Transcribed Ortega CivPro and Crimpro (Incomplete)

7/30/2019 Transcribed Ortega CivPro and Crimpro (Incomplete)

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Rem June 20

Sometimes people think that an initial encounter of

cases is when a complaint is filed in court. But you

should recall this so called katarungang pambarangay

(KB for brevity) Law. This was then initiated by the

then pres. Marcos who ten issued pd 1542.Providing

for this summary procedure now covered by the LGC

adopting some of the salient provision of the decree

as the stronghold of the so called Bgy Justice. So the

first step that you will encounter in the handling of

the civil case is the filing of the complaint with the

proper bgy. for a a. conciliation or mediation or b.

arbitration. Proceeding before the bgy are of 2 folds

1) the so called mediation 2) arbitration. These

proceedings are conducted respectively by 2 different

bodies also within the bgy. The so called lupon

tagapamayapa for conciliation or mediation and for

arbitration pangkat tagapagkasundo. The lupon is the

basic body made up of 10 to 20 members headed by

the bgy chairman, the pangkat is made up of lupon

members who are to be chosen by the parties in

controversy there are 3 to comply

with______although the case brought before the bgy

is initiated by the complaint, the complaint I refer to

at this stage is not what you have studied in legalforms which is similar to an information or which is a

pleading _____complaint refer to here is any

grievance by the aggrieved party, the aggrieved party

may not know how to write, so he will just bring it to

the bgy verbally, the bgy secretary is required by the

law to take down the grievance.

The complainant may not even know how to

write, his thumb mark will be affix to indicate that the

grievance was made by him.these arespecial______grievance. The bgy chairman will bring

the parties face to face for confrontation, this is

conciliation, bgy chairman will explain the

disadvantages of bringing thrie controversy to a court

of law, what is suggested is to work out an amicable

settlement. When the parties came to an agreement

of what would be acceptable to each of them to bring

about an avoidance of court litigation the so

conciliation settlement sort of a written agreement

commonly known in law as a compromise agreement

or an amicable settlement will have to be reduced to

writing and the parties would have to sign the same if

the parties could not arrive at a mutual arrangement

of their controversy. So a compromise agreement or

what is known in this procedure as conciliation

settlement will not come about, there will be no

wrting that will reflect what has been agreed upon

because the party are____to each other. Even then

to avoid the bringing of the case to a court of law themembers of the lupon or the bgy chairman proposed

that the parties submit to an arbitration to avoid the

inconvenience that will be made and the other

disadvantages of going to court scheduling the case

every now and then for trial if the parties agree to

submit to an arbitration a writing to that effect will

be prepared for the parties to sign their willingness to

submit their controversy to arbitration and from

there it will now be the pangkat who will act on the

case under arbitration

If the arbitration was not repudiated it will

result to a disposition of the controversy under the

so-called award. If it is by a arbitration the disposition

of the case is not called judgment, it is known as

award. Although the parties under this system may

have agreed to a conciliation settlement or amicable

settlement or they may have agreed to an arbitration

the pertinent provision of the LGC on this mechanism

allows the parties to the controversy to repudiatewhat they have agreed to on any ground specified in

the law itself which vitiates consent only on these 3

grounds may the repudiation be done, the grounds

are 1. Fraud in obtaining the conformity of the other

party 2.violence 3. Intimidation or any other grounds.

The agreement arrived at the conciliation or the

agreement to submit to an arbitration cannot be set

aside or repudiated these are the only grounds

allowed to repudiate what the parties may have

agreed to because these 3 grounds affect the valid

consent to the agreement or to the arbitration to

which they have submitted. If there was no amicable

settlement or an award to wc the parties are willing

to accept a certification will have to be prepared by

the bgy secretary to be signed by the bgy chairman

attesting to the fact that a conciliation or mediation

or arbitration was conducted but the parties to the

controversy failed to reach an agreement and so they

had been authorized already to submit theircontroversy to a court of law.

This certification is required in bringing to

court their controversy governed by the mechanism


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of the bgy justice without the certification the

administrative matter enjoined by the sc on the

series of 1493 admonishes coc and those prosec

offices or any administrative or quasi judicial bodies

to accept for filing without such certification of prior

referral to the bgy. So normally one cannot go tocourt file the controversy before the court if after all

the controversy is one where the mechanism of the

bgy justice governs but no prior referral to the bgy

was made if ever there will be a step to file it in court

this administrative matter issued by the high court in

1993 would preclude the filing of that case without

the certification from the bgy chairman or the bgy

secretary that there had been effort to bring about

the conciliation, mediation or arbitration but such

procedure has failed. It is almost mandatory that the

controversy be subject to this procedure referred to

be ventilated in the level of the bgy.

Now the 2nd

point that you must take note of

what are the requiremnts before a controversy may

be governed by the so-called KpB, not all disputes or

controversy are subject to this mechanism where

conciliation, mediation, arbitration a the bgy level

must first be conducted the requisites wc you find in

chap 7 in lgc r.a 7160

1. The parties to the controversy. Should benatural person if there is a party wc is

juridical person requirement of prior referral

to the bgy does not govern

2. Although the parties involved are all natlpersons if among them is a public officer and

the controversy was in ____ of his

performance as a public officer, it does not

operate here3. Where the contro. Involves real property that

real prop. That prop must be situated in the

same city or municipality where the parties

to the controversy resides. So accdgly these

rqstes that the parties to the controversy

must reside in the same city or municipality

not necessarily in the same bgy. Although the

parties may not reside in the same city or

mun. if however their respective bgy adjoin

each other the parties may agree to commit

their contro to this mechanism and stipulate

to what bgy it is to be submitted. Under this

exception you can really readily imagine that

the bgy of the parties although of diff cities

or municipalities are of the boundary of each

of the municipality so they adjoin. That

means they are on the boundary that allows

the parties to the controversy to agree to

submit their controversy to this bgy justicemechanism and then they stipulate which

bet. the 2 bgy to which they will submit

conciliation of their controversy.

So if these requisites are not strictly complied

with referral of a to the bgy pursuant to lgc will not

obtain and the matter of the controversy may be

subject already of a complaint filed in a court of law.

If these requisites do not concur the complaint may

be filed directly in a court of law even without

referral to the bgy. So you could glean from this that

a controversy may dispensed with the required

referral to the bgy for conciliation and mediation, in

the following instances.

1.Where the cause of action is about to

prescribe

2.When the rqstes for referral are not all

complied with and the parties could not agree to

refer their disputes to the bgy

3. when the controversy calls for availing of

any of the provisional remedies under the rules of

court.

4. when the controversy calls for a writ of

habeas corpus as involving an unlawful deprivation of

liberty or unlawful withholding of custody over a

person contrary to what is so provided by law

5. In a criminal____if the matter involved an

offender who is detained referral to the bgy is not

reqd. since the bgy is not authorized to grant bail and

that meant the supposed offender would have to

remain in under confinement or detention while the

matter is not yet resolved. Matter may be filed

directly in a court of law.

When these exceptions attend the

controversy of the parties, the reqt may be dispensed

with, otherwise this will be challenged through a

MTD the case for failure to comply with a conditionprecedent reqd by the rules for the prosecution of

the case. A s to the venue where the complaint

should be filed the law states this 1) in the bgy where


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the parties to the dispute resides, this is so if the

parties to the dispute reside in the same bgy. 2) in

the bgy where the resps. Or majority of the resps.

Resides 3) if the controversy arose in a workplace

where the parties are employed, the matter must be

brought in the bgy where such workplace is situated4) if the contro arose in an inst. Where the parties to

the dispute are enrolled, the complaint shall be filed

in the bgy where such inst is situated. So if the

quarrel arose in a school, it will not be the resident of

the parties that will be_________but in the school

where the parties are enrolled but bear in mind that

venue in a civil action is waivable unlike in a criminal

action. Also required for these mechanisms of bgy

justice to be resorted are the ff. 1) the controversy

should not arise from land lord tenant relationship or

agrarian conflict bet them otherwise it would be a

matter for agrarian dispute relation 2) the

controversy should not be in respect of employer

employee relationship governed by labor law

otherwise the dispute should be thresh out before

the natl. labor relations comm. This shall be without

prejudice to such other controversy where a special

law governing the same provides for a part. venue

where the controversy should be thresh out.

Now, the effect of these referrals of the

controversy to the bgy. 1) Upon the filing of the

complaint with the proper bgy. The running of the

prescriptive period of a cause of action or of the

crime involved shall be interrupted and suspended

but not for more than 60 days from the date of filing

of that complaint 2) the conciliation agreement or

the arbitration award which the lupon or the pangkat

may have approved shall have the force and effect of

a judgment of a court of law. That means that the

matter already subject of a conciliation agreement or

award issued on arbitration cannot be relitigated

again because of the final disposition of the case the

rule of res adjudicata governs. The conciliation

agreement or the arbitration award shall become

final and exec. After the lapse of 10 days from the

date thereof unless they had been repudiated before

it had become final and executory. Another conseq.

The lupon may bring about the execution of suchconciliation or amicable settlement or the award

rendered in an arbitration within a period of 6 mos

from the date thereof, thereafter the same may only

be executed through a petition filed with the inferior

court or court of first level exercising jurisdiction over

the place where the bgy is situated. So the validity of

the agreement arrived at before the bgy may be

implemented and subject of execution against the

obligor within 6 mos. After the date the same wassigned by the parties or if it was an award rendered

after arbitration the same may be enforced through

exeution by the lupon not by the court after 6 mos

court already, so even if the lupon has this power,

this body renders a resolution which has the force

and effect of judgment of a court of law since the

matter cannot be relitigated again before a court of

law. The settlement signed by the parties before the

lupon or the award that the pangkat have rendered if

the parties could not agree on the mediation or

conciliation and they have agreed to submit it to

arbitration then an award will be _______ and if that

would not repudiated it will become final after 10

days, If repudiated it will be as If nothing have had,

the bgy secretary or chairman may issue a

certification that the parties failed to reach an

amicable settlement or agreement during the

confrontation before the bgy, you note that in sec

412 of chap 7 of the lgc ra 7160 as amended the

amended that no complaint, acton, proceeding, pet

shall be filed in court or any admin bodies w/o a

confrontation in the proper bgy. So this is the

mandate of the law which tells you prior referral to

the bgy when reqd by this law cannot be avoided the

adverse party may bring about dismissal of the case

for failure to comply with this mandate of the law.

But this is not jurisdictional it is not, its not a matter

that apply to all laws where however under the law

governing the controversy the referral to the bgy isreqd a failure to comply would be a breach of the due

process clause that if this question would be raised

the court cannot simply ignore this the proceeding

will null and void ab initio. Not jurisdictional in the

sense that if the parties went through the

proceedings although it requires prior conciliation or

possibly administration or arbitration before the bgy

the parties who took part cannot anymore question

the non- referral to the bgy they are estopped

already. But the moment it is questioned, the court

cannot ignore the challenge that it did not comply

with what is provided in the lgc in this regard it is

mandatory but this is not jurisdictional.


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2nd

step if the mechanism of bgy justice does

not govern or it governs but the parties failed to

reach an agreement so much so that the bgy already

certified the controversy that it be referred to a court

of law. The next step come here the referral to a

court of law will begin the prosecution of the civilaction before the court depends if the bgy justice

applies. The 2nd

step is the commencement of the

civil action in the court of law. Highlight the word

action. Under this step, the preparation of the

complaint of the aggrieved party to be filed in court,

underscore complaint to emphasize, commonly what

is required is the complaint not a petition. A pet is

filed only in special proceeding not in an action.

Action are adversarial theres always a depending

party. At this juncture you must know that there are

actions that are commenced not by complaint but by

petition. They are referred to as Special Civil Actions.

The ff are commence by pet.

1 Declaratory relief and similar remedies under rule

63 of toc

2. Pet for review of judgment resolution and final

order of comelec and coa under rule 64

3. Certiorari

4. Prohibition

5. Mandamus

6. Quo Warranto if initiated by the govt, if initiated

by a private citizen, it would be by complaint.

7. Contempt, the contempt is an action not a pet. Its

a special civil action under rule71

As bet an action and specpro an action is

always adversarial, a proceeding is not, only anapplication asking the court to recognize or approve

judicially the existence of a fact or of the status or of

a right. Declaration of absence, it is an application to

the court to accept the fact that the subject of the

pet. is judicially absent. So the rights and obligation

attending an absentee would already operate. Of a

status a pet. for hospitalization of insane persons, pet

for settlement of the estate of the deceased person.

Under these steps there are 2 stages that alawyer encounters

1st

stage preparation of the complaint-

Jurisdiction of the court where a case is to be filed,

now relative to this I want you to look into, the diff

courts in the phils and the jurisdiction that each of

them wields, under the outline you have the

hierarchy of courts.

1) courts of first level

2) collegiate trial courts

3) C.A

4) S.C.

and there are some court on the collateral

level which may be t.c. at the same time appellate

court like the SB. They have appeal juris. RTC trial

court they have appellate juris. over judgements of

the courts of the 1st

level you have to understand the

way they are arranged. in the exercise of juris it may

be on civil or crim action. So what are those civil

actions which are under the jurisdiction of the t.c. on

the first level or t.c. on the collegiate level, bet. the so

called inferior courts (term inferior not used anymore

in our rules of court unpleasant conotation) while the

juris. Of the court has been expanded and what used

to be within the jurisdiction of the collegiate trial

court has been brought to the level of this court the

word inferior has been removed, they are now

referred to as politely court first level.

In a civil action, courts of the first level have

limited jurisdiction, which means to say what are

those matters which are expressly vested within their

juris are only those matters which they can validly act

upon, so those although it may be analogous or

similar to what has been vested in them if not

expressly vested in them they have no juris over said

subject matter and they cannot act on them

competently, other hand Collegiate t.c. which are

now rtc, on this level in crim cases you have SB but

the SB is also an appellate court because there are

appeals on certain crim cases which can only be

taken to the SB, when we say that this collegiate t.c.

have gen juris. their juris to act on a case is not

limited to those cases which are expressly mentioned

in the law conferring juris, any other matter which is

not conferred within the juris of any other court of a

diff level shall be within the competence of thecollegiate t.c., so it is the reverse whereas the inferior

courts can only act on those matters which are

expressly vested in them . Coll t.c. can act on a case


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as long as it is not taken away from them. As long as a

case is not vested by law within the jurisdiction on

other court, you cannot file it in any assignment of

jurisdiction of another court then RTC, because these

are courts of gen jurisdiction. THIS WAS NOT StATED

IN THE RULES.

Jurisdiction if not complied with nullifies the

proceedings, we say it is jurisdictional if the non-

observance of what is requiredd would render the

whole proceedings already conducted as null and

void. On this exercise of juris. The SAME may either

be original or appellate juris. when you say orig the

controversy must be brought initially at that level,

you cannot bring it at the higher level, you must have

learned about this actions for forcible entry, actions

for unlawful detainer because of the nature of the

issue involved here juris. is with the courts of first

leve,l only here, not higher courts, you cannot file this

in any higher court (,.metro tc., mun courts in

chartered cities, mun t.c. in mun, mun circuit trial

courts and those circuited mun courts) if however

dispossession lasted for more than a year, no longer

unlawful detainer or forcible enry, you have learned

about accion interdictal, accion publiciana, accion

reinvindicatoria, you have learned this in civil law andthis is procedural, the court if it is accion interdictal

this refers to the forcible entry, unlawful detainer

cases, you cannot file this in any court except a court

of the first level because the jurisdiction of these

courts over this cases is original that means it will

start there, you cannot start it anywhere.

It is a trial juris, if the controversy may be

filed with courts of diff levels either inferior court or

collegiate t.c. and they may try it validly, you say thejurisdiction is concurrent, a court in the exercise in

the exercise of concurrent juris, the later rulings of

the s.c. called attention to the so-called hierarchy of

courts which the lawyers must respect although the

lawmakers may have vested juris over certain

litigation with the lower court and concurrently with

the higher court the litigant cannot go straight to the

higher court immediately without any compelling

reason to avoid initiating the action in the lower

court even though the law compels juris ON the

Lower Court or a Higher Court over the same case, it

is not for the litigant immediately to go the higher

court unless there is reason for doing so ex. Pet of

habeas corpus, this is within the juris. of the court of

first level, also within the juris of the courts of coll

level, if the writ will be enforced in a place beyond

the juris of the local inferior courts it would be idle to

require the parties to file there since the writ that

may be issued will only be valid within its territorialjurisdiction, whereas the same will be enforce in

another judicial _____ it must be within a court of

gen. juris, if it would be enforced in another judicial

region then it may be with the c.a. because you

cannot enforce it in another judicial region if you inst

this in a court gen. juris that have no juris over that

region. It doesnt mean that under the law this pet

will be filed in this court that you can just go

anywhere. This is now crystalized in the ruling if the

s.c., whereas the writ can also be of the same force

and effect even if filed with the rtc the parties cannot

arbitrarily choose the court where they will file the

action. That would destroy the stability of our admin

of justice. There is such a thing as hierarchy of courts,

you must observed this unless there really is a

compelling reasons. All of these are in respect of that

element of juris.

Juris. may be over the sublect matter of the

action, it may be

1. over the person of the parties to the action,2. it may be over the prop. Or matter involved

in the action which we refer to as juris over

the res,

3. or juris may be over the issue raised in theaction.

A court is not free to resolve a matter not which is

not brought before its jurisdiction, because that

would only confuse the parties litigating, so if the

issues is not raised in the pleadings the court should

not disposed of that matter in the

___________because the court has no juris over the

issue, so if the action involve merely a conflict of

possession but the court made a disposition of the

ownership, its an exercise without jurisdiction over

that issue. So although it was made by the rtc and rtc

has juris over questions of ownership and possession

but in the part. Case where the controversy is as to

possession a rtc touching upon question of ownership

has no juris there. Now that is not juris over the

subject matter, that is jurisdiction over the issue. The

court can only pass upon an issue which was raised in


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the pleadings. That is through the pleadings. Now

relative to this you have studied the rue on

amendments. If during the trial the litigant was able

to bring out an issue which was not pleaded, the

court cannot validly render judgment on that issue

which was not pleaded, so there must be anamendment to the pleadings to bring to that

pleadings the issue, you call this amendment to

conform to the evidence. Jurisdiction refers to the

competence to the court to dispose of the

controversy before it. If the court renders judgment

on somebody who is abroad neither been served with

summons it does not apply to juris over the person of

the parties. Juris. Refers to different subjects not just

to the subject matter of the ____issue, it refers to the

competence of the court to make a binding judgment

or order on a party who is not involved in the

litigation, or a party who is involved in the litigation.

So you say if the def. had not been served with

summons the court have not acquired juris over the

person of the defendant. The court cannot render

judgment that will be enforceable against the

defendant, it is by the summons that the court

acquire jurisdiction over the person of the defendant

unless the def.submits to the juris to the court even

without summons.

The next matter to be considered in the

preparation of the complaint is venue. O tnhis matter

you should know 1)what is the effect of the

agreement bet parties specifying the venue where

the action bet them maybe filed should a contro.

Arised relative to this you must consider of const.

limitation against the denial of free access to courts.

Supposing the parties in the transaction made a

stipulation any disagreement that may arise out of

this trans. Shall be brought in the proper court in

Zambales where the parties reside, but there was a

volcano, there the court got buried under the Lahar,

the def. violated the term of the agreement, may the

plaintiff file the action in another place or should the

plaintiff wait until the action could be filed in that

place. Bet venue and juris. You should know what are

the the contemplations of venue what are the

contemplations of juris.

1. Venue may be subject to agreement of theparties Juris cannot be the subject of the

agreement.

2. Juris affect the relation of the parties to thecourt, venue affects principally the relation of

the parties to each other and to the court.

3. Venue is defined for the convenience of theparties, juris is defined for the orderly admin

of justice.

One impt. Matter about juris. that when the

subject of the action or the litigation is incapable of

pecuniary estimation, jurisdiction over this is with

the rtc you cannot file this with the inferior courts

but you must have learned that if it is incapable of

pecuniary estimation does not mean that there is

no value, does not mean that there is no pecuniary

amount stated there, an action for a specific perf.

Of a bicycle worth 15 k which was not delivered

where should we file, you look into this part. item

of juris. when we say that the subject of litigation

isbeyond or w/o pecuniary estimation and this

cannot be filed with the inferior courts because

these courts have limited jurisdiction. That action is

at least with the juris of a collegiate t.c. rtc or on

that level a family court or comml court those court

of the same level as collegiate trial court.

June 20 Part 2

The parties who have to be impleaded relative to this

you should know the following 1) Real party in

interest this is commonly used in procedural law so

you must be acquainted on this 2) indispensable

parties 3)necessary parties 4)representative parties .

Then the instances where a spouse may be

sued without joining the other spouse now the

regime of property relations between is absolute andthe moment you file a case gainst a married person

you have to join the other but this is not always

required so you should be aware of those instances

where the suit aginst one would already suffice and

the requisite for joinder of parties whether ceratin

parties in an action can be joined or not so those are

the matters you will look into or a lawyer should look

into in the preparation of the complaint who are the

parties. Under the present rules in the case of a

necessary party, the pleader is required to state who

they are and why they are not impleaded. Unlike

before where the pleader does not have to state who

are the parties who should also be impleaded, under


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the revised rules now the pleader have to state those

parties who are necessary but who have not been

joined. If the court would require the pleader to join

those parties to the action and he would not want to

join them inspite of the period given to him the new

rules now_____his right to recover from thatnecessary party.

Y

ou must have notice that before the revision of the

current rules the necessary parties are also referred

to as proper parties but the use of the term proper

parties has been discontinued under the new rules

because it is ambiguous as long as a party is a real

party in interest it is a proper party. The word proper

party does not mean anything it does not really

connote the meaning of necessary party. Necessary

parties are those who must be impleaded in the

complaint so as to achieve a complete determination

of the controversy.

Cause of action the next factor to consider

how this differs from right of action you must have

come across before the difference between right of

action vs cause of action when may joinder of causes

of action cannot be done. The gen rule, joinder of

causes of action is encouraged because this avoids

multiplicity of suits. Our rules of procedure demands

avoidance of mutilplcity od suits one of these ways is

allowing the joinder of the different causes of action.

Even though they may be inconsistent with one

another but there are limitations when joinder

should not be done, now you should know those

limitations. Next is the relief prayed for, the cause of

action must alleged the basis for the relief the

plaintiff will pray for. He cannot pray for a reliefwhich the law does not allow or pray for a relief

which the cause of action does not justify.

On the other hand the court cannot grant the

plaintiff a relief which he did not prayed for the court

so to speak cannot be more popish than the pope, so

if a litigant does not pray for the relief the court

cannot grant that. That is why you must have learned

in every pleading the last allegation there prays for

the court such other and further relief which the

court may consider to be just and equitable on the

premises. That is a general prayer to remedy the

possibility that some of the specific relief may be

overlooked by the pleader so much so that he cannot

recover the same or he may not be allowed to prove

the existence of the claim. And the signature on the

complaint this may be done by the counsel or the

plaintiff himself. Sec 3 of rule 7 gives you the legal

consequence of the signature of the lawyer on the

pleading and the signature of the litigant on hispleading. And you note under sec 3 that when a

lawyer who signs the pleading, by such signature he

certifies 3 things 1) that he had read the allegations in

the pleading and the same are true and correct 2)

that there is a good ground for a accepting it and 3)

that it is not interpose for delay.

These matters had been asked already in the

bar exams in Remedial Law. What are the

implications of the signature of the pleading he filed

in court? Sec3 Rule7 specifically mentions what they

are. For a lawyer its not as if he is signing an

autograph, every time he signs a pleading, his

signature certifies something, if it turns out to be

false, the lawyer may be subject to administrative

discipline because the lawyer who handles a case

thereby assumes the position of an officer of the

court, no court can function without the lawyers who

handles the case before the court, that is why the

moment they handle a case they are regarded asofficers of the court already subject to discipline by

the court. On the other hand if it was the client or the

litigant himself who signs the pleading it has the

same implication as a lawyers signature do not apply

to the signature because he is not an officer of the

court instead if there is anything false in what he had

alleged and attested to by his signature.

His_________ complaint may be stricken out of the

record for if the matter that is false or obnoxious is

only in certain allegations which may be stricken out

without affecting the whole complaint may be

directed as stricken out and this is also without

prejudice to a disciplinary action that may be taken

against the litigant if it would be found that there is

deliberate expression or evasion of fidelity to reveal

the truth to the court .

Or when the signature avoids the required

fidelity of the litigant to the court making known

what really it is for the court not to be misled q court

may discipline the litigant himself for trying to

mislead the court. Verification is required there are

some pleadings which the rules of court require to be


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verified how verification should be done you should

know the allegation of verification_______the

verification can only be done on 2 promises. Before a

verification based on information or based on belief

is still acceptable now no more because many can no

longer retract it , say something where as the other_____say true. So now verification can only be done

on the basis of personal knowledge or based on

authentic records these are the only bases of a valid

verification.

Verification must be known by you as a legal

form. Every verification carries with it an oath, the

oath is not the verification, the oath is the jurat to

attest to the truth of what is being verified, the

verification may be done by the counsel not

necessarily by the litigant. The verification is not

jurisdictional so although the pleading called for is to

require to be verified but the same was filed without

verification the court is not thereby authorized to

dismiss the pleading, the court may only direct the

amendment of the pleading to include the

verification thereof. It is only when the time, given to

the pleader to amend his complaint and put it under

verification had already lapsed and expired the

pleader has not make the necessary verification,implying that he does not want to obey what the

court is directing him to do and on this ground the

court may dismiss the complaint otherwise the failure

of the verification would not authorize the dismissal

of the case because this is not jurisdictional, it is only

required to give added assurance that what are

alleged are true.

Now after the required verification next to

come is the required certification of non-forumshopping. This is required in every complaint because

the certification is required in every initiatory

pleading. A certificate of no forum shopping

generally is not required in an answer by the

defendant simply because an answer is not an

initiatory pleading, the answer is sort of a response to

the complaint filed by the plaintiff however where

the defendant alleges in his answer a permissive

counter claim, by now you should know that a

permissive counter claim is in the nature of a distinct

or separate claim by the defendant against the

plaintiff. Not arising or connected with the

transaction or occurrence subject to plaintiffs cause

of action. So it is in the nature of an action or claim,

while the defendant is the plaintiff or the claimant

that is why if the answer of the defendant pleads a

permissive counter claim which in substance and in

legal standing is independent of the plaintiffs cause

of action, a certificate of non-forum shopping isrequired because of the permissive counter claim.

Now on this point you should take note of

this, the answer is required to contain a certificate of

non-forum shopping because of the permissive

counter claim without that there is no need to put

the answer under a certification of non-forum

shopping. So if the answer alleges a permissive

counter claim but if the defendant fails to place that

answer under a certificate of non-forum shopping,

that failure should only affect the permissive counter

claim not the entire answer because what requires

certification is the permissive counter claim. In a case

where this was happening SC made a statement that

the entire answer must be dismissed which is not

really correct because the moment the whole answer

is dismissed the defendant will be in default because

that meant no answer is filed whereas it is only the

permissive counter claim that will not be recognized

by the court because it is the only claim in the answerthat is initiatory the other allegations in the answer

are matters of defense it is not a claim. That

statement of the sc proceeds from the wordings of

the rules of court on the effect of absence of the

certificate of non-forum shopping where it is required

the rules on this in providing that it cannot be

corrected by amendment stated that the case shall

be dismissed and so the whole case for the defendant

is dismissed. Although that pronouncement does not

seemed to be correct because the rule requires that

the certification only in initiatory pleadings, it is a

response, it is only the permissive counter claim that

is foreign to the answer.

The judicial ruling on this invoved the ust

hospital raising this by a patient who filed damages

against the hospital by way of counter claim not

having any relation to the services rendered by the

hospital for the recovery of the amount he is seeking

to collect and the hospital raised this point that since

this is a claim for damages that has nothing to do

with the claim of the plaintiff the failure of the

defendant who is the claimant from placing his


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counter claim which is a permissive counter claim

under a certificate of non forum shopping calls for a

dismissal of the case and the sc said that under the

rules the case shall be dismissed. Which is a sweeping

consequence just because of the failure to state that

there is no forum shopping. I subscribed to thethinking that the ruling should be questioned

because considering the defendant be deprived of

the benefit of the answer whereas the summons

require him to answer the complaint and he is

answering that. What is not included in the answer

that is why the court ______permissive is the counter

claim it should be that which should be dismissed not

the entire pleading which alleges defenses. Defenses

to the plaintiffs claim. So be informed that this is

how the sc in a pronouncement only not really an

issue raised claim that the case there should be

dismissed because that is the wording of the rules.

But the wording of the rules were made by people

who were not really practitioners, it is simply an

opinion but common sense will tell you that it is

not________with the allegations in the answer which

is a response to what the plaintiff may alleged and

that is in respect only of permissive counter claim.

Now on this certification of non-forumshopping the case itself may be dismissed without

prejudiced or with prejudiced by now you must know

when we say that the dismissal is with prejudice it

means the pleader cannot refile his complaint again

but if the dismissal is without prejudice the pleader

can still refile his complaint only suffer the damage of

paying again the docket fee which he could have

avoided if when an amendment is allowed. But

because the rule say that it cannot be cured by

amendment and the rule speaks of dismissal without

prejudice then that means he would have to refile in

refilling he would have to pay again the docket fee.

Now generally you will see from the rules that the

dismissal is without prejudice but the same rule

makes a qualification unless the order of dismissal

states otherwise, now when will that be proper ? so

you give attention to that because when the

dismissal is with prejudice, the refilling of the case

will not be again entertained by the court. If thedismissal is with prejudice it will be tantamount to an

adjudication on the merits and therefore the rules

against res adjudicata will already bar the refilling of

the complaint in court.

Now also under the same rules the court may

find the litigant and the lawyer for indirect contempt

or even for a direct contempt. Now note when it is

only for indirect contempt and when it should be for

direct contempt. The 2 are different so you must

know when one is proper when the other is proper.

But the rules on this _______that failure to comply

with the required certificate of non-forum shopping

would bring about indirect contempt but here is also

in the same provision that if it is deliberate it will be a

direct contempt. These are the matters relative to

the cert of non forum shopping. On this

this__________ the statement of cause of action you

have to know the difference between right of action

and a cause of action. A right of action is conferred by

law all you have to do is to consult the and what the

law says this on the other hand as to the cause of

action the ground or the motion to dismiss is that the

complaint fails to state a cause of action it does not

say that the complaint or the plaintiff has no cause of

action instead it says it fails to state a cause of action.

Telling you that the cause of action is based on the

allegations in the complaint.

The litigant may really have a cause of action

against the defendant but if the allegations in his

complaint fails to comply to what the rules require to

bring about a cause of action then that complaint is

subject to a mtd on the ground that it fails to state a

cause of action. You have studied these special

____________ actions for forcible entry and actions

for unlawful detainer and you must have learned

already that in an action for forcible entry andallegations in the complaint of a demand by the

plaintiff upon the defendant to vacate the premises is

not necessary. But if it was an action for unlawful

entry a demand to vacate is necessary unless the

action for unlawful detainer is based on the ground

that the lease contract and the occupancy on the

premises has already expired. When it is so alleged

that the right of the defendant has already expired

then there is no need for a demand to vacate

because he knew that his right to continue occupying

the premises has already lapsed. So even without

demand there is a breach already. But on the other

hand if the demand to vacate the premises is based


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on the delayed payment of the rent you understand

in civil law, even though an obligation is already due

and the same has not been paid the obligor is not in

default unless there is a demand and he did not

comply with the demand. You have that provision in

civil law because he is not in default unless there is ademand made and he did not pay it on the date

stated in the demand. You have to correlate these

principles to understand because the definition of a

cause of action is the breach of the defendant of his

correlative obligation to respect the plaintiffs right.

So if under the law she had no breach that means

there is no cause of action in an action for unlawful

detainer the defendant acquires occupancy of the

premises in a lawful manner, so his occupancy

continues to be lawful unless he is already directed

by the plaintiff to vacate and he refuses to vacate he

becomes what we call a deforciant tenant but if he

has not received any demand and he continues

occupying in civil law there is even possibility that his

stay in the premises will be deemed impliedly

renewed.

On the other hand in an action for forcible

entry from the very beginning the defendant gained

occupancy of the premises illegally, so from thebeginning he possesses the premises unlawfully that

is why there is no need for a demand, demand is

necessary in an unlawful detainer except when the

right of the defendant to continue occupying had

already ended because of the termination or

expiration of the contract of lease. Otherwise his

lawful possession continues that is why law is

mandated there for a certain period of time there is

an implied renewal of the contract of occupancy.

Because it does not raise there become unlawful

since the defendant started renting the place

lawfully. So if you understand these mechanics

procedural law is in accord with substantive law but if

you have not considered this you may not

understand it why some demand to vacate is

necessary and others not necessary. But if you

understand the predicate of this conclusion you will

readily know why. These are anchored on substantive

law. This is procedure but the real basis is substantivelaw that why you should now the reason.

So if it was an action for unlawful detainer

the allegation of the cause of action does not state

that the plaintiff had already made a demand upon

the defendant to vacate the premises the complaint

still state a cause of action if there was a statement

that a demand to vacate was made but if there is no

statement that demand to vacate was made that the

defendant defied the requirement to vacate there isyet no cause of action. So we say that the complaint

fails to state a cause of action, it is subject to a mtd

on that ground. Now relative to this ground you must

have also learned the mtd that in determining

whether the complaint states a cause of action or not

the court is not allowed to look into other evidence

aliunde the only basis is the complaint itself so if

there was no allegation that the plaintiff made a

demand to vacate dismissed.

Because as far as cause of action is concerned

whether there is cause of action stated in the

plaintiffs complaint or not can only be determined

from what the complaint alleges. If there is no

allegation there that demand was made then there is

no argument there is no cause of action. The

plaintiffs complaint fails to state a cause of action

because the plaintiff failed to state that a demand to

vacate had already been made yet the defendant

defied the demand. A problem was given in the barwhere the action of the mtd filed was predicated on

the ground that plaintiffs complaint fails to state a

cause of action at the hearing the defendant gave

evidence to show that the plaintiff in fact made a

demand and the letters were brought before the

court. Would you deny or grant the mtd? On the

principle that on resolving these ground the court

cannot look into other evidences except in the

allegation in the complaint, then the court acted

erroneously in receiving evidence that the plaintiff

made a demand, the ground for dismissal say fails to

state a cause of action. So when you say a cause of

action that means you find this only on the face of

the complaint so thats the only issue there if there is

nothing appearing on the face of the complaint then

dismissed.

But since the error can be corrected by mere

amendment under rule 16 on mtd you have learned

that if the ground for a mtd may be corrected by

mere amendment the court should not dismiss, the

court should only order the pleader to amend

because that would bring about multiplicity of suits if


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the court dismiss the case and the plaintiff would

refile the case simply adding there that there was

demand to vacate made, so one principle yields to

another. If there is amendment there can be no

refilling. The multiplicity of suits as against public

policy will not be invoked. Sou you have more or lessand idea of what these are at this stage we are only

concerned of the filing of the complaint and these are

the ones involved. In the different rules under the

rules of court you can segregate this when locating

the particular provision there. The moment you take

the other provision there you are lost. Some matters

are not yet relevant at this stage.(big speech about

how confusing the rules im sticking to the real lecture

here )

The 2nd

stage is with the filing of the

complaint in court , these matters are covered by rule

13, on the rules of court . so far away already this

should be next to the filing of the complaint. Under

sec 1 of rule 13, all other pleadings subsequent to the

complaint must be served only the complaint is not

served by the pleader who files it in court, the reason

is obvious the complaint is served together with the

summons it is the sheriff who will serve this not the

plaintiff all that the plaintiff will do is file thecomplaint, in the filing of the complaint the same

maybe done personally by going to the office of the

clerk of court entering the complaint there. He will

file there as many copy of the complaints as there are

defendants plus 2 for the court and the record. The

party should also have a copy of the complaint. If

there 4 defs there should 7 copies all in all of the

complaints = 4 +2+1=7 copies.

The complaint may be filed throughregistered mail. The rules do not provide for the filing

of the case by ordinary mail because there is no way

of knowing when it is presented to the postal service

unlike a registered mail there is a registered receipt

and the rule is the date of mailing is the date of filing

but these should not be understood by you to be true

only if the correct amount of docket fee is included in

the mail at the time it was presented for postal

delivery. The mere mailing without the docket fee for

the filing of the complaint being included there is no

filing. Filing is complete only if the correct amount of

the docket fee is tendered together with the

complaint. You must have read here the case of

Manchester and sun assurance ltd these 2 cases tells

you without the correct amount of docket fee had

been paid the complaint is never filed.

Although the rule does not provide for the

filing of the complaint by ordinary mail, it does not

mean that if the complaint was filed by ordinary mail

the filing is not valid even filing the complaint by

ordinary mail will still be valid as long as the clerk of

court will receive that complaint and the docket fee

corresponding to that complaint, if the clerk of court

received the docket fee later than he received the

complaint because he received the complaint but the

money is not there so he called the lawyer this will

not be considered filed you have not enclosed here

the amount of the docket fee, it is only when the

correct amount of the docket fee was paid when that

complaint will be considered filed. So the rules that

once the complaint is filed by registered mail the date

of mail will be the date of filing you take this to mean

that the docket fee for the filing of that complaint

must also be mailed if it was not mailed, then the rule

that the date of mailing is the date of filing does not

stand. The complaint will only be considered filed

when the correct amount of docket fee was fully

paid. So if the mailing was done by registered mailthe amount of the supposed docket fee was also

mailed but the amount mailed was not correct, the

amount mailed is less than what is required under

the rules of legal fees its not a case even though

there is an amount mailed the date of mailing is not

the date of filing because the amount mailed is

insufficient

So if the coc called the lawyer and say that

the docket fee you have mailed is lacking you have tocomplete, so if it was still 5 days after coc received

the complaint before the amount is paid in full, the

deficiency , it is only when the deficiency is paid to

complete the correct amount of the docket fee will

that complaint be considered filed and in by that date

the complaint has already prescribed and even if the

correct amount of the docket fee that complaint is

reduced to a mere piece of paper because the cause

of action has already prescribed. It is only when the

deficiency was paid at the time when the cause of

action has not yet prescribed will the payment of the

deficiency be proper, does not follow that if the

deficiency was paid even though the cause of action


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has already prescribed, that that case will still be

validly filed. It is only when the correct amount of the

docket fee is fully paid that it is considered filed. That

there are some rules or principles you may encounter

in the commentaries before which a later

jurisprudence has been nullified orqualified????@not sure and you must take this in

the light of the clarification what you may have

learned before may no longer be correct.

In the next step after filing was done, correct

docket fee has been paid, the coc will prepare the

summons the litigant then will have to kept copies of

the complaint and the summons attach to the copies

to be served to the defendant and would _____to the

sheriffs office then we will again have to pay the

sheriffs fees if he does not pay that, if he does not

pay that the case there will not move (story of a

young lawyer in his office) it turned out he left the

complaint in the office of the coc and that will not

move, you file it there pay the amount, tell the court

to prepare the summons, have it attach but you have

to come back and get that, bring that to the sheriffs

office for it is not the coc who will serve that. It is the

sheriff. You have to go to the sheriffs office and pay

them the money that they need. You will have to paykilometrage fee. The more the defs. The more the

expenses, if they live in diff places.

Here you must have notice under rule 14 on

summons that substituted service of summons may

be made at the residential address of the defendant

or at the office or business address of the defendant

that if the substituted service of summons is to be

made in the res. Address of the defendant to be valid

the same must be tendered to a person of sufficientage and discretion who is residing there and the

brother of the defendant who was visiting the

defendant who happened to be out at that time the

sheriff came,asked about the defendant the brother

says he is also waiting for him, he had gone to

market, the sheriff then requested the brother since

he still have to serve so many summons, can you

please received this in his behalf and he said no

problem.he received the summons, is that service

of summons valid? Bear in mind that if summons was

not validly made, the court cannot proceed that is

part of due process, it is by the summons that the

defendant can be bound by the judgement that the

court will render, that is why it is said that the

summons id pivotal in enforcing the judgement

against the defendant. If the defendant has not been

served with summons in means that the court have

not acquired jurisdiction over his person, the court

then cannot render judgment that will prejudice thedefendant , because the defendant have not been

given, the benefit of due process.

The rule says that a person of sufficient age

and discretion residing in that house of the

defendant, this is when substituted service is to be

made at resident of the defendant at the time when

the defendant cannot be served in person with the

summons there, substituted service can be made or if

summons was to be served at the place of business

or office of the defendant, the rule requires that the

same must be served to a person of sufficient age

and discretion who is in charge of that office or place

of business. It is not a residence so it cannot be said

that he is residing there. So if the summons of the

complaint was there at the place where the

defendant holds office. Sheriff went there only the

security guard was there, the office is still close it will

open at 10 o clock, so the sheriff tendered the

summons and the complaint to the security guard,security guard signed for, will that be binding upon

the defendant ? these point I tell you is pivotal

because this will determine whether the service of

the summons would bind the defendant or not.

If the defendant would not be bound that

means that due process of law had not been fulfilled,

so as a consequence veryhitng done is null and void.

Because it is an constitutional infirmity no person

shall be deprived of his life property without dueprocess of law. Judgment cannot be valid in the civil

action because that is a violation of constitutional

protection. You must know all of these as a future

lawyer. Substituted service may be done at the

resident of the defendant or at his place of business

of the defendant, why 2? Does that mean that the

sheriff will go to the residence and if he is not there

he will then go to the office? Precisely you have

studied preparation of the complaint and in the

jurisdictional allegation in the complaint, the plaintiff

state there the address, where the defendant may be

served with summons, you will recall that this is

required in the complaint , the jurisdictional


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allegation of the complaint state the _______of the

plaintiff , then the personality of the defendant

stating there the address where the defendant may

be served with summon, coc then prepares the

summons according to that address,

so if the address given is the address of the

defendant, the substituted service will be at the

residence of the defendant but if the address stated

by the plaintiff In the complaint is the place of

business or office of the defendant then the address

that will be stated there where summons will be

served would be the place of business or office of the

defendant and if it turned that out at the time that

the defendant was not there then substituted service

will be to the person of sufficient age and discretion

in charge of his office or place or business not

anybody should it be served at anybody null and void.

Judgment will not be binding on him unless it appears

subsequently that he actually received the summons.

Read the rules before the commentaries.

June 20 part 3

The next step that we will encounter is that

ofserving the defendant with summons it is by this

process that the court will acquire jurisdiction over

the person of the defendant, as to the person of the

plaintiff the court acquires jurisdiction over the

person of the plaintiff upon the filing of the

complaint in court. The court may acquire

jurisdiction over the defendant without the

summons, if the defendant by any act which would

imply that it is recognizing the authority of the court

to proceed over him and he submits to the

jurisdiction of the courts if for example the

defendant was to travel to a foreign country, he

learned that a case was filed against him, before he

would file a motion for extension of time, he simply

filed a motion for the court to allow him certain

period when he comes back to answer whatever may

be the complaint he does not wait for summons to be

served upon him. By filing he thereby in effect he

impliedly accepted the court authority to act on the

case filed against him. So in effect he submits to thejurisdiction of the court because he did not file a

Motion to Dismiss because what he filed is just a

motion asking for time to file his answer.

If on the other hand the defendant files a

motion on the ground that summons was not

properly served, filing of that motion will not imply

that he is submitting to the jurisdiction of the courts,

precisely he is questioning the jurisdiction of the

court through improper service of summons it is onlythat move on the part of the defendant impliedly

accepting the authority of the court to act on the

case against him and he submitted to that jurisdiction

that will amount to recognition that the court can

proceed against him that will be tantamount to a

service of summons. But if he was filing a motion to

dismiss on the ground that summons was not

properly served that will not amount to an

acceptance of the authority of the court to proceed

with the case against him although there are these 3

ways of serving summons upon the defendant.

You must have learned service in person to

the defendant is to be preferred, the other modes of

services will only be valid if non service in person to

the defendant is justifiable, so even if summons was

served by substituted service according to the rules

or by publication if there is no sufficient excuse for

not serving the defendant in person, service of

summons will not be binding on the defendant unlessthe defendant out of that service will comply with the

summons. Summons direct him to file his answer

within 15 days, so if he files his answer he cannot

challenge anymore the defects or irregularities in the

service of the summons.

In a case where the sheriff came to the

house of the defendant to serve summons nobody

was there except an elderly woman who was the

caretaker of the house of the defendant, thedefendant who was a married man was revealed by

the caretaker to be somewhere in Bicol, the wife as

disclosed by the same caretaker was somewhere in

the U.S. The sheriff who simply had served the

summons to the caretaker who signed and did not

even require the caretaker to write her name in a

legible way that could be read in the _____ of the

signature and there is no statement as to what she is

in the house, __________stating there that the

defendant husband and the defendant wife is

somewhere abroad. The defendant did not answer so

they were declared in default, judgment by default

was eventually rendered by the trial court and that


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the defendant learned that there was already a

judgment against them when the sheriff came to

their place and levy on their property they then went

to the high court to question the validity of the

judgment and its execution. The court said that the

substituted service can only be valid if when servicein person cannot be possibly made and the

impossibility of serving summons in person cannot be

done within a reasonable time. Now in this case

specifically the S.C. noted the sheriff did not

performed his duty regularly simply had somebody in

the house of the defendant affixed her signature

because the summons in the complaint was tendered

to her, as to who she is in relation to the defendant

the summons does not disclose. So the requirement

that it be served to a person of sufficient age and

discretion for ______________has not been disclosed

from the service of the summons, the name of the

old lady who received the summons is not even

indicated there only a signature which is not legible.

The court also called attention to the fact

that the sheriff did not inquire when the husband

who was in Bicol would be returning. There is no

showing that the absence of the defendant at his

residence would involve an unreasonable length oftime that summons has to be served in a substituted

manner. The propriety of serving summons in a

_________must be established and this court called

attention to the proof of service of summons which is

a _________step to complete compliance with due

process of law. Proof of service it is not enough that

you serve it in the manner that is stated, proof of

service in the proper way must be complied with. The

importance of service of summons as the pivotal

point when the court can render judgment binding

upon the defendant, if it is not shown that the court

can render judgment binding on the defendant, it will

be the court that will be in error in rendering

judgment without verifying that the judgment can

stand.

Bear in mind that it is at this stage where that

the validity of everything that will follow against the

defendant depends because if the summons was not

served in the way that would fulfil what is expected

in due process of law giving him a chance to protect

his property, the service would only be a mechanical

way and does not fulfil for which the summons is

required and in a manner for which it is to served.

The high court also noted the fact that the sheriff did

not asked when the wife would be returning to what

part in the U.S. she has gone because if she would be

returning on the same day the high court intimated

that the sheriff should come back the next day andserved her the summons. It is not enough that

because you were not there summons will be served

to anyone who is of sufficient age and discretion and

who is residing there.

So understand the sequence in which this

manner of serving summons as presented in the rules

of court they are not really in their chronological

order. It involves exhaustion of each of these,

exhaust first the availability of serving summons in

person to the defendant , it must be that there is no

certainty on when the defendant will return in that it

is not known whether he could still be served with

summons in person within a reasonable time, that it

is not known when he will be returning then that

would render the service of summons in the

substituted manner without any basis because the

basis of serving summons in the substituted manner

in that service in person cannot be done within a

reasonable time this cannot be done in jurisprudencelaid down by the high court it is equivalent to it is

impossible to be done within a reasonable time, not

really a delay in the time, the possibility of serving it

within a reasonable time that is why the high court

was keen about the sheriff taking note when he will

return what part of Bicol he was because if he would

return on the next day, the high court he could be

served on the next day. Earnest effort should be

exhausted to serve him summons in person. It does

not mean that the court serving him summons in

person cannot be done at the moment he can already

resort to the substituted manner. It must be borne in

mind that proof of service requires the sheriff still to

comply with what he should comply with in serving

the summons in a substituted manner. This is the

tenor of jurisprudence regarding substituted service

do not take it in the spirit of making it just because

the defendant cannot be served in person. It must be

shown that the sheriff would exhaust effort to servethe defendant in person but the defendant cannot be

served in that manner and it would be a reasonable

time cannot do it to serve him in person.


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As to the substituted if it will be served in the

residence of the defendant the person to whom the

substituted service is to be done must be of sufficient

age and discretion and he must be residing there, if

there is no such indication that the person to whom

the substituted service was effected was residingthere the service in that manner is not valid. And

therefore the judgment by the court rendered

against the defendant because the defendant did not

file any answer will be correspondingly null and void.

Understand that it is by this stage that the court

acquire jurisdiction over the defendant that the

judgment rendered against the defendant will be

legally valid against him and not just a denial of due

process of law. It will be tantamount to denying the

defendant of his right of property without complying

with the due process clause of the constitution.

Now serving the defendant with summons

through publication, there are 5 instances of this

stated in the rules of court Know this, because in any

other situation outside of the 5 instances referred to

serving summons by publication is not valid. It is vaild

only if the service was made in that situation which

the rules allow publication. If the rules do not allow

publication, serving summons by publication wouldbe useless, the nagging question here is whether

service of summons by publication in an action In

Personam is binding upon the defendant , now you

should understand what is an action In Personam,

differentiated from an action In Rem or Quasi In Rem

and whether it is equivalent to a real action or a

personal action thats why it is called In personam,

whether an action is a personal action or a real action

depends on the subject matter involved. If the action

involved previously of real property title to, or

ownership of real property or interest therein it is

regarded as a real action. If the action in respect of

privity of contract for damages arising from contract

it is a personal action.

This classification of action is relevant as to

the venue of the action, the real action must be filed

at the place where the real property or the greater

potion thereof Is situated whereas a personal action

must be filed at the option of the plaintiff, where the

defendant resides or where he the plaintiff resides. It

is relevant to the matter of venue on the other hand

classification of action as In Personam or In Rem or

Quasi-In Rem does not relate to the subject matter

involved in the action, it may be a real action like an

action to recover real property but that is still a

personal action not an action in personam, not an

action In rem. Classifying an action as In Personam, In

Rem or Quasi In Rem refers to the binding effect ofthe judgment that may be rendered in the action.

If the binding effect of the judgment against

anyone who may be minded to raise a claim against

the one rendered in the judgment, then it is an action

in rem. The judgment is binding against anyone who

may be minded to raise claim contrary to what the

judgment had disposed of, so we say in a judgment in

rem the effect is against the whole world. It is a

judgment in personam when the binding effect of the

judgment is always on the person or party against

whom the judgment was rendered and those who are

privy to him, so it has no binding effect to all others

who are not parties to the action or successors to the

parties to the action. It is a judgment quasi-in rem

when the action is directed to a particular party but

the binding effect of the judgment may be satisfied

on property involved in the action so it is called quasi-

in rem. Now since an action in personam is binding

on whoever would be minded to raise a claim againstthat adjudged or disposed of in the action. The

judgment is binding so to speak on the whole world

that is why serving summons by publication is

authorized.

Likewise although the judgment may be

binding upon the defendant and those privies to him

if there was property against which the judgment

may be satisfied then it is a judgment quasi in rem,

either the parties against whom the judgment wasrendered or the property involved against which the

judgment must be satisfied will be enforced to satisfy

the judgment so publication is allowed because this is

not merely against the person or persons involved in

the action. So a judgment in rem and quasi in rem

serving summons by publication is generally valid. As

to the judgment in an action in personam the

common belief is that serving summons by

publication is not valid because the defendant can be

bound by the judgment only because of his

relationship to the contract or claim subject of the

action however under rule 40 on service of summons,

you have there a situation where summons by


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publication may be done among others when the

defendant is a resident of the Philippines but

temporarily out of the country.

Analyse the situation Philippine courts have

jurisdiction over him because he is a resident of the

Philippines only he is temporarily out but he is in fact

a resident of the Philippines who is considered but at

the moment summons is to be serve he is out , the

fact that he is still under the jurisdiction of the

Philippine courts cannot be denied because he is a

resident of the Philippines, being out of the country is

only temporary. So even though the subject matter of

the action would render the action in personam

because it relates to privity of contracts for damages,

the Philippine courts have jurisdiction over him. So

whether summons should be served by publication or

otherwise, the Philippine courts have jurisdiction

over it, this is an exception where the action may be

in personam but serving summons by publication is

allowed because of the express provision of the rule

on that particular situation.

It is there which had been added not in this

provision but in the previous provision of the rules

that the subject matter of the action may be in

personam but the defendant is nevertheless a

resident of the Philippines so Philippine courts have

jurisdiction over him that is why under that situation

summons may be serve by substituted service or by

publication. When the defendant is a resident of the

Philippines but temporarily out of the Philippines so

he Is still within reach by Philippine courts. Judicial

processes of Philippine courts will still be binding on

him . That is why even though the action may be in

personam the fact that Philippine courts hasjurisdiction over him render the service of summons

immaterial whether by publication or substituted

service. So you correct whatever impression may be

created in you by that saying that when the rules of

court then was different from what the rules of court

now provides.

Now more than this, under sec 16 of rule 14

you have there extra territorial service of summons,

not extra judicial but extra territorial, serving

summons outside of Philippine territory. Now Youll

notice here that summons may be served in person

even outside of Philippine jurisdiction if the court

where the action is filed intended had given leave of

court or permission to serve summons by publication

or personally and you will notice that there wil be

first a hearing

to determine with certainty that the person who will

be deputized to serve the summons can really serve

the summons in person to the defendant. If the court

is convinced that the person to be deputized to serve

the summons can really serve the defendant in

person the summons, the court may authorize

serving him in person. Now you notice added in that

provision, under these provision of the rules any

other way that the court may deem sufficient. This is

rather vague,it does not refer to particular manner of

serving summons, it depends on what the court will

consider as sufficient to serve the defendant with

summons.

Serving of summons by publication require

that the summons will be published in the newspaper

of general circulation so that the possibility of the

defendant being able to read that summons is great

for it is in a newspaper of gen circulation. In the

problem given in the bar exams on this summons was

served in a newspaper known as Dibidendado and

this dibidendao publishes the racing program in the

race track stating there the name of the horses,

jockeys. The question is can it be regarded as a

newspaper of gen circulation when it only appeal to

the race aficionados. That was the thrust of the bar

problem but because of the new provision there that

was surreptitiously added, the court regarded that it

is sufficient because the defendant is one, a racing

aficionado reading the dibidendao. Because it it is

now added there, you underscore that because that

appeared there only in the revised rules. It was nothere before the court is given the discretion to

consider that the defendant was sufficiently served

with summons and therefore there is already enough

compliance with the requirement of due process of

law that he will then be bound by the judgment that

the court will render. Authorizes that the defendant

has been properly served with summons, the court

acquires jurisdiction over him.

So the court can just explain why and in that

manner the court can already proceed with the trial

of the case and and dispose of the matter before him.

This has been an improvement of the rules because

there are defendants who really try to evade judicial


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processed so they cannot be bound by the judgment

that the court may render. But it is dangerous

because corrupt judges may capitalize on that,

pronounced that the defendant has been sufficiently

been served with summons there is compliance with

the requirement of due process because of this andunless there is substantial evidence to support the

observation of the court the possibility that the court

will make comments there which are not really

correct. By the way it is stated there are remedies

available to the defendant in the event that he could

show that he had not been bound by the summons.

The wording under there is so simple that it could

really be abused it is there but it was not there

before so you take note of that

While the court itself can consider that the

defendant has been sufficiently served with

summons even though it was not served in the

manner stated under the rules that would already

authorize the court to render a valid judgment

against the defendant because that meant that the

court had already acquired jurisdiction over the

defendant. Now this had been considered necessary

to expedite litigation because many defendants

managed somehow to avoid the effect of terminatingthe case by avoiding or evading summons so that the

court cannot acquire jurisdiction over his person and

correspondingly the court cannot render a valid

judgment against him to bring an end to the litigation

that is long pending a court is authorized to consider

that the defendant had been properly served

otherwise the defendant may be continuously

questioning, the manner by which he had been

served with summons.

Now on a different manner of serving

summons, you give attention to this extra-territorial

service the instances mentioned there affecting the

civil status of the plaintiff which is a proceeding in

rem. Now you must have notice that when the action

involved a proceeding in rem, publication of the

proceeding is always necessary and that is precisely

to show that there was compliance with the

constitutional requirement of due process of law the

defendant have been properly notified through the

dissemination of the notice to him made in the

_________this will lead to expedite the disposition of

the action but it may also bring about corruption

specially where the amount involved is a huge

amount it has already reached millions the court may

be already look into retirement he may or may not

care if he would judge it in a manner not in accord

with due process ( big rhetoric about

corruption etc)

Now after the defendant has been served

with summons the defendant must react to the

summons the service of the summons render him

bound by the proceedings in court and if the

summons require him to file an answer within 15

days he must do so or he must at least request that

he must be given further time to answer so this will

bring you to a situation where the defendant may

avail of the different option available to him under

the rules of court. You may think that the only option

for him to take is to file an answer that is not correct.

Under the rules of civil procedure the defendant is

allowed different options depending on the necessity

that he has to comply with in the circumstance when

he was served with summons. So after the issuance

and service of summons will come the defendants

duty to react or respond to the summons otherwise

he will be declared in default.

You give attention to the service of summons

to a juridical entity particularly corporations the

revised rules states the persons who may be validly

served with summons for a corporation there is

already a ruling that the persons who are mentioned

there can only be validly binding on the corporation if

it was served in that order also. If the President is

around serving summons on the General Manager

will not be valid, or if the General Manager is around

serving summons to the Treasurer will not be valid. Inother words when the provision of the rules specify

who are the officers on whom summons may be

served in behalf of the juridical entity this does not

mean that any of them can just be served with

summons. The summons must be served in that

successive order also.

On one who is insane you will notice that

service of the summons to the insane is also required

even though he may not be able to understand what

it is, but in the service of summons to a prisoner, the

prisoner is not served with summons it is the Supt. Or

supervisor of the institution to whom the summons is

to be served. This is reflective of the attitude that we


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follow under the Spanish system that prisoner are

chattels of the govt that is why tinkering with a

prisoner is a crime. They are not really regarded as

free per

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Transcribed Ortega CivPro and Crimpro (Incomplete)