REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
CIVIL PROCEDURE REVIEWER
AARON LANCE C. MORILLO
2B Civil Procedure (LPU College of Law)
I.
General Principles
Q: Distinguish substantive law from procedural
law:
A: A substantive law creates, defines or regulates
rights concerning life, liberty or property, or the
powers of agencies or instrumentalities for the
administration of public affairs, whereas rules of
procedure are provisions prescribing the method
by which substantive rights may be enforced in
courts of justice. (Primicias vs. Ocampo, GR no. L6120, June 30, 1953)
Q: What is the Constitutional Basis of the
Supreme Court to make its own rules?
A: The Supreme Court have the power to
promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission
to the practice of law, the integrated bar, and legal
assistance to the underprivileged. (Sec. 5(5), Art.
VIII, 1987 Constitution)
Q: What are the limitations on the rule-making
power of the Supreme Court?
A:
1. The rule shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases;
2. The rules shall be uniform for courts of the
same grade; and
3. The rules shall not diminish, increase, or
modify substantive rights. (Sec. 5(5), Art.
VIII, 1987 Constitution)
Q: What is the power of the Supreme Court to
amend and suspend procedural rules?
A: The Supreme Court has the power to amend,
repeal or even establish new rules for a more
simplified and inexpensive process, and the
speedy disposition of cases. (Neypes vs. CA 469
SCRA 633). The rule-making power of the SC was
expanded. This Court for the first time was given
the power to promulgate rules concerning the
protection and enforcement of constitutional rights.
The Court was also granted for the first time the
power to disapprove rules of procedure of special
courts and quasi-judicial bodies. (Echegaray vs.
Secretary of Justice, GR no. 13260, January
19,1999)
Q: What is the nature of the Philippine Courts?
A: Philippine courts are courts of both law and
equity. Therefore, both legal and equitable
jurisdiction is dispensed with in the same tribunal.
(US vs. Tamparong, 31 Phil. 321). As a rule, when
supported by substantial evidence, the findings of
the CA are conclusive and binding on the parties
and are not reviewable by the SC. However, there
are times when the SC finds the need to reevaluate and re-examine the factual findings of the
CA, as when the same contradict the findings of a
lower tribunal. When the SC makes such
reevaluation, it does so in the exercise of its equity
jurisdiction. (Torres vs. Rural Bank of San Juan,
693 SCRA 357, March 12, 2013)
Q: What is the meaning of a court?
A: A court is an organ of government belonging to
the judicial department the function of which is the
application of the laws to controversies brought
before it as well as the public administration of
justice. (Black’s Law Dictionary)
Q: Distinguish court from a judge:
A: A court is an organ of the government with a
personality separate and distinct from the person
or judge who sits on it. (People vs. Carlos, 78 Phil.
535)
Q: Distinguish: Courts of Original, Appellate,
General and Special Jurisdiction.
A:
Courts of Original
Jurisdiction
When actions or
proceedings are
originally filed with it.
Courts of Appellate
Jurisdiction
When the court has the
power of review over
the decisions or orders
of a lower court.
Courts of General
Jurisdiction
Courts of Special
Jurisdiction
Those courts with
competence to decide
on their own
jurisdiction and take
cognizance of all cases
of a particular nature.
Those courts with has
special jurisdiction only
for a particular
purpose or are clothed
with special powers for
the performance of
specified duties
beyond which they
have no authority of
any kind.
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Q: Distinguish Constitutional and statutory
courts.
A: A constitutional court is one created by a direct
constitutional provision such as the Supreme
Court. On the other hand, A statutory court is one
created by a law other than the constitution such
as the RTC, MTCs, Sandiganbayan, and Court of
Appeals. (See Sec. 1, Art. VIII, 1987 Constitution;
BP blg. 129)
Q: What is the Principle of Judicial Hierarchy?
A: General Rule: A case must be filed before the
lowest court possible having the appropriate jurisdiction,
except if one can advance a special reason which would
allow a party a direct resort to a higher court. (Riano, Civil
Procedure, Vol. I, The Bar Lectures Series, p. 57).
Exceptions: (a) When there are special and important
reasons clearly stated in the petition; (b) When dictated by
public welfare and the advancement of public policy; (c)
When demanded by the broader interest of justice; (d)
When the challenged orders were patent nullities; or (e)
When
analogous
exceptional
and
compelling
circumstances called for and justified the immediate
and direct handling by the Court. (Republic vs.
Caguioa, 691 SCRA 306, February 20, 2013)
Q: What is the Doctrine of non-interference or
judicial stability?
A: It holds that courts of equal and coordinate
jurisdiction cannot interfere with each other’s
orders. (Lapu-Lapu Development and Housing
Corp. vs. Group Management Corp., 388 SCRA
493). The Doctrine of Non-interference is with equal
force to administrative bodies. When the law
provides for an appeal from the decision of an
administrative body to the SC or CA, it means that
such body is co-equal with the RTC in terms of
rank and stature, and logically beyond the control
of the latter. (Philippine Sinter Corporation vs.
Cagayan Electric Power and Light Co., Inc., 381
SCRA 582)
II.
Q: Distinguish: Original, Appellate, General,
Special, Exclusive and Concurrent Jurisdiction.
A:
Jurisdiction to take
cognizance of a case
at its inception, try it
and pass judgment
upon the law and
General Jurisdiction
Special Jurisdiction
Jurisdiction to decide
on their own and take
cognizance of all cases
of a particular cases.
Jurisdiction is one with
a particular purpose or
clothed with special
powers for the
performance of
specified duties
beyond which they
have no authority of
any kind.
Exclusive Jurisdiction
Concurrent
Jurisdiction
The idea of coexistence and refers to
jurisdiction possessed
to the exclusion of
others.
The power of different
courts to take
cognizance of the
same subject matter.
Q: What is the Doctrine of Hierarchy of courts
and continuity of jurisdiction?
A: General Rule: A case must be filed before the
lowest court possible having the appropriate jurisdiction,
except if one can advance a special reason which would
allow a party a direct resort to a higher court. (Riano, Civil
Procedure, Vol. I, The Bar Lectures Series, p. 57).
Exceptions: (a) When there are special and important
reasons clearly stated in the petition; (b) When dictated by
public welfare and the advancement of public policy; (c)
When demanded by the broader interest of justice; (d)
When the challenged orders were patent nullities; or (e)
When
analogous
exceptional
and
compelling
circumstances called for and justified the immediate
and direct handling by the Court. (Republic vs.
Caguioa, 691 SCRA 306, February 20, 2013)
Aspects of Jurisdiction:
a. Jurisdiction over the subject matter;
b. Jurisdiction over the parties;
c. Jurisdiction over the issues of the case; and
d. Jurisdiction over the res or thing involved in the
litigation (Boston Equity Resources, Inc. vs. CA,
GR no. 173946, June 19, 2013)
Jurisdiction
Original Jurisdiction
facts.
JURISDICTION:
MEANING
HOW ACQUIRED
OR CONFERRED?
Appellate Jurisdiction
Jurisdiction or the
power to review over a
decisions or orders of
a lower court.
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Over the Subject
Matter
The power or
authority to
hear and
determine
cases of the
general class
to which the
proceeding
in question
belongs.
This is conferred
by law which may
be either the
Constitution or a
statute.
Over the Person
The power of
the court to
render a
personal
judgment
against a
party to an
action or
proceeding.
It is also the
power which
a court has
over the
defendant’s
person which
is required
before a
court can
enter a
personal
judgment.
If over the
plaintiff, it is
acquired by his or
her filing of the
complaint or
petition. (Davao
Light vs. CA, 204
SCRA 343)
If over the
defendant in civil
cases, it is
acquired by his
voluntary
appearance in
court or by
service of
summons.
The power of
the court to
try and
decide the
issues raised
in the
pleadings of
the parties.
This is conferred
and determined
by the allegations
in the pleadings
of the parties, or
during pre-trials,
or by waiver or
failure to object
to the
presentation of
evidence on a
matter not raised
in the pleadings.
Over the Issue
Over the Res
Refers to the
court’s
jurisdiction
over the
thing or the
property
which is the
subject of
the action.
By placing the
property or thing
under the
custody of the
court of
constructive
seizure.
Source: Riano (2014), Civil Procedure Volume 1 (The Bar
Lecture Series))
Q: Distinguish jurisdiction from exercise of
jurisdiction.
A: Jurisdiction refers to the authority to decide a
case, not the orders or the decision rendered
therein. Accordingly, where a court has jurisdiction
over the person and the subject matter, the
decision on all questions arising from the case is
but an exercise of such jurisdiction. (Platinum
Tours and Travel, Inc. vs. Panlilio, GR no. 133365,
September 16, 2003)
Q:
Distinguish:
Doctrine
of
primary
administrative jurisdiction and Doctrine of
exhaustion of administrative remedies.
A: Courts cannot and will not resolve a controversy
involving a question within the jurisdiction of an
administrative tribunal, especially when the
question demands the sound exercise of
administrative
discretion
requiring
special
knowledge, experience and services of the
administrative tribunal to determine technical and
intricate matters of fact. The court cannot arrogate
unto itself the authority to resolve a controversy,
the jurisdiction of which is initially lodged with the
administrative body of special competence. (BF
Homes, Inc vs. Manila Electric Company, 636
SCRA 495)
Q: What is the doctrine of adherence of
jurisdiction?
A: This doctrine means that once jurisdiction has
attached, it cannot be ousted by subsequent
happenings or events, although of a character
which would have prevented jurisdiction from
attaching in the first instance. The court, once
jurisdiction has been acquired, retains that
jurisdiction until it finally disposes of the case. (San
Miguel Corporation vs. Sandiganbayan, GR no.
104637038, September 14, 2000)
Q: Distinguish: Error of jurisdiction and error of
judgment.
A: An “error of judgment” is one which the court
may commit in the exercise of its jurisdiction, and
which error is reviewable only by an appeal. On the
other hand, an “error of jurisdiction” is one where
the act complained of was issued by the court,
officer or a quasi-judicial body without or in excess
of jurisdiction or with grave abuse of discretion
which is tantamount to lack or in excess of
jurisdiction. This error is correctible only by the
extraordinary writ of certiorari. (Donato vs. CA, GR
no. 129638, December 8, 2003)
Q: Distinguish: Jurisdiction and Venue.
A:
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
JURISDICTION
VENUE
The authority to hear
and determine a case;
The place where
the case is to be
heard or tried;
This is a matter of
substantive law
This is a matter of
procedural law
Establishes a relation
between the court
and the subject
matter
Establishes a
relation between
plaintiff and
defendant (or
petitioner and
respondent);
Fixed by law and
cannot be conferred
by the parties.
May be conferred
by the act or
agreement of the
parties.
Cannot be waived
May be waived
The court may
dismiss an action
motu proprio in case
of lack of jurisdiction
over the subject
matter.
The court may not
dismiss an action
motu proprio
because of
improper venue.
Sources: Nocum vs. PDI (GR no. 145022, Sept. 23,
2005); Hiers of Lopez vs. De Castro (324 SCRA
591); Rudolf Lietz Holdings, inc. vs. Registry of
Deeds (344 SCRA 680)
Q: How jurisdiction is determined?
A: Jurisdiction of the court to hear and decide a
case is conferred by the law in force at the time of
the institution of the action, unless such statute
provides for a retroactive application thereof.
(Dayap vs. Sendiong, GR no. 177960, January 29,
2009)
III.
Civil Procedure
A.
Actions:
Q: What is the meaning of ordinary civil actions?
A: An ordinary civil actions is one by which a A
party sues another for the enforcement or
protection of a right, or the prevention or redress of
a wrong. (Sec. 3(a), Rule 1, ROC)
Q: What is the meaning of special civil actions?
A: There are certain rules that are applicable only to
specific civil actions. The fact that an action is
subject to certain special rules, other than those
applicable to ordinary civil actions, is what makes a
civil action special.
Q: What is the meaning of criminal actions?
A: A criminal action is One which the State
prosecutes a person for an act or omission
punishable by law. (Sec. 3(b), Rule 1, ROC)
Q: Distinguish: Civil actions and Special
proceedings.
A: A civil actions is one by which a A party sues
another for the enforcement or protection of a right,
or the prevention or redress of a wrong. On the
other hand, a special proceeding is a remedy by
which a party seeks to establish a status, a right, or
a particular fact. (Sec. 3, Rule 1, ROC)
Q: What are personal and real actions?
A: An action in real when it affects title to or
possession of real property, or an interest therein
while all other actions are personal actions. (Secs.
1-2, Rule 4, ROC)
Q: Distinguish: Actions in rem, in personam and
quasi in rem.
A: An action in personam is lodged against a
person based on personal liability; An action in
rem is directed against the thing itself instead of
the person; while an action quasi in rem, names a
person as defendant, but its object is to to subject
that Person’s interest in a property to a
corresponding lien or obligation. (Lucas vs. Lucas,
650 SCRA 667)
B.
Cause of Actions:
Q: What is the meaning of a cause of action?
A: It is the act or omission by which a party violates
the rights of another. (Sec. 2, Rule 2)
Q: Distinguish: Right of action and Cause of
Action.
A: A right of action refers to the right od the plaintiff
to bring an action and to prosecute that action to
final judgment. (Marquez vs. Varela, 92 Phil. 373).
On the other hand, a Cause of action is the act or
omission by which a party violates the rights of
another. (Sec. 2, Rule 2, ROC)
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Q: Distinguish: Failure to state a cause of action
and Lack of cause of action.
A:
FAILURE TO STATE
A CAUSE OF
ACTION:
LACK OF A CAUSE
OF ACTION:
An insufficiency in the
allegations in the
complaint.
Refers to the failure
to prove or establish
by evidence that one
has a cause of
action.
Ground for dismissal
Not ground for
dismissal
Q: What is the test of the sufficiency of a cause
of action?
A: The test is whether or not admitting the facts
alleged, the court could render a valid verdict in
accordance with the prayer in the complaint.
(Misamis Occidental II Cooperative vs. David, 468
SCRA 63). A complaint is said to assert a sufficient
cause of action if, admitting what appears solely on
its face to be correct, the plaintiff would be entitled
to the relief prayed for.
Q: What is the effect of splitting a single cause
of action?
A: Splitting a single cause of action is It is the act
of instituting two or more suits on the basis of the
same cause of action. (Sec. 4, Rule 2, ROC). In
splitting a cause of action, the pleader divides a
single cause of action, claim or demand into two or
more parts and brings a suit for one of such parts
with the intent to reserve the rest for another
separate action. (Quadra vs. CA, 497 SCRA 221).
The filing of one or a judgment upon the merits in
any one is available as a ground for the dismissal of
the others”.
Q: What is the difference between a joinder and
misjoinder of causes of action?
A: A misjoinder of causes of action is not a ground
of dismissal of an action. A misjoined cause of
action may, on motion of a party or on the initiative
of the court, be severed and proceeded with
separately. (Sec. 6, Rule 2, ROC). On the other
hand, A party may in one pleading assert, in the
alternative or otherwise, as many causes of action
as he may have against an opposing party, subject
to the following conditions:
1.
2.
3.
4.
The party joining the causes of action shall
comply with the rules on joinder of parties;
The joinder shall not include special civil
actions or actions governed by special
rules;
Where the causes of action are between
the same parties but pertain to different
venues or jurisdictions, the joinder may be
allowed in the RTC provided one of the
causes of action falls within the
jurisdiction of said court and the venue
lies therein; and
Where the claims in all the causes of
action are principally for recovery of
money, the aggregate amount claimed
shall be the test of jurisdiction. (Sec. 5,
Rule 2, ROC)
C. Parties to Civil Actions:
Q: What is a Real Party in Interest?
A: The party who stands to be benefited or injured
by the judgment in the suit; or the party entitled to
the avails of the suit. (Sec. 2, Rule 1)
Q: Distinguish:
Necessary party.
A:
indispensable
party
INDISPENSABLE
PARTIES
NECESSARY
PARTIES
Must be joined under
any and all conditions;
Presence not
mandatory because
his interest is
separable
There can be no final
decree without joining
an indispensable party;
There can be final
decree even without
a necessary party;
and
Source: Borlasa vs. Polistico, 47 Phil. 345; Chua
vs. Torres, 468 SCRA 358
Q: Who can be representatives as parties?
A: Where the action is allowed to be prosecuted or
defended by a representative or someone acting in
a fiduciary capacity (like a trustee of an express
trust, a guardian, an executor or administrator, or a
party authorized by law), the beneficiary shall be
included in the title of the case and shall be
deemed to be the real party in interest. Likewise,
an agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued
without joining the principal except when the
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
contract involves things belonging to the principal.
(Sec. 3, Rule 3)
Q: Who are Indigent Parties?
A: A party may be authorized to litigate as an
indigent if the court is satisfied that the party is one
who has no money or property sufficient and
available for food, shelter and basic necessities for
himself and his family. If one is authorized to litigate
as an indigent, such authority shall include an
exemption from the payment of docket fees, other
lawful fees; and transcripts of stenographic notes,
which the court may order to be furnished him.
However, the amount of the docket and other
lawful fees, which the indigent was exempted from
paying, shall be lien on the judgment in the case
favorable to the indigent. A lienon the judgment
shall not arise if the court provides otherwise. (Sec.
21, Rule 3)
Q: What is the rule on Compulsory and
Permissive joinder of parties?
A: Generally, a joinder of parties is permissive
(under Sec. 6, Rule 3). However, the joinder of a
party become compulsory when the one involved is
an indispensable party. (Sec. 7, Rule 3; Crisologo
vs. JEWN Agro-Industrial Corporation, GR no.
196894, March 3, 2014). The joinder of
indispensable parties is mandatory and courts
cannot proceed without their presence (De Castro
vs. CA, 384 SCRA 607)
A: When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known. In
the answer of such defendant, the name and
addresses of the persons composing said entity
must all be revealed. (Sec. 15, Rule 3)
Q: What is the rule on Alternative Defendants?
A: Where the plaintiff is uncertain against who of
several persons he is entitled to relief, he may join
any or all of them as defendants in the alternative,
although a right to relief against one may be
inconsistent with a right of relief against the other.
(Sec. 13, Rule 3)
Q: What is the Effect of Death of a party litigant?
A: The death of the client extinguishes the
attorney-client relationship and divests the counsel
of his authority to represent the client. Accordingly,
a dead client has no personality and cannot be
represented by an attorney (Lavina vs. CA, 171
SCRA 691). Whenever a party to a pending action
dies, and the claim is not thereby extinguished, it
shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact
thereof, and to give the name and address of his
legal representative or representatives. Failure of
counsel to comply with his duty shall be a ground
for disciplinary action. (Sec. 16, Rule 3)
D. Venue:
Q: What is the rule on Misjoinder and NonJoinder of parties?
A: Neither misjoinder nor non-joinder of parties is
ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion
of any party or on its own initiative at any stage the
action and on such terms as are just. Any claim
against a misjoined party may be severed and
proceeded with separately. (Sec. 11, Rule 3)
Q: What is a class suit?
A: It is an action where one or more may sue for
the benefit of all if the requisites for said action are
complied with. The ‘subject matter’ of the action is
meant the physical, the things real or personal, the
money, lands, chattels, and the like, in relation to
the suit which is prosecuted and not the delict or
wrong committed by the defendant. (Mathay vs.
Consolidated Bank & Trust Company, 58 SCRA
559)
Q: What are the rules on suits against entitles
without judicial personality?
Q: What is the meaning of venue?
A: It is the place, or the geographical area in which
a court with jurisdiction may hear and determine a
case or the place where a case is to be tried.
(Nocum vs. Tan, 470 SCRA 639)
Q: What is the Venue in Real Actions?
A: Generally, actions affecting title to or possession
of real property, or interest therein, shall be
commenced and tried in the proper court which
has jurisdiction over the area wherein the real
property involved, or a portion thereof, is situated.
However, actions for forcible entry and unlawful
detainer shall be commenced and tried in the
municipal court of the municipality or city wherein
the real property involved, or a portion thereof, is
situated. (Sec. 1, Rule 4)
Q: What is the Venue in Personal Actions?
A: The venue in personal action is where the
plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
defendants resides, at the election of the plaintiff. If
the defendant is a non-resident, the venue is where
the plaintiff or any of the principal plaintiffs resides,
or where the non- resident defendant may be
found, at the election of the plaintiff. (Sec. 2, Rule
4)
Q: What is the venue of actions for nonresidents?
A: If any of the defendants does not and is not
found in the Philippines, and the action affects the
personal status of the plaintiff, or any property of
the said defendant located in the Philippines, the
action may be commenced and tried in the court of
the place where the plaintiff resides, or where the
property or any portion thereof is situated or found.
(Sec.3, Rule 4, ROC)
Q: What are the instances where the rules on
venue do not apply?
A:
1. Where the parties have validly agreed in
writing before the filing of the action on
the exclusive venue thereof;
2. In those cases where a specific rule or law
provides: (Examples:)
a. A
quo
warranto
proceeding
commenced by the Solicitor
General and filed in the RTC of
Manila. This particular rule does not
consider the residence of the
respondent. (Sec. 7, Rule 66);
b. A petition for a continuing writ of
mandamus filed with the RTC
exercising jurisdiction over the
territory where the actionable
neglect or omission occurred. (Sec.
2, Rule 8)
Q: Can parties stipulate the venue? If so, what
are its effects?
A: Yes, Parties may agree in a specific venue which
could be in a place where neither of them resides.
(Universal Robina vs. Lim, 535 SCRA 95). In real
actions, the parties may stipulate on a venue other
than the place where the real property is situated.
(Union Bank vs. Maunlad Homes, 678 SCRA 539)
E.
Pleadings:
Q: What are the kinds of pleadings by the rules
of courts?
A:
1. Complaint;
2. Answer;
3.
4.
5.
6.
7.
Counterclaim;
Cross-claim;
Third (fourth, etc.)-party complaints;
Complaint-in-Intervention; and
Reply (Sec. 2, Rule 6, AM no. 19-10-20SC)
Q: What is a Complaint?
A: The complaint is the pleading alleging the
plaintiff’s or claiming party’s cause or causes of
action. (Sec. 3, Rule 6, AM no. 19-10-20-SC)The
filing of the original complaint in court signifies the
commencement of the civil action. (Sec. 5, Rule 1,
ROC)
Q: What is an Answer?
A: The answer is a pleading in which a defending
party sets forth his or her defenses. (Sec. 4, Rule 6,
AM No. 19-10-20-SC). An answer contains the
defenses of the answering party. These defenses
may either be negative or affirmative. (Sec. 5, Rule
6)
Q: What is a Negative Defense?
A: It is the specific denial of the material fact or
facts alleged in the pleading of the claimant
essential to his or her cause or causes of action.
(Sec. 5, Rule 6, AM no. 19-10-20-SC)
Q: What is a Negative Pregnant?
A: A negative pregnant is a negative implying also
an affirmative and which, although is stated in a
negative form, really admits the allegations to
which it relates. (Black’s Law Dictionary). A
negative pregnant does not qualify as a specific
denial. It is conceded to be actually an admission.
It refers to a denial which implies its affirmative
opposite by seeming to deny only a qualification or
an incidental aspect of the allegation but not the
allegation itself.
Q: What is a Counterclaim?
A: A counterclaim is any claim which a defending
party may have against an opposing party. (Sec. 6,
Rule 6). It partakes of a complaint by the defendant
against the plaintiff.
Q: Distinguish: Compulsory and Permissive
Counterclaim.
A:
COMPULSORY
COUNTERCLAIM
PERMISSIVE
COUNTERCLAIM
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Shall be contained
in the answer at the
time of filing,
otherwise it is
barred
May be set up as an
independent action
and will not be
barred if not
contained in the
answer of the
complaint.
Not an initiatory
pleading
Considered as an
initiatory pleading
It does not required
to be accompanied
by a Certificate of
Non-Forum
Shopping and a
Certificate to file an
action issued by the
Lupong
Tagapamayapa.
Must be
accompanied by a
certificate of nonforum shopping as
well as a certificate
to file action issued
by the Lupong
Tagapamayapa
because it is an
initiatory pleading.
Failure to answer
this is not a cause
for a default
declaration because
it is deemed
automatically joined
by the allegations in
the complaint.
Must be answered
by the party against
whom it is
interposed,
otherwise, he may
be declared in
default as to the
counterclaim.
Source: Ponciano vs. Parentela, 331 SCRA 605;
Gojo vs. Goyala, 35 SCRA 557; GSIS vs. Heirs of
Caballero, 632 SCRA 5
Q: What is a Cross-claim?
A: It is any claim by one party against a co-party
arising out of the transaction or occurrence that is
the subject matter either of the original action or a
counterclaim therein. (Sec. 8, Rule 6). Such crossclaim may cover all or part of the original claim.
(Sec. 8, Rule 6, AM No. 19-10-20-SC)
Q: What is a Third (fourth, etc.)-party
complaints?
A: It is a claim which a defending party may, with
leave or court, file against a person who is not yet a
party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his or
her opponent's claim. (Sec. 11, Rule 6, AM no. 1910-20-SC)
Q: What is a Reply?
A: A reply is a pleading, the function of which is to
deny, or allege facts in denial or avoidance of new
matters alleged by way of defense in the answer
and thereby join or make issue as to such new
matters. (Sec. 10, Rule 6, ROC)
Q: What are the pleadings allowed in small
claims and cases covered by the Rules on
Summary Procedure?
A:
Summary Procedure
●
●
●
●
Complaint;
Compulsory
Counterclaim
pleaded in the
answer;
Cross-claim
pleaded in the
answer; and
Answers thereto
Small Claims Cases
Forms provided under
AM no. 08-8-7-SC.
Q: What are the parts and contents of a
pleading?
A:
1. Caption;
2. Signature and address;
3. Verification;
4. Certification against forum shopping;
Q: What is the body of the pleading?
A: The body of the pleading set forth its
designation, the allegations of the party’s claims or
defenses, the relief prayed for, and the date of the
pleading. (Sec. 2, Rule 7)
Q: Can a pleading be submitted without a
signature? If not, what is the effect of a signed
pleading?
A: No, Every pleading and other written
submissions to the court must be signed by the
party or counsel representing him or her. (Sec. 3(a),
Rule 7, AM no. 19-10-20-SC). The signature of the
counsel constitutes a certificate by him or her that
(a) he or she has read the pleading and document;
and (b) that to the best of his or her knowledge,
information and belief, formed after an inquiry
reasonable under the circumstances:
1. It is not being presented for any improper
purpose, such as to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation;
2. The claims, defenses, and other legal
contentions are warranted by existing law
or jurisprudence, or by a non-frivolous
argument for extending jurisprudence;
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
3.
The factual contentions have support or, if
specifically so identified, will likely have
evidentiary support after availment of the
modes of discovery under these rules; and
The denials of factual contentions are
warranted on the evidence or, if
specifically so identified, are reasonably
based on belief or a lack of information.
(Sec. 3, Rule 7, AM No. 19-10-20-SC)
1.
Q: What is a verification in a pleading? How is a
pleading verified?
A: Pleadings need not be under oath, verified or
accompanied by affidavit, except when so required
by law or rule. A pleading is verified by an affidavit
of an affiant duly authorized to sign said
verification. (Sec. 4, Rule 7, AM no. 19-10-20-SC)
3.
4.
Q: What is the effect of lack of a verification?
A: The lack of a proper verification is cause to treat
the pleading as unsigned and dismissible. (Chua
vs. Torres, 468 SCRA 358). A verification is not
proper when the verification does not comply with
the requirement of the rule. For instance, a
pleading required to be verified but which contains
a verification based on “information and belief” or
upon “knowledge, information and belief,” shall be
treated as an unsigned pleading. (Sec. 4, Rule 7)
Q: What is a certification against forum
shopping?
A: This is a sworn statement in which the plaintiff or
principal party certifies in a complaint or initiatory
pleading to the following matters:
a. that he has not commenced any action or
filed any claim involving the same issues
in any court, tribunal, or quasi-judicial
agency and, to the best of his knowledge,
no such other action or claim is pending
therein;
b. that if there is such other pending action
or claim, a complete statement of the
present status thereof; and
c. that if he should thereafter learn that the
same or similar action or claim has been
filed or is pending, he shall report that fact
within 5 calendar days therefrom to the
court wherein his aforesaid complaint or
initiatory pleading has been filed. (Sec. 5,
Rule 7, AM No. 19-10-20-SC)
Q: What are three ways of committing forum
shopping?
A:
2.
Filing multiple cases based on the same
cause of action and with the same prayer,
the previous case not having been
resolved yet (where the ground is litis
pendentia);
Filing multiple cases based on the same
cause of action and the same prayer, the
previous case having been resolved
(where the ground for dismissal is res
judicata); and
Filing multiple cases based on the same
cause of action, but with different prayers
(splitting of causes of action, where the
ground for dismissal is also either litis
pendentia or res judicata). (Chua vs.
Metrobank, 596 SCRA 524)
Q: What is the reason for the prohibition on
forum shopping?
A: A party should not be allowed to pursue
simultaneous remedies in two different fora. Filing
multiple petitions or complaints constitutes abuse
of court processes. which tends to degrade the
administration of justice, wreaks havoc upon
orderly judicial procedure, and adds to the
congestion of the heavily burdened dockets of the
courts. (Huibonhoa vs. Concepcion, 497 SCRA
562)
Q: What is the effect of non-compliance with the
rule on certification against forum shopping?
What is the Exception?
A: Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided,
upon motion and after hearing. (Sec. 5, Rule 7).
However, Non-compliance with the rule requiring a
certification against forum shopping or defect
therein is generally not curable by its subsequent
submission or correction thereof, unless there is a
need to relax the rule on the ground of
‘subsequential compliance’ or there is the presence
of special circumstances or compelling reasons.
(Vda. De Formoso vs. PNB, GR no. 154704, June
1, 2011)
Q: What is the rule on the contents in the
pleadings?
A: Every pleading stating a party’s claims or
defenses shall, in addition to those mandated by
Section 2, Rule 7, state the following:
a. Names of witnesses who will be presented
to prove a party’s claim or defense;
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
b.
c.
Summary Of The Witnesses Intended
testimonies, provided that the judicial
affidavits of said witnesses shall be
attached to the pleading and form an
integral part thereof. Only witnesses
whose judicial affidavits are attached to
the pleading shall be presented by the
parties during trial. Except if a party
presents meritorious reasons as basis for
the admission of additional witnesses, no
other witness or affidavit shall be heard or
admitted by the court; and
Documentary and object evidence in
support of the allegations contained in the
pleading. (Sec. 6, Rule 7, AM No. 19-1020-SC)
Q: What is the manner of making allegations in
pleadings?
A: Every pleading shall contain in a methodical and
logical form, a plain, concise and direct statement
of the ultimate facts, including the evidence on
which the party pleading relies for his or her claim
of defense, as the case may be. If a cause of action
or defense relied on is based on law, the pertinent
provisions thereof and their applicability to him or
her shall be clearly and concisely stated. (Sec. 1,
Rule 8, AM No. 19-10-20-SC)
Q: What is a condition precedent?
A: Generally, these are matters which must be
complied with before a cause of action arises.
When a claim is subject to a condition precedent,
the compliance of the same must be alleged in the
pleading. In all pleading, a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. (Sec. 3, Rule 8)
Q: What is the rule when pleading a fraud,
mistake,
malice,
knowledge
and
other
conditions of the mind; pleading a judgment;
and pleading on official document or act?
A: When making averments of fraud or mistake,
the circumstances constituting such fraud or
mistake must be stated with particularity. (Sec. 5,
Rule 8). In pleading a judgment or decision of a
domestic or foreign court, judicial or quasijudicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render
it. (Sec. 6, Rule 8). An authenticated copy of the
judgment or decision shall be attached to the
pleading. (Sec. 6, Rule 8, AM No. 19-10-20-SC). In
pleading an official document or official act, it is
sufficient to aver that the document was issued or
the act was done in compliance with law. (Sec. 9,
Rule 8, AM No. 19-10-20-SC)
Q; What is the rule when pleading an actionable
document?
A: Whenever an action or defense is based upon a
written instrument or document, the substance of
such instrument or document shall be set forth in
the pleading, and the original or a copy thereof
shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading.
(Sec. 7, Rule 8)
Q: What is the rule on specific denial?
A: A defendant must specify each material
allegation of fact the truth of which he or she does
not admit and, whenever practicable, shall set forth
the substance of the matters upon which he or she
relies to support his or her denial. Where a
defendant desires to deny only a part of an
averment, he or she shall specify so much of it as is
true and material and shall deny only the
remainder. Where a defendant is without
knowledge or information sufficient to form a belief
as to the truth of a material averment made to the
complaint, he or she shall so state, and this shall
have the effect of a denial. (Sec. 10, Rule 8, ROC)
Q: What is the effect of failure to make specific
denial?
A: Under Sec. 11, Rule 8, material avernments in
the complaint (other than those as to the amount of
unliquidated damages) not specifically denied shall
be deemed admitted. If the allegations are deemed
admitted, there is no more triable issue between
the parties and if the admissions appear in the
answer of the defendant, the plaintiff may file a
motion for judgment on the pleadings pursuant to
Rule 34. An admission in a pleading cannot be
controverted by the party making such admission
because the admission is conclusive as to him. All
proofs submitted by him contrary thereto or
inconsistent therewith should be ignored whether
an objection is interposed by a party or not.
(Republic vs. Sarabia, 468 SCRA 142).
Q: When does a specific denial requires an
oath?
A: When the action is founded upon a document
pleaded in the manner required by Sec. 7, Rule 8,
the party, who has no intent of admitting the
genuineness and due execution of the document,
must contest the same by (1) specifically denying
the genuineness and due execution of the
document under oath; and (2) setting forth what he
10
REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
claims to be the facts. A mere specific denial of the
actionable document is insufficient. The denial
must be coupled with an oath. In current usage,
this means that the denial must be verified. The
absence of an oath will result in the implied
admission of the due execution and genuineness of
the document. (Sec. 8, Rule 8)
Q: What is an Affirmative Defense?
A: It is an allegation of a new matter which, while
hypothetically admitting the material allegations in
the pleading of the claimant, would nevertheless
prevent or bar recovery by him or her. (Sec. 5, Rule
6)
Q: What are the grounds of the defendant for
raising affirmative defenses?
A:
1. That the court has no jurisdiction over the
person of the defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to
sue;
4. That the pleading asserting the claim
states no cause of action; and
5. That a condition precedent for filing the
claim has not been complied with. (Sec.
12(a), Rule 8, AM No. 19-10-20-SC)
Q: What is the remedy if the affirmative defense
is denied?
A: Affirmative defenses, if denied, shall not be the
subject of a motion for reconsideration or petition
for certiorari, prohibition or mandamus, but may be
among the matters to be raised on appeal after a
judgment on the merits. (Sec. 12(e), Rule 8, AM No.
19-10-20-SC)
Q: What is the effect of failure to plead defenses
and objections?
A: Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived. However, when it appears from the
pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that
there is another action pending between the same
parties for the same cause, or that the action is
barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (Sec.
1, Rule 9)
Q: What is the effect of failure to plead a
compulsory counterclaim and cross-claim?
A: A compulsory counterclaim, or a cross-claim,
not set up shall be barred. (Sec. 2, Rule 9)
Q: What is a Default?
A: Default is a procedural concept that occurs
when the defending party fails to file his or her
answer within the reglementary period. (Riano
(2014), Civil Procedure Vol. 1, p. 362). A declaration
or order of default is issued as a punishment for
unnecessary delay in joining issues. (Vlason
Enterprises Corp. vs. CA, GR no. 121662-64, July
6, 1999)
Q: When is a declaration of default proper?
A: The rule on default clearly establishes the “failure
to answer within the time allowed therefor” as the
ground for a declaration of default. (Sec. 3, Rule 9).
Default does not technically occur from the failure of
the defendant to attend either the pre-trial or the
trial. (Sec. 3, Rule 9). Therefore, the failure to of the
defendant to appear at the pre-trial while a cause
for the court to order the plaintiff to present his
evidence ex parte and for the court to render
judgment on the basis thereof → is not a ground for
a declaration of default as the term is contemplated
under Sec. 3, Rule 9. While the effect of the failure
of the defendant to appear at the pre-trial is similar
to
that
of
default,
under
the
Rules,
this
consequence is not to be called a declaration of
default.
Q: What is the effect of an order of default?
A: The party declared in default loses his standing
in court. The loss of such standing prevents him
from taking part in trial. While the defendant can no
longer take part in the trial, he is entitled to notices
of subsequent proceedings. (Sec. 3(a), Rule 9). A
declaration of default is not tantamount to an
admission of the truth or the validity of the
plaintiff’s claims. (Monarch Insurance vs. CA, 333
SCRA 71)
Q: What are the reliefs from an order of
judgment?
A:
1. Remedy after notice of order and before
judgment; A party declared in default may,
at any time after notice thereof and before
judgment, file a motion under oath to set
aside the other of default and properly
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
2.
3.
4.
show that: (a) the failure to answer was
due to fraud, accident, mistake, or
excusable negligence; and (b) He has a
meritorious defense. (ie. there must be an
affidavit of merit.
Remedy after judgment and before
judgment becomes final and executory; If
the judgment has already been rendered
when the defendant discovered the
default, but before the same has become
final and executory, he may file a motion
for new trial under Rule 37. He may also
appeal from the judgment as being
contrary to the evidence or the law.
(Republic vs. Sandiganbayan, 540 SCRA
431)
Remedy after the judgment becomes final
and executory: The defendant may file a
petition for relief from judgment under
Rule 38. (Republic vs. Sandiganbayan,
supra)
Remedy when defendant was improperly
declared in default: The defendant must
file a petition for certiorari. (Viacrusis vs.
Estenzo, GR no. L-18457, June 30, 1962)
Q: What is the effect of a partial default?
A: When a pleading asserting a claim states a
common cause of action against several defending
parties, some of whom answer and the others fail
to do so, the court shall try the case against all
upon the answers thus filed and render judgment
upon the evidence presented. (Sec. 3(c), Rule 9)
Q: What is the rule on the extent of relief in a
judgment by default?
A: The reliefs that may be granted in default
situations are restricted by Sec. 3(d), Rule 9, ROC.
Thus, if the complaint seeks to recover P1Million
but the evidence of the complaint seeks to recover
P1.5Million, the court has no authority to grant the
latter amount despite the evidence. This is
because, under the Rules, “A judgment rendered
against a party in default shall not exceed the
amount or be different in kind from that prayed for
nor award unliquidated damages”. (Sec. 3(d), Rule
9)
Q: What are cases where a declaration/order of
default cannot be made?
A: Default is not allowed in the following actions:
a. Annulment of marriage;
b. Declaration of nullity of Marriage; and
c. Legal Separation (Sec. 3(e), Rule 9
If no answer is filed in any of the above actions, the
court shall order the Solicitor-General or any of his
or her deputized public prosecutors to investigate
whether or not collusion exists between the parties.
(Sec. 3(e), Rule 9, AM No. 10-10-20-SC)
If there is no collusion, the court shall order the
Solicitor-General or any or his or her public
prosecutors to intervene for the State in order to
see to it that the evidence submitted is not
fabricated. (Sec. 3(e), Rule 9, AM No. 19-10-20-SC)
Q: What is the rule on payment of docket fees?
A: General Rule: Court acquires jurisdiction over
the claim of damages upon payment of the correct
docket fees. (Nestle Philippines, Inc. vs. FY Sons,
Inc., 489 SCRA 624). Any defect in the original
pleading resulting in underpayment of the docket
fee cannot be cured by amendment since there is
no original complaint over which the court has
acquired jurisdiction. (Manchester Development
Corp. vs. CA, 149 SCRA 562). Exceptions: While
the payment of the required docket fee is a
jurisdictional requirement, its nonpayment at the
time of filing does not automatically cause the
dismissal of the case as long as the fee is paid
within the applicable prescriptive or reglementary
period. (Sun Insurance Office vs. Asuncion, 170
SCRA 274). If the amount of the docket fees is
insufficient considering the amount of the claim,
the party filing the case will be required to pay the
deficiency but jurisdiction is not automatically lost.
(Rivera vs. Del Rosario, 419 SCRA 626).
Q: Distinguish: Filing and Service of pleadings:
A: Filing is the act of submitting the pleading or
other paper to the court. On the other hand,
Service is the act of providing a party with a copy
of the pleading or any other court submission.
(Sec. 2, Rule 13, AM No. 19-10-20-SC)
Q: What are the manner of filing?
A: The filing of pleadings and other court
submissions shall be made by:
1. Submitting personally the original thereof,
plainly indicated as such, to the court;
2. Sending them by registered mail;
3. Sending them by accredited courier; or
4. Transmitting them by electronic mail or
other electronic means as may be
authorized by the Court in places where
the court is electronically equipped. (Sec.
3, Rule 13, AM no. 19-10-20-SC)
Q: What are the modes of service?
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
A:
1.
2.
3.
4.
5.
6.
7.
Personal Service (see Sec. 6, Rule 13);
Service by mail (see Sec. 7, Rule 13);
Accredited Courier;
Electronic Mail (see Sec. 9, Rule 13);
Facsimile transmission (see Sec. 9, Rule
13);
Other electronic means authorized by
Court; or
Other means as provided by for in
international conventions to which the
Philippines is a party;
Q: What is the Rule on service of judgments,
final orders or resolutions?
A: Judgments, final orders, or resolutions shall be
served either personally or by registered mail. Upon
ex parte motion of any party in the case, a copy of
the judgment, final order, or resolution may be
delivered by accredited courier at the expense of
such party. When a party summoned by
publication has failed to appear in the action,
judgments, final orders or resolutions against him
or her shall be served upon him or her also by
means of publication at the expense of the
prevailing party. (Sec. 13, Rule 13, AM No. 19-1020-SC)
Q: What is the conventional service or filing of
orders, pleadings, and other documents?
A: THE ORDERS, PLEADINGS AND OTHER
DOCUMENTS THAT MUST BE SERVED OR FILED
PERSONALLY OR BY REGISTERED MAIL:
a. Initiatory pleadings and initial responsive
pleadings, such as an answer;
b. Subpoenae, protection order, and writs;
c. Appendices and exhibits to motions or
other documents that are not readily
amenable to electronic scanning may, at
the option of the party filing such, be filed
and served conventionally; and
d. Sealed and confidential documents or
records; (Sec. 14, Rule 13, AM No. 19-1020-SC)
The Sec. 14, Rule 13 tenor; “Notwithstanding the
foregoing, the following orders, pleadings, and
other documents must be served or filed personally
or by registered mail when allowed, and shall not
be served or filed electronically, unless express
permission is granted by the Court x x x.”
Q: When is service deemed completed?
A:
MODE OF SERVICE
HOW COMPLETED?
Personal Service
Upon Actual Delivery
Service by Ordinary
Mail
Upon the expiration of
10 calendar days after
mailing,
unless
the
court
otherwise
provides.
Service by
Registered Mail
Upon actual receipt by
the addressee, or after
5 calendar days from
the date he or she
received the first notice
of
the
postmaster,
whichever
date
is
earlier.
Service by
Accredited Courier
Upon actual receipt by
the addressee, or after
at
least
two
(2)
attempts to deliver by
the courier service, or
upon the expiration of
five (5) calendar days
after the first attempt to
deliver, whichever is
earlier.
Electronic Service
At the time of the
electronic transmission
of the document, or
when available, at the
time that the electronic
notification of service of
the document is sent.
Service by Facsimile
Transmission
Upon receipt by the
other
party,
as
indicated
in
the
facsimile transmission
printout.
Q: How is filing proven?
A:
HOW FILING IS PROVEN?
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
MODE OF FILING
HOW PROVEN?
Personally Filed
(Not on record)
(Sec. 16 (a), Rule
13)
By the written or stamped
acknowledgment of its
filing by the clerk of court
on a copy of the pleading
or court submission.
By
other
authorized
electronic means
(Sec. 16, par. 2,
Rule 13)
By
an
affidavit
of
electronic filing of the filing
party accompanied by a
copy of the electronic
acknowledgment of its
filing by the court.
Q: How is service proven?
A:
By
Mail
(Sec.
13)
Registered
16(b),
Rule
By
Accredited
Courier Service
(Sec. 16(c), Rule
13)
By Electronic Mail
(Sec. 16(d), Rule
13)
By the registry receipt and
by the affidavit of the
person who mailed it,
containing a full statement
of the date and place of
deposit of the mail in the
post office in a sealed
envelope addressed to the
court, with postage fully
prepaid,
and
with
instructions
to
the
postmaster to return the
mail to the sender after ten
(10) calendar days if not
delivered.
By an affidavit of service
of the person who brought
the pleading or other
document to the service
provider, together with the
courier’s official receipt
and document tracking
number.
By
an
affidavit
of
electronic filing of the filing
party accompanied by a
paper copy of the pleading
or
other
document
transmitted or a written or
stamped
acknowledgement of its
filing by the clerk of court.
If the paper the paper
copy sent by electronic
mail as filed by registered
mail, par. b of this section
applies.
HOW SERVICE IS PROVEN?
MODE OF SERVICE
HOW PROVEN?
Personal Service
By a written admission
of the party served, or
the official return of the
server, or the affidavit of
the
party
serving,
containing a statement
of the date, place, and
manner of service.
Ordinary Mail
By an affidavit of the
person mailing stating
the
facts
showing
compliance
with
Section 7, Rule 13.
Registered Mail
By the affidavit of the
person mailing stating
the
facts
showing
compliance with Sec. 7,
Rule 13;
and the
registry receipt issued
by the mailing office.
The registry return card
shall
be
filed
immediately upon its
receipt by the sender,
or in lieu thereof, the
unclaimed
letter
together
with
the
certified or sworn copy
of the notice given by
the postmaster to the
addressee.
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Courier
By an affidavit of
service executed by the
person who brought the
pleading or paper to the
service
provider,
together
with
the
courier’s official receipt
or document tracking
number.
Electronic
Mail,
facsimile, or other
authorized
electronic means of
transmission
By an affidavit of
service executed by the
person who sent the email, facsimile, or other
electronic transmission,
together with a printed
proof of transmittal.
Accredited
Service
Q: Can pleadings be amended?
A: Pleadings may be amended by adding or
striking out an allegation or the name of any party,
or by correcting a mistake in the name of a party or
a mistaken or inadequate allegation or description
in any other respect, so that the actual merits of the
controversy may speedily be determined, without
regard to technicalities, in the most expeditious
and inexpensive manner. (Sec. 1, Rule 10)
Q: When is an amendment a matter of right?
A: A plaintiff has the right to amend his complaint
once at (a) any time before a responsive pleading is
served by the other party or (b) in case of a reply to
which there is no responsive pleading, at any time
within 10 calendar days after it is served. (Sec. 2,
Rule 9, AM No. 19-10-20-SC). Therefore, before an
answer is served on the plaintiff, the latter may
amend his complaint as a matter of right. The
defendant may also amend his complaint as a
matter of right, before a reply is served upon him.
Q: When is an amendment made by leave of
court?
A: Leave of Court is required for an amendment
made after service of a responsive pleading. For
example, the plaintiff cannot amend his complaint
by changing his cause of action or adding a new
one after the defendant’s answer without leave of
court. (Sec. 3, Rule 10; Calo and San Jose vs.
Roldan, 76 Phil. 445). Orders of the court upon the
matters provided in this Section shall be made
upon motion filed in court, and after notice to the
adverse party, and an opportunity to be heard.
(Sec. 3, Rule 10). After a responsive pleading is
filed, an amendment to the complaint may be
substantial and will correspondingly require a
substantial alteration in the defenses of the adverse
party. The amendment of the complaint is not only
unfair to the defendant but will cause unnecessary
delay in the proceedings. Leave of court is
required. On the other hand, where no responsive
pleading has yet been served, no defenses would
be altered. The amendment of the pleading will not
then require leave of court. (Siasco vs. CA, 303
SCRA 186)
Q: What is a formal amendment?
A: A defect in the designation of the parties and
other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of
the action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse. (Sec. 4,
Rule 10)
Q: What is the effect of an amended pleading?
A: An amended pleading supersedes the pleading
that it amends. However, admissions in
superseded pleadings may be offered in evidence
against the pleader, and claims or defenses alleged
therein not incorporated in the amended pleading
shall be deemed waived. (Sec. 8, Rule 10, AM No.
19-10-20-SC).
Q: What is a supplemental pleading?
A: A supplemental pleading is one which sets forth
transactions, occurrences, or events which have
happened since the date of the pleading sought to
be supplemented. The filing of supplemental
pleadings requires leave of court. The court may
allow the pleading only upon such terms as are
just. This leave of court is sought by the filing of a
motion with notice to all parties. (Sec. 6, Rule 10)
F.
Summons:
Q: What is the meaning of Summons?
A: It is the writ by which the defendant is notified of
the action brought against him. (Republic vs.
Domingo, 657 SCRA 621)
Q: What is the purpose of summon in Personal
Actions (actions in personam?
A: In an action in personam, the purpose of
summons is; (1) to comply with due process and
also (2) to acquire jurisdiction over the person of
the defendant. Mere filing of the complaint and the
payment of docket fees, the Court acquires
jurisdiction only over the person of the plaintiff, and
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
not over the person of the defendant. (Ellice AgroIndustrial Corp. vs. Young, 686 SCRA 51)
Q: What is the purpose of summons in Real
Actions (Actions in rem and quasi-in rem)?
A: In an action ‘In Rem’ or ‘Quasi-In Rem’,
jurisdiction over the person of the defendant is not
a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over
the ‘Res’ or the ‘Thing’ itself. However, this does
not mean that the service of summons may be
dispensed with. The Court adds that summons
must still be served upon the defendant in order to
satisfy the due process requirements. (Asiavest
Limited vs. CA, 296 SCRA 539; PCI Bank vs.
Alejandro, 533 SCRA 738)
Q: When should summons be issued?
A: Unless the complaint is on its face dismissible
under Section 1, Rule 9, the court shall, within five
(5) calendar days from receipt of the initiatory
pleading and proof of payment of the requisite legal
fees, direct the clerk of court to issue the
corresponding summons to the defendants. (Sec.
1, Rule 14, AM No. 19-10-20-SC
Q: What are the contents of summons?
A:
1. The name of the court and the names of
the parties to the action;
2. When authorized by the court upon ex
parte motion, an authorization for the
plaintiff to serve summons to the
defendant;
3. A direction that the defendant answer
within the time fixed by these Rules; and
4. A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for. (Sec. 2, Rule 14, AM No. 1910-20-SC)
Q: What is the duty of counsel of record in
summons?
A: Where the summons is improperly served and a
lawyer makes a special appearance on behalf of
the defendant to, among others, question the
validity of service of summons, the counsel shall be
deputized by the court to serve summons on his or
her client. (Sec. 13, Rule 14, AM No. 19-10-20-SC)
Q: What is a “Return”?
A: Within thirty (30) calendar days from issuance of
summons by the clerk of court and receipt thereof,
the sheriff or process server, or person authorized
by the court, shall complete its service. Within five
(5) calendar days from service of summons, the
server shall file with the court and serve a copy of
the return to the plaintiff’s counsel, personally, by
registered mail, or by electronic means authorized
by the Rules. (Sec. 20, Rule 14, AM No. 19-10-20SC). Should substituted service have been
effected, the return shall state the following: (a) The
impossibility of prompt personal service within a
period of thirty (30) calendar days from issue and
receipt of summons; (b) The date and time of the
three (3) attempts on at least (2) two different dates
to cause personal service and the details of the
inquiries made to locate the defendant residing
thereat; and (c) the name of the person at least
eighteen (18) years of age and of sufficient
discretion residing thereat, name of competent
person in charge of the defendant’s office or
regular place of business, or name of the officer of
the homeowners’ association or condominium
corporation or its chief security officer in charge of
the community or building where the defendant
may be found. (Sec.20, Rule 14, AM No. 19-10-20SC)
Q: What is Voluntary Appearance?
A: The defendant's voluntary appearance in the
action shall be equivalent to service of summons.
The inclusion in a motion to dismiss on other
grounds aside from lack of jurisdiction over the
person of the defendant shall be deemed a
voluntary appearance. (Sec. 23, Rule 14, AM No.
19-10-20-SC
Q: Who may serve summons?
A: General Rule: The summons may be served by
the sheriff, his or her deputy, or other court officer.
Exception: In case of failure of service of summons
by them, the court may authorize the plaintiff - to
serve the summons - together with the sheriff.
(Sec. 3, Rule 14, AM No. 19-10-20-SC)
Q: What is the rule on substituted service of
summons?
A: If, for justifiable reasons, the defendant cannot
be served personally after at least 3 attempts on 2
different dates, service may be effect:
a. By leaving copies of the summons at the
defendant's residence to a person at least
eighteen (18) years of age and of sufficient
discretion residing therein;
b. By leaving copies of the summons at the
defendant's office or regular place of
business with some competent person in
charge thereof;
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
c.
d.
By leaving copies of the summons, if
refused entry upon making his or her
authority and purpose known, with any of
the
officers
of
the
homeowners’
association or condominium corporation,
or its chief security officer in charge of the
community or the building where the
defendant may be found; and
By sending an electronic mail to the
defendant’s electronic mail address, if
allowed by the court. (Sec. 6, Rule 14, AM
No. 19-10-20-SC)
Q: What is the rule regarding service of
summons upon a defendant where his identity
is unknown or where his whereabouts are
unknown?
A: In any action where the defendant is designated
as an unknown owner, or the like, or whenever his
or her whereabouts are unknown and cannot be
ascertained by diligent inquiry, within ninety (90)
calendar days from the commencement of the
action, service may, by leave of court, be effected
upon him or her by publication in a newspaper of
general circulation and in such places and for such
time as the court may order. Any order granting
such leave shall specify a reasonable time, which
shall not be less than sixty (60) calendar days after
notice, within which the defendant must answer.
(Sec. 16, Rule 14, AM No. 19-10-20-SC)
Q: What is the rule regarding service of
summons upon residents temporarily outside in
the Philippines?
A: When any action is commenced against a
defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service
may, by leave of court, be also effected out of the
Philippines, as under Sec. 17, Rule 14.. (Sec. 18,
Rule 14, AM No. 19-10-20-SC)
Q: When is Extraterritorial service of summons
allowed?
A: When the defendant is a non-resident wherein
he or she is not found in the Philippines; and that
the action against him is either in rem or quasi-in
rem. (Jose vs. Boyon, 414 SCRA 216)
Q: What is the rule regarding service of
summons upon prisoners and minors as well as
upon spouses?
A: When the defendant is a prisoner confined in a
jail or institution, service shall be effected upon him
or her by the officer having the management of
such jail or institution who is deemed as a special
sheriff for said purpose. The jail warden shall file a
return within five (5) calendar days from service of
summons to the defendant. (Sec. 8, Rule 14, AM
No. 19-10-20-SC). When the defendant is a minor,
insane or otherwise an incompetent person, service
of summons shall be made upon him or her
personally and on his or her legal guardian if he or
she has one, or if none, upon his or her guardian ad
litem whose appointment shall be applied for by
the plaintiff. In the case of a minor, service shall be
made on his or her parent or guardian. (Sec. 10,
Rule 14, AM No. 19-10-20-SC). When spouses are
sued jointly, service of summons should be made
to each spouse individually. (Sec. 11, Rule 14, AM
No. 19-10-20-SC)
Q: What is the rule regarding service of
summons upon domestic or foreign private
juridical entities?
A: When the defendant is a corporation,
partnership or association organized under the
laws of the Philippines with a juridical personality,
service may be made upon the following persons:
(a) President; (b) Managing Partner; (c) General
Manager; (d) Corporate Secretary; (e) Treasurer; (f)
In-House Counsel of the corporation whenever
they may be found; or (g) In-House Counsel’s
secretaries, in the absence or unavailability of the
In-House Counsel. (Sec. 12, Rule 14, AM No. 1910-20-SC). When the defendant is a foreign private
juridical entity which has transacted or is doing
business in the Philippines, as defined by law,
service may be made on its resident agent
designated in accordance with law for that
purpose, or, if there be no such agent, on the
government official designated by law to that
effect, or on any of its officers, agents, directors or
trustees within the Philippines. (Sec. 14, Rule 14,
AM No. 19-10-20-SC). When a foreign corporation
has designated a person to receive summons on its
behalf pursuant to the Corporation Code, that
designation is exclusive and service of summons
on any other person is inefficacious. (H.B. Zachry
Company vs. CA, 232 SCRA 329)
Q: What is the proof of Service of Summons?
A: The proof of service of a summons shall be
made in writing by the server and shall set forth the
manner, place, and date of service; shall specify
any papers which have been served with the
process and the name of the person who received
the same; and shall be sworn to when made by a
person other than a sheriff or his or her deputy. If
summons was served by electronic mail, a printout
of said e-mail, with a copy of the summons as
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
served, and the affidavit of the person mailing, shall
constitute as proof of service. (Sec. 21, Rule 14,
AM No. 19-10-20-SC)
G. Motions:
Q: What is the meaning of a motion?
A: A motion is an application for relief other than by
a pleading. (Sec. 1, Rule 15)
Q: Distinguish: Motions and pleadings.
A: A motion is an application for relief other than by
a pleading, while a pleading is a written statement
of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.
(Sec. 1, Rule 6, ROC).
Q: What are the contents and form of a motion?
A: A motion must be in writing except those (a)
made in open court; and (b) in the course of
hearing or trial. (Sec. 2, Rule 15). On the other
hand, a motion should contain (a) a statement of
the relief sought to obtained; (b) the grounds upon
which the motion is based; and (c) The supporting
affidavits and other papers (applies only when so
mandated by the ROC or when necessary to prove
facts stated in the motion). [Sec. 3, Rule 15]
Q: What is the nature of a litigious and nonlitigious motions and when notice of hearing is
necessary?
A: A non-litigious motion is are motions which the
court may act upon without prejudicing the rights
of the adverse parties are non-litigious motions.
(Sec. 4, Rule 15, AM no. 19-10-20-SC). A litigious
motion is are motions which the court may not act
upon without prejudicing the rights of the adverse
parties are non-litigious motions. All motions shall
be served by personal service, accredited private
courier or registered mail, or electronic means so
as to ensure their receipt by the other party. (Sec.
5(b), Rule 15, AM No. 19-10-20-SC). The court
may, in the exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on the
motion. (Sec. 6, Rule 15, AM No. 19-10-20-SC).
The notice of hearing shall be addressed to all
parties concerned, and shall specify the time and
date of the hearing. (Sec. 6, Rule 15, AM No. 1910-20-SC). A motion without a notice of hearing is
considered ‘pro forma’ and does not affect the
reglementary period for the appeal or the filing of
the requisite pleading. (Flores vs. People, 692
SCRA 127)
A: General Rule: A motion attacking a pleading,
order, judgment, or proceeding shall include all
objections then available, and all objections not so
included shall be deemed waived. (Sec. 9, Rule 15,
AM No. 19-10-20-SC). Exception: Under Sec. 1,
Rule 9, the following defenses are not deemed
waived even if not raised in the motion to dismiss:
a. The court has no jurisdiction over the
subject matter;
b. There is another action pending between
the same parties for the same cause (Litis
pendentia);
c. The action is barred by a prior judgment
(Res judicata); or
d. The action is barred by the statute of
limitations (Prescription).
Q: What are prohibited motions?
A:
WHAT ARE PROHIBITED MOTIONS
(OR MOTIONS THAT ARE NOT ALLOWED)?
KINDS:
1.
Motion
dismiss
EXCEPTIONS:
to
●
When
the
court
has
no
jurisdiction
over
the subject matter;
●
There
is
another
action
pending between
the same parties
for the same cause
(Litis pendentia);
●
The action is
barred by a prior
judgment
(Res
judicata);
2.
Motion to hear
affirmative defenses
(None)
3.
Motion
for
reconsideration of the
court’s action on the
affirmative defenses
(None)
Q: What is the Omnibus Motion Rule?
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
4. Motion
to
suspend
proceedings without
a
temporary
restraining order or
injunction issued by
a higher court
(None)
5.
Motion
for
extension of time to
file
pleadings,
affidavits or any other
papers
A motion for extension to
file
an
answer
as
provided under Sec. 11,
Rule 11
6.
Motion
for
postponement
intended for delay
if it is based on acts of
God, force majeure or
physical inability of the
witness to appear and
testify.
Source: Sec. 12, Rule 15, AM No. 19-10-20-SC)
Q: What is the purpose of a Motion for a bill of
particulars? When should a motion for a bill of
particular be apply for?
A: Before responding to a pleading, a party may
move for a definite statement or for a bill of
particulars of any matter, which is not averred with
sufficient definiteness or particularity, to enable him
or her properly to prepare his or her responsive
pleading. If the pleading is a reply, the motion must
be filed within ten (10) calendar days from service
thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are
contained, and the details desired. (Sec. 1, Rule 12,
AM No. 19-10-20-SC). The purpose is to seek an
order from the court directing the pleader to submit
a bill of particulars which avers matters with
“sufficient definiteness or particularity” to enable
the movant to properly prepare his responsive
pleading. (Sec. 1, Rule 12)
Q: What is the action of the court after the filing
of a motion for a bill of particular?
A: Upon the filing of the motion, the clerk of court
must immediately bring it to the attention of the
court, which may either deny or grant it outright, or
allow the parties the opportunity to be heard. (Sec.
2, Rule 12).
Q: What is the rule regarding compliance with
the order?
A: If the motion is granted, either in whole or in
part, the compliance therewith must be effected
within ten (10) calendar days from notice of the
order, unless a different period is fixed by the
court. The bill of particulars or a more definite
statement ordered by the court may be filed either
in a separate or in an amended pleading, serving a
copy thereof on the adverse party. (Sec. 3, Rule 12,
AM No. 19-10-20-SC)
Q: What is the effect on the period to file a
responsive pleading?
A: A motion for bill of particulars is not a pleading,
therefore, not a responsive pleading. Whether or
not his motion is granted, the movant may file his
responsive pleading. When he files a motion for bill
of particulars, the period to file the responsive
pleading is stayed or interrupted. (Riano (2014),
Civil Procedure Vol. 1, p. 472). After service of the
bill of particulars or of a more definite pleading, or
after notice of denial of his or her motion, the
moving party may file his or her responsive
pleading within the period to which he or she was
entitled at the time of filing his or her motion, which
shall not be less than five (5) calendar days in any
event. (Sec. 5, Rule 12, AM No. 19-10-20-SC)
H. Dismissal of Actions:
Q: What is Dismissal with prejudice?
A: The dismissal under Sec. 3, Rule 17, shall have
the effect of an adjudication on the merits, unless
otherwise declared by the court. Therefore, as a
rule, it is a dismissal with prejudice. (AFP
Retirement Benefits System vs. Republic, 694,
SCRA 118)
Q: What is the rule on dismissal without
prejudice?
A: General Rule: A dismissal made by filing of a
notice of dismissal is a dismissal without prejudice.
(i.e. the complaint can be refiled). Exception: The
dismissal will be one with prejudice in any of the
following situations:
a. The notice of dismissal by the plaintiff
provides that the dismissal is with
prejudice; or
b. the plaintiff has previously dismissed the
same case in a court of competent
jurisdiction based on or including the
same claim. (Sec. 1, Rule 17)
Q: What is dismissal by mere notice of
dismissal?
A: Before the service of an answer or a motion for
summary judgment, a complaint may be dismissed
by the plaintiff by filing a notice of dismissal. Upon
the filing of the notice of dismissal, the court shall
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
issue an order confirming the dismissal. (Sec 1.
Rule 17)
b.
Q: What is dismissal due to the fault of the
plaintiff?
A: The dismissal due to the fault of the plaintiff may be
done by the court on its own motion (motu proprio) or
upon a motion filed by the defendant. (Sec. 3, Rule 17;
AFP Retirement Benefit System vs. Republic, 694 SCRA
118, March 20, 2013). When there are not justifiable
reasons that explain the plaintiff’s absence during the
presentation of his evidence in chief, the court may
dismiss the complaint. The use of the word “may”
denotes its directory nature and operates to confer upon
the court the discretion to decide between the dismissal
of the case on this technicality. (Republic vs. DiazEnriquez, 694 SCRA 102)
Q: What is dismissal of counterclaim, crossclaim, or third party complaint?
A: A voluntary dismissal by the claimant by notice
as in Section 1 of this Rule, shall be made before a
responsive pleading or a motion for summary
judgment is served or, if there is none, before the
introduction of evidence at the trial or hearing.
(Sec. 4, Rule 17)
I.
Pre-Trial:
Q: What is the nature of a pre-trial?
A: The pre-trial is mandatory and should be
terminated promptly. (Sec. 2, Rule 18, AM No. 1910-20-SC)
Q: What are the purposes of pre-trial?
A:
1. The possibility of an amicable settlement
or of a submission to alternative modes of
dispute resolution;
2. The simplification of the issues;
3. The possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
4. The limitation of the number and
identification of witnesses and the setting
of trial dates;
5. The advisability of a preliminary reference
of issues to a commissioner;
6. The propriety of rendering judgment on
the pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefor be found to exist;
7. The requirement for the parties to:
a. Mark their respective evidence if
not yet marked in the judicial
affidavits of their witnesses;
8.
Examine and make comparisons
of the adverse parties' evidence
vis-avis the copies to be marked;
c. Manifest
for
the
record
stipulations
regarding
the
faithfulness of the reproductions
and the genuineness and due
execution of the adverse parties'
evidence;
d. Reserve evidence not available at
the pre-trial, but only in the
following manner:
i.
For
testimonial
evidence, by giving the
name or position and
the
nature
of
the
testimony
of
the
proposed witness;
ii.
For
documentary
evidence
and
other
object evidence, by
giving
a
particular
description
of
the
evidence.
No
reservation
shall
be
allowed if not made in
the manner described
above.
Such other matters as may aid in the
prompt disposition of the action. (Sec. 2,
Rule 18, AM No. 19-10-20-SC)
Q: What is the rule regarding notice of pre-trial?
A: The notice of pre-trial shall include the dates
respectively set for the following (a) Pre-trial: (b)
Court-Annexed Mediation; and (c) Judicial Dispute
Resolution, if necessary. The notice of pre-trial
shall be served on the counsel, or on the party if he
or she has no counsel. The counsel served with
such notice is charged with the duty of notifying
the party represented by him or her. (Se. 3, Rule
18, AM No. 19-10-20-SC)
Q: What is the rule regarding appearance of
parties during pre-trial?
A: General Rule: It shall be the duty of the parties
and their counsel to appear at Pre-trial (Sec. 4,
Rule 18, AM No. 19-10-20-SC). Mediation is a part
of pre-trial and failure to appear therein merits
sanction on the part of the absent party. (Senarlo
vs. Judge Paderanga, 617 SCRA 247). Exception:
The non-appearance of a party and counsel may
be excused only for acts of God, force majeure, or
duly substantiated physical inability. (Sec. 4, Rule
18, AM No. 19-10-20-SC)
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Q: What is the effect when parties failed to
appear during pre-trial?
A: When duly notified, the failure of the plaintiff and
counsel to appear without valid cause when so
required, pursuant to the next preceding Section
(Section 3), shall cause the dismissal. (Sec. 5, Rule
18, AM No. 19-10-20-SC). On the other hand,
When duly notified, the failure of the defendant and
counsel to appear without valid cause when so
required, pursuant to the next preceding Section
(Section 3), shall cause to allow the plaintiff to
present his or her evidence ex-parte within 10
calendar days from the termination of the pre-trial,
and the court to render judgment on the basis of
the evidence offered. (Sec. 5, Rule 18, AM No. 1910-20-SC).
Q: What is the rule regarding pre-trial brief?
A: The parties shall file with the court their
respective pre-trial briefs which should be received
at least 3 calendar days before the date of the pretrial. (Sec. 6, Rule 18). This pre-trial brief shall be
served on the adverse party in such manner that
will ensure his receipt also at least 3 calendar days
before the date of the pre-trial. (Sec. 6, Rule 18).
Failure to file the pre-trial brief shall have the same
effect as failure to appear at the pre-trial. (Sec. 6,
Rule 18)
Q: What is the rule regarding pre-trial order?
A: Upon the termination of the pre-trial, the court
shall issue an (pre-trial) order within 10 calendar
days which shall recite in detail the matters taken
up. (Sec. 7, Rule 18, AM No. 19-10-20-SC). A pretrial order is not intended to be a detailed
catalogue of each and every issue that is to be
taken during the trial, for it is unavoidable that there
are issues that are impliedly included among those
listed or that may be inferable from those listed by
necessary implication which are as much integral
parts of the pre-trial order as those expressly listed.
(Phil. Export and Foreign Loan vs. Amalgamated
Management, 658 SCRA 273)
Q: Distinguish pre-trial in civil cases and pretrial in criminal cases.
A:
PRE-TRIAL IN
CIVIL CASES
PRE-TRIAL IN
CRIMINAL CASES
It is set when the
plaintiff
moves
ex
parte to set the case
for pre-trial.
It is ordered by the
court and no motion to
set the case for pretrial is required for
either parties.
The motion to set the
case for pre-trial is
made after the last
responsive
pleading
has been served and
filed.
Pre-trial is ordered by
the
court
after
arraignment and within
30 days from the date
the
court
acquires
jurisdiction over the
person of the accused.
It
considers
the
possibility
of
an
amicable
settlement
as
an
important
objective
It does not include
considering
the
possibility of amicable
settlement of criminal
liability as one of its
purposes.
Pre-trial
required
Pre-trial brief
required
brief
is
is
not
Source: Rule 7 and Rule 118, Rules of Court
J.
Intervention:
Q: What are the requisites for a valid
intervention?
A:
1. He or she must not be a party to the case;
2. There must be a motion for intervention
filed before rendition of judgment by the
trial court. (A motion is necessary because
leave of court is required before a person
may be allowed to intervene);
3. The movant must show in his motion that
he has a:
a. Legal interest in the following:
i.
The matter in litigation;
ii.
The success of either of
the parties in the action;
or
iii.
Against both parties;
b. The isso situated as to be
adversely
affected
by
a
distribution or other disposition
of property in the custody of the
court or of an officer thereof;
c. The intervention must not unduly
delay
or
prejudice
the
adjudication of the rights of the
original parties; and
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
d.
The intervenor’s rights may not
be fully protected in a separate
proceeding. (Mabayo Farms vs.
CA, 385 SCRA 110; Acenas II vs.
CA, 247 SCRA 773)
Q: When is the time for intervention?
A: The motion to intervene may be filed at any time
before the rendition of judgment by the trial court.
(Sec. Rule 2, Rule 19). Hence, Intervention after trial
and decision can no longer be permitted. (Yau vs.
manila Banking Corp., 384 SCRA 340)
Q: What is the remedy for the denial of motion
to intervene?
A: The remedy of the aggrieved party is to appeal.
This Court has on occasion held that an order
denying a motion for intervention is appealable.
Where the lower court's denial of a motion for
intervention amounts to a final order, an appeal is
the proper remedy, as when the denial leaves the
intervenor without further remedy or resort to
judicial relief. (Foster-Gallego vs. Sps. Galang, GR
no. 130228, July 24, 2004)
K.
Subpoena:
Q: What is Subpoena Duces Tecum?
A: It is a process directed to a person requiring him
or her to bring with him or her any books,
documents, or other things under his or her control.
Sec. 1, Rule 21, AM No. 19-10-20-SC)
Q: What is Subpoena Ad Testificandum?
A: In this jurisdiction, there are two (2) kinds of
subpoena, to wit: subpoena ad testificandum and
subpoena duces tecum. The first is used to compel
a person to testify, while the second is used to
compel the production of books, records, things or
documents therein specified. (Roco vs. Contreras,
GR no. 158275, June 28, 2005)
Q: What is the rule regarding service of
subpoena?
A: Service of a subpoena shall be made in the
same manner as personal or substituted service of
summons. The original shall be exhibited and a
copy thereof delivered to the person on whom it is
served. The service must be made so as to allow
the witness a reasonable time for preparation and
travel to the place of attendance. Costs for court
attendance and the production of documents and
other materials subject of the subpoena shall be
tendered or charged accordingly. (Sec. 6, Rule 21,
AM No. 19-10-10-20-SC)
Q: What is the rule regarding compelling
attendance and contempt?
A: In case of failure of a witness to attend, the court
or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness,
may issue a warrant to the sheriff of the province,
or his or her deputy, to arrest the witness and bring
him or her before the court or officer where his or
her attendance is required, and the cost of such
warrant and seizure of such witness shall be paid
by the witness if the court issuing it shall determine
that his or her failure to answer the subpoena was
willful and without just excuse. (Sec. 8, Rule 21, AM
No. 19-10-20-SC). On the other hand, Failure by
any person without adequate cause to obey a
subpoena served upon him or her shall be deemed
a contempt of the court from which the subpoena
is issued. If the subpoena was not issued by a
court, the disobedience thereto shall be punished
in accordance with the applicable law or Rule.
(Sec. 9, Rule 21). However, The provisions of
Sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100)
kilometers from his or her residence to the place
where he or she is to testify by the ordinary course
of travel, or to a detention prisoner if no permission
of the court in which his or her case is pending was
obtained. (Sec. 10, Rule 21, AM No. 19-10-20-SC)
Q: What is the rule regarding the quashal of
subpoena?
A: In case of failure of a witness to attend, the court
or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness,
may issue a warrant to the sheriff of the province,
or his or her deputy, to arrest the witness and bring
him or her before the court or officer where his or
her attendance is required, and the cost of such
warrant and seizure of such witness shall be paid
by the witness if the court issuing it shall determine
that his or her failure to answer the subpoena was
willful and without just excuse. (Sec. 8, Rule 21, AM
No. 19-10-20-SC)
L.
Computation of Time:
Q: How to compute time?
A: In computing any period of time prescribed or
allowed by these Rules, or by order of the court, or
by any applicable statute, the day of the act or
event from which the designated period of time
begins to run is to be excluded and the date of
performance included. If the last day of the
period, as thus computed, falls on a Saturday, a
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next
working day. (Sec. 1, Rule 22)
Q: What is the effect of interruption?
A: Should an act be done which effectively interrupts the
running of the period, the allowable period after such
interruption shall start to run on the day after notice of the
cessation of the cause thereof. The day of the act that
caused the interruption shall be excluded in the
computation of the period. (Sec. 2, Rule 22).
M. Modes of Discovery:
Q: What is the meaning of deposition?
A: It is the taking of the testimony of any person,
whether he be a party or not, but at the instance of
a party to the action. This testimony is taken out of
court.
Q: What are the methods for taking a
deposition?
A:
1. By an oral examination; or
2. By a written interrogatory. (Sec. 1, Rule
23)
DEPOSITION
RULE 23
DEPOSITION
RULE 24
Deposition “De benne
esse”
Deposition
perpetuam
memoriam”
“In
rei
If the deposition is for
use during a pending
action
If
the
deposition
perpetuates
a
testimony for use in
future proceedings, as
when it is sought
before the existence of
an action, or for cases
on appeal.
Q: What is the scope of examination?
A: Unless otherwise ordered by the court as
provided by Section 16 or 18 of this Rule, the
deponent may be examined regarding any matter,
not privileged, which is relevant to the subject of
the pending action, whether relating to the claim or
defense of any other party, including the existence,
description, nature, custody, condition, and
location of any books, documents, or other tangible
things and the identity and location of persons
having knowledge of relevant facts. (Sec. 2, Rule
23)
Q: What are the uses of deposition?
A:
1. Any deposition may be used by any party
for the purpose of contradicting or
impeaching the testimony of deponent as
a witness;
2. 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 a
party may be used by an adverse party for
any purpose;
3. The deposition of a witness, whether or
not a party, may be used by any party for
any purpose if the court finds: (1) that the
witness is dead, or (2) that the witness
resides at a distance more than one
hundred (100) kilometers from the place of
trial or hearing, or is out of the Philippines,
unless it appears that his absence was
procured by the party offering the
deposition, or (3) that the witness is
unable to attend or testify because of age,
sickness, infirmity, or imprisonment, or (4)
that the party offering the deposition has
been unable to procure the attendance of
the witness by subpoena; or (5) upon
application and notice, that such
exceptional circumstances exist as to
make it desirable, in the interest of justice
and with due regard to the importance of
presenting the testimony of witnesses
orally in open court, to allow the
deposition to be used; and
4. If only part of a deposition is offered in
evidence by a party, the adverse party
may require him to introduce all of it which
is relevant to the part introduced, and any
party may introduce any other parts. (Sec.
4, Rule 23, ROC)
Q: When may objections to admissibility be
made?
A: Objections may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of
the evidence if the witness were then present and
testifying. (Sec. 6, Rule 23)
Q: When may taking of deposition be terminated
or its scope limited?
A: At any time during the taking of the deposition,
on motion or petition of any party or of the
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
deponent and upon a showing that the examination
is being conducted in bad faith or in such manner
as unreasonably to annoy, embarrass, or oppress
the deponent or party, the court in which the action
is pending or the Regional Trial Court of the place
where the deposition is being taken may order the
officer conducting the examination to cease
forthwith from taking the deposition, or may limit
the scope and manner of the taking of the
deposition, as provided in Section 16 of this Rule. If
the order made terminates the examination, it shall
be resumed thereafter only upon the order of the
court in which the action is pending. Upon demand
of the objecting party or deponent, the taking of the
deposition shall be suspended for the time
necessary to make a notice for an order. In
granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
court may deem reasonable. (Sec. 18, Rule 23)
Q: What is the purpose of interrogatories of
parties?
A: This is available by a party to the action for the
purpose of eliciting material and relevant facts from
any adverse party. (Sec. 1, Rule 25). Existing rules
consider this mode of discovery as important
because within one day from receipt of the
complaint, the rule mandates not only the
preparation of the summons but also the issuance
of an order requiring the parties Rule 25 and
request for admission by adverse party under Rule
26. However, the parties may use (at their
discretion) depositions under Rule 23 or other
measures under Rule 27 and 29 within 5 days from
the filing of the answer. (AM No. 03-1-09-SC, IA, 1)
Q: What is the effect of failure to serve written
interrogatories?
A: Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a
party not served with written interrogatories may
not be compelled by the adverse party to give
testimony in open court, or to give a deposition
pending appeal. (Sec. 6, Rule 25)
Q: What is the purpose of admission by adverse
party?
A: To allow one party to request the adverse party,
in writing, to admit certain material and relevant
matters which will not be disputed during the trial.
To avoid unnecessary inconvenience to the parties
in going through the rigors of proof before the trial,
a party may request the other to (a) admit the
genuineness of any material and relevant document
described in and exhibit with the request; or (b)
admit the truth of any material and relevant matter
of fact set forth in the request. (Sec. 1, Rule 26)
Q: What are the consequences of failure to
answer request for admission?
A: Unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice, a
party who fails to file and serve a request for
admission on the adverse party of material and
relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall
not be permitted to present evidence on such
facts. (Sec. 5, Rule 26)
Q: What is the effect of admission?
A: Any admission made by a party as a
consequence of the failure to comply with the
request is only for the purpose of the pending
action and shall not be deemed an admission for
any other purpose. Likewise, the admission cannot
be used against the admitting party in any other
proceeding. (Sec. 3, Rule 26)
Q: What is the effect of failure and serve request
for admission?
A: It is advisable for the party to whom the written
request is directed to file and serve upon the party
requesting the admission a sworn statement either
(a) specifically denying the matters of which
admission is requested, or (b) if he does not deny
the same, to set forth in detail the reasons why he
cannot truthfully admit or deny those matters. This
sworn statement shall be filed and served within
the period designated in the request but which
shall not be less than 15 calendar days from the
service of such request, or within such further time
as the court may allow. (Sec. 2, Rule 26, AM No.
19-10-20-SC). If the party to whom the written
request for admission is directed does not file the
required sworn statement, each of the matters of
which an admission is requested shall be deemed
admitted. (Sec. 2, Rule 26)
Q: What is the purpose of production or
inspection of documents or things?
A: Order any party to produce and permit the
inspection and copying or photographing, by or on
behalf of the moving party, of any any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, not
privileged, which constitute or contain evidence
material to any matter involved in the action and
which are in his possession, custody or control;
and Order any party to permit entry upon
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
designated land or other property in his possession
or control for the purpose of inspecting, measuring,
surveying, or photographing the property or any
designated relevant object or operation thereon.
(Sec. 1, Rule 27)
Q: What are privileged documents?
A: Rule 27 provides that the documents, papers,
books, accounts, letters, photographs, objects or
tangible things that may be produced and
inspected should not be privileged. The document
may be produced and inspected should not be
privileged. The documents must not be privileged
against disclosure. On the ground of public policy,
the rules providing for production and inspection of
books and papers do not authorize the production
or inspection of privileged matter; that is, books
and papers which, because of their confidential
and privileged character, could not be received in
evidence. Such a condition is in addition to the
requisite that the items be designated and must
constitute or contain evidence material to any
matter involved in the action and which are in the
party’s possession, custody or control. (Sec. 1,
Rule 27).
Q: What is the application of Rule 28 (Physical
and mental examination of person?
A: This mode of discovery applies to an action in
which the mental or physical condition of a party is
in controversy. (Sec. 1, Rule 28)
Q: What is a waiver of privilege?
A: By requesting and obtaining a report of the
examination so ordered or by taking the deposition
of the examiner, the party examined waives any
privilege he or she may have in that action or any
other involving the same controversy, regarding the
testimony of every other person who has examined
or may thereafter examine him or her in respect of
the same mental or physical examination. (Sec. 4,
Rule 28)
Q: What are the consequences of refusal to
comply with modes of discovery?
A:
1. If a party refuses to answer any question
upon oral examination, the proponent may
apply to the proper court, for an order to
compel an answer. The same procedure
may be availed of when a party or witness
refuses to answer any interrogatory
submitted pursuant to the rules on the
modes of discovery. (Sec. 1, Rule 29).
2.
3.
4.
The court may order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or
prohibiting him or her from introducing in
evidence designated documents or things
or items of testimony, or from introducing
evidence of physical or mental condition
(Sec. 3(b), Rule 29);
A refusal of a party to be sworn after being
directed by the court may be considered a
contempt of that court. (Sec. 2, Rule 29);
If a party or an officer or managing agent
of a party wilfully fails to appear before the
officer who is to take his or her deposition,
after being served with a proper notice, or
fails to serve answers to interrogatories
submitted under Rule 25 after proper
service of such interrogatories, the court
on motion and notice, may strike out all or
any part of any pleading of that party, or
dismiss the action or proceeding or any
part thereof, or enter a judgment by
default against that party, and in its
discretion, order him or her to pay
reasonable expenses incurred by the
other, including attorney's fees. (Sec. 5,
Rule 29);
N. Trial:
Q: What is the rule regarding adjournments and
postponements?
A: General Rule: A court may adjourn a trial from
day to day, and to any stated time, as the
expeditious and convenient transaction of business
may require. (Sec. 2, Rule 30). Exception: Court
has no power to adjourn a trial for a period longer
than 1 month for each adjournment, nor more than
3 months in all, except when authorized in writing
by the Court Administrator. (Sec. 2, Rule 30). A
motion for postponement should not be filed on the
last hour especially when there is no reason why it
could not have been presented earlier. (Republic
vs. Sandiganbayan, 301 SCRA 237)
Q: What are the requisites of a motion to
postpone trial for illness of a party or counsel?
A:
1. A motion to postponement must be filed;
2. The motion must be supported by an
affidavit or sworn certification that the
presence of such party or counsel at the
trial is indispensable and that the
character of his or her illness is such as to
render his or her non-attendance
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excusable. (Sec. 4, Rule 30, AM No. 1910-20-SC)
Q: What is the rule regarding the order of trial?
A:
1. The plaintiff shall adduce evidence in
support of his complaint;
2. The defendant shall then adduce evidence
in support of his defense, counterclaim,
cross-claim and third-party complaint;
3. The Third-party defendant, if any, shall
adduce evidence of his defense,
counterclaim, cross-claim and fourthparty complaint;
4. The fourth-party, and so forth, if any, shall
adduce evidence of the material facts
pleaded by them;
5. The
parties
against
whom
any
counterclaim or cross-claim has been
pleaded, shall adduce evidence in support
of their defense, in the order to be
prescribed by the court; and
6. Upon admission of the evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to
argue or to submit their respective
memoranda or any other pleadings.
If several defendants or third-party defendants, and
so forth, having separate defenses appear by
different counsel, the court shall determine the
relative order of presentation of their evidence.
(Sec. 5, Rule 30)
Q: What is the rule regarding the agreed
statement of facts?
A: The parties to any action may agree, in writing,
upon the facts involved in the litigation, and submit
the case for judgment on the facts agreed upon,
without the introduction of evidence. If the parties
agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order
as the court shall prescribe. (Sec. 7, Rule 30, AM
No. 19-10-20-SC)
Q: What is Consolidation?
A: It is a procedural device, granted to the court as
an aid in deciding how cases in its docket are to be
tried, so that the business of the court may be
dispatched expeditiously while providing justice to
the parties. (Republic vs. Heirs of Oribello, Jr., 692
SCRA 645)
Q: What are the kinds of consolidation?
A:
1.
2.
3.
Quasi-Consolidation - Where all, except
one of several of actions are stayed until
one is tried, in which case the judgment in
the one trial is conclusive as to the others.
(This is not actually consolidation)
Actual Consolidation - Where several
actions are combined into one, lose their
separate identity, and become a single
action in which a single judgment is
rendered. This is illustrated by a situation
where several actions are pending
between the same parties stating claims
which might have been set out originally in
one complaint.
Consolidation for Trial - Where several
actions are ordered to be tried together,
but each retains its separate character,
and requires the entry of a separate
judgment. This type of consolidation does
not merge the suits into a single action, or
cause the parties to one action to be
parties to the other. (Republic vs. Heirs of
Oribello, Supra; Neri vs. Sandiganbayan,
GR no. 202243, August 7, 2013)
Q: What is reference by consent regarding trial
by commissioner?
A: By written consent of both parties, the court may
order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by
the parties or to be appointed by the court. (Sec. 1,
Rule 32)
Q: What are the powers of the commission?
A: Subject to the specifications and limitations
stated in the order, the commissioner has and shall
exercise the power to regulate the proceedings in
every hearing before him or her and to do all acts
and take all measures necessary or proper for the
efficient performance of his or her duties under the
order. He or she may issue subpoenas and
subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of reference,
he or she may rule upon the admissibility of
evidence. The trial or hearing before him or her
shall proceed in all respects as it would if held
before the court. (Sec. 3, Rule 32)
Q: What is the report of the commissioner?
A: Upon the completion of the trial or hearing or
proceeding before the commissioner, he or she
shall file with the court his or her report in writing
upon the matters submitted to him or her by the
order of reference. When his or her powers are not
specified or limited, he or she shall set forth his or
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her findings of fact and conclusions of law in his or
her report. He or she shall attach thereto all
exhibits, affidavits, depositions, papers and the
transcript, if any, of the testimonial evidence
presented before him or her. (Sec. 9, Rule 32)
Q: What is the rule regarding the notice to
parties of the filing or report?
A: Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed ten
(10) calendar days within which to signify grounds
of objections to the findings of the report, if they so
desire. Objections to the report based upon
grounds which were available to the parties during
the proceedings before the commissioner, other
than objections to the findings and conclusions
therein set forth, shall not be considered by the
court unless they were made before the
commissioner. (Sec. 10, Rule 32
O. Demurrer to Evidence:
Q: What is the ground for a demurrer to
evidence?
A: The defendant may move for dismissal on the
ground that upon the facts and the law, the plaintiff
has shown no right to relief. (Sec. 1, Rule 33)
Q: What is the effect of denying a demurrer to
evidence?
A: The order denying the demurrer to evidence
shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus before
judgment. (Sec. 2, Rule 33, AM No. 19-10-20-SC).
If the demurrer to evidence is denied, he or she
shall have the right to present evidence. Where a
court denied a demurrer to evidence, it should set
the date for the reception of the defendant’s
evidence in chief. It should not proceed to grant the
relief demanded by the plaintiff. (Northwest Airlines,
Inc. vs. CA, 284 SCRA 408)
Q: What is the effect of granting the demurrer to
evidence?
A: If the demurrer is granted, the case shall be
dismissed. However, if (on appeal the order
granting the motion is reversed) the defendant
loses his right to present evidence. (Sec. 1, Rule
33). It is not correct for the appellate court
reversing the order granting the demurrer to
remand the case to the trial court for further
proceedings. The appellate court should, instead of
remanding the case, render judgment on the basis
of the evidence submitted by the plaintiff. “A
remand is not only frowned upon by the ROC, it is
also logically unnecessary on the basis of the facts
on record.” (Radiowealth Finance Corp. vs. Del
Rosario, 335 SCRA 288)
Q: What is the rule regarding the action on the
demurrer to evidence?
A: Under Sec. 2, Rule 33, A demurrer to evidence
shall be subject to the provisions of Rule 15. (Sec.
2, Rule 33, AM No. 19-10-20-SC). Rule 15 provides
for the rules on Motions, which provides that a
demurrer to evidence must be in writing and shall
state the relief sought to be obtained and the
grounds upon which it is based, and if required by
these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting
affidavits and other papers.
Q: Distinguish: Demurrer to evidence in civil and
criminal cases.
A:
DEMURRER TO
EVIDENCE IN CIVIL
CASES:
DEMURRER TO
EVIDENCE IN
CRIMINAL CASES:
Leave of court is not
required before its
filing.
It is filed with or
without leave of court.
If granted, the order of
dismissal
is
appealable.
the order of dismissal
is
not
appealable
because
of
the
constitutional
policy
against
double
jeopardy.
If
denied,
the
defendant
may
proceed to present his
evidence.
The
accused
may
adduce his evidence
only if the demurrer is
filed with leave of
court.
He
cannot
present his evidence if
he filed the demurrer
without leave of court.
The cannot cannot, on
its own, make a
demurrer.
The court can make
the demurrer on its
own.
Source: Sec. 1, Rule 33; Sec. 23, Rule 119)
P.
Judgments and Final Orders:
Q: What is the rule regarding judgment after
pre-trial?
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A: Should there be no more controverted facts, or
no more genuine issue as to any material fact, or
an absence of any issue, or should the answer fail
to tender an issue, the court shall, without
prejudice to a party moving for judgment on the
pleadings under Rule 34 or summary judgment
under Rule 35, motu proprio include in the pre-trial
order that the case be submitted for summary
judgment or judgment on the pleadings, without
need of position papers or memoranda. In such
cases, judgment shall be rendered within ninety
(90) calendar days from termination of the pre-trial.
The order of the court to submit the case for
judgment pursuant to this Rule shall not be the
subject to appeal or certiorari. (Sec. 10, Rule 18,
AM No. 19-10-20-SC)
Q: What is the rule regarding judgment on the
pleadings?
A: Judgment on the pleadings is appropriate when
an answer fails to tender an issue, or otherwise
admits the material allegations of the adverse
party’s pleading. As such, it is a judgment that is
exclusively based on the submitted pleadings,
without the introduction of evidence as the factual
issue remains uncontroverted. (GSIS vs. Prudential
Guarantee and Assurance, Inc., GR no. 165585,
November 20, 2013)
Q: What are cases where judgment on the
pleadings will no apply?
A:
1. Actions for the declaration of nullity of a
marriage;
2. Actions for annulment of marriage; and
3. Actions for legal separation. (Sec. 1, Rule
34)
Q: What is the nature of a summary judgment?
A: A summary judgment is granted to settle expeditiously
a case if, on motion of either party, there appears from
the pleadings, depositions, admissions, and affidavits that
no important issues of fact are involved, except the
amount of damages. (Ybiernas vs. Tanco-Gabaldon, 650
SCRA 154)
Q: What is the rule regarding summary
judgment for claimants?
A: A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served, move
with
supporting
affidavits,
depositions
or
admissions for a summary judgment in his or her
favor upon all or any part thereof. (Sec.1, Rule 35)
Q: What is the rule regarding summary
judgment of defending party?
A: A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary
judgment in his or her favor as to all or any part
thereof. (Sec. 2, Rule 35)
Q: What is the rule when the case is not fully
adjudicated on the motion?
A: If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs
sought and a trial is necessary, the court may, by
examining the pleadings and the evidence before it
and by interrogating counsel, ascertain what
material facts exist without substantial controversy,
including the extent to which the amount of
damages or other relief is not in controversy, and
direct such further proceedings in the action as are
just. The facts so ascertained shall be deemed
established, and the trial shall be conducted on the
controverted facts accordingly. (Sec. 4, Rule 35,
AM No. 19-10-20-SC)
Q: What are the forms of affidavit and
supporting papers needed?
A: Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to
testify to the matters stated therein. Certified true
copies of all papers or parts thereof referred to in
the affidavit shall be attached thereto or served
therewith. (Sec. 5, Rule 35)
Q: Distinguish: Judgment on the pleadings and
summary judgments.
A: A judgment on the pleadings is a judgment
that is exclusively based on the submitted
pleadings, without the introduction of evidence as
the factual issue remains uncontroverted., while a
summary judgment is a judgment granted to
settle expeditiously a case if, on motion of either
party, there appears from the pleadings,
depositions, admissions, and affidavits that no
important issues of fact are involved, except the
amount of damages.
Q: What are the contents of a judgment?
A:
1. The judgment or final order shall be in
writing personally and directly prepared by
the judge;
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
2.
3.
4.
It must state clearly and distinctly the
facts and the law on which it is based;
It must be signed by him (the judge); and
It must be filed with the clerk of court.
(Sec. 1, Rule 36)
Q: What is the rule regarding rendition of
judgments and final orders?
A: Rendition of a judgment is the filing of the same
with the clerk of court. It is not the pronouncement
of the judgment in open court that constitutes the
rendition. (Ago vs. CA, 6 SCRA 530; Castro vs.
Malazo, 99 SCRA 164)
Q: What is the rule regarding entry of judgment
and final order?
A: If no appeal or motion for new trial or
reconsideration is filed within the time provided in
these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the
judgment or final order shall be deemed to be the
date of its entry (in the book of entries of
judgment). (Sec. 2, Rule 36)
Q. Post-Judgment Remedies:
Q: Distinguish: Motion for New trial and Motion
for Reconsideration.
A:
RECONSIDERATION
NEW TRIAL
As to Nature or Objective:
One that is directed against
a judgment or a final order.
A remedy that seeks to
temper the severity of a
judgment or prevent a
failure of justice.
Within the period for taking an appeal either by:
(a) “Notice of Appeal” → within 15 days after
notice to the applicant of the judgment or final
order appealed from. (Sec. 2, Rule 40; Sec.
3, Rule 40; Sec. 2, Rule 45);
(b) “Record on Appeal” → within 30 days from
notice of the judgment or final order. (Sec. 2,
Rule 40; Sec. 3, Rule 41). [Note: This is
required only in special proceedings and in
other cases of multiple or separate appeals.
(Sec. 3, Rule 40)]
Effect of the filing of motion on
the period to appeal:
Interrupts the period of appeal
Grounds (What to allege):
a. That the damages
awarded
are
excessive;
b. The the evidence is
insufficient to justify
the decision or final
order;or
c. That the decision
or final order is
contrary to law.
a.Fraud, Accident,
Mistake
or
Excusable
negligence which
ordinary prudence
could not have
guarded
against
and, by reason of
which,
such
aggrieved
party
has probably been
impaired in his
rights; or
b.
Newlydiscovered
evidence, which he
could not, with
reasonable
diligence,
have
diligence
and
produced at the
trial , and which, if
presented, would
probably alter the
results.
When to file?
Period of resolving the motion:
Within 30 days from the time it is submitted for
resolution.
Remedy when the motion is denied:
29
REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Appeal from the judgment
or final order itself subject
of
the
motion
for
reconsideration.
Appeal
from
the
judgment or final order.
Effect of granting such motion:
The court may amend such
judgment or final order
accordingly, which will be in
the nature of a new
judgment which supersedes
the original judgment.
The original judgment or
final order shall be
vacated, and the action
shall stand for trial de
novo.
The
recorded
evidence taken upon the
former trial shall be used
at the new trial without
retaking the same if the
evidence is material and
competent.
Source: Rule 37; Rule 40, Rule 41; Ybiernas vs. TancoGabaldon, GR no. 178925, June 1, 2011)
Q: What is the concept of appeal (in general)?
A: The right to appeal is not a part of due process
but a mere statutory privilege that has to be
exercised only in the manner and in accordance
with the provisions of law. (Stolt-Nielsen vs. NLRC,
477 SCRA 516)
Q: What are the judgments or orders that are
not appealable?
A:
1. An order denying a petition for relief or any
similar motion seeking relief from
judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an
appeal;
4. An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
5. An order of execution;
6. A judgment or final order for or against
one or more of several parties or in
separate claims, counterclaims, crossclaims and third-party complaints, while
the main case is pending, unless the court
allows an appeal therefrom; and
7. An order dismissing an action without
prejudice.
(AM
No.
07-7-12-SC,
December 1, 2007)
Q: What is the remedy in case the judgment or
final order is not appealable?
A: In those instances where the judgment or final
order is not appealable, the aggrieved party may
file the appropriate special civil action under Rule
65. (Sec. 1, Rule 41; Crisologo vs. JEWN AgroIndustrial Corp., GR no. 196894, March 3, 2014)
Q: What are the modes of appeal?
A:
1. An ordinary appeal: The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing
a notice of appeal with the court which
rendered the judgment or final order
appealed from and serving a copy thereof
upon the adverse party. No record on
appeal shall be required except in special
proceedings and other cases of multiple
or separate appeals where law on these
Rules so require. In such cases, the
record on appeal shall be filed and served
in like manner. (Sec. 2(a), Rule 41)
2. Petition for review: The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition
for review in accordance with Rule 42.
(Sec. 2(b), Rule 41)
3. Appeal by certiorari: In all cases where
only questions of law are raised or
involved, the appeal shall be to the
Supreme Court by petition for review on
certiorari in accordance with the Rule 45.
(Sec. 2(c), Rule 41)
Q: How is an appeal perfected?
A: A party’s appeal by notice is deemed perfected
as to him upon the filing of the notice of appeal in
due time. A party’s appeal by record on appeal is
deemed perfected as to him with respect to the
subject matter thereof upon the approval of the
record on appeal filed in due time. (Sec. 4, Rule 40
in relation to Sec. 9, Rule 41)
Appeal from Judgments or final orders of the
MTCs, MeTCs, and MCTCs:
WHERE TO APPEAL FROM A JUDGMENT OR FINAL
ORDER OF A MUNICIPAL COURT:
An appeal from a judgment or final order of a
MTC mat be taken to the RTC exercising
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
jurisdiction over the area to which the former
pertai. (Sec. 1, Rule 40)
WHEN TO APPEAL:
Within 15 days after notice to the appellant of
the judgment or final orde appealed from (Sec.
2, Rule 40)
Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within 30 days after notice of
the judgment or final order. (sec. 2, Rule 40).
A record on appeal shall be required only in
special proceedings and in cases of multiple or
separate appeals. (Sec. 3, Rule 40)
CONTENTS OF NOTICE OF APPEAL:
a. Indicate the parties to the appeal;
b. The judgment or final order or part thereof
appealed from; and
c. State the material dates showing the timeliness
of the appeal (Sec. 3, Rule 40)
HOW TO APPEAL:
Appeal is taken by the following: (a) By filing a
notice of appeal and record of appeal, where
appropriate, with the court that rendered the
judgment or final order appealed from; and (b)
By serving a copy of the notice and record on
the adverse party. (Sec. 3, Rule 40)
Therefore, if the judgment was rendered by the
MeTC, the notice of appeal must be filed with
said court, not with the RTC. (Sec. 3, Rule 40)
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from the full amount of the appellate
court docket and other lawfl fees. Proof of
payment thereof shall be transmitted to the
appellate court together with the original record
or the record on appeal, as the case may be.
(Sec. 5, Rule 40)
Within 15 days from the perfection of the
appeal, the clerk of court of the lower court
shall transmit the original record or the record
on appeal, together with transcripts and
exhibits, which he shall certify as complete, to
the proper RTC. (Sec. 6, Rule 40)
PERFECTION OF THE APPEAL:
A party’s appeal by notice is deemed perfected
as to him upon the filing of the notice of appeal
in due time. A party’s appeal by record on
appeal is deemed perfected as to him with
respect to the subject matter thereof upon the
approval of the record on appeal filed in due
time. (Sec. 4, Rule 40 in relation to Sec. 9, Rule
41)
The notice of appeal does not require the
approval of the court. The function of the notice
of appeal is merely to notify the trial court that
the appellate was availing of the right to appeal,
and not to seek the court’s permission that he
be allowed to pose an appeal. The trial court’s
only duty with respect to a timely notice of
appeal is to transmit the original record of the
case to the appellate court. (Crisologo vs.
Daray, 562 SCRA 382)
DUTY OF THE CLERK OF COURT OF THE RTC:
Upon receipt of the complete record or the
record on appeal, the clerk of court of the RTC
shall notify the parties of such fact. (Sec. 7(a),
Rule 40)
SUBMISSION OF MEMORANDUM:
Within 15 days from such notice, it shall be the
duty of the appellant to submit a memorandum,
copy of which shall be furnished to the
appellee. (Sec. 7(b), Rule 40)
For the appellant, the filing of a memorandum is
vital to his appeal. Failure to file shall be ground
for the dismissal of the appeal. The
memorandum shall briefly discuss the errors
imputed to the lower court. The appellee may (if
he so desires) file his memorandum within 15
days from receipt of the appellant’s
memorandum. (Sec. 7(b), Rule 40)
WHEN CASE IS DEEMED SUBMITTED FOR DECISION:
The case shall be considered submitted for
decision upon the filing of the memorandum of
the appellee, or the expiration of the period to
do so. (Sec. 7(c), Rule 40)
BASIS OF THE DECISION:
The RTC shall decide the case on the basis of
the entire record of the proceedings had in the
court of origin and such memoranda as are
filed. (Sec. 7(c), Rule 40)
APPEAL FROM AN ORDER DISMISSING A CASE FOR
LACK OF JURISDICTION:
If an appeal is taken from an order of the lower
court dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or
reverse it, as the case may be. In case of
affirmance and the ground of dismissal is lack
of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as if
the case was originally filed with it. In case of
reversal, the case shall be remanded for further
proceedings. (Sec. 8, Rule 40).
If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the Regional Trial Court on appeal shall
not dismiss the case if it has original jurisdiction
thereof, but shall decide the case in
accordance with the preceding section, without
prejudice to the admission of amended
pleadings and additional evidence in the
interest of justice. (Sec. 8, Rule 40)
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Appealsfrom judgments or final orders of the
RTCs:
MODES OF APPEAL FROM THE REGIONAL TRIAL
COURT TO THE COURT OF APPEALS:
a.
By writ of error (ordinary appeal) → where the
appealed judgment was rendered in a civil or
criminal action by the RTC in the exercise of its
-
original jurisdiction; or
b.
By petition for review → where the judgment
was rendered by the RTC in the exercise of its
-
appellate jurisdiction. (Leynes vs. Former Tenth
Division of the CA, GR no. 154462, January 19,
2011)
APPLICATION OF RULE 41 ON ORDINARY APPEAL:
Rule 41 applies to appeals from the judgment
or final order of the RTC in the exercise of its
original jurisdiction. This appeal is called
“Ordinary Appeal” (Sec. 2(a), Rule 41)
WHEN TO APPEAL:
The appeal shall be taken within 15 days from
notice of the judgment or final order appealed
from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within 30 days from notice of
the judgment or final order. (Sec. 3, Rule 41)
In habeas corpus cases, the appeal shall be
taken within 48 hours from notice of judgment
or final order. (Sec. 3, Rule 41)
APPELLATE COURT DOCKET AND OTHER LAWFUL
FEES:
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the appellate
court docket and other lawful fees. (Sec. 4, Rule
41)
Proof of payment of said fees shall be
transmitted to the appellate court together with
the original record or the record on appeal.
(Sec. 4, Rule 41)
NOTICE OF APPEAL:
The notice of appeal shall indicate the parties to
the appeal, specify the judgment or final order
or part thereof appealed from, specify the court
to which the appeal is being taken, and state
the material dates showing the timeliness of the
appeal. (Sec. 5, Rule 41)
RECORD ON APPEAL; FORM AND CONTENTS
THEREOF:
The full names of all the parties to the
proceedings shall be stated in the caption of
-
-
the record on appeal and it shall include the
judgment or final order from which the appeal is
taken and, in chronological order, copies of
only such pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the proper
understanding of the issue involved, together
with such data as will show that the appeal was
perfected on time. (Sec. 6, Rule 41)
If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all
the evidence, testimonial and documentary,
taken upon the issue involved. (Sec. 6, Rule 41)
The reference shall specify the documentary
evidence by the exhibit numbers or letters by
which it was identified when admitted or offered
at the hearing, and the testimonial evidence by
the names of the corresponding witnesses.
(Sec. 6, Rule 41)
If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient without
mentioning the names of the witnesses or the
numbers or letters of exhibits. (Sec. 6, Rule 41)
Every record on appeal exceeding twenty (20)
pages must contain a subject index. (Sec. 6,
Rule 41)
APPROVAL OF RECORD ON APPEAL:
Upon the filing of the record on appeal for
approval and if no objection is filed by the
appellee within five (5) days from receipt of a
copy thereof, the trial court may approve it as
presented or upon its own motion or at the
instance of the appellee, may direct its
amendment by the inclusion of any omitted
matters which are deemed essential to the
determination of the issue of law or fact
involved in the appeal. (Sec. 7, Rule 41)
If the trial court orders the amendment of the
record, the appellant, within the time limited in
the order, or such extension thereof as may be
granted, or if no time is fixed by the order within
ten (10) days from receipt thereof, shall redraft
the record by including therein, in their proper
chronological sequence, such additional
matters as the court may have directed him to
incorporate, and shall thereupon submit the
redrafted record for approval, upon notice to
the appellee, in like manner as the original draft.
(Sec. 7, Rule 41)
JOINT RECORD ON APPEAL:
Where both parties are appellants, they may file
a joint record on appeal within the time fixed by
section 3 of this Rule, or that fixed by the court.
(Sec. 8, Rule 41)
EFFECT OF PERFECTION OF APPEAL:
A party's appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice
of appeal in due time. A party's appeal by
32
REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
record on appeal is deemed perfected as to
him with respect to the subject matter thereof
upon the approval of the record on appeal filed
in due time. In appeals by notice of appeal, the
court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and
the expiration of the time to appeal of the other
parties. In appeals by record on appeal, the
court loses jurisdiction only over the subject
matter thereof upon the approval of the records
on appeal filed in due time and the expiration of
the appeal of the other parties. In either case,
prior to the transmittal of the original record or
the record on appeal, the court may issue
orders for the protection and preservation of
the rights of the parties which do not involve
any matter litigated by the appeal, approve
compromises, permit appeals of indigent
litigants, order execution pending appeal in
accordance with 2 of Rule 39, and allow
withdrawal of the appeal. (Sec. 9, Rule 41)
DUTY OF CLERK OF COURT OF THE LOWER COURT
UPON PERFECTION OF APPEAL:
a. To verify the correctness of the original record
or the record on appeal, as the case may be aid
to make certification of its correctness;
b. To verify the completeness of the records that
will be, transmitted to the appellate court;
c. If found to be incomplete, to take such
measures as may be required to complete the
records, availing of the authority that he or the
court may exercise for this purpose; and
d. To transmit the records to the appellate court.
(Sec. 10, Rule 41)
ADDITIONAL NOTES:
Within 30 days after the perfection of all the
appeals in accordance with Sec. 9, Rule 41, it
shall be the duty of the clerk of court to perform
the above-mentioned duties.
If the efforts to complete the records fail, he
shall indicate in his letter of transmittal the
exhibits or transcripts not included in the
records being transmitted to the appellate
court, the reasons for their non-transmittal, and
the steps taken or that could be taken to have
them available. The clerk of court shall furnish
the parties with copies of his letter of
transmittal of the records to the appellate court.
(Sec. 10, Rule 41)
TRANSCRIPT:
Upon the perfection of the appeal, the clerk
shall immediately direct the stenographers
concerned to attach to the record of the case
five (5) copies of the transcripts of the
testimonial evidence referred to in the record on
appeal.The stenographers concerned shall
transcribe such testimonial evidence and shall
prepare and affix to their transcripts an index
containing the names of the witnesses and the
pages wherein their testimonies are found, and
a list of the exhibits and the pages wherein
each of them appears to have been offered and
admitted or rejected by the trial court. The
transcripts shall be transmitted to the clerk of
the trial court who shall thereupon arrange the
same in the order in which the witnesses
testified at the trial, and shall cause the pages
to be numbered consecutively. (Sec. 11, Rule
41)
TRANSMITTAL:
The clerk of the trial court shall transmit to the
appellate court the original record or the
approved record on appeal within thirty (30)
days from the perfection of the appeal, together
with the proof of payment of the appellate court
docket and other lawful fees, a certified true
copy of the minutes of the proceedings, the
order of approval, the certificate of correctness,
the original documentary evidence referred to
therein, and the original and three (3) copies of
the transcripts. Copies of the transcripts and
certified true copies of the documentary
evidence shall remain in the lower court for the
examination of the parties. (Sec. 12, Rule 41)
DISMISSAL OF APPEAL:
Prior to the transmittal of the original record or
the record on appeal to the appellate court, the
trial court may motu propio or on motion
dismiss the appeal for having been taken out of
time. (Sec. 13, Rule 41)
Appeals and Review from judgments or final
orders of the Court of Appeals
(Rule 42, ROC):
APPLICATION OF RULE 42:
It applies to an appeal from the judgment or
final order of the RTC to the CA in cases
decided by the former in the exercise of its
appellate jurisdiction. (Guzman vs. Guzman,
693 SCRA 318)
WHEN TO APPEAL:
Appeal shall be made within 15 days from the
notice of the decision sought to be reviewed or
of the denial of the petitioner’s motion for new
trial or reconsideration filed in due time after
judgment. The court may grant an additional
period of 15 days only provided the extension is
sought (a) upon proper motion, and (b) payment
of the full amount of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period. No
further extension shall be granted except for the
most compelling reason and in no case to
exceed 15 days. (Sec. 1, Rule 42, Go vs. BPI
Finance, GR no. 199354, June 26, 2013)
33
REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
HOW TO APPEAL:
The appeal is made by filing a verified petition
for review with the CA, paying at the same time
to the clerk of said court the corresponding
docket and other lawful fees, depositing the
amount of P500.00 for costs, and furnishing the
RTC and the adverse party with a copy of the
petition. (Sec. 1, Rule 42)
The appeal is perfected as to the petitioner
upon the timely filing of a petition for review and
thepayment of the corresponding docket and
other lawful fees. (Sec. 8(a), Rule 42)
The petition shall be filed in the proper form
required in Sec. 2, Rule 42 stating a concise
statement of the metters involved, the issues
raised, the specification of errors of law or fact,
or both, allegedly committed by the trial court
and the reasons or arguments relied upon for
the allowance of the appeal. The petitioner shall
also indicate the specific material dates
showing that the petition was filed on time (Sec.
2, Rule 42).
The failure to comply with any of the
requirements in Sec. 2, Rule 42 regarding the
payment of the docket and other lawful fees,
the deposit for costs, proof of service of the
petition, and the contents of and the
documents which should accompany the
petition shall be sufficient ground for the
dismissal of the petition. (Sec. 3, Rule 42)\The
CA may dismiss the petition if it finds the same
to be patently without merit, prosecuted merely
for delay, or that the questions raised are too
unsubstantial to require consideration. (Sec. 4,
Rule 42)
If the Court does not dismiss the petition, it
may require the respondent to file a comment
on the petition within 10 days from notice. The
respondent shall file a comment, not a motion
to dismiss. (Sec. 4, Rule 42)
If the CA finds a prima facie that the lower court
has committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may, accordingly, give
due course to the petition. (Sec. 6, Rule 42)
If the petition is given course, the CA may set
the case for oral argument or require the parties
to submit memoranda within a period of 15
days from notice. The case shall be deemed
submitted for decision upon the filing of the last
pleading or memorandum required. (sec. 9,
Rule 42)
EFFECT OF PERFECTION OF APPEAL:
(a) Upon the timely filing of a petition for review
and the payment of the corresponding docket
and other lawful fees, the appeal is deemed
perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over
the case upon the perfection of the appeals
filed in due time and the expiration of the time
to appeal of the other parties.
-
-
However, before the Court of Appeals gives
due course to the petition, the Regional Trial
Court may issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal, approve compromises, permit appeals
of indigent litigants, order execution pending
appeal in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal.
(b) Except in civil cases decided under the Rule
on Summary Procedure, the appeal shall stay
the judgment or final order unless the Court of
Appeals, the law, or these Rules shall provide
otherwise. (Sec. 8, Rule 42)
SUBMISSION FOR DECISION:
If the petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within
a period of fifteen (15) days from notice. The
case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
court itself. (Sec. 9, Rule 42)
Appeals and Review from judgments or final
orders of CTA and other Quasi-Judicial
Agencies (rule 43, ROC):
SCOPE OF RULE 43:
Rule 43 shall apply to appeals from judgments
or final orders of the CTA and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial functions. (Sec.
1, Rule 43)
QUASI-JUDICIAL AGENCIES WHERE RULE 43 APPLY:
a. Civil Service Commission;
b. Central Board of Assessment Appeals;
c. Securities and Exchange Commission;
d. Office of the President;
e. Land Registration Authority;
f.
Social Security Commission;
g. Civil Aeronautics Board;
h. Bureau of Patents;
i.
Trademarks and Technology Transfer;
j.
National Electrification Administration;
k. Energy Regulatory Board;
l.
National Telecommunications Commission;
m. Department of Agrarian Reform under Republic
Act No. 6657;
n. Government Service Insurance System;
o. Employees Compensation Commission;
p. Agricultural Invention Board;
q. Insurance Commission;
r.
Philippine Atomic Energy Commission;
s. Board of Investments;
t.
Construction Industry Arbitration Commission;
and
u. Voluntary arbitrators authorized by law. (Sec. 1,
Rule 43)
34
REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
WHEN RULE 43 DOES NOT APPLY:
Rule 43 does not apply to judgments or final
orders issued under the Labor Code of the
Philippines. (Sec. 2, Rule 43)
REVIEW OF DECISIONS OF THE NLRC:
The remedy of a party aggrieved by the
decision of the NLRC is to promptly move for
the reconsideration of the decision and, if
denied, to timely file a special civil action for
certiorari under Rule 65 within 60 days from
notice of decision. In observance of the
doctrine of hierarchy of courts, the petition for
certiorari should be filed with the CA. (St. Martin
Funeral Homes vs. NLRC, GR no. 130866,
September 16, 1988)
REVIEW
OF
DECISIONS
OF
VOLUNTARY
ARBITRATORS IN LABOR CASES:
Decisions of voluntary arbitrators issued
pursuant to the Labor Code do not come within
the ambit of Sec. 2, Rule 43. A petition for
review under Rule 43 is the proper remedy “just
like those of the quasi-judicial agencies, boards
and commissions enumerated therein, and
consistent with the original purpose to provide
a uniform procedure for the appellate review of
adjudications of all quasi-judicial entities. (Royal
Plant Workers Union vs. Coca-Cola Bottlers
Phil. - Cebu, GR no. 198783, April 15, 2013)
APPEALS FROM THE SANDIGANBAYAN:
Decisions
and
final
orders
of
the
Sandiganbayan shall be appealable to the SC
by petition for review on certiorari raising pure
questions of law in accordance with Rule 45 of
the ROC. Whenever, in any case decided by the
Sandiganbayan, the penalty of reclusion
perpetua, life imprisonment or death is
imposed, the decision shall be appealable to
the Supreme Court in the manner prescribed in
the ROC. (Sec. 7, RA 8249)
REVIEW OF THE RULINGS OF THE OMBUDSMAN:
a. In Administrative Cases: Appeals from
decisions of the Ombudsman in administrative
disciplinary actions should be brought to the
CA under Rule 43. (Enemecio vs. Office of the
Ombudsman, 419 SCRA 82)
b. In Criminal Cases: The ruling of the
Ombudsman shall be elevated to the SC by
way of Rule 65.
APPEALS FROM JUDGMENT OF THE COURT OF TAX
APPEAL:
A party adversely affected by a resolution of a
Division of the CTA on a motion for
reconsideration or new trial may file a petition
for review with the CTA En Banc (Sec. 11, RA
9282)
REVIEW OF THE RESOLUTION OF THE SECRETARY
OF JUSTICE:
The CA is clothed with jurisdiction to review the
resolution issued by the Secretary of the DOJ
through a petition for certiorari under Rule 65,
ROC, solely on the ground of grave abuse of
discretion amounting to lack of jurisdiction.
(Alcaraz vs. Gonzales, 533 Phil 796; Tan vs.
Matsuura, GR no. 179003, January 9, 2013)
WHERE TO APPEAL:
An appeal under this Rule may be taken to the
Court of Appeals within the period and in the
manner herein provided, whether the appeal
involves questions of fact, of law, or mixed
questions of fact and law. (Sec. 3, Rule 43)
PERIOD OF APPEAL:
The appeal shall be taken within fifteen (15)
days from notice of the award, judgment, final
order or resolution, or from the date of its last
publication, if publication is required by law for
its effectivity, or of the denial of petitioner's
motion for new trial or reconsideration duly filed
in accordance with the governing law of the
court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper
motion and the payment of the full amount of
the docket fee before the expiration of the
reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days
only within which to file the petition for review.
No further extension shall be granted except for
the most compelling reason and in no case to
exceed fifteen (15) days. (Sec. 4, Rule 43)
HOW APPEAL TAKEN:
Appeal shall be taken by filing a verified petition
for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a
copy thereof on the adverse party and on the
court or agency a quo. The original copy of the
petition intended for the Court of Appeals shall
be indicated as such by the petitioner. Upon
the filing of the petition, the petitioner shall pay
to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the
sum of P500.00 for costs. Exemption from
payment of docketing and other lawful fees and
the deposit for costs may be granted by the
Court of Appeals upon a verified motion setting
forth valid grounds therefor. If the Court of
Appeals denies the motion, the petitioner shall
pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from
notice of the denial. (Sec. 5, Rule 43)
CONTENTS OF THE PETITION: The petition for review
shall:
a. State the full names of the parties to the case,
without impleading the court or agencies either
as petitioners or respondents;
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
b.
c.
d.
e.
Contain a concise statement of the facts and
issues involved and the grounds relied upon for
the review;
Be accompanied by a clearly legible duplicate
original or a certified true copy of the award,
judgment, final order or resolution appealed
from, together with certified true copies of such
material portions of the record referred to
therein and other supporting papers; and
Contain a sworn certification against forum
shopping as provided in the last paragraph of
section 2, Rule 42.
The petition shall state the specific material
dates showing that it was filed within the period
fixed herein. (Sec. 6, Rule 43)
EFFECT
OF
FAILURE
TO
COMPLY
WITH
REQUIREMENTS:
The failure of the petitioner to comply with any
of the foregoing requirements regarding the
payment of the docket and other lawful fees,
the deposit for costs, proof of service of the
petition, and the contents of and the
documents which should accompany the
petition shall be sufficient ground for the
dismissal thereof. (Sec. 7, Rule 43)
ACTION ON THE PETITION:
The Court of Appeals may require the
respondent to file a comment on the petition
not a motion to dismiss, within ten (10) days
from notice, or dismiss the petition if it finds the
same to be patently without merit, prosecuted
manifestly for delay, or that the questions
raised therein are too unsubstantial to require
consideration. (Sec. 8, Rule 43)
TRANSMITTAL OF RECORD:
Within fifteen (15) days from notice that the
petition has been given due course, the Court
of Appeals may require the court or agency
concerned to transmit the original or a legible
certified true copy of the entire record of the
proceeding under review. The record to be
transmitted may be abridged by agreement of
all parties to the proceeding. The Court of
Appeals may require or permit subsequent
correction of or addition to the record. (Sec. 11,
Rule 43)
EFFECT OF APPEAL:
The appeal shall not stay the award, judgment,
final order or resolution sought to be reviewed
unless the Court of Appeals shall direct
otherwise upon such terms as it may deem just.
(Sec.12, Rule 43)
SUBMISSION FOR DECISION:
If the petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within
a period of fifteen (15) days from notice. The
case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
court of Appeals. (Sec. 13, Rule 43)
Q: What is the nature of the petition for relief
from judgments, orders or other proceedings?
A: It is a legal remedy whereby a party seeks to set
aside a judgment rendered against him by a court
whenever he was unjustly deprived of a hearing or
was prevented from taking an appeal because of
fraud, accident, mistake or excusable neglect.
(Quelnan vs. VHF Philippines, 470 SCRA 73)
Q: What are the grounds for a petition for relief?
A:
1. When a judgment or final order is entered,
or any other proceeding is thereafter taken
against the petitioner in any court through
fraud, accident, mistake, or excusable
negligence (Sec. 1, Rule 38); or
2. When the petitioner has been prevented
from taking an appeal by fraud, accident,
mistake, or excusable negligence. (Sec. 2,
Rule 38
Q:When is the Period to file the petition?
A: The petition shall be filed within 60 days after the
petitioner learns of the judgment, final order or
proceeding and not more than 6 months after such
judgment or final order was entered, or such
proceeding was taken (Sec. 3, Rule 38)
Q: What are the grounds for annulment of
judgments or final orders and resolution?
A:
1. Extrinsic Fraud; and
2. Lack of Jurisdiction (Sec. 2, Rule 47)
3. Denial of due process (Diona vs.
Balangue, 688 SCRA 22)
Q: What is the period for filing the annulment?
A: If based on extrinsic fraud, the action must be
filed within 4 years from its discovery. If based on
lack of jurisdiction, the action must be brought
before the action is barred by laches or estoppel.
(Sec. 3, Rule 47)
Q: What is the effect of judgment of annulment?
A: A judgment of annulment shall set aside the
questioned judgment or final order or resolution
and render the same null and void, without
prejudice to the original action being refiled in the
proper court. However, where the judgment or final
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
order or resolution is set aside on the ground of
extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for
new trial had been granted therein. (Sec. 7, Rule
47). The prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of such original action
until the finality of the judgment of annulment.
However, the prescriptive period shall not be
suspended where the extrinsic-fraud is attributable
to the plaintiff in the original action. (Sec. 8, Rule
47). The judgment of annulment may include the
award of damages, attorney's fees and other relief.
(Sec. 9, Rule 47)
R.
Execution, Satisfaction, and Effect of
Judgments:
Q: When shall execution (as a matter right) be
issued?
A: Execution is a matter of right upon the expiration
of the period to appeal and no appeal was
perfected from a judgment or order that disposes
of the action or proceeding. (Sec. 1, Rule 39). Once
judgment becomes final and executory, the
prevailing party can have it executed as a matter of
right, and the issuance of a writ of execution
becomes the ministerial duty of the court. (Buaya
vs. Stronghold Insurance, 342 SCRA 576)
Q: When shall execution (discretionary) be
issued?
A: Discretionary execution constitutes an exception
to the general rule that a judgment cannot be
executed before the lapse of the period for appeal
or during the pendency of an appeal. Under Sec.1,
Rule 39, execution shall issue only as a matter of
right upon a judgment or final order that finally
disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no
appeal has been duly perfected. Good reasons
must exists and the compelling grounds for the
issuance of the writ must be stated in a special
order after due hearing. (Bangkok Bank Public
Company vs. Lee, 479 SCRA 267)
Q: What is the rule regarding stay of execution
of a judgment?
A: General Rule: An appeal perfected in due tie
stays the execution of a judgment. Exceptions:
There are judgments that the execution of which is
not stayed by a pending appeal, classified under
the following categories; (a) Those judgments
which by express provision of the rules are
immediately executory and are not stayed by an
appeal. (Sec. 4, Rule 39) and (b) Those judgments
that have become the object of discretionary
execution. (Sec. 2, Rule 39)
Q: What is the rule regarding the execution in
case the judgment obligee (creditor) dies?
A: The death of the judgment obligee will not
prevent the execution of the judgment. In case the
judgment obligee dies, the execution may issue
upon the application of his executor, administrator
or successor in interest. (Sec. 7(a), Rule 39)
Q: What is the rule on execution in case the
judgment obligor (debtor) dies?
A: It will not prevent execution of the judgment. In
case the judgment obligor dies, execution shall still
go on because under the ROC, execution shall
issue against his executor or administrator or
successor in interest, if the judgment be for the
recovery of real or personal property, or the
enforcement of a lien thereon. (Sec. 7(b), Rule 39).
If the death occurs after the execution is actually
levied upon any of his property, the same may be
sold for the satisfaction of the judgment obligation.
If there is any surplus after the sale, the officer
making the sale shall account to the corresponding
executor or administrator. (Sec. 7(c), Rule 39)
Q: How to execute judgment for money?
A:
1. Demand from the judgment obligor the
immediate payment of the full amount
stated in the judgment including the lawful
fees in cash, certified check payable to
the judgment obligee or any other form of
payment acceptable to him. (Sec. 9(a),
Rule 39);
2. If the judgment obligor cannot pay all or
part of the obligation in cash, certified
check or other mode of payment, the
officer shall levy upon the properties of the
judgment obligor. The judgment obligor
shall have the option to choose which
property or part thereof may be levied
upon. If the judgment obligor does not
exercise the option, the officer shall first
levy on the personal properties, if any, and
then on the real properties if the personal
properties are insufficient to answer for
the personal judgment but the sheriff shall
set only so much of the property that is
sufficient to satisfy the judgment and
lawful fees. (Sec. 9(b), Rule 39)
3. The officer may levy on the debts due the
judgment debtor including bank deposits,
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
financial interests, royalties, commissions
and other personal property not capable
of manual delivery in the possession or
control of third parties. The process of
effecting this form of levy is called
“garnishment”
Q: What is the rule regarding enforcement of
money judgments?
A: The sheriff cannot and should not be the one to
determine which property to levy of the judgment
obligor cannot immediately pay because it is the
judgment obligor who is given the option to choose
which property or part thereof may be levied upon
to satisfy the judgment. In case where the
judgment obligor is not the owner of the subject
vehicle that the sheriff levied on, it was improper
for him to have enforced the writ of execution on a
property that did not belong to the judgment
debtor/obligor. Respondent Sheriff evidently failed
to perform his duty with utmost diligence.
(Sarmiento vs. Mendiola, 638 SCRA 345)
Q: What is the rule regarding garnishment of
debts and credits?
A: Garnishment shall be made by (a) serving notice
upon the third person having in possession or
control of the credits in favor of the judgment
obligor/debtor; (b) the third person or garnishee
shall make a written report to the court within 5
days from service of the notice of garnishment
stating whether or not the judgment obligor has
sufficient funds to satisfy the judgment. If sufficient,
the garnishee shall deliver the amount in cash or
certified check directly to the judgment
obligee/creditor within 10 working days from
service of notice on said garnishee. The lawful fees
shall be directly paid to the court. If the amount is
insufficient, the garnishee shall make a report as to
the amount he holds for the judgment
obligor/debtor. (Sec. 9, Rule 39)
Q: What is the rule regarding levy of
encumbered property?
A: In determining properties to be levied upon, the
ROC requires the sheriff to levy only on those
“properties of the judgment debtor” which are “not
otherwise exempt from judgment debtor”. For
purposes of the levy, a property is deemed to
belong to the judgment debtor if he holds a
beneficial interest in such property that he can sell
or otherwise dispose of for value. In a contract of
mortgage, the debtor retains beneficial interest
over
the
property
notwithstanding
the
encumbrance, since the mortgage only serves to
secure the fulfillment of the principal obligation.
Indeed, even if the debtor defaults, this fact does
not operate to vest in the creditor the ownership of
the property; the creditor must still resort to
foreclosure proceedings. Thus, a mortgaged
property may still be levied upon by the sheriff to
satisfy the judgment debtor’s obligations” (Golden
Sun Finance Corp. vs. Albano, AM No. P-11-2888,
July 27, 2011)
Q: What is the effect of levy and sale of
property?
A: Execution is enforced by the fact of levy and
sale. The result of such execution was that title
over the subject property is vested immediately in
the purchaser subject only to the right to redeem
the property within the period provided for by law.
The right acquired by the purchaser at an
execution sale is inchoate and does not become
absolute until after the expiration of the redemption
period without the right of redemption having been
exercised. But inchoate though it be, it is entitled to
protection and must be respected until
extinguished by redemption. If there is failure to
redeem the subject property within the period
allowed by law, the redemptioner is divested of his
rights over the property. (Ching vs. Family Savings
banks, 634 SCRA 585)
Q: What is the rule regarding execution of
judgment for the performance of a specific act?
A: If the judgment requires a person to perform a
specific act, said act must be performed but if the
party fails to comply within the specified time, the
court may direct the act to be done by someone at
the cost of the disobedient party and the act when
so done shall have the effect as if done by the
party. If the judgment directs a conveyance of real
or personal property, and said property is in the
Philippines, the court in lieu of directing the
conveyance thereof, may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law. (Sec. 10(a), Rule 39)
Q: What is the rule on execution for a judgment
for the delivery or restitution of real property?
A: An example of this kind of judgment is one
rendered in an action for ejectment. In such a case,
the officer shall demand from the judgment
obligor/debtor to vacate peaceably within 3
working days, and restore possession of the
property to the judgment obligee/creditor. (Sec.
10(c), Rule 39). When a decision is immediately
executory it does not mean dispensing with the
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
required 3-day notice. A sheriff who enforces the
writ without the required notice is running afoul
with the rules. The requirement of a notice to
vacate is based on the rudiments of justice and fair
play. The rule requires that notice be served on the
“person against whom the judgment for the
delivery or restitution of real property is rendered
and all persons claiming rights under him”.
(Calaunan vs. Madolori, 642 SCRA 1)
Q: What are properties that are exempted from
execution?
A:
1. The judgment obligor/debtor’s family
home as provided by law, or the
homestead in which he resides, and the
;and necessarily used in connection
therewith;
2. Ordinary tools and implements personally
used by him in his trade, employment, or
livelihood;
3. Three horses, or three carabaos, or other
beasts of burden, such as the judgment
obligor/debtor may select necessarily
used by him in his ordinary occupation;
4. His necessary clothing and articles for
ordinary personally use, excluding jewelry;
5. Household
furniture
and
utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding one
hundred thousand pesos;
6. Provisions for individual or family use
sufficient for four months;
7. The professional libraries and equipment
of
judges,
lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors, clergymen, teachers, and other
professionals,
not
exceeding
three
hundred thousand pesos in value;
8. One fishing boat and accessories not
exceeding the total value of one hundred
thousand pesos owned by a fisherman
and by the lawful use of which he earns
his livelihood;
9. So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the four months
preceding the levy as are necessary for
the support of his family;
10. Lettered gravestones;
11. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
12. The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from
the Government;
13. Properties specially exempted by law.
(Sec. 13, Rule 39)
IV.
Provisional Remedies
Q: What is the nature of provisional remedies?
A: Provisional remedies are temporary, auxiliary,
and ancillary remedies available to a litigant for
various purposes like the protection and
preservation of his rights while the main action is
pending or until final disposition of a matter in
litigation can occur. (Riano (2012), Civil Procedure
Vol. 2, p. 3). They are not causes of action in
themselves but merely adjuncts to a main suit.
They are provisional because they constitute
temporary measures availed of during the
pendency of the action and ancillary because they
are mere incidents in and are dependent upon the
results of the main ation. (Estares vs. CA, 459
SCRA 604; Buyco vs. Baraquia, 608 SCRA 699).
Q: What are the purposes of
provisional
remedies?
A:
1. To preserve or protect their rights or
interests while the main action is pending;
2. To secure the judgment;
3. To preserve the status quo; or
4. To preserve the subject matter of the
action. (Riano (2012), Civil Procedure Vol.
2, p. 3)
Q: What is the Jurisdiction over provisional
remedies?
A: The court which grants or issues a provisional
remedy is the court which has jurisdiction over the
main action. The ancillary and provisional remedy
of preliminary injunction cannot exist except only
as an incident of an independent action or
proceeding. (BF Homes vs. Manila Electric
Company, 636 SCRA 495). The authority to grant a
provisional remedy is not the sole prerogative of
superior courts. Even inferior courts may grant a
provisional remedy in an action pending with it and
within its jurisdiction. (Batas Pambansa Blg. 129)
A.
Preliminary Attachment:
Q: What are the grounds for the issuance of a
writ of preliminary attachment?
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REVIEWER IN CIVIL PROCEDURE
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A:
1.
2.
3.
4.
5.
6.
In an action for the recovery of a specified
amount of money or damages, other than
moral and exemplary, on a cause of action
arising from law, contract, quasi-contract,
delict or quasi-delict against a party who
is about to depart from the Philippines
with intent to defraud his creditors;
In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public
officer, or an officer of a corporation, or an
attorney, factor, broker, agent, or clerk, in
the course of his employment as such, or
by any other person in a fiduciary
capacity, or for a willful violation of duty;
In an action to recover the possession of
property unjustly or fraudulently taken,
detained or converted, when the property,
or any part thereof, has been concealed,
removed, or disposed of to prevent its
being found or taken by the applicant or
an authorized person;
In an action against a party who has been
guilty of a fraud in contracting the debt or
incurring the obligation upon which the
action is brought, or in the performance
thereof;
In an action against a party who has
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors; or
In an action against a party who does not
reside and is not found in the Philippines,
or on whom summons may be served by
publication. (sec.1, Rule 57, ROC).
Q: What is the rule on the issuance of the order
of attachment, affidavit and bond?
A: The order of preliminary attachment may be granted
upon motion and notice and hearing by the court in which
the action is pending, and may even be issued by the CA,
or the SC. (Sec. 2, Rule 57). It may also be issued ex part
and even before summons is served upon the defendant.
However the writ may not be enforced and validly
implemented
unless
preceded or simultaneously
accompanied by service of summons, copy of the
complaint, application for attachment, order of
attachment and the attachment bond. (Davao Light &
power vs. CA, 204 SCRA 343; Mangila vs. CA, 387 SCRA
162)
Q: What are the requisites for the issuance of an
order of preliminary attachment?
A: An order of attachment shall be granted only
upon the filing of the requisite affidavit and bond.
These must be duly filed with the court before the
order of attachment is issued. The required affidavit
need not be executed by the applicant. It may be
executed by some other person who personally
knows the facts. (Sec. 3, Rule 57). Aside from the
affidavit executed, the party applying for an order
of preliminary attachment must post a bond in the
amount fixed by the court and executed to the
adverse party. (This is called an attachment bond).
[Secs. 3 & 4, Rule 57]
Q: What is the rule on prior or contemporaneous
service of summons?
A: The writ of attachment is implemented by the
sheriff who shall make a levy on attachment
pursuant to the writ issued under Sec. 2, Rule 57.
However, under the ROC, the sheriff is not allowed
to make a levy on attachment if such levy is not
preceded or contemporaneously accompanied, by
the service on the defendant within the Philippines,
of the following: (a) Service of Summons; (b) Copy
of the complaint; (c) Application for attachment; (d)
Applicant’s affidavit and bond; and (d) Order and
writ of attachment. (Sec. 5, Rule 57)
Q: What are instances when the requirement of
prior or contemporaneous service shall not
apply?
A:
1. When the summons could not be served
personally despite diligent efforts;
2. When the summons could not be served
by substituted service despite diligent
efforts;
3. When the defendant is a resident of the
Philippines temporarily absent therefrom;
4. When the defendant is a non-resident of
the Philippines; and
5. When the action is one in Rem or Quasi In
Rem. (Sec. 5, Rule 57
Q: What is the manner of attaching real and
personal property?
A:
1. Real property, or growing crops thereon,
or any interest therein, standing upon the
record of the registry of deeds of the
province in the name of the party against
whom attachment is issued, or not
appearing at all upon such records, or
belonging to the party against whom
attachment is issued and held by any
other person, or standing on the records
of the registry of deeds in the name of any
other person, by filing with the registry of
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
deeds a copy of the order, together with a
description of the property attached, and
a notice that it is attached, or that such
real property and any interest therein held
by or standing in the name of such other
person are attached, and by leaving a
copy of such order, description, and
notice with the occupant of the property, if
any, or with such other person or his
agent if found within the province. Where
the property has been brought under the
operation of either the Land Registration
Act or the Property Registration Decree,
the notice shall contain a reference to the
number of the certificate of title, the
volume and page in the registration book
where the certificate is registered, and the
registered owner or owners thereof.
2.
3.
4.
The registrar of deeds must index
attachments filed under this section in the
names of the applicant, the adverse party,
or the person by whom the property is
held or in whose name it stands in the
records. If the attachment is not claimed
on the entire area of the land covered by
the certificate of title, a description
sufficiently accurate for the identification
of the land or interest to be affected shall
be included in the registration of such
attachment;
Personal property capable of manual
delivery, by taking and safely keeping it in
his
custody,
after
issuing
the
corresponding receipt therefor.
Stocks or shares, or an interest in stocks
or shares, of any corporation or company,
by leaving with the president or managing
agent thereof, a copy of the writ, and a
notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such
writ;
Debts and credits, including bank
deposits, financial interest, royalties,
commissions and other personal property
not capable of manual delivery, by leaving
with the person owing such debts, or
having in his possession or under his
control, such credits or other personal
property, or with his agent, a copy of the
writ, and notice that the debts owing by
him to the party against whom attachment
is issued, and the credits and other
personal property in his possession, or
5.
under his control, belonging to said party,
are attached in pursuance of such writ;
The interest of the party against whom
attachment is issued in property belonging
to the estate of the decedent, whether as
heir, legatee, or devisee, by serving the
executor or administrator or other
personal representative of the decedent
with a copy of the writ and notice that said
interest is attached. A copy of said writ of
attachment and of said notice shall also
be filed in the office of the clerk of the
court in which said estate is being settled
and served upon the heir, legatee or
devisee concerned. (Sec. 7, Rule 57, ROC)
Q: What is the rule on discharge of attachment
and the counter-bond?
A: The party whose property has been ordered
attached may file a motion with the court in which
he action is pending, before or after levy or even
after the release of the attached property, for an
order to set aside or discharge the attachment on
the ground that the same was improperly or
irregularly issued or enforced, or that the bond is
insufficient. If the attachment is excessive, the
discharge shall be limited to the excess. If the
motion be made on affidavits on the part of the
movant but not otherwise, the attaching party may
oppose the motion by counter-affidavits or other
evidence in addition to that on which the
attachment was made. After due notice and
hearing, the court shall order the setting aside or
the corresponding discharge of the attachment if it
appears that it was improperly or irregularly issued
or enforced, or that the bond is insufficient, or that
the attachment is excessive, and the defect is not
cured forthwith. (Sec. 13, Rule 57, ROC)
Q: What are the manners of satisfying the
judgment out of the property attached?
A:
1. By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
the court, or so much as shall be
necessary to satisfy the judgment;
2. If any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff's hands, or in those the clerk of the
court;
3. By collecting from all persons having in
their possession credits belonging to the
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
judgment obligor, or owing debts to the
latter at the time of the attachment of such
credits or debts, the amount of such
credits and debts as determined by the
court in the action, and stated in the
judgment, and paying the proceeds of
such collection over to the judgment
obligee/creditor. (Sec. 15, Rule 57)
B.
PRELIMINARY
PROHIBITORY
INJUNCTION
When it requires one to
refrain from a particular
act or acts
When it requires the
performance
of
a
particular act or acts
because it commands the
performance of some
positive act to correct a
wrong in the past
The act has not yet been
performed because it is
restrained or prevented by
the injunction
The act has already been
performed and this act
has violated the rights of
another.
Purpose: To prevent a
future or threatened injury
Purpose: To restore the
Status Quo and then
preserve it.
The
Status
Quo
is
preserved;
The consummated acts
cannot be enjoined
The
Status
restored;
Preliminary Injunction:
Q: What is the definition of a preliminary
injunction?
A: It is an order granted at any stage of an action or
proceeding prior to the judgment or final order,
requiring a party of a court, agency or a person to
refrain from a particular act or acts. It may also
require the performance of a particular act or acts,
in which case it shall be known as a preliminary
mandatory injunction. (Sec. 1, Rule 58)
Q: Distinguish: Preliminary Mandatory Injunction
and Petition for mandamus.
A:
PRELIMINARY
MANDATORY
INJUNCTION
PETITION FOR
MANDAMUS
Provisional Remedy, Not
Main
or
Independent
Action
Special Civil Action and a
Main Action
Generally directed against
a party litigant, it may also
be issued against a court,
agency or person
Directed
against
a
tribunal, board, officer or
person.
Issued to require a party to
perform an act in order to
restore the last peaceable
and uncontested status
preceding the controversy
Seeks
a
judgment
commanding a tribunal,
corporation,
board,
officer or person to
perform a duty which the
law specifically enjoins as
a duty or a person was
unlawfully excluded from
the use and enjoyment of
an office to which such
person is entitled
Source: Sec. 1, Rule 58; Sec. 3, Rule 65)
Q: What are the kinds of preliminary injunction?
A:
PRELIMINARY
MANDATORY
INJUNCTION
Quo
is
Source: Sec. 1, Rule 58; City Government of Butuan vs.
Consolidated broadcasting System, 636 SCRA 320)
Q: What are the grounds for the issuance of
preliminary injunction?
A:
1. That the applicant is entitled to the relief
demanded, and the whole or part of such
relief
consists
in
restraining
the
commission or continuance of the act or
acts complained of, or in requiring the
performance of an act or acts either for a
limited period or perpetually;
2. That the commission, continuance or nonperformance of the act or acts complained
of during the litigation would probably
work injustice to the applicant; or
3. That a party, court, agency or a person is
doing, threatening, or is attempting to do,
or is procuring or suffering to be done
some act or acts probably in violation of
the rights of the applicant respecting the
subject of the action or proceeding, and
tending to render the judgment ineffectual.
(Sec. 3, Rule 58, ROC)
Q: What are the requisites for issuance of a writ
of preliminary injunction or a temporary
restraining order?
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
A:
1.
2.
3.
4.
The application in the action or
proceeding is verified, and shows facts
entitling the applicant to the relief
demanded; and
Unless exempted by the court the
applicant files with the court where the
action or proceeding is pending, a bond
executed to the party or person enjoined,
in an amount to be fixed by the court, to
the effect that the applicant will pay to
such party or person all damages which
he may sustain by reason of the injunction
or temporary restraining order if the court
should finally decide that the applicant
was not entitled thereto. Upon approval of
the requisite bond, a writ of preliminary
injunction shall be issued.
When an application for a writ of
preliminary injunction or a temporary
restraining order is included in a complaint
or any initiatory pleading, the case, if filed
in a multiple-sala court, shall be raffled
only after notice to and in the presence of
the adverse party or the person to be
enjoined. In any event, such notice shall
be preceded, or contemporaneously
accompanied, by service of summons,
together with a copy of the complaint or
initiatory pleading and the applicant's
affidavit and bond, upon the adverse party
in the Philippines. However, where the
summons could not be served personally
or by substituted service despite diligent
efforts, or the adverse party is a resident
of the Philippines temporarily absent
therefrom or is a nonresident thereof, the
requirement of prior or contemporaneous
service of summons shall not apply.
The application for a temporary restraining
order shall thereafter be acted upon only
after all parties are heard in a summary
hearing which shall be conducted within
twenty-four (24) hours after the sheriff's
return of service and/or the records are
received by the branch selected by raffle
and to which the records shall be
transmitted immediately. (Sec. 4, Rule 58)
Q: What are the grounds for objection to, or
motion of dissolution of, injunction or
restraining order?
A: The application for injunction or restraining order
may be denied, upon a showing of its insufficiency.
The injunction or restraining order may also be
denied, or, if granted, may be dissolved, on other
grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant
also by affidavits. It may further be denied, or if
granted, may be dissolved, if it appears after
hearing that although the applicant is entitled to the
injunction or restraining order, the issuance or
continuance thereof, as the case may be, would
cause irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by
the court conditioned that he will pay all damages
which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order. If it
appears that the extent of the preliminary injunction
or restraining order granted is too great, it may be
modified. (Sec. 6, Rule 58)
C. Receivership:
Q: What is the meaning of a receiver?
A: It refers to a person appointed by the court in
behalf of all the parties to the action for the
purpose of preserving and conserving the property
in litigation and prevent its possible destruction or
dissipation, if it were left in the possession of any of
the parties. (Commodities Storage & Ice Plant vs.
CA, 274 SCRA 439)
Q: What are the cases when a receiver may be
appointed?
A:
1. When it appears from the verified
application, and such other proof as the
court may require, that the party applying
for the appointment of a receiver has an
interest in the property or fund which is
the subject of the action or proceeding,
and that such property or fund is in
danger of being lost, removed, or
materially injured unless a receiver be
appointed to administer and preserve it
(Sec. 1(a), Rule 59);
2. When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger of
being wasted or dissipated or materially
injured, and that its value is probably
insufficient to discharge the mortgage
debt, or that the parties have so stipulated
in the contract of mortgage (Sec. 1(b),
Rule 59);
3. After judgment, to preserve the property
during the pendency of an appeal, or to
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
4.
dispose of it according to the judgment, or
to aid execution when the execution has
been returned unsatisfied or the judgment
obligor refuses to apply his property in
satisfaction of the judgment, or otherwise
to carry the judgment into effect (Sec. 1(c),
Rule 59);
Whenever in other cases it appears that
the appointment of a receiver is the most
convenient and feasible means of
preserving, administering, or disposing of
the property in litigation (Sec. 1(d), Rule
59).
Q: What are the requisites for the appointment
of a receiver?
A:
1. A verified application must be filed by the
party applying for the appointment of a
receiver;
2. The applicant must have an interest in the
property or funds subject of the action;
That he must show that the property or
fund is in danger of being lost,
removed,materially altered, wasted or
dissipated or there is a need to preserve
or administer the property, or that all the
grounds justifying the appointment of a
receiver exist (Sec. 1, Rule 59);
3. The application must be with notice and
set for hearing. A hearing is necessary
because the grounds for a receivership
require the resolution of factual issues;
4. Before issuing the appointment of a
receiver, the court shall require the
applicant to post a bond executed to the
party against whom the application is
presented. (Sec. 2, Rule 59); and
5. Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully and shall file a bond. (Sec.
4, Rule 59).
Q: What are the general powers of a receiver?
A:
1. To bring and defend actions in his own
name in his capacity as receiver;
2. To take and keep possession of the
property subject of the controversy;
3. To receive rents;
4. To collect debts due to himself as receiver
or to the fund, property, estate, person, or
corporation of which he is the receiver;
5. To compound for and compromise the
same;
6.
7.
8.
9.
To make transfer;
To pay outstanding debts;
To divide the money and property that
shall remain among the persons legally
entitled to receive the same; and
Generally, to do such acts respecting the
property as the court may authorize. (Sec.
6, Rule 59)
Q: What are the kinds of Bonds?
A:
1. The bond required before the appointment
of a receiver (Sec. 2, Rule 59); and
2. The bond required of a receiver before
entering upon his duties (Sec. 4, Rule 59).
Q: What is the rule on termination of
receivership?
A: Whenever the court, motu proprio or on motion
of either party, shall determine that the necessity
for a receiver no longer exists, it shall, after due
notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of
the funds and other property in his possession to
the person adjudged to be entitled to receive them
and order the discharge of the receiver from further
duty as such. The court shall allow the receiver
such
reasonable
compensation
as
the
circumstances of the case warrant, to be taxed as
costs against the defeated party, or apportioned,
as justice requires. (Sec. 9, Rule 59)
D. Replevin:
Q: What is the nature of a Replevin?
A: Replevin is a possessory action, the gist of
which is the right of possession in the plaintiff. The
primary relief sought therein is the return of the
property in specie wrongfully detained by another
person. It is an ordinary statutory proceeding to
adjudicate rights to the title or possession of
personal property. (Basaya vs. Militante, 156 SCRA
299)
Q: When does a writ of replevin be applied for?
A: The writ may be applied for at the
commencement of the action, or any time before
the answer. (Sec. 1, Rule 60)
Q: What are the duties of the sheriff in the
implementation of the writ of replevin?
A:
1. Upon receiving such order, the sheriff
must serve a copy thereof on the adverse
party, together with a copy of the
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
2.
3.
4.
application, affidavit and bond, and must
forthwith take the property, if it be in the
possession of the adverse party, or his
agent, and retain it in his custody.
If the property or any part thereof be
concealed in a building or enclosure, the
sheriff must demand its delivery, and if it
be not delivered, he must cause the
building or enclosure to be broken open
and take the property into his possession.
After the sheriff has taken possession of
the property as herein provided, he must
keep it in a secure place and shall be
responsible for its delivery to the party
entitled thereto upon receiving his fees
and necessary expenses for taking and
keeping the same. (Sec. 4, Rule 60)
If within five (5) days after the taking of the
property by the sheriff, the adverse party
does not object to the sufficiency of the
bond, or of the surety or sureties thereon;
or if the adverse party so objects and the
court affirms its approval of the
applicant's bond or approves a new bond,
or if the adverse party requires the return
of the property but his bond is objected to
and found insufficient and he does not
forthwith file an approved bond, the
property shall be delivered to the
applicant. If for any reason the property is
not delivered to the applicant, the sheriff
must return it to the adverse party. (Sec.
6, Rule 60)
Q: What is a Redelivery Bond?
A: If the adverse party objects to the sufficiency of
the applicant's bond, or of the surety or sureties
thereon, he cannot immediately require the return
of the property, but if he does not so object, he
may, at any time before the delivery of the property
to the applicant, require the return thereof, by filing
with the court where the action is pending a bond
executed to the applicant, in double the value of
the property as stated in the applicant's affidavit for
the delivery thereof to the applicant, if such delivery
be adjudged, and for the payment of such sum, to
him as may be recovered against the adverse
party, and by serving a copy of such bond on the
applicant. (Sec. 5, Rule 60)
Q: What are the requirements for the adverse
party to effect the return of his property under
the custody of the sheriff?
A:
1.
2.
3.
4.
5.
V.
He should post a redelivery bond in an
amount double the value of the property;
The bond is executed to the applicant;
He should serve a copy of the bond to the
applicant;
He must perform the above acts before
the delivery of the property to the
applicant. This means within 5 days from
the taking of the property by the sheriff;
The bond is sufficient. (Secs. 5 & 6, Rule
60)
Special Civil Actions
Q: What is the nature of a Special Civil Action?
A: Both ordinary and special civil actions are
governed by the rules for ordinary civil actions,
subject to the specific rules prescribed for a
specific civil action. (Sec. 3(a), Rule 1). Although
both types of actions are governed by the rules for
ordinary civil actions, there are certain rules that
are applicable only to specific civil actions. The
fact that an action is subject to certain special
rules, other than those applicable to ordinary civil
actions, is what makes a civil action special.
Q: Distinguish ordinary and special civil action.
A: The Code of Civil Procedure, 1901, has divided
into two parts — Part I relating to civil actions and
Part II to special proceedings. The difference
between the procedure in civil actions and in
special proceedings relates, principally, to the
powers of the judge or court. Under this
classification various proceedings have been
denominated as special proceedings, such as the
appointment of guardians, trusts and trustees, wills
and allowances thereof, the settlement of estates
of deceased persons, etc., and among them
proceedings in habeas corpus. All civil actions are
brought to this court by bill of exceptions, while
special proceedings are brought here by the
procedure denominated "appeals in special
proceedings. (Domingo vs. Warden of Bilibid
Prison, GR no. L-891, December 11, 1902)
Q: What is the rule regarding the jurisdiction
and venue of special civil actions?
A: The subject matter of a petition for declaratory
relief raises issues which are not capable of
pecuniary estimation and must be filed with the
Regional Trial Court (Sec. 19[1], BP 129; Sec. 1,
Rule 63). It would be error to file the petition with
the Supreme Court which has no original
jurisdiction to entertain a petition for declaratory
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
relief (Untied Residents of Dominican Hill vs.
Commission on the Settlement of Land Problems,
353 SCRA 782; Ortega vs. Quezon City
Government, 469 SCRA 388).
A.
Interpleader:
Q: What are the requisites for an interpleader?
A:
1. There must be two or more claimants with
adverse or conflicting interests upon a
subject matter;
2. The conflicting claims involve the same
subject matter;
3. The conflicting claims are made against
the same person (Plaintiffs);
4. The plaintiff has no claim upon the subject
matter of the adverse claims or if he has
an interest at all, such interest is not
disputed by the claimant. (Sec. 1, Rule 62)
Q: When to file an interpleader?
A: The action of interpleader is a remedy whereby a
person who has property whether personal or real,
in his possession, or an obligation to render wholly
or partially, without claiming any right in both, or
claims an interest which in whole or in part is not
disputed by the conflicting claimants, comes to
court and asks that the persons who claim the said
property or who consider themselves entitled to
demand compliance with the obligation, be
required to litigate among themselves, in order to
determine finally who is entitled to one or the other
thing. The remedy is afforded not to protect a
person against a double liability but to protect him
against a double vexation in respect of one liability.
When the court orders that the claimants litigate
among themselves, there arises in reality a new
action and the former are styled interpleaders, and
in such a case the pleading which initiates the
action is called a complaint of interpleader and not
a cross-complaint. (Ocampo vs. Tiroma, GR no.
147812, April 6, 2005)
Q: When to file a motion to dismiss?
A: Within the time for filing an answer, each
claimant may file a motion to dismiss on the
ground of impropriety of the interpleader action or
on other appropriate grounds specified in Rule 16.
The period to file the answer shall be tolled and if
the motion is denied, the movant may file his
answer within the remaining period, but which shall
not be less than five (5) days in any event,
reckoned from notice of denial. (Sec. 4, Rule 62).
Note that AM No. 19-10-20-SC (2019 Amended
Rules of Civil Procedure) removed Rule 16.
B.
Declaratory Reliefs and Similar Remedies:
Q: Who may file action?
A:
1. Any person interested under a deed, will,
contract or other written instrument or
whose rights are affected by a statute,
executive order or regulation, ordinance or
other governmental regulation may before
breach or violation thereof, bring an action
in the RTC to determine any question of
construction or validity arising and for a
declaration of his rights or duties,
thereunder (Sec. 1, Rule 63, ROC).
2. Those who may sue under the contract
should be those with interest under the
contract like the parties, the assignees
and the heirs as required by substantive
law (Art. 1311, Civil Code).
3. If it is a statute, executive order, regulation
or ordinance, the petitioner is one whose
rights are affected by the same (Sec. 1,
Rule 63). The other parties are all persons
who have or claim any interest which
would be affected by the declaration. The
rights of person not made parties to the
action do not stand to be prejudiced by
the declaration (Sec. 2, Rule 63, ROC).
Q: What are the requisites of action for
declaratory relief?
A:
1. The subject matter of the controversy
must be a deed, will, contract or other
written instrument, statute, executive
order or regulation, or ordinance;
2. The terms of said documents and the
validity thereof are doubtful and require
judicial construction;
3. There must have been no breach of
documents in question;
4. There
must be an actual justiciable
controversy or the “ripening seeds” of one
between persons whose interests are
adverse;
5. The
issue must be ripe for judicial
determination; and
6. Adequate relief is not available through
other means or other forms of action or
proceeding.
(Almeda
vs.
Bathala
Marketing, 542 SCRA 470)
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
Q: When can a court refuse to make judicial
declarations?
A:
1. An action for declaratory relief to ask the
court to declare his filliation and
consequently his hereditary rights is
improper (Edades vs. Edades, 99 Phil.
675)
2. An action for declaratory relief is not
proper to resolve doubts concerning one’s
citizenship (Lim vs. Republic, 37 SCRA 78)
3. A petition for declaratory relief cannot
properly have a court decision as its
subject matter. A court decision cannot be
interpreted as included within the purview
of the words “other written instrument”
because the provisions of the ROC
already provide for the ways by which an
ambiguous or doubtful decision may be
corrected or clarified without need of
resorting to the expedient prescribed by a
petition for declaratory relief. (Reyes vs.
Dizon, 628 SCRA 1)
Q: How Special action for Declaratory reliefs
and similar remedies converted to ordinary
action?
A: If before final termination of the case, a breach
should take place, the action may be converted
into ordinary action to avoid multiplicity of suits
(Republic vs. Orbecido, G.R. No. 154380, Oct. 5,
2005).
Q: What are similar remedies?
A:
1. Action for the reformation of an
instrument;
2. Action for quieting of title to real property;
and
3. Action for consolidation of ownership.
Q: What is reformation of an instrument?
A: An action for reformation is not one brought to
reform a contract but “to reform the instrument”
evidencing the contract. The instrument is to be
reformed because despite the meeting of minds of
the parties as to the object and cause of the
contract, the instrument which is supposed to
embody the agreement of the parties does not
reflect their tre agreement by reason of mistake,
fraud, inequitable conduct or accident. The action
is brought so the true intention of the parties may
be expressed in the instrument (Art. 1359, NCC)
Q: What is consolidation of ownership?
A: The concept of consolidation of ownership
under Art. 1607, NCC has its origins in the
substantive provisions of the law on sales. Under
the law, a contract of sale may be extinguished
either by (a) Legal redemption (Art.. 1619, NCC); or
(b) Conventional redemption (Art. 1601, NCC). The
action brought to consolidate ownership is not for
the purpose of consolidating the ownership of the
property in the person of the vendee or buyer but
for the registration of the property. The lapse of the
redemption period without the seller ‘a retro’
exercising his right of redemption consolidates
ownership or title upon the person of the vendee by
operation of law.
Q: What is quitting of title to real property?
A: This action is brought to remove a cloud on title
to real property or any interest therein. The action
is called one to quiet title to real property.
Whenever there is a cloud on title to real property
or any interest therein, by reason of any instrument,
record, claim, encumbrance or proceeding which is
apparently valid or effective but is in truth and in
fact invalid, ineffective, voidable, or unenforceable,
and may be prejudicial to said title, an action may
be brought to remove such cloud or to quiet the
title. An action may also be brought to prevent a
cloud from being cast upon title to real property or
any interest therein. (Art. 476, NCC)
C. Review of Judgments and final Orders or
Resolution of the Comelec and COA:
Rule 64
Directed only to the
Rule 65
Directed to any tribunal,
judgments, final orders or board or officers
resolutions of the
exercising judicial or
COMELEC and COA;
quasi-judicial functions;
Filed within 30 days from Filed within 60 days from
notice of the judgment;
notice of the judgment;
The filing of a motion for The period within which
reconsideration or a
to filed the petition if the
motion for new trial if
motion for
allowed, interrupts the
reconsideration or new
period for the filing of the trial is denied, is 60 days
petition for certiorari. If
from notice of the denial
the motion is denied, the of the motion
aggrieved party may file
the petition within the
remaining period, but
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
which shall not be less
than 5 days reckoned
from the notice of denial.
D. Certiorari, Prohibition and Mandamus:
Q: Distinguish: Certiorari, prohibition and
mandamus.
A: Certiorari, as a special civil action, is an original
action invoking the original jurisdiction of a court to
annul or modify the proceedings of a tribunal,
board or officer exercising judicial or quasi-judicial
functions. It is an original and independent action
that is not a part of the trial or the proceedings on
the complaint filed before the trial court. (Siok Ping
Tang vs. Subic Bay Distribution, 638 SCRA 457).
Prohibition is an extraordinary writ of commanding
a tribunal, corporation, board, officer or person,
whether exercising functions that are judicial,
quasi-judicial or ministerial, to desist from further
proceedings when such are conducted without or
in excess of its jurisdiction, or with grave abuse of
its discretion, there being no appeal or any other
plain, speedy, and adequate remedy in the ordinary
course of law. (Sec. 2, Rule 65). A writ of
mandamus is a command issuing from a court of
law of competent jurisdiction, in the name of the
state or sovereign, directed to an inferior court,
tribunal, or board, or to some corporation or
person, requiring the performance of a particular
duty therein specified, which duty results from the
official station of the party to whom the writ is
directed, or from operation of law. It is employed to
compel the performance, when refused, of a
ministerial duty which, as opposed to a
discretionary one, is that which an officer or
tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of
legal authority, without regard to or the exercise of
his or its own judgment upon the propriety or
impropriety of the act done. (National Home
Mortgage vs. Abayari, 602 SCRA 242).
Q: What are the essential requisites for a
Petition for certiorari under Rule 65?
A:
1. The petition is directed against a tribunal,
board or officer exercising judicial or
quasi-judicial functions;\
2. Such tribunal, board or officer has acted
without or in excess of jurisdiction or with
grave abuse of discretion amounting to
lack or excess of jurisdiction;
3.
There is neither appeal nor any plain,
speedy and adequate remedy in the
ordinary course of law for the purpose of
annulling or modifying the proceeding.
There must be capricious, arbitrary and
whimsical exercise of power for it to
prosper. (Sec. 1, Rule 65; Aggabao vs.
COMELEC, 449 SCRA 400; Milwaukee
Industries Corp. vs. CTA, 636 SCRA 70)
Q: What are the requisites of a petition for
prohibition?
A:
1. The impugned act must be that of a
tribunal, corporation, board or person
exercising judicial, quasi-judicial, or
ministerial functions;
2. The tribunal, corporation, board or person
must have acted without or in excess of
jurisdiction or with grave abuse of
discretion
amounting
to
lack
of
jurisdiction;
3. There is no appeal or any other plain,
speedy, and adequate remedy in the
ordinary course of law; and
4. The petition for prohibition shall be
accompanied by a certified true copy of
the judgment or order subject of the
petition, copies of all the pleadings and
documents relevant and pertinent thereto,
and a sworn certification of non-forum
shopping as provided in Sec. 3, Rule 46.
(Sec. 2, Rule 65; Ongsuco vs. Malones,
604 SCRA 499; Longino vs. General, 451
SCRA 423)
Q: What are the requisites of a petition for a
mandamus?
A:
1. The plaintiff has a clear legal right to the
act demanded;
2. It must be the duty of the defendant to
perform the act, because it is mandated
by law;
3. The defendant unlawfully neglects the
performance of the duty enjoined by law;
4. The act to be performed is ministerial, not
discretionary; and
5. There is no appeal or any other plain,
speedy and adequate remedy in the
ordinary course of law. (De Castro vs.
JBC, 615 SCRA 666)
Q: What is the difference between a petition for
certiorari under Rule 45 and that under Rule 65?
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
A:
RULE 45
CERTIORARI
RULE 65
CERTIORARI
Mode of Appeal; A
continuation
of
the
appellate process over the
original cases
(A Petition for Review)
A Special Civil Action that
is an original action and
not a mode of appeal; Not
part of the appellate
process
but
an
independent action
(Original Civil Action)
Seeks to review final
judgments or final orders
Directed
against
an
interlocutory
order
or
matters where no appeal
may be taken from
Raises questions of law
Raises
questions
jurisdiction
Must be filed within 15
days from notice of
judgments, final order or
resolution appealed from
Shall be filed not later than
60 days from notice of
judgment,
order
or
resolution sought to be
assailed.
Does not require a prior
motion for reconsideration
Generally requires a prior
motion for reconsideration
Stays
the
appealed from
judgment
Does
not
stay
the
judgment or order subject
of the petition, unless
enjoyed or restrained
The parties are the original
parties with the appealing
party as the petitioner and
the adverse party as
respondent
without
impleading the lower court
or its judge.
The tribunal, board, officer
exercising
judicial
or
quasi-judicial functions is
impleaded as respondent.
In other words, the parties
are the aggrieved party
against the lower court or
quasi-judicial agency and
the prevailing parties, who
thereby
respectively
become the petitioner and
respondent.
Filed only with the SC
may be filed with the RTC,
CA, or SC
of
Source: Rule 41, 45,and 65; KEPCO Phils vs. CIR, 636
SCRA 166; Fortune Guarantee vs. CA, 379 SCRA 7; the
Bases Conversion vs. Uy, 506 SCRA 524; Systems
Factors vs. NLRC, 346 SCRA 149; Yasuda vs. CA, 330
SCRA 385)
Q: What is injunctive relief?
A: The court in which the petition is filed may issue
orders expediting the proceedings, and it may also
grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the
rights of the parties pending such proceedings. The
petition shall not interrupt the course of the
principal case, unless a temporary restraining order
or a writ of preliminary injunction has been issued,
enjoining the public respondent from further
proceeding with the case. The public respondent
shall proceed with the principal case within ten (10)
days from the filing of a petition for certiorari with a
higher court or tribunal, absent a temporary
restraining order or a preliminary injunction, or
upon its expiration. Failure of the public respondent
to proceed with the principal case may be a ground
for an administrative charge. (Sec. 7, AM No.. 07-712-SC)
Q: When is a petitioner for certiorari under Rule
65 proper?
A: The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or
resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is
required or not, the petition shall be filed not later
than sixty (60) days counted from the notice of the
denial of the motion. If the petition relates to an act
or an omission of a municipal trial court or of a
corporation, a board, an officer or a person, it shall
be filed with the Regional Trial Court exercising
jurisdiction over the territorial area as defined by
the Supreme Court. It may also be filed with the
Court of Appeals or with the Sandiganbayan,
whether or not the same is in aid of the court’s
appellate jurisdiction. If the petition involves an act
or an omission of a quasi-judicial agency, unless
otherwise provided by law or these rules, the
petition shall be filed with and be cognizable only
by the Court of Appeals. In election cases involving
an act or an omission of a municipal or a regional
trial court, the petition shall be filed exclusively with
the Commission on Elections, in aid of its appellate
jurisdiction. (Sec. 4, AM no. 07-7-12-SC, December
27, 2007)
Q: What are the exceptions to filing of motion
for reconsideration before filing a petition?
A:
1. When the order is a patent nullity, as
where the court a quo has no jurisdiction;
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REVIEWER IN CIVIL PROCEDURE
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2.
When the questions raised in the certiorari
proceeding have been duly raised and
passed upon by the lower court, or are the
same as those raised and passed upon in
the lower court;
3. When there is an urgent necessity for the
resolution of the question and any further
delay would prejudice the interests of the
government or of the petitioner;
4. When the subject matter of the action is
perishable;
5. When, under the circumstances, a motion
for reconsideration would be useless;
6. When petitioner was deprived of due
process and there is an extreme urgency
for relief;
7. In a criminal case, when relief from order
of arrest is urgent and the granting of such
relief by the trial court is improbable;
8. When the proceedings in the lower court
are a nullity for lack of due process;
9. When the proceedings were done ex parte
or in which the petitioner had no
opportunity to object;
10. Where the issue raised is one purely of
law; or
11. Where public interest is involved. (Tan vs.
Sandiganbayan, 292 SCRA 452; Hamilton
vs. Levy, 344 SCRA 821; Ermita vs.
Aldecoa-Delorino, 651 SCRA 128)
Q: What are the reliefs that the petitioner is
entitled to?
A: The primary relief will actually be the annulment
or modification of the judgment, order, resolution or
proceeding subject of the petition. It may also
include such other incidental reliefs as law and
justice may require. (Sec. 1, Rule 65). The court, in
its judgment, may also award damages. The
execution of the award for damages or costs shall
follow the procedure in Sec. 1, Rule 39, ROC. (Sec.
9, Rule 65)
Q: What is the effect of filing unmeritorious
petitions?
A: In the event of dismissal of unmeritorious
petitions, the court may award in favor of the
respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting the
counsel to administrative sanctions under Rules
139 and 1390B of the ROC. In addition, the SC
may impose motu proprio, based in res ipsa
loquitur, other disciplinary sanctions or measures
on erring lawyers for patently dilatory and
unmeritorious petitions for certiorari (Sec. 8, AM
No. 07-7-12-SC)
E.
Quo Warranto:
Q: What is the nature of a Quo Warranto?
A: A Quo warranto proceeding is generally defined
as an action against a person who usurps, intrudes
into, or unlawfully holds or exercises a public
office. (Tecson vs. COMELEC, 424 SCRA 277)
Q: What is the nature of a Quo Warranto under
the Omnibus Election Code?
A: Any voter contesting the election of any Member
of the Batasang Pambansa, regional, provincial, or
city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall
file a sworn petition for quo warranto with the
Commission within ten days after the proclamation
of the results of the election. Any voter contesting
the election of any municipal or barangay officer on
the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn
petition for quo warranto with the regional trial
court or metropolitan or municipal trial court,
respectively, within ten days after the proclamation
of the results of the election. (Sec. 253 - Petition for
Quo Warranto, Omnibus Election Code)
Q: When can the government commences an
action for Quo Warranto against individuals or
associations?
A: A quo warranto is a special civil action
commenced in the name of the Republic of the
Philippines by a verified petition. (Sec. 1, Rule 66).
However, in certain instances, the petition may be
brought by an individual in his own name if he
claims to be entitled to a public office usurped or
unlawfully held or exercised by another. (Sec. 5,
Rule 66)
Q: When may an individual commence an action
for Quo Warranto?
A: A person claiming to be entitled to a public
office or position usurped or unlawfully held or
exercised by another may bring an action therefor
in his own name. However, not any person may file
the petition for Quo warranto. The person
authorized to file the same is the one who claims to
be entitled to a public office or position which was
usurped or unlawfully held or exercised by another
person. (Sec. 5, Rule 66)
Q: What is the limitation on a quo warranto
proceeding?
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A: Nothing contained in this Rule shall be
construed to authorize an action against a public
officer or employee for his ouster from office unless
the same be commenced within one (1) year after
the cause of such ouster, or the right of the
petitioner to hold such office or position, arose, nor
to authorize an action for damages in accordance
with the provisions of the next preceding section
unless the same be commenced within one (1) year
after the entry of the judgment establishing the
petitioner's right to the office in question. (Sec. 11,
Rule 66)
F.
Expropriation:
Q: What are the matters to be alleged in a
complaint for expropriation?
A:
1. State with certainty the right of the plaintiff
to expropriation and the purpose thereof;
2. Describe the real or personal property
sought to be expropriated; and
3. Join as defendant all persons owning or
claiming to own, or occupying, any part
of the property or interest therein,
showing, so far as practicable, the interest
of each defendant. If the plaintiff cannot
identify the real owners with accuracy,
averment to that effect shall be made in
the complaint. (Sec. 1, Rule 67)
Q: What are the two stages in every action for
expropriation?
A:
1. The determination of the authority of the
plaintiff to expropriate’ and
2. The determination of just compensation
through
the
court-appointed
commissioners. (Municipality of Binan vs.
Garcia, 180 scra 576)
Q: When can the plaintiff immediately enter into
possession of the real property?
A: Upon the filing of the complaint or at any time
thereafter and after due notice to the defendant,
the plaintiff shall have the right to take or enter
upon the possession of the real property involved if
he deposits with the authorized government
depositary an amount equivalent to the assessed
value of the property for purposes of taxation to be
held by such bank subject to the orders of the
court. Such deposit shall be in money, unless in
lieu thereof the court authorizes the deposit of a
certificate of deposit of a government bank of the
Republic of the Philippines payable on demand to
the authorized government depositary. If personal
property is involved, its value shall be provisionally
ascertained and the amount to be deposited shall
be promptly fixed by the court. (Sec. 2, Rule 57)
Q: What are the defenses and objections in the
answer?
A: the defendant shall serve an answer if he has an
objection to the filing of the complaint, allegations
in the complaint, or objection or defense to the
taking of his property. This answer shall be served
within the time stated in the summons. The answer
is required to specifically designate or identify the
property in which the defendant claims to have an
interest, and state the nature and extent of the
interest claimed. He must also allege all his
objections and defenses to the taking of his
property because those not adduced are deemed
waived. (Sec. 3, Rule 67)
Q: What is the order of appropriation?
A: An order of expropriation/condemnation will be
issued declaring that the plaintiff has a lawful right
to take the property for the use or purpose
described in the complaint upon the payment of
just compensation. This order shall issue in any of
the following cases: (a) In the event the objections
of the defendant are overruled; or (b) When no
party appears to object to or defend against the
expropriation. (Sec. 4, Rule 67)
Q: How to ascertain the compensation?
A: Upon the rendition of the order of expropriation,
the court shall appoint not more than three (3)
competent
and
disinterested
persons
as
commissioners to ascertain and report to the court
the just compensation for the property sought to be
taken. The order of appointment shall designate the
time and place of the first session of the hearing to
be held by the commissioners and specify the time
within which their report shall be submitted to the
court. Copies of the order shall be served on the
parties. Objections to the appointment of any of the
commissioners shall be filed with the court within
ten (10) days from service, and shall be resolved
within thirty (30) days after all the commissioners
shall have received copies of the objections. (Sec.
5, Rule 67)
Q:
What
are
the
proceedings
by
commissioners?
A: Before entering upon the performance of their
duties, the commissioners shall take and subscribe
an oath that they will faithfully perform their duties
as commissioners, which oath shall be filed in court
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with the other proceedings in the case. Evidence
may be introduced by either party before the
commissioners who are authorized to administer
oaths on hearings before them, and the
commissioners shall, unless the parties consent to
the contrary, after due notice to the parties, to
attend, view and examine the property sought to
be expropriated and its surroundings, and may
measure the same, after which either party may, by
himself or counsel, argue the case. The
commissioners shall assess the consequential
damages to the property not taken and deduct
from
such
consequential
damages
the
consequential benefits to be derived by the owner
from the public use or purpose of the property
taken, the operation of its franchise by the
corporation or the carrying on of the business of
the corporation or person taking the property. But
in no case shall the consequential benefits
assessed exceed the consequential damages
assessed, or the owner be deprived of the actual
value of his property so taken. (Sec. 6, Rule 67)
Q: What is the rule on the Commissioner’s
report?
A: The court may order the commissioners to
report when any particular portion of the real estate
shall have been passed upon by them, and may
render judgment upon such partial report, and
direct the commissioners to proceed with their
work as to subsequent portions of the property
sought to be expropriated, and may from time to
time so deal with such property. The
commissioners shall make a full and accurate
report to the court of all their proceedings, and
such proceedings shall not be effectual until the
court shall have accepted their report and rendered
judgment
in
accordance
with
their
recommendations. Except as otherwise expressly
ordered by the court, such report shall be filed
within sixty (60) days from the date the
commissioners were notified of their appointment,
which time may be extended in the discretion of
the court. Upon the filing of such report, the clerk
of the court shall serve copies thereof on all
interested parties, with notice that they are allowed
ten (10) days within which to file objections to the
findings of the report, if they so desire. (Sec. 7,
Rule 67)
Q: What is the action upon commissioners’
report?
A: Upon the expiration of the period of ten (10)
days referred to in the preceding section, or even
before the expiration of such period but after all the
interested parties have filed their objections to the
report or their statement of agreement therewith,
the court may, after hearing, accept the report and
render judgment in accordance therewith, or, for
cause shown, it may recommit the same to the
commissioners for further report of facts, or it may
set aside the report and appoint new
commissioners; or it may accept the report in part
and reject it in part and it may make such order or
render such judgment as shall secure to the
plaintiff the property essential to the exercise of his
right of expropriation, and to the defendant just
compensation for the property so taken. (Sec. 8,
Rule 67)
Q: What are the rights of the plaintiff after
judgment and payment?
A: Upon payment by the plaintiff to the defendant
of the compensation fixed by the judgment, with
legal interest thereon from the taking of the
possession of the property, or after tender to him
of the amount so fixed and payment of the costs,
the plaintiff shall have the right to enter upon the
property expropriated and to appropriate it for the
public use or purpose defined in the judgment, or
to retain it should he have taken immediate
possession thereof under the provisions of section
2 hereof. If the defendant and his counsel absent
themselves from the court, or decline to receive the
amount tendered, the same shall be ordered to be
deposited in court and such deposit shall have the
same effect as actual payment thereof to the
defendant or the person ultimately adjudged
entitled thereto. (Sec. 10, Rule 67)
Q: What is the effect of recording of judgment?
A: The judgment entered in expropriation
proceedings shall state definitely, by an adequate
description, the particular property or interest
therein expropriated, and the nature of the public
use or purpose for which it is expropriated. When
real estate is expropriated, a certified copy of such
judgment shall be recorded in the registry of deeds
of the place in which the property is situated, and
its effect shall be to vest in the plaintiff the title to
the real estate so described for such public use or
purpose. (Sec. 13, Rule 67)
G. Foreclosure of Real Estate Mortgage:
Q: What is a real estate mortgage?
A: A real estate mortgage (REM) is an accessory
contract executed by a debtor in favor of a creditor
as security for the principal obligation. The principal
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obligation is usually a simple loan or mutuum
described in Art. 1953, Civil Code.
Q: When is foreclosure proper?
A: Foreclosure is valid only when the petition is in
default in the payment off his obligation, such
default occurs when the payment is not made after
a valid demand unless the contract between the
parties carries with it a stipulation that demand is
not necessary for default to arise. (DBP vs.
Licuanan, 516 SCRA 644)
Q:
What
are
the
remedies
of
the
mortgagee/creditor when the mortgagor/debtor
dies?
A:
1. Creditor may abandon the security and
prosecute his claim in the manner
provided for under Rule 86, and share in
the general distribution of the assets of
the estate;
2. He may foreclose the mortgage by action
in court, making the executor or
administrator a party defendant, and if
there be a deficiency judgment after the
sale of the mortgaged property, he may
claim the deficiency in the manner
provided under Rule 86; or
3. He may rely upon the mortgage or other
security alone, and foreclose the same at
any time before it is barred by
prescription, and in that event, he shall not
be admitted as a creditor, without the right
to share in the distribution of the other
assets of the state (Sec. 7, Rule 86)
Q: What are the kinds of foreclosure of real
estate mortgage?
A:
JUDICIAL
FORECLOSURE
EXTRAJUDICIAL
FORECLOSURE
Governed by the Rules of
Court
Governed by Act 3135, as
amended
Involves the filing of an
independent action
Does not require the filing
of an action
Equity of redemption and
no right of redemption
except
when
the
mortgagee is a banking
institution
There
is
redemption
right
of
There
could
be
a
deficiency
judgment
rendered by the court in
the same proceeding
No judgment for its
deficiency because there is
no judicial proceeding,
although recovery of the
deficiency is allowed.
Recovery
of
the
deficiency can be done
by mere motion for a
deficiency judgment
The recovery pf the
deficiency is through an
independent action, and
although nothing about the
recovery of the deficiency
is provided under Act
3135,
there
is
no
prohibition either.
Source: Riano (2012), Civil Procedure Vol. 2, p. 412
Q: What are the allegations in a complaint for
foreclosure?
A:
1. The date and due execution of the
mortgage;
2. The assignments of the mortgage if any;
3. The names and residences of the
mortgagor and mortgagee;
4. A description of the mortgaged property;
5. A statement of the date of the note and
other documentary evidence of the
obligation secured by the mortgage;
6. The amount claimed to be unpaid thereon
and
7. The names and residences of all persons
having or claiming an interest in the
property subordinate in right to that of the
holder of the mortgage, all of whom shall
be made defendants in the action. (Sec. 1,
Rule 68)
Q: What is the rule regarding judgment on
foreclosure?
A: If upon the trial in such action the court shall find
the facts set forth in the complaint to be true, it
shall render a judgment containing the following
matters: (a) Ascertainment of the amount due to the
plaintiff upon the mortgage debt or obligation,
including interest and other charges as approved
by the court, and costs; (b) Render judgment for
the sum so found due; (c) Order that the same be
paid to the court or to the judgment obligee within
a period of not less than ninety (90) days nor more
than one hundred twenty (120) days from the entry
of judgment; and (d) Admonition that in default of
such payment the property shall be sold at public
auction to satisfy the judgment. (Sec. 2, Rule 68).
The judgment of the court on the above matters is
considered final adjudication of the case and,
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REVIEWER IN CIVIL PROCEDURE
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therefore, subject to challenge by the aggrieved
party by appeal or other post-judgment remedies.
Q: What is the rule on the right of redemption?
A: General Rule: In judicial foreclosures, there is
no right of redemption but only an equity of
redemption which can be exercised prior to the
confirmation of the foreclosure sale. Exception:
There is a right of redemption in a judicial
foreclosure if the foreclosure is in favor of banks as
mortgagees, whether the foreclosure be judicial or
extrajudicial. (Huerta Alba vs. CA, 339 SCRA 534)
Q: What is the rule on the period of redemption
in extrajudicial foreclosure?
A: General Rule: the period of redemption is one
year. Exception: Under the General Banking Act,
when the mortgagor is a juridical person. The
period of redemption is “until, but not after” the
registration of the certificate of sale with the
Register of Deeds, “which in no case shall be more
than 3 months after foreclosure, whichever is
earlier.” (Sec. 47, General Banking Acts of 2000)
Q: What is the effect of sale of mortgaged
property?
A: When the defendant, after being directed to do
so as provided in the next preceding section, fails
to pay the amount of the judgment within the
period specified therein, the court, upon motion,
shall order the property to be sold in the manner
and under the provisions of Rule 39 and other
regulations governing sales of real estate under
execution. Such sale shall not affect the rights of
persons holding prior encumbrances upon the
property or a part thereof, and when confirmed by
an order of the court, also upon motion, it shall
operate to divest the rights in the property of all the
parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as
may be allowed by law. Upon the finality of the
order of confirmation or upon the expiration of the
period of redemption when allowed by law, the
purchaser at the auction sale or last redemptioner,
if any, shall be entitled to the possession of the
property unless a third party is actually holding the
same adversely to the judgment obligor. The said
purchaser or last redemptioner may secure a writ
of possession, upon motion, from the court which
ordered the foreclosure. (Sec. 3, Rule 68)
Q: How should the sale proceed in case the
debt is not all due?
A: If the debt for which the mortgage or
encumbrance was held is not all due as provided in
the judgment as soon as a sufficient portion of the
property has been sold to pay the total amount and
the costs due, the sale shall terminate; and
afterwards as often as more becomes due for
principal or interest and other valid charges, the
court may, on motion, order more to be sold. But if
the property cannot be sold in portions without
prejudice to the parties, the whole shall be ordered
to be sold in the first instance, and the entire debt
and costs shall be paid, if the proceeds of the sale
be sufficient therefore, there being a rebate of
interest where such rebate is proper. (Sec. 5, Rule
68)
Q: When is the rule when there is no deficiency
judgment?
A: If upon the sale of any real property as provided
in the next preceding section there be a balance
due to the plaintiff after applying the proceeds of
the sale, the court, upon motion, shall render
judgment against the defendant for any such
balance for which, by the record of the case, he
may be personally liable to the plaintiff, upon which
execution may issue immediately if the balance is
all due at the time of the rendition of the judgment;
otherwise; the plaintiff shall be entitled to execution
at such time as the balance remaining becomes
due under the terms of the original contract, which
time shall be stated in the judgment. (Sec. 6, Rule
68). It is the duty of the mortgagee to return to the
mortgagor any surplus in the selling price during
the foreclosure sale. (Sulit. vs. CA, 268 SCRA 441)
Q: What is the rule regarding the registration of
the sale?
A: A certified copy of the final order of the court
confirming the sale shall be registered in the
registry of deeds. If no right of redemption exists,
the certificate of title in the name of the mortgagor
shall be cancelled, and a new one issued in the
name of the purchaser. Where a right of
redemption exists, the certificate of title in the
name of the mortgagor shall not be cancelled, but
the certificate of sale and the order confirming the
sale shall be registered and a brief memorandum
thereof made by the registrar of deeds upon the
certificate of title. In the event the property is
redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief
memorandum thereof shall be made by the
registrar of deeds on said certificate of title. If the
property is not redeemed, the final deed of sale
executed by the sheriff in favor of the purchaser at
the foreclosure sale shall be registered with the
registry of deeds; whereupon the certificate of title
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REVIEWER IN CIVIL PROCEDURE
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in the name of the mortgagor shall be cancelled
and a new one issued in the name of the
purchaser. (Sec. 7, Rule 68)
H. Partition:
Q: What are the two stages or phases of
partition?
A:
FIRST PHASE
This is taken up with the
determination of whether or not
a co-ownership in fact exists,
and a partition is proper and
may be made by voluntary
agreement of all the parties
interested in the property.
This phase may end with a
declaration that the plaintiff is
not entitled to have a partition
either because a co-ownership
does not exist, or partition is
legally prohibited.
On the other hand, it may end
with an adjudgment that a coownership does in truth exist,
partition is proper in the
premises, and an accounting of
rents and profits received by the
defendant from the real estate in
question is in order.
SECOND PHASE
This is commenced when it
appears that the parties are
unable to agree upon the
partition directed by the court.
IN THIS EVENT, Partition shall
be done for the parties by the
court with the assistance of not
more than 3 commissioners.
This second stage may well also
deal with the rendition of the
accounting
itself
and
its
approval by the court after the
parties have been accorded
opportunity to be heard thereon,
and an award for the recovery
by the party or parties thereto
entitled of their just share in the
rents and profits of the real
estate in question
Source: Labayan vs. Samoy, 645 SCRA 677)
Q: Who may file an action for partition?
A: The action shall be brought by the person who
has a right to compel the partition of real estate or
of an estate composed of personal property, or of
both real and personal property. (Secs. 1 & 13,
Rule 69). The plaintiff is a person who is supposed
to be a co-owner of the property or estate sought
to be partitioned. The defendants are all coowners. All the co-owners must be joined. An
action will not lie without the joinder of all coowners and other persons having interest in the
property. Therefore, All the co-owners are
indispensable parties. (Garcia de Lara vs. Gonzales
de Lara, 2 Phil. 294; Reyes vs. Cordero, 46 Phil.
658)
Q: What are matters to be alleged in the
complaint of partition?
A: The plaintiff shall state in his complaint the
nature and extent of his title, and an adequate
description of the real or personal estate of which
partition is demanded, and shall join as defendants
all other persons interested in the property. (Secs.
1 & 13, Rule 69). These cannot be demanded in
another action because they are parts of the cause
of action for partition. These will be barred if not set
up in the same action pursuant to the rule against
splitting a single cause of action. When the
allegations in the complaint allege that the plaintiff
asserts exclusive ownership of the property sought
to be partitioned, the nature of the action is not one
for partition. It is an action for the recovery of
property. (Dela Cruz vs. CA,, 412 SCRA 282)
Q: What are the rules regarding order for
partition and partition by agreement?
A: During the trial, the court shall determine
whether or not the plaintiff is truly a co-owner of
the property, that there is indeed a co-ownership
among the parties, and that a partition is not legally
prescribed, thus, may be allowed. If the courts so
finds that the facts are such that a partition would
be in order, and that the plaintiff has a right to
demand partition, the court will issue an order for
partition. If after the trial, the court finds that the
plaintiff has the right to a partition, the court shall
order the partition of the property among all the
parties in interest. (See Sec. 2, Rule 69). On the
other hand, observe that the order for partition is
one that directs the parties or co-owners to
partition the property where they may make the
partition among themselves by proper instruments
of conveyance, if they agree among themselves. If
they do not agree, the court shall then confirm the
partition so agreed upon by all the parties, and
such partition, together with the order of the court
confirming the same, shall be recorded in the
registry of deeds of the place where the property is
situated. Sec. 2, Rule 69). There always exists the
possibility that the co-owners are unable to agree
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REVIEWER IN CIVIL PROCEDURE
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upon the partition. If they cannot partition the
property among themselves, the next stage in the
action will follow, and this stage is the appointment
of commissioners.
Q: What is the rule regarding partition by
commissioner?
A: If the parties are unable to agree upon the
partition, the court shall appoint not more than 3
commissioners,
who
are
competent
and
disinterested persons, to make the partition for the
parties. (Sec. 3, Rule 69). The appointment of
commissioners presupposes that the parties
cannot agree on the partition among themselves.
Q: What is the rule regarding the report of the
commissioners?
A: The commissioners shall make a full and
accurate report to the court of all their proceedings
as to the partition, or the assignment of real estate
to one of the parties, or the sale of the same. Upon
the filing of such report, the clerk of court shall
serve copies thereof on all the interested parties
with notice that they are allowed ten (10) days
within which to file objections to the findings of the
report, if they so desire. (Sec. 6, Rule 69)
Q: What are the actions of the court upon the
report of the commissioners?
A:
1. Accept the report and render judgment in
accordance with the same;
2. Recommit the same to the commissioners
for further report of facts, instead of
accepting the report;
3. Set aside the report and appoint new
commissioners;
4. Make such order and render such
judgment that shall effectuate a fair and
just partition of the estate (Sec. 7, Rule 69)
Q: What is the effect of judgment of partition?
A: The judgment shall have the effect of vesting in
each party to the action the portion of the real
estate assigned to him. If the whole property is
assigned to one of the parties upon his paying to
the others the sums ordered by the court, the effect
of the judgment shall be to vest in the party making
the payment the whole of the real estate free from
any interest on the part of the other parties to the
action. If the property is sold and the sale is
confirmed by the court, the effect of the judgment
shall be to vest the real estate in the purchasers
making the payments, free from the claims of any
of the parties to the action. (Sec. 11, Rule 69)
Q: What is the rule regarding partition of
personal property?
A: The provisions of Rule 69 shall apply to
partitions of estates composed of personal
property, or of both real and personal property, in
so far as the same may be applicable. (Sec. 13,
Rule 69)
Q: When partition is not allowed?
A:
1. When there is an agreement among the
co-owners to keep the property undivided
for a certain period of time but not
extending 10 years. However, this term
may be extended by a new agreement.
(Art. 494 NCC);
2. When partition is prohibited by the donor
or testator for a period not exceeding 20
years (Arts. 494 & 1083, NCC)
3. When partition is prohibited by law (Art.
494, NCC);
4. When the property is not subject to a
physical division and to do so would
render it unserviceable for the use for
which it is intended (Art. 495, NCC); or
5. When the conditions imposed upon
voluntary heirs before they can demand
partition has not yet been fulfilled. (Art.
1084, NCC)
I.
Forcible Entry and Unlawful Detainer:
Q: What are the three kinds of actions available
to recover possession of real property?
A:
1. Accion Interdicta - the summary action
for (a) forcible entry (detentacion), where
the defendant’s possession of the
property is illegal ab initio; or (b) for
unlawful detainer (desahuico), where the
defendant’s possession was originally
lawful but ceased to be so by the
expiration of his right to possess, both of
which must be brought within 1 year from
the date of actual entry on the land, in
case of forcible entry, and from the date of
the last demand, in case of unlawful
detainer.
2. Accion Publiciana - a plenary action for
the recovery of the right to possess, when
the dispossession has lasted for more
than one year; and
3. Accion Reivindicatoria - seeks the
recovery of ownership and includes the
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
jus possidendi. (Serdoncillo vs. Benolirao,
297 SCRA 448)
Q: Distinguish: Forcible entry and Unlawful
detainer.
A:
FORCIBLE ENTRY
UNLAWFUL
DETAINER
The Entry is illegal; The
possession
of
the
defendant is illegal from
the very beginning having
deprived
the
actual
possessor
of
his
possession
The Entry is legal but later
became
illegal;
The
possession
of
the
defendant is legal in the
beginning
but
subsequently
becomes
illegal because of the
expiration or termination of
the
right
to
have
possession, by virtue of
any contract (express of
implied), and after a
demand to vacate was not
heeded by the defendant.
Plaintiff must allege in the
complaint, and prove, that
he was in prior physical
possession
of
the
property until he was
deprived
by
the
defendant by means of
force, intimidation, threat,
strategy or stealth.
No allegations shall be
made, instead, there must
be allegations in the
complaint of how the
possession
of
the
defendant
started
or
continued by virtue of
lease or any contract, and
that he held possession of
the
land
after
the
expiration or termination of
the contract.
Demand to vacate is not
required before the filing
of the action because the
occupancy is illegal; from
the very beginning.
Demand to vacate is
necessary as a rule and
within 1 year from the last
demand on the defendant
to vacate the property, the
plaintiff may institute the
complaint for ejectment.
The
one-year
period
within which to file the
action
is
counted
generally from the date of
actual entry on the land
by the defendant (ie, from
the time of possession),
Exception to this is when
the entry is made by
stealth, the period must
be counted from the
demand to vacate upon
learning of the entry by
stealth.
Counted from the date of
the last demand to vacate.
When the demand to
vacate is not heeded, then
the unlawful withholding of
possession begins.
Source: Sec. 1, Rule 70; Tirona vs. Alejo, 367 SCRA 17;
Heirs of Demeterio Melchor vs. Melchor, 415 SCRA 726;
Sarmienta vs. Manalite Homeowners Assoc, 632 SCRA
538; Romullo vs. Samahang Magkakapitbahay, 632
SCRA 411; Peralta Labrador vs. Bugarin, 468 SCRA 308)
Q: Who may institute the action for forcible
entry or unlawful detainer?
A: A person deprived of the possession of any land
or building by force, intimidation, threat, strategy,
or stealth, or a lessor, vendor, vendee, or other
person against whom the possession of any land or
building is unlawfully withheld after the expiration
or termination of the right to hold possession, by
virtue of any contract, express or implied, or the
legal representatives or assigns of any such lessor,
vendor, vendee, or other person, may, at any time
within one (1) year after such unlawful deprivation
or withholding of possession, bring an action in the
proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of
possession, or any person or persons claiming
under them, for the restitution of such possession,
together with damages and costs. (Sec. 1, Rule 70)
Q: Which court has jurisdiction over forcible
entry and unlawful detainer cases?
A: The action for forcible entry and unlawful
detainer are within the exclusive and original
jurisdiction of the MTC, MeTC, MCTC and shall be
governed by the rules on summary procedure
irrespective of the amount of damages or unpaid
rentals sought to be recovered. (Sec. 33(2), BP 129
as amended; Sec. 3, Rule 70)
Q: What are pleadings allowed in forcible entry
and unlawful detainer?
A:
1. Complaint;
2. Compulsory Counterclaim;
3. Cross-claim pleaded in the answer; and
4. Answers thereto. (Sec. 4, Rule 70)
Q: What should be the action on the complaint?
A: The court may, from an examination of the
allegations in the complaint and such evidence as
may be attached thereto, dismiss the case outright
on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue
summons. (Sec. 5, Rule 70)
Q: What are prohibited pleadings and motions?
A:
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
1.
Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the
subject matter, or failure to comply with
section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (Sec. 13, Rule 70)
Q: How to stay the immediate execution of
judgment?
A: If judgment is rendered against the defendant,
execution shall issue immediately upon motion
unless an appeal has been perfected and the
defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial
Court and executed in favor of the plaintiff to pay
the rents, damages, and costs accruing down to
the time of the judgment appealed from, and
unless, during the pendency of the appeal, he
deposits with the appellate court the amount of
rent due from time to time under the contract, if
any, as determined by the judgment of the
Municipal Trial Court. In the absence of a contract,
he shall deposit with the Regional Trial Court the
reasonable value of the use and occupation of the
premises for the preceding month or period at the
rate determined by the judgment of the lower court
on or before the tenth day of each succeeding
month or period. The supersedeas bond shall be
transmitted by the Municipal Trial Court, with the
papers, to the clerk of the Regional Trial Court to
which the action is appealed. All amounts so paid
to the appellate court shall be deposited with said
court or authorized government depositary bank,
and shall be held there until the final disposition of
the appeal, unless the court, by agreement of the
interested parties, or in the absence of reasonable
grounds of opposition to a motion to withdraw, or
for justifiable reasons, shall decree otherwise.
Should the defendant fail to make the payments
above prescribed from time to time during the
pendency of the appeal, the appellate court, upon
motion of the plaintiff, and upon proof of such
failure, shall order the execution of the judgment
appealed from with respect to the restoration of
possession, but such execution shall not be a bar
to the appeal taking its course until the final
disposition thereof on the merits. After the case is
decided by the Regional Trial Court, any money
paid to the court by the defendant for purposes of
the stay of execution shall be disposed of in
accordance with the provisions of the judgment of
the Regional Trial Court. In any case wherein it
appears that the defendant has been deprived of
the lawful possession of land or building pending
the appeal by virtue of the execution of the
judgment of the Municipal Trial Court, damages for
such deprivation of possession and restoration of
possession and restoration of possession may be
allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal. (Sec.
19, Rule 70)
J.
Contempt:
Q: What are the kinds of contempt?
A: Contempt of court is of two kinds, namely: direct
contempt, which is committed in the presence of or
so near the judge as to obstruct him in the
administration of justice; and constructive or
indirect contempt, which consists of willful
disobedience of the lawful process or order of the
court. The punishment for the first is generally
summary and immediate, and no process or
evidence is necessary because the act is
committed in facie curiae. The inherent power of
courts to punish contempt of court committed in
the presence of the courts without further proof of
facts and without aid of a trial is not open to
question, considering that this power is essential to
preserve their authority and to prevent the
administration of justice from falling into disrepute;
such summary conviction and punishment accord
with due process of law. There is authority for the
view, however, that an act, to constitute direct
contempt punishable by summary proceeding,
need not be committed in the immediate presence
of the court, if it tends to obstruct justice or to
interfere with the actions of the court in the
courtroom itself. Also, contemptuous acts
committed out of the presence of the court, if
admitted by the contemnor in open court, may be
punished summarily as a direct contempt, although
it is advisable to proceed by requiring the person
charged to appear and show cause why he should
not be punished when the judge is without
personal knowledge of the misbehavior and is
informed of it only by a confession of the
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REVIEWER IN CIVIL PROCEDURE
By Aaron Lance C. Morillo
contemnor or by testimony under oath of other
persons. In contrast, the second usually requires
proceedings less summary than the first. The
proceedings
for the
punishment of
the
contumacious act committed outside the personal
knowledge of the judge generally need the
observance of all the elements of due process of
law, that is, notice, written charges, and an
opportunity to deny and to defend such charges
before guilt is adjudged and sentence imposed.
(Lorenzo
Shipping
Corp.
vs.
Distribution
Management Assoc., GR no. 155849, August 31,
2011)
Q: What is the remedy against direct contempt?
A: The person adjudged in direct contempt by any
court may not appeal therefrom, but may avail
himself of the remedies of certiorari or prohibition.
The execution of the judgment shall be suspended
pending resolution of such petition, provided such
person files a bond fixed by the court which
rendered the judgment and conditioned that he will
abide by and perform the judgment should the
petition be decided against him. (Sec. 2, Rule 71;
Canada vs. Suerte, 474 SCRA 379)
Q: What is the remedy against indirect
contempt?
A: A person adjudged in direct contempt may
appeal from the judgment or final order of the court
in the same manner as in criminal cases. However,
the appeal will have the effect of suspending the
judgment if the person adjudgment in contempt
does not file a bond in an amount fixed by the
court from which the appeal is taken. This bond is
conditioned upon his performance of the judgment
or final order if the appeal is decided against him.
(Sec. 11, Rule 71)
Q: How to commence contempt proceedings?
A: Proceedings for indirect contempt may be
initiated motu propio by the court against which the
contempt was committed by an order or any other
formal charge requiring the respondent to show
cause why he should not be punished for
contempt. In all other cases, charges for indirect
contempt shall be commenced by a verified
petition with supporting particulars and certified
true copies of documents or papers involved
therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil
actions in the court concerned. If the contempt
charges arose out of or are related to a principal
action pending in the court, the petition for
contempt shall allege that fact but said petition
shall be docketed, heard and decided separately,
unless the court in its discretion orders the
consolidation of the contempt charge and the
principal action for joint hearing and decision. (Sec.
4, Rule 71, ROC)
Q: What are acts punishable as indirect
contempt?
A:
1. Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful
writ, process, order, or judgment of a
court, including the act of a person who,
after being dispossessed or ejected from
any real property by the judgment or
process of any court of competent
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing
acts of ownership or possession, or in any
manner disturbs the possession given to
the person adjudged to be entitled
thereto;
3. Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt
under section 1 of this Rule;
4. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade
the administration of justice;
5. Assuming to be an attorney or an officer
of a court, and acting as such without
authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of
a court held by him. (Sec. 3, Rule 71)
Q: When shall imprisonment be imposed?
A: When the contempt consists in the refusal or
omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned
by order of the court concerned until he performs
it. (Sec. 8, Rule 71). It is only the judge, who orders
the confinement of a person for contempt of court,
who can issue the Order of Release. (Inoturan vs.
Limsiaco, Jr., 458 SCRA 48)
Q: What is the rule regarding contempt against
quasi-judicial bodies?
A: Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons,
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REVIEWER IN CIVIL PROCEDURE
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entities, bodies or agencies exercising quasijudicial functions, or shall have suppletory effect to
such rules as they may have adopted pursuant to
authority granted to them by law to punish for
contempt. The Regional Trial Court of the place
wherein the contempt has been committed shall
have jurisdiction over such charges as may be filed
therefor. (Sec. 12, Rule 71). The NLRC (and the
labor arbiters) may hold any offending party in
contempt, directly or indirectly, and impose
appropriate penalties in accordance with law. The
penalty for direct contempt consists of either
imprisonment or fine, the degree or amount
depends on whether the contempt is against the
Commission of the labor arbiter. (Art. 218, Labor
Code). However, the LCP requires the labor arbiter
or the NLRC to deal with indirect contempt in the
manner prescribed under Rule 71, ROC.
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