, demolish or remove saidimprovements e&cept upon special order of the court, issued upon petition of the !udgmentcreditor after due hearing and after the former has failed to remove the same within a reasonabletime fi&ed by the court.*

The special order of demolition may be granted only upon petition of the plaintiff after duehearing, and upon the defeated partys failure to remove the improvements, within reasonabletime given him by the court.4

The notice required before demolition of the improvements on the property sub!ect of thee&ecution is notice to the !udgment debtor, and not to a stranger or third party to the case. 1Theorder of demolition is not appealable.

The sheriff and the issuing party should carry out the demolition of the improvement of the defeatedparty on the premises in dispute in a manner consistent with !ustice and good faith.#

2here the premises was padlocked and no one was therein at the time e&ecution was carried into effect,there was no need for the sheriffs and the plaintiff to secure a Gbreak%openG order inasmuch as thecharacter of the writ in their hands authoriEed them to break open the said premises if they could nototherwise e&ecute its command.$

Footnote%0*#. 8t. ominic 6orporation v. ntermediate Appellate 6ourt, :o. @%4#, Dune #4, 1/, 1*1 867A *.*$. 6abresos v. Tiro, :o. @%$/$#, Fctober 1/, 1//, 1 867A $44.**. @ising v. ;lan, :o. @%*414, :ovember 1$, 1/$, 1## 867A 1$.*. 9uneE v. 6ourt of Appeals, C.7. :o. $414, Duly #, 1/, 1* 867A 1( 6ity of 9anila v. 6ourt of Appeals, C.7. :o. 144 :ovember , 11, 4$867A #.*. 7ules of 6ourt, 7ule #, 8ec. 1(8oco v. 6ourt of Appeals, C. 7. :o. 1141#, Fctober 1, 1, # 867A $$.*/. 0vangelista v. @a ;roveedora, nc., :o. @%#/$, 9arch #1, 11, #/ 867A #.*. 7ules of 6ourt, 7ule #, 8ec. 1$( 7om v. 6obadora, :o. @%$$, Duly 1, 1, / 867A */.4. 3uentes v. @eviste, :o. @%$##, Fctober /, 1/, 11 867A */.1. @orenEana v. 6ayetano, :o. @%#4*1, August #1, 1, / 867A $/*.

. avid v. 0!ercito, :o. @%$1##$, Dune 1/, 1, 1 867A $/$, 6ua v. @ecaros, :o. @%14, 9ay $, 1//, 11 867A $/4.#. AlbeltE nvestments, nc. v. 6ourt of Appeals, :o. @%#*4, 3ebruary /, 1, * 867A #14.$. Arcadio v. Olagan, A. 6. :o. #$, Duly #4, 1/, $# 867A 1/.

8. Le'y an) 6arnis"ment@evy is the seiEure of property, personal andNor real, belonging to the !udgment debtor for

subsequent e&ecution sale to satisfy !udgment. Carnishment is the process of notifying a third personcalled the garnishee to retain and attach the property he has in his possession or under his controlbelonging to the !udgment debtor, to make disclosure to the court concerning the same, and todispose of the same as the court shall direct to satisfy the !udgment.*

1. ecisional 7ules on @evy1.1 A valid levy is essential to the validity of an e&ecution sale, and levy is invalid if the

notice of levy of real property is not filed with the office of the register of deeds, thepurpose of which is to notify third parties who may be affected in their dealings withrespect to such property.2here a parcel of land levied upon e&ecution is occupiedby a party other than a !udgment debtor, the procedure is for the court to order ahearing to determine the nature of said adverse possession.

1. To effect a levy upon real property, the sheriff is required to do two specific things')a+ file with the register of deeds, a copy of the order and description of the

attached property and notice of attachment( and

)b+ leave with the occupant of the property a copy of the same order, descriptionand notice./

:ote that notice to the owner who is not the occupant does not constitutecompliance with the statute.

1.# 7eal property, stocks, shares, debts, credits and other personal property, may belevied on in like manner and with like effect as under a writ of attachment.4

1.$ The levy on e&ecution shall create a lien in favor of the !udgment creditor over theright, title and interest of the !udgment debtor in such property at the time of the levy,sub!ect to liens and encumbrances then e&isting.1

1.* @evy or attachment over properties themselves is superior than levy on the vendorsequity of redemption over said properties.

. ecisional 7ules on Carnishment.1 The garnishment of property to satisfy a writ of e&ecution operates as an attachment

and fastens upon the property a lien by which the property is brought under the!urisdiction of the court issuing the writ. t is brought into custodia legis, under the solecontrol of such court.#t is also known as attachment e&ecution.

. 9oney !udgments are enforceable only against property unquestionably belonging tothe !udgment debtor. Fne mans goods shall not be sold for another mans debts, asthe saying goes.$

.# The prohibition against e&amination or an inquiry into a bank deposit under 7ep. Act:o. 1$4* does not preclude its being garnished to insure satisfaction of !udgment.*

.$ Covernment%owned%and%controlled corporations have a personality of their own,separate and distinct from the government( their funds, therefore, althoughconsidered to be public in character, are not e&empt from garnishment.

Footnote%0*. 7ules of 6ourt, 7ule #, 8ec. .. IalenEuela v. e Aguilar, :o. @%1/4/#%/$, 9ay #1, 1#, / 867A 1.. Cuevara v. 7amos, :o. @%$#*/, 9arch #1, 11, #/ 867A 1$./. elta 9otors 6orporation v. 6ourt of Appeals, :o. @%/41, :ovember , 1//, 1/ 867A 4.. ;hilippine 8urety and nsurance 6o., nc. v. Pabal, :o. @%1**, Fctober #1, 1, 1 867A /.4 7ules of 6ourt, 7ule #, 8ec. 1*.1. Ibid., 8ec. 1.

1/


19/49

. Top 7ate nternational 8ervices, nc. v. ntermediate Appellate 6ourt, :o. @%$, Duly , 1/, 1$ 867A $.#. e @eon v. 8alvador, :o. @%#4/1, ecember /, 14, # 867A *.$. Fng v. Tating, :o. @%14$, April 1*, 1/, 1$ 867A *.*. 6hina


20/49

action e&ists and that the amount due him as much as the sum for which the order of attachment issought.4

$. 8trict 6ompliance with the 7uleThe rule on the issue of a writ of attachment must be construed strictly in favor of the defendant.

f all the requisites for the issuance of the writ are not present, the court, which issues it acts in e&cessof !urisdiction.1t should be issued only on concrete and specific grounds.

*. Attachment to Acquire Durisdiction Fver the ResAttachment is intended to confer !urisdiction by the court over the res. 2hen real property of anon%resident defendant located in ;hilippines is attached to answer for the claim of the plaintiff, the

court acquires !urisdiction over the resand in that event, the !urisdiction over the person of saiddefendant is not essential.#

. 8tages in the ssuance of the 2ritThe grant of the provisional remedy of attachment practically involves three )#+ stages' first, the

court issues the order granting the application( second, the writ of attachment issues pursuant to theorder granting the writ( and third, the writ is implemented. 3or the initial two stages, it is not necessarythat !urisdiction over the person of the defendant should first be obtained. 5owever, once theimplementation commences, it is required that the court must have acquired !urisdiction over thedefendant for without such !urisdiction, the court has no power and authority to act in any manneragainst the defendant. Any order issuing from the court will not bind the defendant.$

A preliminary attachment is a rigorous remedy which e&poses the debtor to humiliation andannoyance, such that it should not be abused to cause unnecessary pre!udice. t is, therefore, theduty of the court, before issuing the writ, to ensure that all the requisites of the law have beencomplied with( otherwise, the !udge acts in e&cess of its !urisdiction and the writ so issued shall benull and void.*

The affidvant must establish that'1+ a sufficient cause of action e&ists(+ the case is one of those mentioned in 7ule *, 8ection 1(#+ there is no sufficient security for the claim sought to be enforced by the action($+ the amount due to the applicant is as much as the sum for which the order is granted

above all legal counterclaims.

3ailure of the affidavit to show that there is no other sufficient security for the claim sought to beenforced by the action, that the said amount due to the plaintiff above all legal set%offs or counterclaim isas much as the sum for which the order is sought renders that application fatally defective.

2hether or not the affidavit sufficiently established facts therein stated is a question to be determinedby the court in the e&ercise of sound discretion. The mere filing of an affidavit reciting the facts requiredby the above provision is not sufficient to compel the !udge to grant the writ. t all depends upon theamount of credit given it by the !udge who may accept or re!ect it in the e&ercise of his discretion.

. Frders granting or denying provisional remedies are merely interlocutory and cannot be the sub!ect ofan appeal. They may however be challenged before a superior court through a petition for certiorariunder

7ule *./. mportant Durisprudential 7ules

/.1 The purposes of preliminary attachment are'1+ to seiEe the property of the debtor in advance of final !udgment and to hold it for

purposes of satisfying the said !udgment( or+ to enable the court to acquire !urisdiction over the action by the actual or constructive

seiEure of the property in those instances where personal service of summons on thecreditor cannot be effected./

Thus, a proceeding in attachment is in remwhere the defendant does not appear, and inpersonamwhere he appears in the action. 2here a lien already e&ists, e.g. a maritime lien,the same is equivalent to an attachment, #44!ust like that under a real estate mortgage.

/. 7ule on ;rior or 6ontemporaneous DurisdictionAlthough a writ of preliminary attachment may be issued e/"parteor even before service

of summons on the defendant, it cannot however be implemented until the court has acquired!urisdiction over the person of the defendant.#41

/.# 2hen the ground relied upon in asking for preliminary attachment is impending fraudulentremoval, concealment and disposition of defendants property under paragraphs )d+ and )e+ of8ection 1, 7ule *, the court should either conduct a hearing or require the submission ofcounter%affidavits from the defendant to gather facts in support of the allegations of fraud. #4

/.$ ;reliminary attachment may be granted in an action for a specified amount even when theclaim is unliquidated other than for moral and e&emplary damages.#4#

/.* f a property has been levied upon by virtue of a writ of preliminary attachment, it becomesone under custodia legisand a subsequent e&tra!udicial foreclosure of said property by a third%party mortgagee does not affect the lien created by the attachment.#4$

/. A foreign corporation duly licensed to do business in the ;hilippines is not a non%residentwithin the meaning of 8ection 1)f+, 7ule *( hence, its property here may not be attached on themere ground that it is a non%resident.#4*nsolvency of the defendant debtor is not a ground ofr theissuance of a writ of preliminary attachment.#48ection 1)f+, concerning summons by publication,refers to those cases in 8ections 1$ and 1 of 7ule 1$.

/. ;roperty e&empt from e&ecution is also e&empt from preliminary attachment orgarnishment.#4Carnishment does not lie against the funds of the regular departments or officesof the Covernment, but funds of public corporations are not e&empt from garnishment.#4/

Footnote%/. Adlawan v. Tomol, C.7. :o. #*, April #, 14, 1/$ 867A #1( 6uartero v. 6ourt of Appeals, C.7. :o. 14$$/, August *, 1 1 867A 4 6ited in6hemphil 0&port and mport 6orporation )606+ v. 6ourt of Appeals, C.7. :o. 11$#/%#, ecember 1, 1*, *1 867A *./. CuEman v. 6atolica, * ;hil. * =1#>( Cruenberg v. 6ourt of Appeals, :o. @%$*$/, 8eptember 14, 1/*, 1#/ s67A $1 6ited in 606 v. 6ourt ofAppeals, supra, note /.//. 8pouses 8algado v. 6ourt of Appeals, :o. @%**#/1, 9arch , 1/$, 1/ 867A #*( 606 v. 6ourt of Appeals, supra, note /./. ?.8. v. :amit, #/ ;hil. =11/>.4. Ceneral v. e Ienecia, / ;hil. /4 =1$>1. Cruenberg v. 6ourt of Appeals, supra, note /.. y vs. 0nage, :o. @ % #*#*1, 9arch 1, 1, 4 867A .

4


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#. 9abanag v. Callemore, /1 ;hil. *$ =1$/>$. 6uartero v. 6ourt of Appeals, C.7. :o. 14$$/, August *, 1, 1 867A 4.*. 8alas v. Adil, :o. @%$44, 9ay 1$, 1, 4 867A 11( 8pouses 8algado v. 6ourt of Appeals, supra, note //.. CuEman v. 6atolica, supra, note /( J.F. Class 6onstruction 6o., nc. v . IalenEuela, :o. @%$/*, 8eptember 11, 1/, 11 867A *#( Dardine 9anila3inance, nc. v. 6ourt of Appeals, C.7. :o. **, April 14, 1/, 11 s67A #.. @a Cran!a nc. v. 8amson, */ ;hil. #/ =1##>./. 9abanag v. Callemore, supra, note #( Buasha v. Duan, :o. @%$1$4, :ovember 1, 1/, 11/ 867A *4*.. .#44. Buasha v. Duan, supra, note /.#41. 7ules of 6ourt, 7ule *, 8ec. *.

#4. Adlawan v. Torres, C.7. :os **%*/, Duly *, 1$, ## 867A $*.#4#. 7ules of 6ourt, 7ule *, 8ec. 1)a+.#4$. 6onsolidated .#4. AboitiE and 6o., nc. v. ;rovincial 8heriff, :o. @%#*4, Dune 1, 1/1, 14* 867A //.#4. 7ules of 6ourt, 7ule *, 8ec. *#4/. ;hilippine :ational


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.$.# The 63 has no power to issue a writ of in!unction against the 7egister of eeds ifits effect is to render nugatory a writ of e&ecution issued by the :ational @abor7elations 6ommission.##1

.$.$ A writ of in!unction is not proper to stop the e&ecution of !udgment where the!udgment was already e&ecuted.##

. E


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1.$ :o restraining order or preliminary in!unction against the ;residential Agrarian 7eform6ouncil );A76+:o court in the ;hilippines shall have !urisdiction to issue any restraining order or writ ofpreliminary in!unction against ;A76 or any of its duly authoriEed or designated agencies in anycase, dispute or controversy arising from, necessary to, or in connection with the application,implementation, enforcement, or interpretation of this Act and other pertinent laws on agrarianreform.#/

1.* ;rohibition to issue in!unction against the Asset ;rivatiEation Trust )A;T+#

1. A court should issue a writ of preliminary in!unction only when the petitioner assailing astatute or administrative order has made out a case of unconstitutionality aside from showing a

clear legal right to the remedy sought.#4

1. ;residential ecree :o. 4* which prohibits courts from e&ercising !urisdiction to issuepreliminary in!unction in a case involving the issuance or approval by administrative officials ofpublic grants in connection with the e&ploitation of natural resources, does not apply in a casewhere the complaint does not put in issue the legitimacy of the defendants claim of being holdersof mining lease contracts, but asserts that defendants had rights.#1

1:. In@#nction% not i%%#e' *)e$e act %o#7)t to e p$e/ente' )a' een committe'An in!unction suit becomes moot and academic after the act sought to be en!oined had already beenconsummated.# A prohibitory in!unction cannot be issued when the act sought to be en!oined hasalready been committed.##

1;. No in@#nction e&on' p$a&e$ in complaint6ourts should not issue orders or in!unctions beyond those prayed for in the complaint.#$Footnote%0#4. / Am. Dur. 41, I%A Iicente D. 3 rancisco, The 7evised 7ules of 6ourt of the ;hilippines 1 =11> quoted in ?niversity of the ;hilippines v. 6atungal, Dr.C.7. :o. 11/# 9ay *,1, 867A 1, #.#14. 7ivera v. 3lorendo, :o. @%**/, Fctober /, 1/, 1$$ 867A $#( Jnecht v . 6ourt of Appeals, C. 7. :o. *1, :ovember 1/, 1#, / 867A 1.#11. 8earth 6ommodities 6orp. v. 6ourt of Appeals, C. 7. :o. $44, 9arch #1, 1, 4 867A .#1. ;hilippine :ational


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The procedural guidelines in the issuance of T7F and ;reliminary n!unction in a 9ultiple Sala 6ourt areprovided for in 8upreme 6ourt Administrative 6ircular :o. 4%*.

2hen an application for a writ of preliminary in!unction or a temporary restraining order is included in a complaint or anyinitiatory pleading, the case, if filed in a multiple%sala court, shall proceed as follows'

)a+ Ierified application and bond for preliminary in!unction or temporary restraining order()b+ etermination from facts shown by affidavits or by the verified application that great or irreparable in!urywould result to the applicant before the matter can be heard on notice.)c+ f the matter is of e&treme urgency and the applicant will suffer grave in!ustice and irreparable in!ury, thee&ecutive !udge of a multiple%sala court or the presiding !udge of a single%sala court may issue e/ parte atemporary restraining order effective for only seventy%two )+ hours from issuance()d+ n either case, even if no T7F had been issued because there is no e&treme urgency, the case shall beraffled only after notice to and in the presence of the adverse party or the person to be en!oined. n any event,

such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with acopy of the complaint or initiatory pleading and the applicants affidavit and bond, upon the adverse party in the;hilippines.5owever, )1+ where the summons could not be served personally or by substituted service despite diligentefforts, or )+ the adverse party is a resident of the ;hilippines temporarily absent therefrom or is a nonresidentthereof, the requirement of prior or contemporaneous service of summons shall not apply.)e+ f no T7F has been issued because there is no e&treme urgency, the application for a temporary restrainingorder shall thereafter be acted upon only after all parties are heard in a summary hearing which shall beconducted within twenty%four )$+ hours after the sheriffs return of service andNor the records are received bythe branch selected by raffle and to which the records shall be transmitted immediately.)f+ 2ithin the aforesaid seventy%two )+ hours, the !udge before whom the case is pending shall conduct asummary hearing to determine whether the temporary restraining order shall be e&tended until the applicationfor preliminary in!unction can be heard. n no case shall the total period of effectivity of the temporary restrainingorder e&ceed twenty )4+ days, including the original seventy%two hours provided herein.)g+ etermination within twenty days from service of the T7F on the party sought to be en!oined whether apreliminary in!unction shall issue or not.)h+ The effectivity of a temporary restraining order is not e&tendible without need of any !udicial declaration tothat effect and no court shall have authority to e&tend or renew the same on the same ground for which it wasissued. Another restraining order may, therefore, be issued provided it is not based on the same ground.

Recei'ers"i#1. Appointment of a !ecei/e$The general rule is that neither party to the litigation should be appointed as a receiver without theconsent of the other because a receiver is supposed to be an impartial and disinterested person. #* A

clerk of court should not be appointed as a receiver as he is already burdened with his official duties.#

. Specific %it#ation% *)en a $ecei/e$ ma& e appointe'.1 3amily 6ode, Article 141f a spouse without !ust cause abandons the other or fails to comply with hisNher obligations to thefamily, the aggrieved spouse may petition the court for receivership.. 7ules of 6ourt, 8ec. $1, 7ule #The court may appoint a receiver of the property of the !udgment obligor( and it may also forbid atransfer or other disposition of, or any interference with, the property of the !udgment obligor note&empt from e&ecution..# After the perfection of an appeal, the trial court retains !urisdiction to appoint a receiver of theproperty under litigation since this matter does not touch upon the sub!ect of the appeal.#

.$ After final !udgment, a receiver may be appointed as an aid to the e&ecution of !udgment.#/

.* Appointment of a receiver over the property in custodia legis may be allowed when it is!ustified by special circumstances as when it is reasonably necessary to secure and protect therights of the real owner.#

Footnote%0#*. Alcantara v. Abbas, :o. @%1$/4. 8eptember #4, 1#, 867A *$.#. Abrigo v. Jayanan, :o. @%/41, 9arch 1/, 1/#, 11 867A 4.#. 7ules of 6ourt, 7ule $1, 8ec. ( AcuLa v. 6aluag, 141 ;hil. $$ =1*>.#/. ;hilippine Trust 6ompany v. 8antamaria, *# ;hil. $# =1>.#. olar v. 8undiam, :o. @%#1, April #4, 11, #/ 867A 1.

Re#le'in

1. Step% in t)e I%%#ance an' Implementation of a W$it of !eple/in1.1 A party praying for the recovery of possession of a personal property files with the court at thecommencement of the action or before answer in application for a writ of replevin.#/4

To accompany the application is the affidavit which should state that')1+ that the applicant is the owner of the property claimed, particularly describing it, or is

entitled to the possession thereof()+ 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()#+ that the property has not been distrained or taken for a ta& assessment or a fine

pursuant to law, or seiEed under a writ of e&ecution or preliminary attachment , orotherwise placed under custodia legis, or if so seiEed, that it is e&empt from suchseiEure or custody( and

)$+ the actual market value of the property.

. Note%)1+ The applicant of a writ of replevin need not be the owner for it is enough if he has a right to

possess it.#/1

)+ 7eplevin cannot be availed of if the property is in custodia legis as where it is underattachment or was seiEed under a search warant#/e&cept'

a. when the seiEure is illegal(#/#andb. where there is reason to believe that the seiEure will not anymore be followed bythe filing of the criminal action in court or there are conflicting claims.#/$


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1.# The amount of supportpendente lite is not final in character in the sense that it can be thesub!ect of modification depending on the changing conditions affecting the ability of theobligor to pay the amount fi&ed for support.#/

1.$ f an application for supportpendente lite is denied, the remedy is certiorari.

1.* 9ere affidavits or other documents appearing in the record are sufficient basis for the court todetermine amount of supportpendente lite.#//

1. 8upportpendente liteare allowed in criminal actions where the civil liability includes supportfor the offspring as a consequence of the crime and the civil aspect thereof has not beenwaived, reserved or instituted prior to its filing.#/

Footnote%0#/. 3rancisco v. Pandueta, 1 ;hil. * =1>.#/. 8an Duan v. IalenEuela, :o. @%*4, Fctober #, 1/, 11 867A .#//. 7eyes v. nes%@uciano, :o. @%$/1, 3ebruary /, 1, // 867A /4#.#/. 7ules of 6ourt, 7ule , 8ec. .

SPECIAL CIVIL ACTIONSThe special civil actions are'

)1+ nterpleader )7ule +()+ eclaratory 7elief )7ule #+()#+ Certiorari, ;rohibition and 4andamus)7ule *+()$+6uo 7arranto)7ule +()*+ 0&propriation )7ule +()+ 3oreclosure of 7eal 0state 9ortgage )7ule /+()+ ;artition )7ule +(

)/+ 3orcible 0ntry and ?nlawful etainer )7ule 4+( and)+ 6ontempt )7ule 1+.

7. Inter#lea)er

1. !e"#i%ite%)1+ The plaintiff claims no interest in the sub!ect matter or his claim is not disputed()+ There must at least be two )+ or more conflicting claimants()#+ The parties to be interpleaded must make effective claims( and)$+ The sub!ect matter must be one and the same.

. Deci%ional !#le%nterpleader was found to be a proper action in an action of a lessee who does not know to whom to

pay rentals due to conflicting claims on the property(#4and in an action by a bank where the purchaser ofa cashierGs check claims it was lost and another has presented it for payment.#1t was however found tobe improper in an action where defendants have conflicting claims against the plaintiff( #and an actionwhere one of the defendants had earlier sued the plaintiff and secured a !udgment against him which hasalready become final. The action is barred by laches or unreasonable delay.

##

2. P$oce'#$al Pec#lia$itie%#.1 ?pon the filing of the complaint, the court shall issue an order requiring the conflicting

claimants to interplead with one another.#$

#. The court may direct in the same order mentioned in the preceding paragraph that the sub!ectmatter of the suit be paid or delivered to the court.#*

#.# The summons shall be accompanied by copies of the complaint and order mentioned in :o.1.

#.$ The defendants may file a motion to dismiss on the ground of the impropriety of theinterpleader action or on other appropriate grounds specified in 7ule 1.

#.* The defendants shall serve a copy of the answer not only to the plaintiff but also to their co%defendants who may file their reply thereto.

#. The effect of a failure to plead within the prescribed period is that, upon motion, the defendantwill be declared in default and thereafter renders !udgment barring him from any claim inrespect to the sub!ect matter.

Footnote%0#4. ;agkalinawan v. 7odas, /4 ;hil. /1 =1$/>.#1. 9esina v. ntermediate Appellate 6ourt, :o. @%41$*, :ovember 1#, 1/, 1$* 867A $.

#.


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)#+ to resolve political issues or questions($4

)$+ to test the correctness or validity of a court decision($4

)*+ to determine hereditary rights($4/

)+ when the petition is based upon the happening of a contingent event()+ when the petitioner is not the real party in interest($4and)/+ when administrative remedies have not yet been e&hausted.$14

Footnote%0#. Fbiles v. 7epublic, ;hil. /$ =1*#>.

#. .$14. Fllada v. 6entral


27/49

$#4. 7ules of 6ourt, 7ule *, 8ec. 1.$#1. Ibid.$#. Ibid.$##. 7ules of 6ourt, 7ule 1#, 8ec. 11.$#$. 7ules of 6ourt, 7ule *, 8ec. $.$#*. Asian Trading 6orporation v. 6ourt of Appeals, C. 7. :o. , 3ebruary 1*, 1, #4# 867A 1*.

:. Pro"i$ition1. !e"#i%ite%

)1+ a tribunal, corporation, board, officers or person unlawfully neglects the performance of an actwhich the law specifically en!oins as a duty arising from an office, trust, or station or unlawfullye&cludes another from the use or en!oyment of a right or office to which the plaintiff is entitled(and)+ there is no other plain, speedy and adequate remedy in the ordinary course of law.

. Deci%ional !#le%.1 4andamusis an appropriate remedy to compel a corporation to grant its monthly salariedemployees holiday pay.$#

. 4andamusis not proper to compel a school to enroll a student for academic deficienciesbecause this involves the e&ercise by the school of discretion under academic freedom.$#

.# 4andamuswill not lie against the ;resident or 6ongress because of the principle that the!udiciary is a co%equal department of the latter.$#/

.$ 3ailure to e&haust administrative remedies is generally fatal to an action for mandamus.$#The e&ception is when the question is purely of law.$$4

Footnote%0$#. 9antradeN3996 ivision 0mployees and 2orkers ?nion v. 7esolution on the 9otion for 7econsideration, /1 ;hil. / =1$/>.$#. Aquino v. 9ariano, :o. @%#4$/*, 9ay #1, 1/$, 1 867A *#.

$$4. Fne 5eart 8porting 6lub, nc. v. 6ourt of Appeals, :o. @%*#4, Fctober #, 1/1, 14/ 867A $1.

;. ,#o Wa$$anto1. Definition

A !uo warrantois a prerogative writ by which the Covernment can call upon any person to show bywhat warrant he holds a public office or e&ercises a public franchise.$$1

4. ,#o Wa$$antoas )istingis"e) %rom Election Contestf the dispute is as to the counting of votes or on matters connected with the conduct of the election,

!uo warrantois not the proper remedy but an election protest.$$2hen the dispute is on the ineligibility ofa person sought to be ousted, !uo warrantois the proper action.$$#

2. Pec#lia$itie% of P$ocee'in7%#.1 2hen the 8olicitor Ceneral or a public prosecutor commences the action at the instance of

another person, leave of court must first be secured.#. The motion for leave must be set for hearing with notice to the respondent so that he may be

heard( and#.# The court issues the order allowing the filing of the action within the period fi&ed therein.

Footnote%0$$1. # 9oran 4/ =14>.$$. 6aesar v. Carrido, *# ;hil. =1>.$$#. 3ortuno v. ;alma, :o. @%44#, ecember 1/, 1/, 1* 867A 1.

8. E/#ro#riation

1. !e"#i%ite% Fo$ E


28/49

After the foreclosure sale is confirmed, the court, upon motion, may issue a writ of possession to installthe buyer at auction into possession of the property sold.

3. Deficienc& -#'7ment8ome rules on deficiency !udgment are'

)1+ A motion for deficiency !udgment may be made only after the sale and after it becomes knownthat a deficiency e&ists.$*4

)+ eficiency !udgment cannot be rendered against a non%resident defendant.$*1

)#+ :o deficiency !udgment may be rendered against the owner who is not a mortgagor and has

not assumed personal liability for the debt. The remedy is an ordinary action against the debtor.$*

)$+ f the debtor dies, the deficiency may be filed as a claim against his estate.$*#

Footnote%0$$. 7ules of 6ourt, 7ule /, 8ec. *( @impin v. ntermediate Appellate 6ourt, :o. @%4/, 8eptember , 1//, 1 867A /.$$/. 7ules of 6ourt, 7ule #, 8ec. ( e 6astro v. ntermediate Appellate 6ourt, :o. @%#/*, 8eptember , 1//, 1* 867A *$.$$. @impin v. ntermediate Appellate 6ourt, supra, note $$.$*4. Covernor of the ;hilippine slands v. Torralba Iiuda de 8antos, 1 ;hil. / =1#*>.$*1. 0l .$*. ;hilippine Trust 6o. v. 0chaus Tan 8iua, * ;hil. /* =1>.$*#. 7ules of 6ourt, 7ule /, 8ec. .

>. Partition

1. T*o Sta7e% of t)e Action1.1 3irst 8tage - etermination of the propriety of partitionThis involves a determination of whether the sub!ect property is owned in common and whetherall the co%owners are made parties in the case. The order may also require an accounting of rentsand profits recovered by the defendant. This order of partition is appealable. $*$ f not appealed,then the parties may partition the common property in the way they want. f they cannot agree,then the case goes into the second stage. 5owever, the order of accounting may in the meantimebe e&ecuted.$**

1. 8econd 8tage - The actual partitioning of the sub!ect propertyThis is also a complete proceeding and the order or decision is appealable.

. P$e%c$iption of ActionAction for partition is unprescriptible for as long as the co%

Documents

Remedial Law} Civil Procedure} Review Notes} Made 2001 (Est)} by Unkown (Daki)