REMEDIAL LAW
Venue- Place where the action is filed. Unlike the laws on
jurisdiction which authorize a dismissal by the court on its
own motion, the rules on venue preclude a court from
dismissing a complaint motu propio except when so
authorized by a special rule.
I. Civil Procedure
Complaint
 First pleading filed with the court by a party called
the plaintiff.
 Primary purpose is to sue another for the
enforcement or protection of his right, or the
prevention or redress of a wrong.
 The means by which the plaintiff apprises the
adverse party called the defendant of the nature
and basis of his claim.
Real Action- One that affects title to, possession of, or any
interest in real property.
Personal ActionExclusive venue- If the parties have agreed in writing on
the exclusive venue prior to the filing of the action, the
agreed venue is contemplated to be so exclusive, then the
place stipulated is the only venue of the action. This
stipulation precludes the filing of the action in some other
place.
Substantive law
 Very basis of procedural law. It supplies the legal
basis for a cause of action.
 Supplies the legal basis for the existence of the
right itself and the corresponding legal
prerogative to demand its protection.
Real party-in-interest- One who stands benefited or
injured by the judgment in the suit, or the party entitled to
the avails of the suit.
Procedural Law
 Outlines the methods and processes by which one
may sue another for the enforcement or
protection of his rights.
Indispensable party- joinder is compulsory. Without
which, there can be no final determination could be had of
an action.
Cause of Action
 Involves a right of the plaintiff and a violation of
this right by the defendant.
 Without a right and a violation of this right, there
can be no cause of action, and without this cause
of action, there would be no right to file a suit
against a defendant.
 Refers to an act or omission by which a party
violates the rights of another.
Necessary party- Its non-inclusion does not prevent the
court from the proceeding with the action although,
without such party, no complete relief may be accorded as
to those already parties.
Right of Cause of Action
 The right to file a suit.
 Procedural in character.
 It is the consequence of the violation of the right
of the plaintiff.
 It is not enough that a party has a cause of action.
The rules require sufficiency in alleging those facts
which, taken together, constitute one’s cause of
action.
 The rules emphasize the sufficiency, not the
veracity of the material allegations.
Ultimate facts- Such facts are to be alleged plainly,
concisely, and directly in a methodical or logical form.
Statement of mere evidentiary facts is to be omitted.
Evidentiary matters are to be presented in the trial, they
have no place in a pleading like a complaint.
Conditions precedent- If the action requires the
performance of conditions precedent, then compliance
with such conditions is imperative and cannot be
conveniently ignored.
Fraud and Mistake- Must be stated with particularity to
enable the court to determine the type of fraud committed
by the defendant and the subsequent liability of the
defendant.
Averments of malice, intent, knowledge, or condition of
the mind of a person- May be averred generally.
Bar against instituting more than one suit for a single
cause of action (Splitting of cause of action)- The plaintiff
cannot split a single cause of action into several parts and
make each part the subject of a separate complaint.
Denial of genuineness or due execution of a documentThe rule is established that a mere specific denial of such
matters would not be a sufficient denial. The rule requires
the denial to be under oath.
Jurisdiction- matter of substantive law not of mere
procedure.
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Relief or prayer- Is not largely determinative of the cause
of action. The nature if the cause of action is primarily
determined by the allegations in the body of the complaint
and not by the prayer.
Amendment of the complaint as a matter of right
 As long as it is made before the other party has
served a responsive pleading.
 If the court refuses to accept an amendment
made as a matter of right, the court may be
compelled to do so through the special civil action
of mandamus.
 May be made only once.
 Plaintiff may amend his pleading even after a
motion to dismiss has been served, because a
motion to dismiss is not a responsive pleading.
 His right to amend his complaint is not affected by
the filing of the motion to dismiss.
Signing of the complaint- Mandatory. An unsigned
pleading produces no legal effect.
Signing of counsel in the pleading- This signature
constitutes a certificate by him that he has read the
pleading, that to the best of his knowledge, information,
and belief, there are good grounds to support it, an that is
not interposed for delay.
Filing of the complaint- Act of presenting the same before
the clerk of court.
Amendment of then complaint with leave of court
 The amendment is no longer a matter of right
because an answer has already been served by
the defendant.
 The amendment has not become a matter of
judicial discretion.
Payment of prescribed fees- Payment if the fee within a
reasonable time, but not beyond the prescriptive period.
Without payment, the general rule is that the complaint is
not considered filed. The court acquires jurisdiction over
the case only upon payment of the prescribed fees.
Amendments may be refused on the following grounds:
1. It appears that it was intended for delay.
2. Amendment is no longer a matter of right.
3. The proposed amendment would result in a drastic
change in the cause of action, defense, or theory of the
case.
4. When the court has no jurisdiction over the subject
matter of the action and the amendment is for the purpose
of conferring jurisdiction upon the court when the
amendment is no longer a matter of right.
Notice of dismissal (Dismissal as a matter of right)
 The plaintiff may exercise the option of dismissing
his own complaint. This is done before the
adverse party has served an answer or a motion
for summary judgment.
 The dismissal is without prejudice to its being
refilled later, unless otherwise stated in the notice
of dismissal or when the refilling is barred by the
two-dismissal rule.
 As long as the dismissal is to be made prior to the
service by the adverse party of his responsive
pleading, the dismissal under this rile is a matter
within the sole discretion of the plaintiff.
 After the service of the answer or a motion for
summary judgment, the plaintiff can no longer
have his action dismissed by mere notice. The
plaintiff now has to file a motion to dismiss his
complaint.
 The granting or denial of the motion to dismiss is
now a matter addressed to the sound judicial
discretion because this type of dismissal is no
longer a matter of right.
Amendment by implication- When the issues not raised in
the pleadings are tried with the express or implied consent
of the parties, as when no objection is interjected on the
evidence offered on a matter not raised on the pleadings.
Pleadings may be amended to conform with the
evidence- Although, an actual amendment need not be
made because failure to do so will not affect the result of
the trial on said issues.
Personal service of summons- The summons and the copy
of the complaint are to be served upon the defendant in
person.
Dismissal of the complaint- Only the complaint is
dismissed. A counterclaim already pleaded prior to the
service upon the defendant of the motion for dismissal is
not affected by the dismissal of the complaint and it is
without prejudice to the right of the defendant to
prosecute his counterclaim in the same or separate action.
A dismissal under this rule is deemed a dismissal without
prejudice, unless otherwise stated in the order of the
court.
Substituted service of summons- If it cannot be served in
person despite diligent efforts. It consist of serving the
summons at the residence of the defendant or his regular
place of business with a person qualified to receive the
summons in accordance with the rules.
Jurisdiction over the person of the defendant- Absent a
voluntary appearance, it is the service of summons which
enables the court to acquire jurisdiction over his person.
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Grounds for dismissal which the court will recognize on its
own motion:
1. Lack of jurisdiction over the subject matter
2. Litis pendencia
3. Res judicata
4. Prescription
Summary judgment- Is based not only on the pleadings
but also on their affidavits, depositions, or admissions. The
basis is the absence of a genuine issue in the case. The
issue does not concern any material fact, as when the issue
is merely the amount of damages.
Counterclaim- Is a pleading which sets forth a claim which
a defending party may have against an opposing party.
Venue- Is a matter designed for the convenience of the
parties and if no party complains about the venue, it is not
foe the court to take up the cudgels for any party.
Compulsory counterclaim- Which a defending party has at
the time he files his answer, shall be contained therein.
Omnibus motion- One which attacks a pleading, as such
when filed, it shall include all objections then available, and
all objections not so included shall be deemed waived
except for lack of jurisdiction over the subject matter,litis
pendencia, res judicata, and prescription.
Permissive counterclaim- Does not have to be raised in the
same proceedings because, by its nature, it could be
invoked as an independent action.
Cross-claim- The claiming defendant may, then in his
answer, interpose a pleading against his co-defendant.
Answer- Is the responsive pleading to the complaint. The
answer gives notice to the plaintiff as to which allegations
in the complaint the defendant decides to contest and put
in issue.
Third party complaint- The defendant may bring in third
persons to the suit and implead him as a party by filing,
with leave of court.
Default
 Defendant loses his standing in court and the
latter may proceed to render judgment granting
the plaintiff such relief as his complaint may
warrant, unless in its discretion, the court requires
the plaintiff to submit evidence on his claim.
 The court’s declaration in default should be
preceded by a motion to declare the said party in
default together with proof of such failure.
 The court cannot declare the defendant in default
motu propio.
Reply
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Default judgment not favored- Are frowned upon and not
looked upon with favor for they may amount to a positive
and considerable injustice to the defendant and the
possibility of such serious consequences necessitates a
careful examination of the grounds upon which the
defendant asks that it be set aside.
Upon receipt of the answer of the defendant, the
plaintiff may respond to the answer, this response
is called a reply.
A reply is the plaintiff’s responsive pleading to the
answer of the defendant.
It is not a compulsory pleading. Failure to file a
reply does not lead to a declaration of default or
result in the implied admission of the material
allegations in the answer.
Intervention
 If at any time before judgment, a person, not
party to the action, believes that he has legal
interest in the matter in litigation in a case in
which he is not a party, he may with leave of court
file a complaint in intervention.
 If he unites with the defending party in resisting a
claim against said party, he may file an answer in
intervention
Motion to lift order of default
 The motion must show that his failure to answer
was due to fraud, accident, mistake, or excusable
negligence and that he has a meritorious defense.
Pre-trial
 It is mandatory and failure to appear thereat by
either party will result in adverse consequences
for the absent party.
 The parties shall consider the possibility of an
amicable settlement or submission of the case to
alternative modes of dispute resolution,
 During the pre-trial stage, the parties may obtain
information from each other through the
employment of devices collectively called as
discovery procedures.
Default order will not be issued in the following
1. Action for annulment of marriage.
2. declaration of nullity of marriage.
3. legal separation.
Judgment on the pleadings- If the answer admits the
material averments in the complaint, the answer is
deemed to have failed to tender an issue. Since there are
no triable issues, a trial is completely unnecessary.
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Trial
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violative of any personal rights because no vested right
may attach to nor arise therefrom.
During the trial, the parties present their claims
and defenses.
It is not an indispensable stage of civil action. A
judgment may be rendered without a trial as
when a case is permanently dismissed or barred
by prior judgment, prescription, or when
judgment on the pleadings, judgment on
compromise was rendered.
When procedural rules do not apply to pending actions:
(Tan vs CA)
1. When the statute itself or by necessary implication
provides that pending actions are excepted from its
operation
2. If applying the rule to pending proceedings would impair
vested rights.
3. When to do so would not be feasible or would work
injustice.
4. If doing so, would involve intricate problems of due
process or
5. Impair the independence of the courts.
Judgment
 A judgment is rendered after the submission of
the evidence of the parties has been concluded.
 It is the decision of the court and represents its
official determination of the respective rights and
obligations of the parties to the case.
 It has to be in writing, personally, and directly
prepared by the judge stating clearly the facts and
the law on which it is based signed by him and
filed with the clerk of court.
Rules of Court applicable proceedings:
1. Civil actions.
2. Criminal actions.
3. Special Proceedings.
The Rules shall not apply to the following cases (Rule 1,
Sec. 4)
1. Election cases.
2. Land registration cases.
3. Cadastral proceedings.
4. Naturalization cases.
5. Insolvency proceedings
Post-judgment remedies
 Before judgment becomes final and executory the
aggrieved party may file
o Motion for reconsideration
o Motion for new trial
o Appeal
 After the judgment becomes final and executory:
o Motion for execution of judgment
o Petition for relief
o Action to annul the judgment
o Certiorari
o Collateral attack
*But the rules may be applied by analogy or in
supplementary to these cases.
Scope of Civil Procedure
1. Ordinary civil actions.
2. Provisional remedies.
3. Special Civil Actions.
Procedural rules
 As they do not originate from the legislature, they
cannot be called laws in the strict sense of the
word. However, since they are promulgated by
authority of law, they have the force and effect of
law.
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Rule-making power of the Supreme Court (Sec. 5 (5) Art.
VIII, Constitution of the Philippines
 The SC has the power to promulgate rules
concerning the following:
o Protection
and
enforcement
of
constitutional rights.
o Pleading
o Practice
o Procedure
o Admission to the practice of law
o The Integrated Bar
o Legal assistance to the underprivileged.
The rules are subordinate to the statute. In case of
conflict, the statute will prevail.
Prospective effect of the rules of court- The rules
embodied in the rules of court are not penal laws and are
not to be given retroactive effect and are to govern cases
brought after they take effect, and also all further
proceedings in cases then pending, except to the extent
that, in the opinion of the court, their application would
not be feasible or would work injustice, in which event the
former procedure shall apply.
Rule-making power (Neypes vs CA)- Sole prerogative to
amend, repeal, or even establish new rules for a more
simplified and inexpensive process and the speedy
disposition of cases.
Retroactivity of the rules- As a general rule, the retroactive
application of procedural laws cannot be considered
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Power to suspend the rules (CIR vs Mirant Pagbilao
Corporation)- The courts have the power to relax or
suspend technical or procedural rules or to except a case
from their operation when compelling reasons so wrrant or
when the purpose of justice requires it. What constitutes
good and sufficient cause that would merit suspension of
rules is discretionary upon the courts.
Limitations of the rule-making power of the Supreme
Court (Sec.5 (5) Art. VIII 1987 Constitution)
1. The rules 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.
3. The rules shall not diminish, increase, or modify
substantive rights.
Pro hac vice- The court, in the exercise of its rule-making
power, can suspend its rules with respect to a particular
case.
Limitations on the periods of appeal: Is not without
reason. They must be strictly followed as they are
considered indispensable to:
1. forestall or avoid unreasonable delays in the
administration of justice,
2. to ensure an orderly discharge of judicial business
3. and to put end to controversies.
Liberal application of the Rules (Rule 1, Sec. 6)
 The Rules shall be liberally construed in order to
promote their object, and assist the parties in
obtaining just, speedy, and inexpensive
determination of every action and proceeding.
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Absence of a verification is not jurisdictional, but only a
formal defect, which does not itself justify a court in
refusing to allow and act on a case.
The rigid application of the Rules may be relaxed
so that the ends of justice may be better served
and that technicality or procedural imperfection
should not serve as basis of decisions.
The rule on liberal construction cannot be
successfully invoked where the party seeking for
its application cannot show a justification for his
deviation from the rules.
Parties praying for the liberal interpretation of the
rules must be able to hurdle that heavy burden of
proving that they deserve an exceptional
treatment.
The phrase “interest of justice is not a magic wand
that would automatically compel the suspension
of procedural rules.
Equity Jurisdiction- Power of the court to resolve issues
presented in a case, in accordance with the natural rules of
fairness and justice, and in the absence of a clear, positive
law governing such issues.
Doctrine of Hierarchy of Courts
 Where the courts have concurrent jurisdiction
over a subject matter, the doctrine of hierarchy of
courts should be observed.
 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.
 Concurrence of jurisdiction does not grant the
party seeking relief the absolute freedom to file a
petition in any court of his choice.
 2-fold rationale of the doctrine:
o It would be an imposition upon the
limited time of the court
o It would inevitably result in a delay,
intended or otherwise in the adjudication
of cases, which in some instances, had to
be remanded or referred to the lower
court as the proper forum under the
rules of procedure, or as better equipped
to resolve the issues because the court is
not a trier of facts.
Liberal construction allowed in the following cases:
1. Where a rigid application will result in a manifest
miscarriage of justice.
2. Where the interest of substantial justice will be served.
3. Where the resolution of the motion is addressed solely
to the sound and judicious discretion of the court.
4. Where injustice to the adverse party is not
commensurate to the degree of his thoughtlessness is not
complying with the procedure prescribed.
Reasons that may warrant the suspension of the Rules
(Sarmiento vs Zaratan):
1. The existence of special and compelling circumstances.
2. Merits of the case.
3. A cause not entirely attributable to the fault or
negligence of a party favored by the suspension of the
rules.
4. A lack of any showing that the review sought is merely
frivolous or dilatory.
5. The rights of the other party will not be unjustly
prejudiced thereby.
Direct resort to the Supreme Court, allowable instances:
1. When there are special and important reasons clearly
stated in the petition.
2. When dictated by public welfare and the advancement
of public policy.
3. When demanded by the broader interest of justice.
4. When the challenged orders were patent nullities.
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5. When analogous exceptional and compelling
circumstances called for and justified the immediate and
direct handling by the court.
Concurrent Jurisdiction/ Coordinate Jurisdiction- The
power of different courts to take cognizance of the same
subject matter. Where there is concurrent jurisdiction, the
court first taking cognizance of the case assumes
jurisdiction to the exclusion of the other courts.
Doctrine of Non-Interference or Judicial Stability- This
principle holds that courts of equal and coordinate
jurisdiction cannot interfere with each other’s orders
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. A court is called upon and
authorized to administer justice. Sometimes, it is referred
to the place where justice is administered.
It also applies with equal force to administrative bodies.
Constitutional court- Only the Supreme Court is created by
the Constitution.
Sandiganbayan- Not a constitutionally-created court. It
was not directly created by the constitution but was
created by a law pursuant to a constitutional mandate (PD
1486).
Court vs Judge
Court
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Civil Courts- Those which determine controversies
between private persons.
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Criminal Courts- Are those which adjudicate offenses
alleged to have been committed against the state.
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Courts of Record- Those which keep a written account of
its proceedings.
Superior Court- One with controlling authority over other
courts, and with an original jurisdiction of its own.
Judge
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Inferior Court- One which is subordinate to another court,
the judgment of which may be reviewed by a higher
tribunal.
Courts of General Jurisdiction- Are those with competence
to decide on their own jurisdiction and take cognizance of
all cases, civil and criminal of a particular nature.
Tribunal officially assembled under authority of
the law.
Organ of the government with a personality
separate and distinct from the person or judge
sitting on it.
Being in imagination comparable to a corporation.
Office
Jurisdiction attaches to the court.
The continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the
judge presiding over it.
Is an officer of such tribunal.
A person who sits in court.
A physical person.
Public officer.
A judge may resign, become incapacitated, or be
disqualified to hold office, but the court remains.
Jurisdiction
 The power and authority of the court to hear, try,
and decide a case.
 Jurisprudence considers jurisdiction as not only
the authority of the court to hear, try and decide
cases, it is also considered as an authority to
execute the decisions rendered by the court.
 Power to control the execution of its decision is an
essential aspect of jurisdiction and that the most
important part of a litigation, whether civil,
criminal is the process of execution of decisions
where supervening events may change the
circumstance of the parties and compel courts to
intervene and adjust the rights of litigants to
prevent unfairness.
Courts of Special Jurisdiction- Are those which have a
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.
Original Jurisdiction- When actions or proceedings are
originally filed with it. Jurisdiction to take cognizance of a
case at its inception, try it, and pass judgment upon the
law and facts.
Exclusive Jurisdiction- Precludes the idea of co-existence
and refers to jurisdiction possessed to the exclusion of
others.
Test of jurisdiction- Whether the court has the power to
enter into the inquiry and not whether the decision is right
or wrong.
Appellate Jurisdiction- When it has the power of review
over the decisions or orders of a lower court.
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Failure of a court to adjudicate a case on its merits when it
has jurisdiction the same may be enforced by way of
MANDAMUS.
The errors which the court may commit in the
exercise of jurisdiction are merely errors of
judgment which are the proper subjects of an
appeal.
Error of Jurisdiction vs Error of judgment
General Rule: Proceedings conducted or decisions made by
a court are legally void when there is an absence of
jurisdiction over the subject matter. This is true even
where the court in good faith believes that the subject
matter is within its jurisdiction.
Error of jurisdiction
 One where the act complained of was issued by
the court without or in excess of jurisdiction.
 Occur when the court exercises a jurisdiction not
conferred upon it by law.
 Errors of jurisdiction only be corrected by an
extraordinary writ of certiorari.
Exception: When the party raising the issue is barred by
estoppel.
Collateral Attack- A decision rendered by a court devoid of
jurisdiction may be the subject of a collateral attack, if that
jurisdictional defect appears on the face of the record.
Error of Judgment
 The court is vested with jurisdiction over the
subject matter of the action but, in the process of
exercising that jurisdiction, it committed mistakes
in the appreciation of the facts and the evidence
leading to an erroneous judgment.
 Includes errors of procedure or mistake in the
court’s findings.
 It is one which the court may commit in the
exercise of its jurisdiction.
 As long as the courts acts within its jurisdiction,
any alleged errors committed in the exercise of its
discretion will amount to nothing more than mere
errors of judgment.
 An erroneous judgment is not a void judgment,
but a judgment tainted with error of jurisdiction is
a nullity.
 May be corrected by an appeal.
And where lack of jurisdiction over the subject matter
appears on the face of the record, an appellate court may
on its own initiative dismiss the action.
Aspects of Jurisdiction
1. Over the subject matter.
2. Over the parties.
3. Over the issues of the case
4. Over the res or thing involved in the litigation.
I. Jurisdiction over the subject matter
 Power of a particular court to hear the type of
case that is then before it.
 Also refers to the jurisdiction of the court over the
class of cases to which a particular case belongs.
Subject matter- Refers to the item with respect to which
the controversy has arisen, or concerning which the wrong
has been done, and it is ordinarily the right, the thing, or
the contract under dispute.
Lack of jurisdiction- When the court or tribunal is not
vested by law with authority or power to take cognizance
of a case.
Excess of jurisdiction- Presupposes the existence of
authority for the court to assume jurisdiction over a case
but, in the exercise of that authority, it acted beyond the
power conferred to it.
Questions ipso facto to be immediately resolved by the
court on its own when a complaint is filed before it:
1. What is the subject matter of the complaint?
2. Does the court have jurisdiction over the said subject
matter?
Cause of action as distinguished from jurisdiction- does
not refer to the authority of the court. A cause of action is
the act or omission of a person violative of the rights of
others.
Jurisdiction vs Exercise of Jurisdiction
Jurisdiction
 The authority to decide a case and not the
decision rendered therein.
How jurisdiction over the subject matter is conferred
 It can be only conferred by law which may either
be the constitution or a statute.
 It is not for the court or the parties to determine
or to conveniently set aside.
 Only a statute can confer jurisdiction on courts
and administrative agencies.
Exercise of Jurisdiction
 Where there is jurisdiction over the person and
the subject matter, the decision on all other
questions arising in the case is but an exercise of
that jurisdiction.
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How jurisdiction over the subject matter is determined
 Jurisdiction over the subject matter of a case is
conferred by law and determined by the
allegations in the complaint which comprise a
concise statement of the ultimate facts
constituting the plaintiff’s cause of action.
 The nature of an action, as well as which court or
body has jurisdiction over it, is determined based
on the allegations contained in the complaint
irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims
asserted therein.
 It is a well-settled rule that what determines the
nature of the action, as well as the court which
has jurisdiction over the case, are the allegations
in the complaint.
Exceptions to the Doctrine of Primary Jurisdiction
1. Where there is estoppel on the part of the party
invoking the doctrine.
2. Where there the challenged administrative act is
patently illegal, amounting to lack of jurisdiction.
3. Where there is unreasonable delay or official inaction
that will irretrievably prejudice the complainant.
4. Where the amount involved is relatively small.
5. Where the question involved is purely legal and will
ultimately have to be decided by the courts of justice.
6. Where judicial intervention is urgent.
7. When its application may cause great and irreparable
damage.
8. Where the controverted acts violate due process.
9. When the issue of non-exhaustion of administrative
remedies has been rendered moot.
10. When there is no other plain, speedy, and adequate
remedy.
11. When strong public interest is involved.
12. In quo warranto proceedings.
Exception to the rule that jurisdiction is determined by
the allegations in the complaint
 Ignacio vs CFI of Bulacan- Where tenancy was the
defense, the court went beyond the allegations in
the complaint in determining jurisdiction in
resolving a motion to dismiss based on lack of
jurisdiction over the subject matter and required
presentation of evidence to prove or disprove the
defense of tenancy.
 The Municipal Trial Court does not automatically
lose its jurisdiction over ejectment cases by mere
allegation of the defense of tenancy relationship
between the parties. There must first be a
reception of evidence, and if, after hearing
tenancy had in fact be shown to be the real issue,
the court should dismiss the case for lack of
jurisdiction. The rule is still that jurisdiction of the
court is determined by the allegations in the
complaint.
Doctrine of Adherence of jurisdiction (Continuity of
Jurisdiction)
 The 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.
 Jurisdiction is not lost by the mere fact that the
judge ceased to be in office during pendency of
the case.
 Even the finality of the judgment does not totally
deprive the court of jurisdiction over the case.
What the court loses is the power to amend,
modify, or alter the judgment. Even after the
judgment has become final, the court retains
jurisdiction to enforce and execute it.
Doctrine of Primary Jurisdiction
 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.
 The objective of the Doctrine is to guide the court
in determining whether it should refrain from
exercising its jurisdiction until after an
administrative agency has determined some
question or some aspect of some question arising
in the proceeding before the court.
Objections to jurisdiction over the SM
 The court on its own initiative object to an
erroneous jurisdiction, take cognizance of lack of
jurisdiction at any point in the case, and has a
clearly recognized right to determine its own
jurisdiction in any proceeding.
 If no motion to dismiss was filed, the defense of
lack of jurisdiction may be raised as an affirmative
defense in the answer.
 Jurisdiction over the subject matter may be raised
at any stage of the proceedings even foe the first
time on appeal.
8
Effect of estoppel on objections to jurisdiction
 A party may be barred from raising it on the
ground of estoppel.
 A party’s active participation invoking the
authority of the court in seeking affirmative relief
and questioning the court’s jurisdiction only after
receiving a ruling or decision adverse to his case,
for the purpose of annulling everything done in
the trial in which he has actively participated.
 Tijam vs Sibinghanoy- The SC barred a belated
objection to jurisdiction that was raised by a party
only when an adverse decision was rendered by
the lower court against it and because it raised
the issue only after seeking affirmative relief from
the court and actively participating in all stages of
the proceedings.
 The SC frowns upon the undesirable practice of
submitting one’s case for decision, and then
accepting the judgment only if favorable but
attacking it for lack of jurisdiction if it is not.
 The rule on estoppel also applies to administrative
proceedings (Office of the Ombudsman vs Delijero
Jr.)
Reliefs for objecting to the jurisdiction of the court over
the person of the defendant.
1. When the defendant files the corresponding pleading
thereon.
2. When the defendant files a motion for reconsideration
of the judgment of default.
3. When the defendant files a petition to set aside
judgment of default.
4. When the parties jointly submit a compromise
agreement for approval of the court.
Omnibus Motion Rule
 A motion attacking a pleading, order,
judgment or proceeding shall include all
objections then available and all objections
not so included shall deemed waived.
 Defense of lack of jurisdiction over the SM
not barred by the Omnibus Motion Rule
because it may be raised as an affirmative
defense.
Action in rem
 One wherein an individual is named as defendant
and the purpose of the proceeding is to subject
his interest therein to the obligation or lien
burdening the property.
The filing of an answer per se, should not be treated
automatically as a voluntary appearance. Because, when
the filing of an answer precisely to object to the
jurisdiction of the court over his person, it is not
considered as a voluntary appearance.
When jurisdiction over the person of the defendant is
required- Required only in actions in personam. It is not a
prerequisite in an action in rem or quasi in rem.
Action in personam- An action against a person on the
basis of his personal liability.

However, summons must be served upon the
defendant not for the purpose of vesting the court
with jurisdiction but merely for satisfying the due
process requirements

Jurisdiction over the person – Is the legal power of the
court to render a personal judgment against a party to an
action or proceeding.
Petitions directed against the thing itself or the
res which concerns the status of the person are
actions in rem. (petition for adoption, annulment
of marriage, correction of entries in the birth
certificate)
Jurisdiction in personam- Is the power which a court has
over the defendant’s person which is required before a
court can enter a personal or an in personam judgment. It
imposes a responsibility or liability upon a person directly
and therefore, binds him personally.
Objection to the person of the defendant may be raised as
a ground in a motion to dismiss. If the objection was not
raised either in the motion or as a defense in an answer, it
shall be deemed waived.
II. Jurisdiction over the parties
Sec. 20 rule 14- The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary
appearance. The rule as it now stands, allows the raising of
defenses in addition to lack of jurisdiction over the person
of the defendant, without creating an inference of a
voluntary submission to the jurisdiction of the court.
How jurisdiction over the persons of the parties is
acquired:
1. Plaintiff- By filing of his complaint or petition.
2. Defendant- Voluntary appearance in court and his
submission to its authority or by service of summons.
Submission to the court’s jurisdiction takes the form of an
appearance that seeks affirmative relief except when the
relief sought is for the purpose of objecting to the
jurisdiction of the court over the person of the defendant.
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III. Jurisdiction over the issues
the evidence, in which case, it is a question of law,
otherwise it is a question of fact.
Jurisdiction over the issue- Is the power of the court to try
and decide the issues raised in the pleadings of the parties.
Effect of failure to amend to include issues agreed upon
by the parties (Estolas vs Acena)- Upon motion of any
party, the pleadings may be amended to conform to the
evidence but the failure to so amend does not affect the
result of the trial of these issues because, it is submitted,
the pleadings are deemed impliedly or constructively
amended to embody the issues tried with the consent of
the parties.
Issue- Is a disputed point or question to which parties to an
action have narrowed down their several allegations and
upon which they are desirous of obtaining a decision.
An issue arises because a material allegation of a claiming
party is specifically denied by the defending party.
How jurisdiction over the issue is conferred and
determined
 By the allegations in the pleadings of the parties.
 Whether or not a court has jurisdiction over a
specific issue is a question that requires nothing
but an examination of the pleadings.
 May also be conferred by stipulation of the
parties as when, in the pre-trial, the parties enter
into the stipulations of facts and documents or
enter into an agreement simplifying the issues of
the case.
 May also be conferred by waiver or failure to
object to the presentation of evidence on a
matter not raised in the pleadings. The parties try,
with their implied or express consent, issues not
raised in the pleadings. The issues tried shall be
treated in all respects as if they had been raised in
the pleadings.
Consent of the parties- May be inferred from the failure to
interpose an objection to the presentation of evidence on
a matter not alleged in the pleadings.
IV. Jurisdiction over the Res
Res- In civil law, it is a ‘thing”, or an object. It means
everything that may form a subject of rights, in opposition
to persona which is the subject of rights. It includes an
object, subject matter or status.
Jurisdiction over the res
 Refers to the court’s jurisdiction over the thing or
the property which is the subject of the action.
 This type of jurisdiction is necessary when the
action is one in rem or quasi in rem.
 When the action is one in personam, jurisdiction
over the res is not sufficient to authorize the court
to render a judgment against the defendant.
 In an action in personam, jurisdiction over the
person of the defendant is required.
Jurisdiction over the issue vs Jurisdiction over the subject
matter
 Over the issue- unlike subject matter, may be
conferred by consent of either of the parties,
express or implied. Although an issue is not duly
pleaded, it may be validly tried and decided if no
timely objection is made thereto by the parties.
This cannot be when jurisdiction over the subject
matter is involved.
 Over the subject matter- It is conferred by law,
while issues are conferred by the pleadings.
When the action is in personam
 Jurisdiction over the person of the defendant is
necessary for the court to validly try and decide
the case, this is because the action is one brought
on the basis of the personal liability of the
defendant.
 Actions in personam are directed against specific
persons and seek personal judgment.
An issue may be a question of law or of fact
Actions in rem or quasi in rem
 Are directed against the thing or property or
status of a person and seek judgments with
respect thereto as against the whole world.
Question of law- When the doubt or difference arises as to
what the law is on a certain set of facts.
Question of fact- When the doubt or difference arises as to
the truth or falsehood of the alleged facts.
How jurisdiction of the res is acquired
 By the court, by placing the property or thing
under its custody (custodia legis) or constructive
seizure.
 Through statutory authority conferring upon it the
power to deal with the property or thing within
the court’s territorial jurisdiction.
Test of whether the question is of law or fact- It is not the
appellation given to such question by the party raising the
same, rather it is whether the appellate court can
determine the issue raised without reviewing or evaluating
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Extent of relief when jurisdiction is only over the res
 Any relief granted in rem or quasi in re, actions
must be confined to the res, and the court cannot
lawfully
render a judgment against the
defendant.
General Rule: The SC is not a trier of facts
 Which means that passing upon a factual issue is
not within the province of the Supreme Court.
 Factual findings of the trial court, particularly
when affirmed by the CA, are generally binding on
the SC.
V. Jurisdiction of Philippine Courts
Exceptions: Factual issues may be resolved by the
Supreme Court
1. When the findings are grounded entirely on
speculation, surmises, or conjectures.
2. When the inference made is manifestly mistaken,
absurd, or impossible.
3. When there is grave abuse of discretion.
4. When the judgment is based on a misapprehension
of facts.
5. When the findings of facts are conflicting.
6. When in the making of its findings, the CA went
beyond the issues of the case or its findings are
contrary to the admissions of both the appellant and
appellee.
7. When the findings are contrary to those of the Trial
Court.
8. When the findings are conclusions without citation
of specific evidence on which they are based.
9. When the facts set forth in the petition, as well as in
the petitioner’s main reply briefs, are not disputed by
the respondent.
10. When the findings of fact are premised on the
supposed absence of evidence and contradicted by the
evidence on record.
11. When the CA manifestly overlooked certain
relevant facts not disputed by the parties, which, if
properly considered, could justify a different
conclusion.
A. Supreme Court
I. Exclusive and original jurisdiction
1. Certiorari
2. Prohibition
3. Mandamus
Against the CA, COMELEC, COA, SANDIGANBAYAN, CTA
4. Disciplinary proceedings against members of the
judiciary and attorneys.
II. Concurrent original jurisdiction with the CA
1. Certiorari
2. Prohibition
3. Mandamus
Against the RTC, CSC, CBAA, NLRC, other quasi-judicial
bodies.
*This concurrent jurisdiction is subject to the Doctrine of
Hierarchy of Courts.
III. Concurrent jurisdiction with the CA and RTC
1. Certiorari
2. Prohibition
3. Mandamus
Against lower courts and bodies
4. Quo Warranto
5. Habeas Corpus
6. Habeas Data
7. Writ of Amparo
IV. Concurrent jurisdiction with the RTC
1. Cases affecting ambassadors, public ministers,
and consuls.
Cases which must be heard by the SC En Banc
1. All cases involving the constitutionality of a
treaty, international or executive agreement.
2. All cases which under the Rules of Court are
required to be heard en banc.
3. All cases involving the constitutionality,
application, or operation of presidential
decrees, proclamations, orders, instructions,
ordinances, and other regulations.
4. Cases hear by a division when the required
number in the division is not obtained.
5. Cases involving a modification or reversal of a
doctrine or principle of law laid down
previously by the SC in a decision rendered en
banc or by a division.
6. Cases involving the discipline of judges of
lower courts.
7. Contests relating to the election, returns, and
qualifications of the President or VicePresident.
V. Appellate jurisdiction
1.
Rule 45 Petition for Review on Certiorari (pure
questions of law.
Against the CA, Sandiganbayan, RTC
2. Rule 56 Sec.3, appeal by certiorari in criminal
cases where the penalty imposed is death,
reclusion perpetua, or life imprisonment.
3. Cases involving the constitutionality or validity of
a law or treaty, international agreement,
presidential
decree,
proclamation,
order,
instruction, ordinance, or regulation, legality of
tax impost, assessment, toll, or penalty,
jurisdiction of lower courts.
11
When the SC en banc is equally divided
 Where the opinion of the SC en banc is equally
divided, or the necessary majority cannot be had,
the case shall again be deliberated on.
 If after such deliberation no decision is reached,
the original action commenced in the court shall
be dismissed.
 In appealed cases, the judgment or order
appealed from shall stand affirmed.
 On all incidental matters, the petition or motion
shall be denied.
C. Court of Tax Appeals
I. Exclusive Appellate Jurisdiction
1. Review by appeal decisions of the Commissioner
of Internal revenue in cases involving:
a. Disputed assessments
b. Refunds of internal revenue taxes, fees,
or other charges, penalties in relation
thereto.
c. Other matters arising under the National
Internal Revenue Code or other laws
administered by the Bureau of Internal
Revenue.
Inaction by the CIR in cases:
a. Disputed assessments
b. Refunds of internal revenue taxes, fees,
or other charges, penalties in relation
thereto.
c. Other matters arising under the National
Internal Revenue Code or other laws
administered by the Bureau of Internal
Revenue, where the NIRC provides a specific
period of action, in which case the inaction
shall be deemed a denial.
2. Decisions, orders, resolutions, of the RTC in local
tax cases originally decided or resolved by them in
the exercise of their original or appellate
jurisdiction.
3. Decisions of the Commissioner of Customs in
cases involving:
a. Liability for customs duties,
b. fees, or other money charges,
c. seizure, detention or release of property
affected,
d. fines,
e. forfeitures or
f. other penalties in relation thereto
g. or other matters arising under the
Customs law or other laws administered
by the Bureau of Customs.
4. Decisions of the Central board of Assessment
Appeals in the exercise of its appellate jurisdiction
over cases involving the assessment and taxation
of real property originally decided by the
provincial or city assessment appeals.
5. Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review
from the decisions of the Commissioner of
Customs which are adverse to the government
under Sec. 2315 of the Tariff and Customs Code
6. Decisions of the Secretary of Trade and Industry,
in the case of non-agricultural product,commodity
or articles
7. And the Secretary of Agriculture in the case of
agricultural product, commodity, or article
involving dumping and countervailing duties
B. Court of Appeals
CA en banc- Only for the purpose of exercising:
1. Administrative
2. Ceremonial
3. Other non-adjudicatory functions
I. Exclusive Original Jurisdiction
1. Action for the annulment of the judgments of the
RTC.
II. Concurrent and original jurisdiction with the SC
1. Certiorari
2. Prohibition
3. Mandamus
Against the RTC, CSC, CBAA, NLRC, Other quasi-judicial
bodies.
III. Concurrent and original jurisdiction with the SC and
the RTC
1. Certiorari
2. Prohibition
3. Mandamus
Against lower courts
4. Quo Warranto
5. Habeas Corpus
Whether or not in aid of its appellate jurisdiction.
IV. Exclusive Appellate Jurisdiction
1. Ordinary appeal from judgments of the RTC and
Family Courts.
2. Petition for review from the judgments of the RTC
in exercise of its appellate jurisdiction.
3. Petition for Review from the decisions, resolutions,
orders or awards of the CSC.
V. Appellate Jurisdiction
1. Decisions of MTC in cadastral or land registration
cases pursuant to its delegated jurisdiction.
Limitations to the conduct of trials and hearings by the CA
1. Trials and hearings must be continuous.
2. Trials and hearings must be completed within 3
months except when extended by the Chief
Justice.
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under Secs 301 and 302 of the Tariff and Customs
Code, and safeguard measures under RA 8800,
where either party may appeal the decision to
impose or not to impose said duties.
II. Exclusive Original Jurisdiction in tax collection cases
1. Tax collection cases involving final and executory
assessments for taxes, fees, and penalties,
provided, that collection cases where the principal
amount of taxes, fees, charges, and penalties
claimed, is less than One Million Pesos shall be
tried by the MTC or MeTC, and RTC.
III. Exclusive appellate jurisdiction in tax collection cases
1. Over appeals from the judgments, resolutions, or
orders, of the RTC in tax collection cases originally
decided by the, in their respective territorial
jurisdiction.
2. Over petitions for review of the judgments,
resolutions, orders, of the RTC in the exercise of
their appellate jurisdiction over tax collection
cases originally decided by the MeTC, MTC, and
MCTC in their respective jurisdictions.
ARE MERELY INCIDENTAL TO OR CONSEQUENCE of the
main cause of action.
Where the claim for damages is the MAIN CAUSE OF
ACTION or ONE OF THE CAUSES OF ACTION- The amount
of such claim shall be considered in determining the
jurisdiction of the court.
Totality Rule
 Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount of
the demand shall be the totality of the claims in
all the causes of action, irrespective of whether
the causes of action arose out of the same or
different transactions.
 Presupposes that the various claims of the same
or different parties are allowed to be embodied in
the same complaint, or that the different causes
of action which are joined, accrue in favor of the
same plaintiff/s and against the same defendant/s
and that no misjoinder of parties is involved. If so,
then the total amount of the claims shall be the
basis of the court’s jurisdiction and not the
amount of the individual claims.
D. Municipal Trial Courts
Ra 7691 An Act expanding the jurisdiction of the METC,
MTC, MCTC took effect on April 15, 1994.
I. Exclusive original Jurisdiction
1. Subject is a personal property, money claim, gorss
value of the estate in probate proceedings testate
or intestate does not exceed 300,000 outside MM
or 400,000 in MM.
2. Cases under the 1991 Rules on Summary
procedure
3. Cases under the Rules of Procedure for Small
Claims.
4. Forcible Entry (accion interdictal) regardless of
value of the property
5. Unlawful Detainer (accion interdictal) regardless
of the value of the property
6. Civil actions involving title to or possession to
property or an interest therein where the
assessed value of the property or interest therein
does not exceed 20,000 outside MM or 50,000 in
MM. The amounts mentioned are exclusive of
interest, damages of whatever kind, attorney’s
fees, litigation expenses, and costs.
II. Delegated Jurisdiction
1. Cadastral and land registration cases covering lots
where there is no controversy or opposition or
contested lots the value of which does not exceed
100,000 as may be delegated by the SC.
*The MTC acting under its delegated jurisdiction is acting
as a RTC, therefore, shall be appealable to the CA.
III. Special Jurisdiction
1. Petitions for writ of habeas corpus in the absence
of all RTC judges in the province or city.
Jurisdiction of the MTC Sec.5 RA 7691
5 years from effectivity of RA 7691 the amounts not less
than 100,000 outside MM and 200,000 in MM respectively,
shall be adjusted to:
 Amount not exceeding 200,000 outside Metro
Manila
 Amount not exceeding 400, 000 in Metro Manila
Shall be further adjusted 5 years therefrom to
 Amount not exceeding 300,000 outside Metro
Manila (Max amt 300,000)
 Amount not exceeding 400,000 constant in Metro
Manila (Max amt 400,000)
Jurisdictional amount referred to is the value of the:
1. Personal property
2. Estate
3. Amount of the demand involved in civil actions or
proceedings.
The Jurisdictional amount does not include the following:
1. Interest
2. Damages of whatever kind
3. Attorney’s fees
4. Litigation expenses
5. Costs
Administrative Circular No. 09-94- The term “ Exclusion of
damages of whatever kind” in determining the
jurisdictional amount applies to cases where DAMAGES
13
2.
Authority to hear and decide applications for bail
in criminal cases in the province or city where the
absent RTC judges sit.
having jurisdiction over the assessed value of the property
subject thereof. (ex, action for reconveyance of title to real
property, cancellation of title to real property, quieting of
title to real property).
Provisional resolution of ownership in forcible entry and
unlawful detainer cases by the MTC


Action involving title to real property- That the plaintiff’s
cause of action is based on a claim that he owns such
property or that he has the legal rights to have exclusive
control, possession, enjoyment, or disposition of the same.
The court as a general rule cannot resolve the
issue of ownership in cases involving unlawful
detainer and forcible entry cases the resolution of
this cases pertain only to possession. Except
when, the issue of possession cannot be resolved
without deciding the issue of ownership the court
may resolve the issue of ownership but only for
the purpose of determining the issue of
possession.
Certificate of title- The document of ownership under a
Torrens System of registration issued by the government
through the register of Deeds.
Title- The claim, right, or interest in real property, a
certificate of title is the evidence of such claim.
E. Regional Trial Courts
An adjudication made in an ejectment proceeding
regarding the issue of ownership should be
regarded merely as PROVISIONAL and, therefore,
would not bar or prejudice an action between the
same parties involving title to the land. What is
resolved is possession de facto and not possession
de jure.
I. Exclusive Original Jurisdiction
1. All civil actions in which the subject of the
litigation is incapable of pecuniary estimation.
2. All civil actions which involve title to, possession
of, real property or interest therein, where the
assessed value of such property involved exceeds
20,000 outside Metro Manila or for civil actions in
Metro Manila where such value exceeds 50,000.
3. All actions in admiralty and maritime jurisdiction
where the demand or claim exceeds 300,000
outside Metro Manila or in Metro manila where
such demand or claim exceeds 400,000.
4. All matters of probate, both intestate or testate
where the gross value of the estate exceeds
30,000 outside Metro Manila and 400,000 in
Metro Manila.
5. In all actions involving the Contract of Marriage
and Marital Relations (Family Courts).
6. All cases not within the exclusive jurisdiction of
any court, tribunal, person, or body exercising
judicial or quasi-judicial functions.
7. All civil actions and special proceedings falling
within the exclusive original jurisdiction of the
Juvenile and Domestic relations Court subject to
RA 8369. (Family Courts)
8. All other cases in which the demand or the value
of the property in controversy exceeds 300,000
outside Metro Manila or in Metro Manila where
the demand exceeds 400,000, exclusive of
interests, damages of whatever kind, attorney’s
fees, litigation expenses and costs.
II. Concurrent original jurisdiction with the SC
1. Actions affecting ambassadors, other public
ministers, and consuls.
IV. Concurrent and original jurisdiction with the SC and CA
1. Certiorari
2. Mandamus
Assessed value of real property- is the fair market value of
the real property multiplied by the assessment level. It is
synonymous to taxable value. This is the basis of the
jurisdiction of the court.
Fair market Value- Is the price at which a property may be
sold by a seller, who is not compelled to sell, and bought
by a buyer who is not compelled to buy.
Accion Publiciana
 Refers to an ejectment suit where the cause of
dispossession is not among the grounds for
forcible entry and unlawful detainer or when
possession has been lost for more than 1 year
and can no longer be maintained under Rule 70
of the Rules of Court.
 The objective of the plaintiff in this action is to
recover possession only.
 It is a plenary action for recovery of possession in
an ordinary civil proceeding, in order to
determine the better and legal right to possess,
independently of the title.
Accion Reinvindicatoria
1. Is a suit which has its object the recovery of
possession over the real property owner. It
involves recovery of ownership and possession on
said ownership.
Where the ultimate objective of the plaintiff is to obtain
title to the property, it should be filed in the proper court
14
3. Prohibition
4. Quo Warranto
5. Habeas Corpus
V. Appellate Jurisdiction
1. Cases decided by the MeTC, MTC, MCTC in their
respective territorial jurisdiction.
VI. Special jurisdiction
1. Criminal cases
2. Juvenile and domestic relations cases
3. Agrarian reform
4. Urban and land reform cases which do not fall
under the jurisdiction of quasi-judicial bodies and
agencies and
5. Other special cases as the SC may determine in
the interest of a speedy and efficient
administration of justice
6. Intra-corporate controversies
merely incidental to the principal relief, the action
is incapable of pecuniary estimation.
Examples of actions incapable of pecuniary estimation
1. Declaration of nullity of contracts and documents.
2. Recission of contracts
3. Reformation of instrument.
4. Specific Performance
5. Complaint for expropriation.
6. Annulment of resolution of a government-owned
and controlled corporation.
7. Action for the annulment of an extrajudicial
foreclosure sale of real property.
8. Injunction
Extent of trial court’s jurisdiction when acting as a
probate court
 A probate court cannot adjudicate or determine
title of properties claimed to be part of the estate
and also claimed by outside parties.
 All that the court could do is to determine
whether they should or should not be included in
the inventory or list of properties to be
administered.
 For the purpose of determining whether a certain
property should or should not be included in the
inventory , the probate court may pass upon the
title thereto but such determination is not
conclusive and is subject to a final determination
in a separate action.
 However, if the interested parties are all heirs or
the parties consent to the assumption of
jurisdiction by the probate court and third parties
are not prejudiced or injured thereby, the probate
court may decide questions on ownership.
Jurisdiction of Family Courts RA 8369
1. Petitions for guardianship, custody of children and
habeas corpus involving children.
2. Petition for adoption for children and revocation
thereof.
3. Complaints for annulment of marriage, declaration of
nullity of marriage, and those relating to the status and
property relations of the husband and wife or those living
together under different status and agreements and
petitions for dissolution of conjugal partnership of gains.
4. Petitions for support and or acknowledgment.
5. Summary judicial proceedings brought under the Family
Code of the Philippines.
6. Petitions for declaration of status of children as
abandoned, dependent, or neglected children, petitions for
voluntary or involuntary commitment of children, the
suspension, termination, or restoration of parental
authority and other cases cognizable under PD 603 series
of 1986.
7. Petitions for constitution of the Family Home.
8. Violations of RA 7610 “Special Protection of Children
Against Child Abuse, Exploitation, and Discrimination Act”.
9. Cases against minors cognizable under the Dangerous
Drugs Act.
10. Cases of domestic Violence against women and
children.
F. Shari’a Courts
Art 137 of PD 1083 February 4, 1977 “ The legal system of
the Muslims in the Philippines as part of the law of the
land and seeks to make Islamic Institutions more
effective”
Sharia District Courts
I. Exclusive Original Jurisdiction
1. All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the code of Muslim Personal laws.
2. All cases involving disposition, distribution and
settlement of the estate of the deceased Muslims,
Probate of wills, Issuance of Letters
Administration or appointment of administrators
or executors regardless of the nature or the
aggregate value of the property.
3. Petitions for the Declaration of Absence and
Death and for cancellation or correction of entries
Court of General Jurisdiction- Sec. 19 (6) B.P. 129 as
amended, “Cases not within the exclusive jurisdiction of
any court, tribunal, person, or body exercising judicial or
quasi-judicial functions”.
Test whether an action is incapable of pecuniary
estimation
1. If it is primarily for the recovery of a sum of
money it is capable of pecuniary estimation.
2. If the issue is something other than the right to
recover a sum of money or the money claim is
15
4.
5.
in the Muslim registries mentioned in Title IV
Book 2 of this code.
All actions arising from customary contracts in
which the parties are Muslims, if they have not
specified which law shall govern their relations.
All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all other
auxiliary writs and processes in aid of its appellate
jurisdiction.
1991 Revised Rules of Summary Procedure
Scope:
1. Metropolitan Trial Courts
2. Municipal Trial Courts
3. Municipal Circuit Trial Courts
Civil cases subject to summary procedure
1. All cases of forcible entry and unlawful detainer
irrespective of the amount of damages or unpaid
rentals sought to be recovered.
2. All other cases where the total amount of
plaintiff’s claim does not exceed 100,000 outside
metro manila, and 200,000 within metro manila
exclusive of interests and costs.
II. Concurrent jurisdiction
1. Petitions by Muslims for the constitution of a
family home, change of name and commitment of
an insane person to an asylum.
2. All other personal and real actions not mentioned
in paragraph of the immediately preceding topic,
wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer,
which shall fall under exclusive original jurisdiction
of the MCTC.
3. All special civil actions for interpleader or
declaratory relief wherein the
parties are
Muslims or the Property involved belongs
exclusively to Muslims.
Only pleadings allowed (All must be verified)
1. Complaint
2. Compulsory counterclaim pleaded in the answer
3. Cross claim pleaded in the answer
4. Answer to these pleadings.
*Motion to dismiss- Failure to comply with Barangay
conciliation and lack of jurisdiction over the subject matter.
Prohibited pleadings and motions
1. Motion to dismiss except on the grounds of 1. Failure to
comply with the barangay conciliation proceedings and 2.
Lack of jurisdiction over the subject matter.
2. Motion for Bill of Particulars
3. Motion for new trial or for Reconsideration of judgment,
or for re-opening 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, prohibition, mandamus against
any interlocutory order issued by the court.
8. Motion to declare defendant in default.
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions
III. Appellate Jurisdiction
1. All cases tried in the Shar’ia Circuit Courts within
their territorial jurisdiction.
*Decisions of the Shari’a District Courts whether on appeal
from the Shari’a Circuit Court or not, shall be FINAL.
*Nothing therein contained shall affect the original and
appellate jurisdiction of the Supreme Court.
G. Shari’a Circuit Courts
I. Original Jurisdiction
1. All cases involving offenses defined and punished
under PD 1083
2. All civil actions and proceedings between the
parties who are Muslims or have been married in
accordance with Art.13 of PD 1083 involving
disputes relating to:
a. Marriage
b. Divorce
c. Betrothal or Breach of Contract to Marry
d. Customary dower
e. Disposition of property upon divorce
f. Maintenance
and
support
and
consolatory gifts.
g. Restitution of Marital Rights
h. All cases involving disputes relative to
communal properties.
Sec.5 Revised rule on Summary Procedure
 Within 10 days from service of summons, the
defendant shall file his answer to the complaint
and serve a copy thereof to the plaintiff. The
answer should contain the affirmative and
negative defenses applicable. Those defenses not
pleaded in the answer shall be deemed waived.
The only defense not deemed waived is lack of
jurisdiction over the subject matter.
 Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred.
Shari’a Courts- Shall be governed by special rules of
procedure as the Supreme Court may promulgate.
16

The answer to counterclaims or cross-claims shall
be filed and served within 10 days from service of
the answer in which they are pleaded.
Should defendant fail to answer the complaint
within the period of 10 days from service of
summons, the court, motu propio or on motion of
the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint.
Failure of the defendant to file and serve his
answer will not result into a declaration of
default.
The judgment rendered by the court pursuant to
the immediately preceding paragraph shall be
limited to what is prayed for in the complaint.
The judgment or final order of the Municipal Trial
Court shall be appealable to the appropriate RTC.

Small Claims Cases
A.M. 08-8-7-SC Rule of Procedure for Small Claims Cases
 The Rules of civil Procedure apply suppletorily to
small claims cases but only insofar as they are not
inconsistent with this Rule.
 The claims must be solely for money. Hence, a
claim for delivery of goods or of documents
cannot be covered by the Rule.
 A suit cannot be brought in a Small Claims Court
to force a person or business to fix a damaged
goods, or demand fulfillment of a promised
obligation which is not purely for money.
 It must involve a pure money claim the principal
amount of which does not exceed 100,000.
 If the principal claim exceeds 100,000 there must
be a waiver of the excess embodied in the
Statement of the Claim.
 In BP 22 cases, the court may only entertain the
civil aspect as a small claim if no complaint for the
offense has yet been filed before the office of the
prosecutor. This fact must be stated under oath
by the plaintiff in the statement of Claim and
there should be an express waiver of such criminal
action in the Verification and Certification of NonForum Shopping.
 Failure of the plaintiff to appear in the hearing
shall be cause for the dismissal of the claim
without prejudice. Hence, the dismissed action
can be refilled.
 Failure of both parties to appear shall cause the
dismissal with prejudice of both the claim and
counterclaim.
 Failure of the defendant to appear shall have the
same effect as a failure to file a response under
sec 12. This rule shall not apply when other
defendants who are sued under a common cause
of action and have pleaded a common defense at
the hearing.






No attorney shall appear in behalf of a party or
represent a party at the hearing. Appearance of
the attorney shall be allowed only if the attorney
is the plaintiff or the defendant.
While an attorney is not allowed to represent a
party to the case, the Rule does not preclude an
attorney from offering his services in assisting a
party to prepare for the case. He is allowed to
provide advice to a party, either before or after
the commencement of the action. He may even
submit an affidavit as a witness (not as counsel)
for the party in order to state facts of which he
has personal knowledge and about which he is
competent to do so.
After the hearing, the court shall render its
decision in the same day, based on the facts
established by the evidence.
The decision of the court shall be final and
unappealable. Since appeal is not a remedy, a
party may possibly avail of a petition for certiorari
under rule 65.
Prohibited Pleadings and Motions
1. Motion to dismiss the complaint
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. Intervention
Purpose of the small claims process is to provide an
inexpensive and expeditious means to settle disputes over
small amounts.
The theory behind the small claims system is that ordinary
litigation fails to bring practical justice to the parties, when
the disputed claim is small, because the time and expense
required by the ordinary litigation process is so
disproportionate to the amount involved that it
discourages a just resolution of the dispute
Application of the rule:
1. Claims For money owned under any of the following;
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
17
4. Contract of Sale; or
5. Contract of Mortgage;
2. For damages arising from any of the following;
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
Revised Rules of Court
 It is submitted that the proper ground to be
invoked since July 1,1997, the date when the
amendment to the Rules took effect, should be,
that a condition precedent for the filing of the
claim has not been complied with.
*The enforcement of a barangay amicable settlement or
an arbitration award involving a money claim covered by
this Rule pursuant to Sec. 417 of Republic Act 7160,
otherwise known as the Local Government Code of 1991.
Subject Matter for Amicable Settlement
(a) Where one party is the government, or any
subdivision or instrumentality thereof;
3. All actions that are purely civil in nature where the claim
or relief prayed for by the plaintiff is solely for
payment/reimbursement of a sum of money.
(b) Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions;
4. The civil aspect of criminal actions, either filed prior to
the institution of the criminal action, or reserved upon the
filing of the criminal action in court, pursuant to Rule 111
of the revise Rules of Criminal Procedure.
(c) Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding Five
thousand pesos (P5,000.00);
(d) Offenses where there is no private offended
party;
Barangay Conciliation Proceedings
Revised Katarungang Pambarangay Law – Local
Government Code
 Primordial aim is to reduce the number of court
litigations and prevent the deterioration of the
quality of justice which has been brought about by
the indiscriminate filing of cases in the courts.
 The
proceedings
before
the
Lupong
tagapamayapa or the Pangkat ng Tagapagkasundo
are not judicial proceedings. There is no barangay
court.
 They resolve disputes through amicable
settlement, conciliation, and arbitration.
 No complaint, action, or proceeding involving any
matter within the authority of the lupon shall be
filed or instituted directly in court or any other
government office for adjudication, unless there
has been a confrontation between the parties
before the lupon chairman or pangkat and that no
conciliation or settlement has been reached as
certified by the lupon secretary or unless the
settlement has been repudiated.
 Under Sec. 1 (j) of Rule 16 of the Rules of Court, a
motion to dismiss a civil complaint may be filed if
a condition precedent for the filing of the claim
has not been complied with.
(e) Where the dispute involves real properties
located in different cities or municipalities unless
the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon;
(f) Disputes involving parties who actually reside
in barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon;
(g) Such other classes of disputes which the
President may determine in the interest of Justice
or upon the recommendation of the Secretary of
Justice.
The court in which non-criminal cases not falling within the
authority of the lupon under this Code are filed may, at any
time before trial motu propio refer the case to the lupon
concerned for amicable settlement.
Exceptions to coverage of the Katarungang Pambarangay
Law
1. Where one party is the government, or any
subdivision or instrumentality thereof.
2. Where one party is a public officer or employee
and the dispute relates to the performance of his
official functions.
3. Where the dispute involves real properties
located in different cities or municipalities, unless
Administrative Circular No.14-93 July 15,1993
 A case filed in court without compliance with prior
Barangay conciliation, may be dismissed upon
motion of the defendant, not for lack of
jurisdiction of the court but for insufficiency of the
cause of action or prematurity.
18
parties thereto agree to submit their differences
to amicable settlement by an appropriate lupon.
4. Any complaint by or against corporations,
partnerships, or juridical entities.
5. Disputes involving parties who actually reside in
barangays of different cities or municipalities
except where such barangay units adjoin each
other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon.
6. Offenses for which the law prescribes a maximum
penalty of imprisonment exceeding 1 year or a
fine of over 5000 pesos.
7. Offenses where there is no private offended
party.
8. Disputes where urgent legal action is necessary to
prevent injustice from being committed or further
continued; criminal cases where the accused in
under police custody or detention, petitions for
habeas corpus, actions coupled with provisional
remedies, actions barred by the statute of
limitations.
9. Any class of disputes the president may determine
in the interest of justice or upon recommendation
by the Secretary of Justice.
10. Where the dispute arises from the Comprehensive
Agrarian Reform Law.
11. Labor disputes.
12. Actions to annul judgment upon a compromise
which may be filed directly in court.
(c) All disputes involving real property or any interest
therein shall be brought in the barangay where the real
property or the larger portion thereof is situated.
(d) Those arising at the workplace where the contending
parties are employed or at the institution where such
parties are enrolled for study, shall be brought in the
barangay where such workplace or institution is located.
Objections to venue shall be raised in the mediation
proceedings before the punong barangay; otherwise, the
same shall be deemed waived. Any legal question which
may confront the punong barangay in resolving objections
to venue herein referred to may be submitted to the
Secretary of Justice, or his duly designated representative,
whose ruling thereon shall be binding.
Form of settlement- All amicable settlements shall be in
writing, in a language or dialect known to the parties,
signed by them and attested to by the lupon chairman.
Amicable settlement and arbitration award shall have the
effect of a final judgment of a court upon the expiration of
10 days from the date thereof. Unless repudiated or a
petition to nullify the award has been filed before the
proper city or municipal court.
This shall not apply to court cases settled by the lupon
under sec 408, in which case, the compromise settlement
agreed upon by the parties before the lupon chairman or
the pangkat chairman shall be submitted to the court and
upon approval thereof, have the force and effect of a
judgment of said court.
The parties may go directly to court in the following
instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived
of personal liberty calling for habeas corpus
proceedings;
(3) Where actions are coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal property and
support pendente lite; and
(4) Where the action may otherwise be barred by
the statute of limitations.
Execution of award settlement
 The amicable settlement or arbitration award may
be enforced by execution by the Lupon within 6
months from the date of the settlement. After the
lapse of such time, the settlement may be
enforced by action in the appropriate city or
municipal court.
 If the amicable settlement is repudiated by one
party, expressly or impliedly, the other party has
two options; to enforce the compromise in
accordance with the Rules or the LGC or to
consider it rescinded and insist upon the original
demand.
Venue
(a) Disputes between persons actually residing in the same
barangay shall be brought for amicable settlement before
the lupon of said barangay.
Venue
 Is the place, or the geographical area in which a
court with jurisdiction may hear and determine a
case.
(b) Those involving actual residents of different barangays
within the same city or municipality shall be brought in the
barangay where the respondent or any of the respondents
actually resides, at the election of the complaint.

19
Venue relates only to the place of trial or the
geographical location in which an action or
proceeding should be brought.

It is intended to accord convenience to the
parties, as it relates to the place of trial.
Local venue- If the action is real. The venue is the place
where the property or any of the same is situated.

It does not equate to the jurisdiction of the court
in civil actions. However, venue is an essential
element of jurisdiction in criminal actions.

Venue is procedural and not substantive. In civil
cases, venue is not a matter of jurisdiction. Venue
may be waived or agreed upon by the parties.
Venue of personal actions
 Where the plaintiff or any of the principal laintiffs
resides or where the defendant or any of the
principal 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 plaintiffs resides,
or where the non-resident defendant may be
found at the election of the plaintiff.
 Actions for damages and actions to collect a sum
of money, must be filed in either the residence of
the plaintiff or the residence of the defendant at
the election of the plaintiff.
Venue in criminal cases: Reason for its being jurisdictional
1. The jurisdiction of the trial courts is limited to
well-defined territories such that a trial court can
only hear and try cases involving crimes
committed within its territorial jurisdiction.
2. Laying the venue in the locus criminis is grounded
on the necessity and justice of having an accused
on trial in the municipality of province where
witnesses and other facilities for his defense are
available.
3. When a criminal action is filed in the wrong
venue, the ground for motion to quash is lack of
jurisdiction and not improper venue.
Venue of real actions
 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.
 Actions to recover ownership of real property
 Unlawful detainer
 Forcible entry
Venue vs Jurisdiction
Jurisdiction
 The authority to hear and determine a case
 Matter of substantive law
 Establishes a relation between the court and
subject matter
 Fixed by law and cannot be conferred by the
parties.
Venue
 The place where the case is to be tried or heard
 Matter of procedural law
 A relation between the plaintiff and defendant, or
petitioner and respondent
 May be conferred by the act or agreement of the
parties.
Venue of actions against non-residents affecting personal
status of the plaintiff and actions affecting the property
of the non-resident 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. At the election of the plaintiff.
Rules on venue, inapplicable
1. In those cases where a specific rule or law
provides otherwise. (ex. Quo warranto, continuing
writ of mandamus)
2. Where the parties have validly agreed in writing
before the filing of the action on the exclusive
venue thereof.
a. In writing
b. Before filing of the action
c. Exclusive as to the venue
*The court cannot dismiss an action motu propio for
improper venue.
*The objection to an improper venue must be raised either
in a motion to dismiss or in the answer because as a rule,
defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. The defense
of improper venue is not one of those defenses which are
not waived when not raised in a motion to dismiss or in the
answer.
In interpreting stipulations, inquiry must be made as to
whether or not the agreement is restrictive in the sense
that the suit may be filed only in the place agreed upon or
merely permissive in that the parties may file their suits
not only in the place agreed upon but also in the places
fixed by the rules.
Transitory venue- If the action is personal, depends upon
the residences of the parties.
Polytrade Doctrine- If the stipulation is permissive, the
complaint may be filed in the place designated by the Rules
or in the place stipulated.
20
Venue in a contract of adhesion- The court ruled that in
contracts of adhesion might be occasionally struck down
only if there was a showing that the dominant bargaining
party left the weaker party without any choice as to be
completely deprived on an opportunity to bargain
effectively.
5. Adoption
6. Rescission and revocation of adoption
7. Hospitalization of insane persons
8. Habeas Corpus
9. Change of name
10. Voluntary dissolution of corporations
11. Judicial approval of voluntary recognition of minor
natural children
12. Constitution of family home
13. Declaration of absence and death
14. Cancellation or correction of entries in the civil
registry.
15. Proceedings for recognition and enforcement of
an arbitration agreement or for vacation, setting
aside, correction, modification of an arbitral
award, any application with a court for arbitration
assistance and supervision.*
16. Petition for Writ of Amparo*
17. Verified petition for approval of the bond filed by
a parent to exercise legal guardianship over the
property of his emancipated children.*
GENERAL RULE: The court cannot dismiss a complaint
outright or motu propio based on improper venue
EXCEPTION: When the court may make a motu propio
dismissal based on improper venue- If the complaint
based on improper venue in an action covered by the rules
on SUMMAR PROCEDURE.
Authority of the Supreme Court in relation to venue of
cases- To avoid a miscarriage of justice the SC may order a
change in venue in both civil and criminal cases.
Action
 Is the legal and formal demand of one’s right from
another person made and insisted upon in a court
of justice.
 In this jurisdiction, action and suit are
synonymous it is settled that the terms action and
suit are synonymous but the determinative
operative act which converts a claim into an
action or suit is the filing of the same in a court of
justice.
 Filed elsewhere, as with some body or office not a
court of justice, the claim may not be properly
categorized under either term.
Special Civil Actions
1. Interpleader
2. Declaratory relief and similar remedies
3. Review of judgments and final orders or
resolutions of the COMELEC and the COA
4. Certiorari, Prohibition, Mandamus
5. Quo Warranto
6. Expropriation
7. Foreclosure of real estate mortgage
8. Partition
9. Forcible entry and unlawful detainer
10. Contempt
Civil Action- Is one by which a prty sues another for the
enforcement or protection of a right or the prevention or
redress of a wrong. Compensatory or remedial.
Real Action
 When it affects title or possession of real property
or an interest therein. All other actions are
personal.
 An action is real, when it is founded upon the
privity of real estate. That means that realty, or an
interest therein is the subject matter of the
action.
 Not every action however, involving real property
is a real action, because the realty may only be
incidental to the subject matter of the suit.
 To be a real action, it is not enough that the action
must deal with real property.
 It is important that the matter in litigation must
also involve or affect any of the following issues:
Title to or possession of real property, or interest
therein.
 Those affecting title to, or for recovery of
possession, or for partition or condemnation of,
or foreclosure of mortgage on real property- Sec.1
Rule 4.
Criminal Action- Is one which the state prosecutes a
person for an act or omission punishable by law. Primarily
punishment.
Actions vs Special Proceedings
Action- The purpose of an action is either to protect a right
or prevent or redress a wrong if the action is civil. If it is
criminal, the purpose is to prosecute a person for an act or
omission punishable by law.
Special Proceedings- The purpose is to establish a status,
right, or a particular fact.
Special Proceedings Rule 72 Sec.1
1. Settlement of estate of deceased persons
2. Escheat
3. Guardianship and custody of children
4. Trustees
21



Action in rem
 Directed against the thing itself instead of the
person
 A proceeding as to the probate of a will is
essentially one in rem. The corresponding
publication of the petition, the court’s jurisdiction
extends to all persons interested in the will or in
the settlement of estate of the decedent.
 A land registration proceeding is an action in re,.
Failure to give personal notice to the owners or
claimants of the land is not a jurisdictional defect.
It is publication of such notice that brings the
whole world as a party in the case, and vests the
court with jurisdiction.
An action for damages to real property is a
personal action.
An action to compel the mortgagee to accept
payment of mortgage debt is a personal action
Action to annul a contract of loan and its
accessory real estate mortgage is a personal
action.
Importance of distinction between a personal action and
a real action
 It is important for the determination of venue of
the action.
 A real action is local, its venue depends upon the
location of the property involved in the litigation.
 A personal action is transitory, its venue depends
upon the residence of the plaintiff or the
defendant.
Action quasi in rem
 Names a person as defendant, but its object is to
subject the person’s interest in a property to a
corresponding lien or obligation.
 A petition directed against the thing itself or the
res which concerns the status of a person.
 One wherein an individual is named as defendant
and the purpose of the proceeding is to subject
his interest therein to the obligation or lien
burdening the property.
 Attachment
 Foreclosure of mortgage
 Action for partition
 Action for accounting.
 As such, jurisdiction over the person of the nonresident defendant is not essential. Service of
summons on a non-resident defendant who is not
found in the country is required not for he
purpose of acquiring jurisdiction over his person,
but simply in the pursuance of due process.
Proceeding in personam
 One which seeks to enforce personal rights and
obligations brought against the person.
 It is based on the jurisdiction of the person,
although it may involve his right to, or the
exercise of ownership of, specific property, or
seek to compel him to control or dispose of it in
accordance with the mandate of the court.
 The purpose of this proceeding is to impose,
through the judgment of a court, some
responsibility or liability directly upon the person
of the defendant.
Action in personam
 Is lodged against a person based on personal
liability
 Is not necessarily a personal action, nor is a real
action. But necessarily it is an action in rem.
 An action to recover title to or possession of real
property is a real action, but it is an action in
personam. It is not brought against the whole
world, but against the person upon whom the
claim is made.
 An action for ejectment is a real action because it
involves the issue of possession of a real property.
It is also an action in personam because the action
is directed against a particular person who is
sought to be held liable.
 An action for the declaration of nullity of marriage
is a personal action because it is not founded on
real estate. It is at the same time, an in rem action
because the issue of the status of a person is one
directed against the while world. One’s status is a
matter that can be set up against anyone in the
world.
 An action for damages- action in personam and a
personal action.
 Action for reconveyance is an action in personam.
Significance of distinction between in rem, personam, and
quasi in rem
22

The distinction is important to determine whether
or not jurisdiction over the person of the
defendant is required and consequently to
determine the type of summons to be employed.

In an action in personam, jurisdiction over the
person of the defendant is necessary for the court
to validly try and decide the case. In a proceeding
in rem, or quasi in rem, jurisdiction over the
person of the defendant is not a pre-requisite to
confer jurisdiction on the court provided that the
court acquires jurisdiction over the res.
When summons by publication may be made in an action
in personam. Exception to the court will not be able to
acquire jurisdiction over the person of the defendant by
summons by publication.
o If the identity of the defendant is
unknown or whose whereabouts are
unknown, service may be effected upon
him by publication in a newspaper of
general circulation.
o When the resident defendant is
temporarily out of the country, he may
be served by publication with leave of
court.
Elements of cause of action based on contracts
1. The existence of the contract.
2. The breach of the contract.
Cause of action in unlawful detainer
 Violation of the terms and conditions of
the contract of lease or failure to pay the
rentals.
 Demand to pay AND vacate. Or, Comply
AND vacate.
*demand to pay only gives rise to collection.
Cause of action for unlawful detainer elements:
1. Initially, possession of property by the defendant
was by contract with or by tolerance of plaintiff.
2. Eventually, such possession became illegal upon
notice by plaintiff to defendant of the termination
of the latter’s right of possession.
3. Thereafter, the defendant remained in possession
of the property and deprived the plaintiff of the
enjoyment thereof.
4. Within 1 year from the last demand on defendant
to vacate the property, the plaintiff instituted the
complaint for ejectment.
Judgment in rem- Binding upon the whole world.
Judgment in personam- Binding upon the parties.
Cause of action
 Is the act or omission by which a party violates
the rights of another.
 It has also been referred to as the fact or
combination of facts which affords a party a right
to judicial interference in his behalf.
 Sec.1 Rule 2- Every ordinary civil action must be
based on a cause of action.
Cause of action for forcible entry
 The possession of the defendant is illegal from the
very beginning having deprived the actual
possessor of his possession by force, intimidation,
threat, strategy, or stealth.
 The plaintiff must allege, in the complaint, and
prove that he was in prior physical possession of
the property in dispute until he was deprived
thereof by the defendant by any means provided
in sec.1 Rule 70 either by force, intimidation,
threat, strategy, or stealth.
Elements of a cause of action
1. A right in favor of the plaintiff by whatever means
and under whatever law it arises or is created.
2. An obligation on the part of the named defendant
to respect or not to violate such right.
3. An act or omission on the part of such defendant
in violation of the right of the plaintiff or
constituting a breach of the obligation of the
defendant to the plaintiff for which the latter may
maintain an action for recover of damages or
other appropriate relief.
Cause of action for malicious prosecution
1. The prosecution did occur, and the defendant was
himself the prosecutor or that he instigated the
commencement.
2. The criminal action finally ended with an acquittal.
3. In bringing the action, the prosecutor acted
without probable cause.
4. The prosecution was impelled by legal malice, an
improper or a sinister motive.
5. The gravamen of malicious prosecution is not the
filing of a complaint based on the wrong provision
of law, but the deliberate initiation of an action
with the knowledge that the charges were false
and groundless.
Although the first 2 elements may exist, a cause of
action arises only upon the concurrence of the last
element, giving the plaintiff the right to maintain an
action in court for the recovery of damages or other
appropriate relief.
Even an existing right, though by itself legal may
nevertheless become the source of liability and may
result in the violation of another person’s right as
when in the exercise of a right or performance of a
duty, one does not act with justice, does not give
another his due or does not observe honesty and good
faith.
Cause of action in administrative cases- Whether the
respondent has breached the norms and standards of
the office.
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Action vs Cause of action
Test of sufficiency of the statement of a cause of action
 Whether or not, admitting the facts alleged, the
court could render a valid verdict in accordance
with the prayer in the complaint.
 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.
 Accordingly, if the allegations furnish sufficient
basis by which the complaint can be maintained,
the same should not be dismissed regardless of
the defenses that may be averred by the
defendants.
 The truth or falsity of the allegations are beside
the point because the allegations in the complaint
are hypothetically admitted.
 The cause of action in a complaint is not what the
designation of the complaint states, but what the
allegations in the body of the complaint define
and describe. The designation or caption is not
controlling, more than the allegations in the
complaint themselves are, for it is not even an
indispensable part of the complaint.
Action- Is the suit filed in court for the enforcement or
protection of a right or, the prevention or redress of a
wrong.
Cause of action- Is the basis of the action filed. Every
ordinary civil action must be based on a cause of action.
Failure to state a cause of action
 The mere existence of a cause of action is not
sufficient for a complaint to prosper. Even if, in
reality, the plaintiff has a cause of action against
the defendant, the complaint may be dismissed if
the complaint or the pleading asserting the claim
states no cause of action.
 The cause of action must unmistakably be stated
or alleged in the complaint or that all the
elements of the cause of action required by
substantive law must clearly appear from the
mere reading of the complaint.
Test to determine when pleading asserting the claim
states no cause of action
 Whether or not the ground for dismissal exists can
be determined only from the facts alleged in the
complaint and from no other and the court cannot
consider other matters aliunde.
 Whether, assuming that the allegations of fact in
the complaint to be true, a valid judgment could
be rendered in accordance with the prayer stated
therein.
Splitting a single cause of action
 Is the act of instituting two or more suits on the
basis of the same 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.
 This is not allowed by the rules of court.
 This practice is discouraged because it breeds
multiplicity of suits, clogs the court dockets, leads
to vexatious litigation, operates as an instrument,
and generates unnecessary expenses to the
parties.
 The rules against splitting a single cause of action
applies not only to complaints but also to
counterclaims and cross-claims.
 A single act may sometimes violate several rights
of a person. Nevertheless, the plaintiff has only
one cause of action regardless of the number of
rights violated.
Failure to state cause of action vs lack of cause of action
 Failure to state a cause of action refers to an
insufficiency in the allegations in the complaint.
 The ground for dismissal is that “the pleading
asserting the claim states no cause of action”. This
is raised in a motion to dismiss under Rule 16
before a responsive pleading is filed and
determined only from the allegations of the
pleading and not from evidentiary matters.
 Determined only from the allegations of the
initiatory pleading.



Lack of cause of action- failure to prove or
establish by evidence that one has a cause of
action.
This is raised in a demurrer to evidence under
Rule 83 after the plaintiff has rested his case, and
can be resolved only on the basis of evidence he
has presented in support of his claim.
Determined from the evidence presented.
Three tests to ascertain whether two or more suits relate
to a single or common cause of action:
1. Whether the same evidence would support and
sustain both the first and second causes of action.
(same evidence test)
2. Whether the defenses in one case may be used to
substantiate the complaint in the other.
3. Whether the cause of action in the second case
existed at the time of the filing of the first
complaint.
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General rule: A contract to do several things at several
times is divisible in its nature. This kind of obligation
authorizes successive actions and a judgment recovered
for a single breach does not bar a suit for a subsequent
breach.
amount claimed, exclusive of interests and cost does not
exceed 100,000.
Remedy in case of misjoinder of actions- The action can
be severed and proceeded with separately upon motion by
a party or upon the court’s own initiative. Misjoinder is not
a ground for dismissal of an action.
Exception: Anticipatory breach
Anticipatory breach- When the obligor manifests an
unqualified and positive refusal to perform a contract,
though the performance of the same is not yet due, and
the renunciation goes to the whole contract, it may be
treated as a complete breach, which will entitle the injured
party to bring his action at once. In this case, the breach is
considered a total breach and there can only be one action
and the plaintiff must recover all his damages therein.
Sec.6 Rule 3- Misjoinder of causes of action is not a ground
for 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.
Parties to a civil action
Plaintiff
 Is the claiming party or more appropriately the
original claiming party and is one who files the
complaint.
 It may also apply to a defendant who files a
counterclaim, a cross-claim, or a third-party
complaint.
 Sec.1 Rule 3- The term plaintiff is the claiming
party, the counter- claimant, the cross-claimant,
or the third or fourth-party plaintiff.
Effect of splitting cause of action:
 Ground for dismissal Sec.4 Rule 2, “the filing of
one or a judgment upon the merits in any one”.
 Litis penendencia, sec.1 (e) Rule 16
 Res judicata sec.1 (f) Rule 16
Joinder of causes of action
 Is the assertion of as many causes of action as a
party may have against another in one pleading
alone.
 It is the process of uniting two or more demands
or rights of action in one action.
 Joinder of causes of action is not compulsory, it is
merely permissive.
 When the causes of action accrue in favour of the
same plaintiff and against the same defendant, it
is not necessary to ask whether or not the causes
of actions arose out of the same transaction or
series of transactions and that there exists a
question of law or fact common to all the plaintiff
or defendants.
 When there are two or more defendants, or two
or more plaintiffs, the causes of action against the
defendants can only be joined if there is a
compliance with the rules on joinder of parties.
Defendant
 Does not only refer to the original defending
party.
 If a counterclaim is filed against the original
plaintiff, the latter becomes a defendant and the
former a plaintiff in the counterclaim.
 Also refers to a defendant in the counter-claim,
cross-claim, or the third, fourth etc party
defendant.
Who may be parties
1. Natural persons.
2. Juridical persons
3. Entities authorized by law.
Elements of proper joinder of parties
1. A right to relief exists in favour of or against
several persons whether jointly, severally, or in
the alternative.
2. That the right to relief arises out of the same
transaction or series of transactions
3. That there exists a question of law or fact
common to all such plaintiffs or to all defendants.
Juridical persons as parties (Art.44 of the Civil Code)
1. The state and its political subdivisions.
2. Other corporations, institutions, and entities for
public interest or purpose created by law.
3. Corporations, partnerships and associations for
private interest or purpose to which the law
grants a juridical personality, separate and distinct
from that of each shareholder, partner, or
member.
Joinder of claims in small claims cases- The plaintiff may
join, in a single statement of claim, one or more separate
small claims against a defendant provided, that the total
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4.
Entities authorized by law (Sec.1 Rule 3)
a. Corporation by estoppel
b. Estate of a deceased person
c. Legitimate labor organization
d. Roman Catholic Church
e. Dissolved corporation
f. Partnership having a capital of 3,000
pesos or more, which failed to comply
with the registration requirements
g. Entity that is neither a natural or juridical
person but is allowed by the Rules to be a
party to an action under Sec.15 Rule 3
i. 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. The responsive pleading
of the entity sued must disclose
the names, and addresses of its
members since they are the
persons ultimately liable to the
plaintiff.
2.
3.
4.
To require that the actual party entitled to legal
relief be the one to prosecute the action.
To avoid multiplicity of suits.
To discourage litigation and keep it within certain
bounds pursuant to sound public policy.
Real party in interest
 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.
 The interest must be “real” which is a present
substantial interest as distinguished from a mere
expectancy or a future, contingent, subordinate or
consequential interest.
 Interest within the meaning of the rule means
material interest, an interest in issue to be
affected by the decree, as distinguished from
mere interest in the question involved, or a mere
incidental interest.
 The interest of the party must also be “personal”
and not one based on a desire to vindicate the
constitutional right of some third and unrelated
party.
 The determination of the real party in interest
requires going back to the elements of cause of
action. The owner of the right violated stands to
be the real party in interest as plaintiff and the
person responsible for the violation is the real
party in interest as defendant.
 In a suit for breach of contract, the parties in
interest would be those covered by the operation
of the doctrine of relativity of contracts.
 Parties who have not taken part in a contract, may
show that they have a real interest affected by the
performance or annulment of the contract.
 The interest which entitles a person to intervene
in a suit, between other parties, must be in the
matter in litigation and of such direct and
immediate character that the intervenor will
either gain or lose by direct legal operation and
the effect of judgment.
 In an action for ejectment- Anyone of the coowners may bring the action.
 Should a lawful possessor be disturbed in his
possession, it is the possessor, not necessarily the
owner of the property, who can bring the action
to recover the possession.
Effect when a party impleaded is not authorized to be a
party
 Where the plaintiff is not a natural or a juridical
person or an entity authorized by law, a motion to
dismiss may be filed on the ground that: “ The
plaintiff has no legal capacity to sue”.
 Where it is the defendant who is not a natural or
juridical person or an entity authorized by law, the
complaint may be dismissed on the ground that:
“The pleading asserting the claim states no cause
of action, or failure to state a cause of action”.
Because a complaint cannot possibly state a cause
of action against one which cannot be a party to a
civil action.
Minor or incompetent- May sue or be sued. He can be a
party but with the assistance of his father, mother,
guardian, or if he has none, by a guardian ad litem
Purposes for the real party in interest prosecuting or
defending an action at law
1. To prevent the prosecution of actions by persons
without any right, title, or interest in the case.
26

General rule: The right to contest the
transgression belongs to the corporation alone
which has a personality of its own separate and
distinct from that of an officer or a stockholder.
Exception: Derivative suits- Even if the cause of
action belongs to the corporation, if the board
refuses to sue despite demand by the
stockholders to sue and protect or vindicate
corporate rights, a stock holder is allowed by law
to file a derivative suit in the corporate name. In
such suit, the real party in interest is actually the
corporation and the stockholder filing the action is
a mere nominal party.
essential requisites before such questions may be judicially
entertained.
Doctrine of locus standi
 Requires a litigant to have a material interest in
the outcome of the case.
 In private suits, locus standi requires a ltitigant to
be a real party in interest (person who stands
benefited or injured by the judgment or the one
entitled to the avails of the suit).
 In non-private suits- The traditional doctrine of
locus standi requires that the one who sues, must
show, that he has sustained injury or will sustain a
direct injury as a result of a government action, or
has a material interest in the issue affected by the
challenged official act. Since the rule is a mere
procedural technicality, the court has waive dor
relaxed the same rule, allowing persons who may
not have been personally injured by the operation
of a law or any governmental act.
Environmental cases- Any real party in interest, including
the government and juridical entities authorized by law,
may file a civil action involving the enforcement or
violation of any environmental law.
Minimum Norms to extend the standing to sue to the socalled non-traditional suitors
Exception: Some actions may be allowed to be prosecuted
or defended by a representative or someone acting in a
fiduciary capacity like a trustee or an express trust, a
guardian, an executor or administrator, or a party
authorized by law or by the rules.

1.
2.
3.
4.
Legal requisites for judicial inquiry (Belgica vs Ochoa):
1. There must be an actual case or controversy
calling for the exercise of judicial power.
2. The person challenging the act must have the
standing to question the validity of the subject act
or issuance.
3. The question of constitutionality must be raised at
the earliest opportunity.
4. The issue of constitutionality must be the lis mota
of the case.
Ground for dismissal when a party is not the real party in
interest- That the pleading asserting the claim states no
cause of action.
It is failure to state the cause of action, not its absence or
lack, which could be invoked for the dismissal of the claim.
Any decision rendered against a person who is not a realparty in interest in the case cannot be executed.
General rule: Every action must be prosecuted and
defended in the name of the real party in interest, unless
otherwise authorized by law or by the rules.
For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax
measure is unconstitutional.
For voters, there must be a showing of obvious
interest in the validity of the law in question.
For concerned citizens, there must be a showing
that the issues raised are of transcendental
importance which must be settled early.
For legislators, there must be a claim that the
official action complained of infringes on their
prerogatives as legislators.
Citizen suit
 May be filed by any Filipino citizen in
representation of others, including minors or
generations yet unborn, to enforce rights or
obligations under environmental laws.
 A unique rule which authorizes a suit in
representation of generations yet unborn even if
those represented are, at the time of the filing of
the suit, yet neither conceived or born.
The doctrine of locus standi is significant in cases involving
questions of constitutionality because it is one of the
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Court order in Citizen suits
1. A brief description of the cause of action.
2. A brief description of the reliefs prayed for
3. An order requiring all interested parties to
manifest their interest to intervene in the case
within 15 days from notice thereof.
Joinder of indispensable parties
 Mandatory and courts cannot proceed without
their presence.
 If there is a failure to implead an indispensable
party, any judgment rendered would have not
effectiveness.
 Although, normally, a joinder of parties is
permissive, the joinder of a party becomes
compulsory when one involved is an
indispensable party.
 In a joint obligation, the interest of one debtor is
separate and distinct from that of his co-debtor,
and a suit against one debtor does not make the
other an indispensable party to the suit.
 The action should be dismissed when
indispensable parties are not impleaded or are
not before the court. But the dismissal is not
outright.
 Parties may be dropped or added by the court on
motion of any party or on its own initiative at
any stage of the action and on such terms as are
just.
 It is when the order of the court to implead an
indispensable party goes unheeded may the case
be dismissed. The court is fully clothed with
authority to dismiss a complaint due to the fault
of the plaintiff as when, among others, he does
not comply with the order of the court.
 The responsibility of impleading all the
indispensable parties rests on the plaintiff.
Vlason Enterprises Corp vs CA- Mere failure to include the
name of a party in the title of the complaint is not fatal
because the Rules of Court requires the courts to pierce
the form and go into the substance and not be misled by a
false or wrong name in the pleadings. The averments are
controlling and not the title.
Locus standi vs Real party in interest
Locus standi
 Defined as a right of appearance in a court of
justice on a given question.
 The concept of standing, because of its
constitutional underpinnings, is very different
from questions relating to whether or not a
particular party is a real party in interest.
 Although both are directed towards ensuring that
only certain parties can maintain an action, the
concept of standing requires analysis of broader
policy concerns.
Real party in interest
 In private suits, standing is governed by the “real
party in interest” rule in Rule 3 sec.2.
 The question as to who the real party in interest
is, involves only a question on whether a person
would be benefited or injured by the judgment or
whether or not he is entitled to the avails of the
suit.
Necessary parties
 Is one who is not indispensable but who ought to
be joined as a party to the case if complete relief
is to be accorded as those already parties, or for a
complete determination or settlement of the
claim subject of the action.
Indispensable parties
 An indispensable party is a real party in interest
without whom no final determination can be had
of an action.
 A person in whose absence there cannot be a
determination between the parties already before
the court which is effective, complete, or
equitable.
 Presence of indispensable parties is a condition
for the exercise of judicial power and when an
indispensable party is not before the court, the
action should be dismissed.
 The absence of an indispensable party renders all
subsequent actions of the court null and void for
want of authority to act, not only as to the absent
parties but even to those present.
Indispensable party vs Necessary party
Indispensable
 Must be joined under any and all conditions.
 Must be joined because the court cannot proceed
without him. Hence, his presence is mandatory.
Necessary
 Should be joined whenever possible.
 His presence is not mandatory because his
interest is separable from that of the
indispensable party.
 A final decree can be had in case even without a
necessary party because his interests are
separable from the interest litigated in the case.
28
Duty of pleader if a necessary party is not joined Sec.9
Rule 3
 Whenever in any pleading in which a claim is
asserted, a necessary party is not joined, the
pleader shall set forth the name of the necessary
party, if his name is known, and state why such
party is omitted.
Effect of failure to comply with the order of the court
 The failure to comply with the order of the court
to include a necessary party, without justifiable
cause, shall be deemed a waiver of the claim
against such party.
 Effect of a justified non inclusion of a necessary
party, the non inclusion does not prevent the
court from proceeding in the action, and the
judgment rendered therein shall be without
prejudice to the rights of such necessary party.
If there is any claim against a party misjoined, the same
maybe severed and proceeded with separately. Misjoinder
of parties does not involve questions of jurisdiction and is
not a ground for dismissal.
The rule on misjoinder or non-joinder of parties does not
comprehend whimsical and irrational dropping or adding
of parties in a complaint. What it really contemplated is
erroneous or mistaken non-joinder or misjoinder of
parties. The rule presupposes that the original inclusion
had been made in honest conviction that it was proper and
the subsequent dropping is requested because it turned
out that such inclusion was a mistake. This is the reason
why the rule ordains that the dropping is on such term as
are just.
Unknown identity or name of defendant
 Whenever the identity or name of the defendant
is unknown, he may be sued as the unknown
owner, heir, devisee, or by such other designation
as the case may be require.
 When his identity or true name is discovered, the
pleading must be amended accordingly.
Solidarity- Does not make a solidary obligor an
indispensable party in a suit filed by the creditor against
another solidary debtor. There could be a complete and
final determination of the action for a sum of money
without the other solidary debtor being joined. One
solidary debtor could be ordered to pay the entire
obligation. Neither the other solidary debtors are
necessary parties.
Effect of death of a party
 The death of the client extinguishes the attorneyclient relationship and divests the counsel of his
authority to represent the client.
 A dead client has no personality and cannot be
represented by an attorney.
 Neither does he become the counsel of the heirs
of the deceased unless his services are engaged by
the heirs.
 Duty of the counsel of the deceased party to
inform the court of such fact within 30 days after
such death. The counsel has also the obligation to
give the name and address of the legal
representative of the deceased.
 This duty is mandatory and failure to comply is a
ground for disciplinary action.
 Upon receipt of the notice of death, the court
shall determine whether or not the claim is
extinguished by such death.
 If the claim survives, the court shall order the legal
representative or representatives of the deceased
to appear and be substituted for the deceased
within 30 days from notice.
 Under the present rule, the heir of the deceased
may be allowed to be substituted for the
deceased.
 There is no more need to require the
appointment of an executor or administrator.
 If there is an heir, and the heir is a minor, the
court may appoint a guardian ad litem.
Unwilling co-plaintiff- It is a party who is supposed to be a
plaintiff but whose consent to be joined as plaintiff cannot
be obtained as when he refuses to be a party to the action.
He may be made a defendant, and the reason therefor
shall be stated in the complaint.
Alternative defendants
 Where the plaintiff cannot identify who among
two or more persons should be impleaded as a
defendant, he may join all of them as defendants
in the alternative.
 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 to relief against the
other.
Misjoinder of parties- A party is misjoined, when he is a
party to the action although he should not be impleaded.
Non-joinder of parties- party is non-joined, when he is
supposed to be joined but not impleaded in the action.
Neither misjoinder or non-joinder of parties is a ground for
dismissal of an action. Parties may be dropped or added by
order of court on motion of any party or on its own
initiative at any stage of the action and on such terms as
are just.
29
When opposing party is ordered by the court to procure
the appointment of an executor or administrator for the
eatate of the deceased.
1. The counsel for the deceased does not name a
legal representative.
2. There is a legal representative named but he fails
to appear within the specified period.
Actions which does not survive (purely personal actions)
1. Actions for support
2. Annulment of marriage
3. Legal separation
Sec.4 Rule 111- If the accused dies before arraignment,
while the criminal case shall be dismissed. Such dismissal is
without prejudice to any civil action the offended party
may file against the estate of the deceased.
Service of summons is not required to effect substitution.
 Nothing in Sec.16 of Rule 3 mandates service of
summons. Instead of service of summons, the
court shall, under the authority of the same
provision, order the legal representative of the
deceased to appear and be substituted for the
said deceased within 30 days from notice.
 By virtue of the said rule, it is significant to
remember that it is not the amendment of the
pleading, but the order of substitution and its
service that are the initial steps towards the
substitution of the deceased by his representative
or heir.
The death of the accused after arraignment and during
the pendency of the criminal action shall extinguish the
civil liability arising from the delict. However, the
independent civil action instituted pursuant to the Rules or
which may thereafter be instituted to enforce civil liability
arising from other sources of obligations may be continued
against the estate or legal representative of the accused
after proper substitution or against said estate as the case
may be.
Actions for the recovery of money on contractual basis
(Sec.20 Rule 3)
 The defendant dies before entry of final
judgment in the court in which the action was
pending at the time of death, the court shall not
dismiss the suit.
 Substitution of the defendant shall be done
following the procedure prescribed by the rules.
 If the plaintiff obtains a favourable judgment, said
judgment shall be enforced following the
procedure provided for in the rules for
prosecuting claims against the estate of a
deceased person.
 Because of the rule mandating compliance with
the rule for prosecuting claims against the estate,
the prevailing plaintiff is not supposed to file a
motion for the issuance of an order and writ of
execution of judgment.
 Since the action is one for the recovery of money,
the judgment favourable to the plaintiff shall be
filed as a money claim against the estate of the
deceased.
Effects of non-compliance with the rules on substitution
 Non-compliance with the rules on substitution of
a deceased party renders the proceedings of the
court infirm because the court acquired no
jurisdiction over the person of the legal
representative of heirs of the deceased because
no man should be affected by a proceeding to
which he is a stranger.
 A party to be affected by a personal judgment
must have a day in court and an opportunity to be
heard.
 In an ejectment case, the non-substitution of the
deceased by his legal representatives because of
the failure of the counsel to inform the court of
the death of his client, does not deprive the court
of jurisdiction. The decision of the court is,
nevertheless, binding upon the successors in
interest of the deceased.
 A judgment in an ejectment case may be
enforced not only against defendants therein but
also against the members of their family, their
relatives, or privies who derived their right of
possession from the deceased defendant.
Incompetency of a party during the pendency of the
action
 The court, upon motion with notice, may allow
the action to be continued by or against the
incompetent or incapacitated party with the
assistance of his legal guardian or guardian ad
litem.
Actions which survive the death of a party
1. Actions to recover real and personal property.
2. Action to enforce a lien thereon.
3. Actions to recover damages for an injury to
person or property.
4. Action to recover damages arising from delicts.
5. Actions for the recovery of money arising from a
contract, express or implied.
6. Action for quieting of title.
Transfer if interest
 The action may be continued by or against the
original party, unless the court, upon motion,
directs the person to whom the interest is
30
transferred to be substituted in the action or
joined with the original party.
Solicitor General
 Only the Solicitor General can bring and
defend actions on behalf of the republic of
the Philippines and that the actions filed in
the name of the Republic and its agencies and
instrumentalities, if not initiated by the
Solicitor General, will be summarily
dismissed.
 Actions involving the validity of any treaty,
law, ordinance, executive order, presidential
decree, rule or regulations, the court in its
discretion may require the appearance of the
Solicitor General who may be heard in person
or through a representative duly designated
by him.
 In criminal actions brought before the CA or
SC, the authority to represent the state is
solely vested in the OSG.
Indigent party
 Sec 21, Rule 3- A party who has no money or
property sufficient and available for food, shelter,
and basic necessities for himself and his family.
 A.M. NO. 00-2-01-SC March 01, 2000
RESOLUTION AMENDING RULES 141 (LEGAL FEES)
OF THE RULES OF COURT Section 18.Indigentlitigants exempts from payment of legal fees. —
Indigent litigants
o (a) whose gross income and that of their
immediate family do not exceed four
thousand (P4,000.00) pesos a month if
residing in Metro Manila, and three
thousand (P3,000.00) pesos a month if
residing outside Metro Manila, and
o (b) who do not own real property with
an assessed value of more than fifty
thousand (P50,000.00) pesos shall be
exempt from the payment of legal fees.
 The legal fees shall be a lien on any judgment
rendered in the case favorably to the indigent
litigant, unless the court otherwise provides.
 To be entitled to the exemption herein provided,
the litigant shall execute an affidavit that he and
his immediate family do not earn a gross income
abovementioned, nor they own any real property
with the assessed value aforementioned,
supported by an affidavit of a disinterested
person attesting to the truth of the litigant's
affidavit.
 Any falsity in the affidavit of a litigant or
disinterested person shall be sufficient cause to
strike out the pleading of that party, without
prejudice to whatever criminal liability may have
been incurred. (16a)
 Exempt from payment of docket fees and other
lawful fees and transcripts of stenographic notes
which the court may order to be furnished to him.
 The amount of the docket and other lawful fees
which the indigent was exempted from paying,
shall be a lien on the judgment rendered in the
case favourable to the indigent. The lien on the
judgment shall not arise if the court provides
otherwise.
 If the indigent is in fact a person with sufficient
income and property, the proper docket and
lawful fees shall be assessed and collected by the
clerk of court.
Suit against spouses
 The husband and wife shall sue or be sued jointly,
except as provided by law.
 An instance when a spouse need not be joined in
a suit involving the other is when the litigation
pertains to an exclusive property of a spouse.
 Despite the separation of property, one spouse
may end up being sued and held liable for
liabilities incurred by the other because the
liability of the spouses to creditors are solidary.
Class suit Requisites
1. The subject matter of the controversy must be
common or general interest to many persons.
2. The persons are so numerous that it is impractical
to join all as parties.
3. The parties actually before the court are
sufficiently numerous and representative as to
fully protect the interests of all concerned.
4. The representatives sue or defend for the benefit
of all.
Class suit- Is an action where one or more may sue for the
benefit of all if the requisites for said action are complied
with.
An action does not become a class suit merely because it is
designated as such in the pleadings. Whether the suit is or
not a class suit depends upon the attendant facts.
Common or general interest in the subject matter of the
litigation
 What is required by the rules for a class suit to
prosper.
 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
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which is prosecuted and not the delict or wrong
committed by the defendant.
It is not also a common question of law that
sustains a class suit but a common interest in the
subject matter of the controversy.
When the interests of the parties in the subject
matter are conflicting, a class suit will not prosper.
A class suit does not lie in actions for the recovery
of property where several persons claim
ownership of their respective portions of
property, as each one could allege and prove his
respective right in a different war for each portion
of the land, so that they cannot all be held to have
identical title through acquisitive prescription.
There is no common or general interest in the
reputation of a specific individual.
There is a common or general interest in
environment and natural resources suits.
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to him, and that all proofs submitted by him
contrary thereto or inconsistent therewith, should
be ignored, whether objection is interposed or
not.
In case of ambiguities in the pleadings, the same
must be construed most strongly against the
pleader and that no presumptions in his favour
are to be indulged in. Such ambiguities must be at
the pleader’s peril since it is he who selects the
language used being open to different
constructions.
Code pleading- The system of pleading in the Philippines,
following the system observed in some states of the US.
This is based on codified rules or written set of procedure
as distinguished from common law procedure.
Pleadings allowed by the Rules of Court
1. Complaint.
2. Answer
3. Counterclaim
4. Cross-claim
5. Third, fourth- party complaint
6. Complaint-in-intervention
7. Reply
Sec.2 Rule 17- A class suit shall not be dismissed or
compromised without the approval of the court.
Pleadings
 Are the written statements of the respective
claims and defences of the parties submitted to
the court for appropriate judgment.
 Are the allegations made by the parties to an
action or proceeding for the purpose of
presenting the issue to be tried and determined,
whether such issue is of law or of fact.
 Are considered formal statements by the parties
of the operative facts which constitute their
respective claims and defences.
 Pleadings are necessary, in order to confer
jurisdiction on a court, that the subject matter
presented for its consideration in a mode
sanctioned by law and this is done by the filing of
the complaint or other pleading.
 Pleadings are designed to develop and present
the precise points in dispute between the parties.
 Their office is to inform the court and the parties
of the facts in issue.
 The object of pleadings, in a more restricted and
commonly accepted sense, is to notify the
opposite party of the facts which the pleader
expects to prove, so that he may not be misled in
the preparation of his case.
Pleadings allowed by the Rules on Summary Procedure
1. Complaint
2. Compulsory counterclaim pleaded in the answer
3. Cross-claim pleaded in the answer
4. Answers thereto
Prohibited motions under the Rules on Summary
Procedure
1. Motion to dismiss or quash a complaint of
information. Except for lack of jurisdiction over
SM, failure to comply with barangay conciliation.
2. Motion for bill of particulars.
3. Motion for new trial
4. Motion for reconsideration of judgment
5. Motion for reopening of trial
6. Motion for extension of time to file pleadings,
affidavits, or any other paper.
7. Motion to declare defendant in default.
8. Dilatory motions for postponement
Pleading in Small Claims
1. Accomplished and verified statement of claim.
2. Duly accomplished and verified response.
3. Counterclaim in response.
Prohibited pleadings under the Procedure on Small Claims
1. Petition for relief from judgment
2. Petition for Certiorari, Prohibition, Mandamus
against any interlocutory order of the court.
3. Reply
4. Third-party complaints
5. Interventions
Construction of pleadings
 In this jurisdiction, all pleadings shall be liberally
construed so as to do substantial justice.
 The intention of the pleader is the controlling
factor in construing a pleading and should be read
in accordance with its substance, not its form.
 A party is strictly bound by the allegations,
statements, or admissions and are conclusive as
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Prohibited motions in Rules of Procedure for Small Claims
Cases
1. Motion to dismiss the complaint.
2. Motion for bill of particulars.
3. Motion for new trial
4. Motion for reconsideration of judgment
5. Motion for reopening of trial
6. Motion for extension of time to file pleadings,
affidavits, or any other paper.
7. Motion to declare defendant in default.
8. Dilatory motions for postponement
Title of the action
 Contains the names of the parties whose
participation in the case shall be indicated. Parties
shall be indicated as plaintiff and defendant.
 They shall all be named in the original complaint
or petition.
 But in subsequent pleadings, it shall be sufficient
if the name of the first party on each side be
stated with an appropriate indication whether
there are other parties.
Body of the pleading
 Sets forth its designation, the allegations of the
party’s claims or defences, the relief prayed for,
and the date of the pleading.
 The allegations in the body of the pleading shall
be divided into paragraphs and shall be so
numbered for ready identification.
 This numbering scheme is significant because in
subsequent pleadings, a paragraph may be
referred to only by its number without need of
repeating the entire allegations in the paragraph.
 Each paragraph shall contain a statement of a
single set of circumstances so far as that can be
done with convenience.
Prohibited pleadings in a petition for Writ of Amparo or
Habeas Data
1. Counterclaim
2. Cross-claim
3. Third-party complaint
4. Reply
5. Intervention
6. Certiorari, Prohibition, Mandamus against
interlocutory orders of the court.
Prohibited Motions in Petitions for Writ of Amparo or
Habeas Data
1. Motion to dismiss
2. Motion for extension of time to file opposition,
affidavits, position paper, and other pleadings.
3. Dilatory motion for postponement.
4. Motion for a bill of particulars
5. Motion to declare defendant in default
6. Motion for reconsideration of interlocutory orders
or interim relief orders
Designations of causes of actions in one complaint
 When two or more causes of action are joined,
the first cause of action shall be prefaced with
words. “first cause of action”, and so forth.
Allegations of ultimate facts
 Every pleading, including the complaint, is not
supposed to allege conclusions. A pleading must
only aver facts because conclusions are for the
courts to make.
 Every pleading shall omit from its allegations
statements of mere evidentiary facts.
 Except: In environmental cases, the rule requires
that all evidence proving the cause of action
consisting of affidavits, documents, and if
possible, object evidence, shall be attached to the
verified complaint.
 Only allegations of ultimate facts, or the facts
essential to a party’s cause of action or defense or
such facts as are so essential that they cannot be
stricken out without leaving the statement of the
cause of action inadequate.
 The ultimate facts are to be stated in a methodical
and logical form, and in a plain, concise, and direct
manner.
Pleadings in Procedure for Environmental cases
1. Complaint
2. Answer with compulsory counterclaim and crossclaim.
3. Pleading in intervention files in a citizen suit
Prohibited pleadings in Procedure for Environmental
cases
1. Reply
2. Rejoinder
3. Third-party complaints
Prohibited motions in the Procedure for environmental
cases
1. Motion to dismiss the complaint
2. Motion for a bill of particulars
3. Motion for extension of time to file pleadings,
except to file answer, the extension shall not
exceed 15 days.
4. Motion to declare defendant in default.
Caption of the pleading
1. Name of court
2. Title of the action
3. Docket number if assigned.
Relief
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The pleading shall specify the relief sought
although the statement may include a general
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prayer for such further or other relief as may be
deemed just or equitable.
A court can grant the relief warranted by the
allegations and proof even if it is not specifically
sought by the injured party.
The inclusion of a general prayer may justify the
grant of a remedy different from or together with
the specific remedy sought, if the facts alleged in
the complaint and the evidence introduced so
warrant.
The relief or prayer, although part of the
complaint, does not constitute part of the
statement of the cause of action, and the plaintiff
is entitled to as much relief as the facts may
warrant.
It is the material allegations in the complaint, not
the legal conclusions made therein or the prayer,
that determines the relief to which the plaintiff is
entitled.
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another lawyer but cannot do so in favour of one
who is not. Rule 9.01 Code of professional
responsibility.
Counsel shall be subject to disciplinary action in
the ff cases:
o When he deliberately files an unsigned
pleading
o When he signs a pleading in violation of
the rules.
o When he alleges in the pleading
scandalous or indecent matter.
o When fails to promptly report to the
court a change of his address.
Verification
o Pleadings need not be under oath, verified, or
accompanied by affidavit, except when so
required by law or rule.
o A pleading is verified by an affidavit. This
affidavit declares that
o The affiant has read the pleadings.
o The allegations therein are true and
correct of his personal knowledge or
based on authentic records
o The verification requirement is deemed
substantially complied with when one who has
ample knowledge to swear the truth of the
allegations in the complaint or petition signs the
verification, and when matters alleged in the
petition has been made in good faith or are true
and correct.
o Significance of verification, as it is intended to
secure an assurance that the allegations in a
pleading are true and correct and not the product
of the imagination or matter of speculation, and
that the pleading is filed in good faith.
o A verification is not proper when the verification
does not comply with the requirement of the
rule.
o The absence of a verification or the noncompliance with the verification requirement
does not necessarily render the pleading
defective. It is only a formal and not a
jurisdictional requirement. The requirement is a
condition affecting only the form of pleading and
non-compliance therewith does not render it
fatally defective.
o The court may order its submission or correction
or act on the pleading if the attending
circumstances are such that strict compliance with
the Rule may be dispensed with in order that the
ends of justice may be served thereby.
o The absence of a verification may be corrected by
requiring an oath.
Signature and address
 Every pleading must be signed by the plaintiff or
the counsel representing him stating in either
case his address. This address should not be a
post office box.
 In the absence of a proper notice to the court of a
change of address, service upon the parties must
be made at the last address of their counsel of
record.
 A signed pleading is one that is signed either by
the party himself or his counsel.
 A pleading must be signed by the party or counsel
representing him.
Unsigned pleading
 An unsigned pleading produces no legal effect.
 The court, however, is authorized to allow the
pleader to correct the deficiency if the pleader
shows no satisfaction of the court, that the failure
to sign the pleading was due to mere
inadvertence and not intended for delay.
 The signature of the counsel in a pleading is
significant, his signature constitutes:
o He has read the pleading
o That to the best of his knowledge,
information and belief, there is good
ground to support it, and that
o It is not interposed for delay.
 He may not delegate it to just any person because
the signature of counsel constitutes an assurance
by him that he has read the pleading.
 The preparation and signing of a pleading
constitute legal work involving practice of law
which is reserved exclusively for the members of
the legal profession. Accordingly however,
counsel may delegate the signing of a pleading to
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Other requirements
1. Counsel’s current Professional Tax Receipt
2. Counsel’s current IBP official Receipt Number
indicating its date of issue.
3. Roll of attorneys number
4. Number and date of issue of their MCLE
Certificate of Compliance or Exemption.
*Failure to comply with the requirement shall be a
ground for further disciplinary sanction and contempt of
court.
*Failure to disclose the MCLE certificate would cause the
dismissal of the case and expunction of the pleadings
from the records.
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Certification against Forum Shopping
 Is a sworn statement in which the plaintiff or
principal party certifies in a complaint or initiatory
pleading the following matters:
1. That he has not commenced any action
or filed any claim involving the same
issues in any court, tribunal, or quasijudicial agencies and to the best of his
knowledge, no other action or claim is
pending therein.
2. That if there is such other pending action
or claim, a complete statement of the
present status thereof.
3. That if should thereafter learn that the
same or similar action or claim has been
filed or is pending, he shall report the
fact within 5 days therefrom to the court
wherein his aforesaid complaint or
initiatory pleading has been filed.
 The certification is mandatory under Sec.5 Rule 7
but not jurisdictional since jurisdiction over the
subject of the action is conferred by law.
Elements
1. Identity of parties or at least such parties
represent the same interests in both
actions. (identity of parties)
2. Identity of rights asserted and relief
prayed for, the relief being founded on
the same facts. (identity of rights or
causes of action)
3. The identity of the two preceding
particulars is such that any judgment
rendered in the pending case, regardless
of which party is successful, would
amount to res judicata in the other
case.(identity of reliefs sought)
3 ways of committing forum shopping
1. Filing multiple cases based on the same
cause of action and with the same
prayer, the previous case not having
been resolved yet (ground for dismissal
is litis pendencia).
2. Filing multiple cases based on the same
cause of action and the same preayer,
the previous case having been finally
resolved (res judicata).
3. 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 pendencia or res judicata.
Rationale against forum shopping
 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
courts.
Where the reliefs sought in the two actions are different,
there is no forum shopping even if the parties in the
action are the same.
The concept of forum shopping applies not only with
respect to suits filed in courts but also in connection with
litigations commenced in the courts while an
administrative proceeding is pending in order to defeat
administrative processes and in anticipation of an
unfavourable administrative ruling.
Forum shopping
 It is a ground for summary dismissal and direct
contempt, if wilfully and deliberately done.
 Filing of multiple suits involving the same parties,
same rights asserted, and reliefs prayed for.
 When a party repetitively avails of several judicial
remedies in different courts, simultaneously or
successively, all substantially founded on the
same transactions and the same essential facts
and circumstances and all raising substantially the
same issues either pending or in already resolved
adversely by some other court.
 As a result of an adverse opinion in one forum, a
party seeks a favourable opinion, other than
appeal or certiorari in another.
To file an ordinary appeal and petition for certiorari with
the same court is to engage in forum shopping.
Violation of certification requirements- Is the failure to
attach the sworn certification to the initiatory pleading and
constitutes a cause for the dismissal without prejudice.
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Plaintiff executes the certification against forum shopping
 The certification must be executed by the party,
not the attorney.
 It is the petitioner and not the counsel who is in
the best position to know whether he or it
actually filed or caused the filing of the petition.
 A certification signed by the counsel is a defective
certification and a valid cause for dismissal.
 Exception to the rule that the certification must
be signed by the party pleader himself: For
reasonable and justifiable reasons, the party
pleader is unable to sign, he must execute a SPA
designating his counsel of record to sign on his
behalf.
 Corporations- The certification must be executed
by an officer or member of the board of directors
or by one who is duly authorized by a resolution
of the board of directors, otherwise, the
complaint will have to be dismissed.
 A president of the corporation can sign te
verification and certification against forum
shopping in behalf of the corporation without the
benefit of a board resolution.
o The following may also sign
 General manager or acting
general manager
 Chairperson of the board of
directors
 Personnel officer
 Employment specialist in a labor
case.
o The rationale in allowing the above
persons to sign the verification ad
certification against forum shopping is
their being in a position to verify the
truthfulness and correctness of the
allegations in the petition.
o The court, however, clarified that the
better procedure is to append a board
resolution to the complaint or petition to
obviate questions regarding the authority
of the signatory of the verification or
certification.
o It is not necessary when it is self-evident
that the signatory is in a position to verify
the truthfulness and correctness of the
allegations in the petition.
cause of action or defense, the signature of only
one of them substantially complies with the rule.
Substantial compliance and liberal interpretation on the
signing of the certification against forum shopping.
 This should not be interpreted with such absolute
literalness as to subvert its own ultimate and
legitimate objective. Strict compliance with the
provision regarding the certificate of non-forum
shopping underscores its mandatory nature in
that the certification cannot be altogether
dispensed with or its requirements completely
disregarded.
 This shall not be applied if dishonesty attended
the signing of the certification.
 The rule is subject to the power of the Supreme
court to suspend procedural rules and lay down
exceptions to the same.
Pleadings requiring a certification against forum shopping
 Complaint
 Other initiatory pleadings asserting a claim or
relief.
 Permissive counterclaim
 Cross-claim
 3rd-4th party complaint
 Complaint in intervention
 Petition
 Any application in which a party asserts his claim
for relief.
Initiatory pleading- An incipient application of a party
asserting a claim for relief.
Effect of non-compliance with the rule on certification
against forum shopping.
 Not curable by mere amendment.
 Cause for dismissal of the action upon motion and
after hearing.
 The court cannot dismiss is motu propio.
 The dismissal is without prejudice unless the order
of dismissal otherwise provides.
 When the dismissal is silent as to the character of
dismissal, the dismissal is presumed to be without
prejudice to the refilling of the complaint.
 Failure to submit a certification against forum
shopping is a ground for dismissal, separate and
distinct from forum shopping as a ground for
dismissal.
 A complaint may be dismissed for forum shopping
even if there is a certification attached, and
conversely, a complaint may be dismissed for the
lack of the required certification even if the party
has not committed forum shopping.
Several plaintiffs or petitioners
 The certification must be signed by all the
plaintiffs or petitioners in a case, otherwise, those
who did not sign will be dropped as parties to the
case.
 Under justifiable or reasonable circumstances,
however, as when the plaintiffs or petitioners
share a common interest and invoke a common
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An order dismissing an action without prejudice is, as a
rule, not appealable. The remedy provided for is to avail
the appropriate special civil action.
 If a complaint is dismissed for failure to comply
with the required certification against forum
shopping, the plaintiff cannot appeal the order of
dismissal where it is one without prejudice.
Sec.3 (n) Rule 131, There is a presumption though
disputable, that a court, or judge acting as such,
whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction.
Pleading an official document- It is sufficient to aver that
the document was issued in compliance with the law.
Wilful and deliberate forum shopping
 Ground for summary dismissal.
 No motion to dismiss and hearing are required.
 Dismissal is with prejudice
 Constitutes direct contempt
 Cause for administrative sanctions.
Pleading an official act- It is sufficient to allege that the act
was done also in accordance with law.
Pleading capacity to sue or be sued
 Facts showing the capacity of a party to sue or be
sued must averred.
 If a party is suing or sued in a representative
capacity, his authority must also be averred.
 If a party is an organized association of persons,
its legal existence must likewise be averred.
Not wilful and deliberate
 Dismissal is without prejudice on the grounds of
either litis pendencia or res judicata.
Pleading fraud, mistake, or condition of the mind
 When making averments of fraud or mistake, the
circumstances constituting such fraud or mistake
must be stated with particularity.
Submission of false certification
 Constitutes indirect contempt of court.
Ultimate facts
 Are the important and substantial facts which
form the basis of the primary right of the plaintiff
and make up the wrongful act or omission of the
defendant.
 The ultimate facts do not refer to the details of
probative matter or the particulars of evidence by
which the material elements are to be
established.
 They are the principal, determinative, constitutive
facts, upon the existence of which the entire
cause of action rests.
Malice, intent, knowledge or other conditions of the mind
of a person
 Must be averred generally.
 Unlike fraud or mistake, they need not be stated
with particularity.
 The rule is borne of human experience. It is
difficult to state the particulars constituting these
matters
Pleading actionable documents
 Plaintiff’s cause of action or the defendant’s
defense is based upon a written instrument or
document.
 Actionable document- Referred to as the
document relied upon by either the plaintiff or
defendant as when the plaintiff sues on a written
contract.
 Action for collection of sum of moneypromissory note
 Foreclosure of mortgage- Deed of mortgage.
 Whenever an actionable document is the basis of
a pleading, the rule specifically directs the pleader
to:
o set forth in the pleading the substance of
the instrument or document, and attach
the original or the copy of the document
pleading as an exhibit
o With like effect, to set forth in the
pleading said copy of the instrument or
document.
Conditions precedent
 Refers to the 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.
Conditions precedent
1. Tender of payment before consignation.
2. Exhaustion of administrative remedies.
3. Barangay conciliation proceedings.
4. Earnest efforts towards a compromise.
5. Arbitration when agreed in the contract.
Failure to comply with a condition precedent- Ground for
a motion to dismiss “That a condition precedent for filing
the claim has not been complied with”.
Pleading a judgment
 There is no need to allege matters showing the
jurisdiction to render the judgment or decision.
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How to contest an actionable document
 The party who has no intent of admitting the
genuineness and due execution of the document
must contest the same by
o Specifically denying the the genuineness
and due execution of the document
under oath.
o Setting forth what he claims to be the
facts.
 A mere specific denial of the actionable
document is insufficient. The denial must be
coupled with an oath.
 The denial must be verified (under oath), the
absence of an oath will result in the implied
admission of the due execution and genuineness
of the document.
 When oath is not required
o When the adverse party does not appeal
to be a party to the instrument.
o When compliance with an order for an
inspection of the original instrument is
refused.
*These defences having no direct relationship to the
concepts of genuineness and due execution.
*They are not inconsistent with the admission of the
genuineness and due execution of the instrument and are
not, therefore, barred.
Filing- The act of presenting the pleading or other paper
tot the clerk of court.
Service- The act of providing a party with a copy of the
pleading or paper concerned.
Service is made
1. If a party has not appeared by counsel, then
service must be made upon him.
2. If a party has appeared by counsel, then service
upon such party shall be made upon his counsel
or one of them, unless service upon the party
himself is ordered by the court (Sec.2 Rule 13)
3. The rule is that when a party is represented by
counsel in an action in court, notices of all kinds,
including motions, pleadings, and orders must be
served on said counsel and notice to him is notice
to the client.
4. Subject to compelling reasons involving
substantial justice, service of a petition upon a
party, when that party is represented by counsel
of record, is a patent nullity and is not binding
upon the party wrongfully served.
5. Service upon the parties’ counsel of record is
tantamount to service upon the parties
themselves, but service upon the parties
themselves is not considered service upon their
lawyers. Because, the parties, generally, have no
formal education or knowledge of the rules of
procedure, specifically, the mechanics of an
appeal or availment of legal remedies, thus, they
may also be unaware of the rights and duties of a
litigant relative to the receipt of a decision.
6. More importantly, it is best for the courts to deal
only with one person in the interest of orderly
procedure, either the lawyer retained by the party
or the party himself if he does not intend to hire a
lawyer.
7. Where one counsel appears for several parties,
service shall be made upon said counsel but he
shall be entitled only to one copy of any paper
served upon him by the opposite side.
Admission
 By the admission of the genuineness and the due
execution of an instrument is meant:
o that the party whose signature it bears
admits that he signed it or that it was
signed by another for him with his
authority,
o that, at the time it was signed, it was in
words and figures exactly as set out in
the pleadings of the party relying upon it.
o That the document was delivered
o And that the formal requisites required
by law, such as a seal, acknowledgment,
or revenue stamp which it lacks are
waived by him
o Waiver of defences like forgery, lack of
authority to execute the document,
document was never delivered.
Defenses not cut off by the admission of genuineness and
due execution:
1. Payment or non-payment
2. Want of consideration
3. Illegality of the consideration
4. Usury
5. Fraud
6. Prescription
7. Release
8. Waiver
9. Statute of Frauds
10. Estoppel
11. Former recovery or discharge in bankruptcy
Manner of filing
1. By presenting the original copy of the pleading,
notice, appearance, motion, order, or judgment
personally to the clerk of court.
2. By registered mail.
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In personal filing, the clerk of court shall indicate
or endorse on the pleading or paper filed, the
date and hour of filing.
In filing by registered mail, the date of filing, as
shown by the post office stamp on the envelope
or registry receipt, shall be considered as the date
of filing, payment or deposit in the court. Also
requires that the envelope attached to the record
of the case.
If the date stamped on one is earlier than the
other, the former may be accepted as the date of
filing. This presupposes, however, that the
envelope or registry receipt and the dates
appearing thereon are duly authenticated before
the tribunal where they are accepted.
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accompanied by a written explanation why the
service or filing was not done personally.
Exempt from this explanation are the service of
papers emanating from the court.
A violation of this explanation requirement may
be the cause for the paper to be considered as not
having been filed.
Personal service is made
1. By delivering a copy of the papers personally to
the party or his counsel.
2. By leaving the papers in his office with his clerk or
person having charge thereof.
 If no person is found in his office, or his office
is not known or he has no office, then by
leaving a copy of the paper’s at the party’s or
counsel’s residence, If known, with a person
of sufficient age and discretion residing
therein between 8 in the morning and 6 in
the evening.
 Personal service is deemed complete upon
actual delivery.
How to prove filing
 The filing of pleading or paper shall be proved by
its existence in the record of the case.
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If it is not in the record, but is claimed to have
been filed personally, the filing shall be proved by
the written or stamped acknowledgment of its
filing by the clerk of court.
 If filed by registered mail, proof of filing is by the
registry receipt and the affidavit of the person
who did the mailing, containing a full statement
of the date and place of depositing 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 10 days if not delivered.
Service by mail
1. Service must be done by registered mail.
2. Service by ordinary mail may be done only if no
registry service is available in the locality of either
the sender or the addressee.
3. Done by depositing the copy in the post office, in
a sealed envelope, plainly addressed to the party
or the counsel at his office, If known, or otherwise
at his residence, if known, with postage fully
prepaid and with instructions to the postmaster to
return the mail to the sender after 10 days if not
delivered.
4. When service of notice is an issue, the rule is that
the person alleging that the notice was served
must prove the fact of service. The burden of
proving notice rests upon the party asserting its
existence.
5. In civil cases, service made through registered
mail is proved by the registry receipt issued by the
mailing office and an affidavit of the person
mailing of facts showing compliance with.
6. When deemed complete
a. Service by ordinary mail- Upon
expiration of 10 days after mailing, unless
the court otherwise provides.
b. Service my registered mail- Upon actual
receipt by the addressee or after 5 days
from the date he received the first notice
of the postmaster whichever is earlier.
Papers required to be filed and served (Sec.4 Rule 13)
1. Judgments
2. Resolutions
3. Orders
4. Pleadings subsequent to the complaint
5. Written motions
6. Notices
7. Appearances
8. Demands
9. Offers of judgment
10. Or similar papers
Modes of service
1. Personal
2. By mail
3. Substituted
Personal Service
 The service and filing of pleadings and other
papers shall be done personally, whenever
practicable. This is the preferred mode of service
(Sec.11 Rule13)
 If another mode of service is used other than
personal service, the service must be
Substituted service
 This mode is availed of only when there is failure
to effect service personally or by mail.
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o
The failure occurs when the office and the
residence of the party or counsel is unknown.
Effected by delivering the copy to the clerk of
court with proof of failure of both personal and
service by mail.
It is deemed completed at the time of delivery of
the copy to the clerk of court.
o
How to prove service
 Personal service
o Written admission of the party served.
o Official return of the server
o Affidavit of the party serving containing
full information of the date, place, and
manner of service.
 Ordinary mail
o Affidavit of the person mailing of the
facts showing compliance.
 Registered mail
o Affidavit of the person mailing and the
registry receipt issued by the mailing
office.
o The registry return card is to be filed
immediately upon 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.
 Absent any proof of service of the decision, the
period of 15 days within which a party may file its
motion for new trial does not begin to run against
such party.
 If it admits, however, that it received the copy of
the decision on a certain date despite absence of
proof of service, that date would be the reckoning
date of the 15-day period.
o
o
o
All complaints, petitions, answers, and similar
pleadings must specify the amount of damages
being prayed for both in the body of the pleading
and prayer therein. Said damages shall be
considered in the assessment of the filing fees,
otherwise, such pleading shall not be accepted for
filing or shall be expunged from the record.
Any defect in the original pleading resulting in
underpayment of the docket fee cannot be cured
by amendment, such as by the reduction of the
claim as, for all legal purposes, since there is no
original complaint over which the court has
acquired jurisdiction.
However, the payment of docket fees is subject to
the rule on liberal interpretation.
If the amount of 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.
Where the initiatory pleading is not accompanied
by the payment of docket fee, the court may
allow payment of the fee within a reasonable
period of time, but in no case beyond the
applicable prescriptive or reglementary period.
Strict application is qualified by the following
1. Failure to pay those fees within the reglementary
period allows only discretionary, not automatic
dismissal.
2. Such power should be used by the court in
conjunction with its exercise of sound discretion
in accordance with the tenets of justice and fair
play, as well as with a great deal of
circumspection in consideration of all attendant
circumstances.
Failure to pay docket fee on supplemental complaint
o The court acquired jurisdiction over the plaintiff’s
action from the moment they filed their original
complaint accompanied by the payment of the
filing fees due on the same.
o The non-payment of additional docket fees did
not divest the court of the jurisdiction it already
had over the case.
Kinds of pleadings
1. Complaint
o IS the pleading alleging the plaintiff’s cause or
causes of action.
o The filing of the complaint is the act of presenting
the said complaint to the clerk of court.
o The purpose of filing, the original must be
presented personally to the clerk of court or sent
by registered mail.
o Filing
of
the
complaint
signifies
the
commencement of the civil action.
o The filing of the complaint, the court also acquires
jurisdiction over the person of the plaintiff.
o It has also the effect of interrupting the
prescription of actions.
o Payment of the prescribed docket fee, that vests
a trial court with jurisdiction over the subject
matter or nature of the action.
Payment of docket fees for cases of appeal
o The appellate docket and other lawful fees must
be paid within the same period for taking an
appeal.
o Payment of the docket fee within the prescribed
period is mandatory for the perfection of an
appeal. Without such payment, the appellate
court does not acquire jurisdiction over the
subject matter of the action and the decision
sought to be appealed from becomes final and
40
o
executory. Hence, non-payment is a valid ground
for the dismissal of an appeal.
However, delay on the payment of the docket
fees confers upon the court a discretionary, not
mandatory power to dismiss an appeal.
intends to disprove at the trial, together with the
matter which he relied upon to support the
denial.
Kinds of specific denial
o Absolute denial- The defendant specifies each
material allegation of fact the truth of which he
does not admit and whenever practicable, sets
forth the substance of the matters upon which he
relies to support the denial.
o Partial denial- The defendant does not make a
total denial of the material allegations in a specific
paragraph. He denies only a part of the averment.
He specifies the truth of which he admits and
denies only the remainder.
o Denial by disavowal of knowledge- Where the
defendant alleges that he is without knowledge or
information sufficient to form a belief as to the
truth of a material averment made in a complaint.
This must be made sincerely and in good faith.
Answer
o It is the pleading in which a defending party sets
forth his defences.
o This pleading may be an answer to the complaint,
counterclaim, or a cross-claim.
o There is no answer to a reply but there could be
an answer to a third-party complaint or
complaint-in-intervention.
Defenses in the answer
o Negative defense- when the material avernments
alleged in the pleading of the clamant are
specifically denied.
o A negative defense is a specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause of action or
defense.
o A general denial is deemed to be an admission.
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.
o Does not qualify as a specific denial. It is conceded
to be actually an admission.
o 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 main allegation itself.
Absence of a specific denial
o Material averments in the complaint not
specifically denied shall be deemed admitted.
o If the allegations are admitted, there is no more
triable 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.
When a specific denial must be coupled with an oath
1. Denial of an actionable document
2. Denial of allegations of usury
Admissions
o An admission in a pleading cannot be
controverted by the party making such admission
because the admission is conclusive 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.
o Said admission is a judicial admission, having
been made by a party in the course of the
proceedings in the same case, and does not
require proof.
o A party who desires to contradict his own judicial
admission may do so only in either 2 ways
o By showing that the admission was made
through palpable mistake.
o No such admission was made.
Actionable document (Denial of genuineness and due
execution)
1. Specifically deny the genuineness and due
execution of the document and set forth what he
claims to be the facts.
2. Make the denial under oath
Denial of allegations of usury
1. Not every allegations of usury requires a denial
under oath.
2. Only the following allegations requires a specific
denial:
a. Allegations of usury in a complaint. (not
those in the answer)
b. The complaint is filed to recover usurious
interests.
Purpose of a specific denial
o The purpose of requiring the defendant to make a
specific denial is to make him disclose the matters
alleged in the complaint which he succinctly
General rule: Material allegations in the complaint not
specifically denied are deemed admitted.
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Exceptions: The ff are not deemed admitted:
1. Amount of unliquidated damages.
2. Conclusions in a pleading because only ultimate
facts need be alleged in a pleading.
3. Non-material averments or allegations because
only material allegations have to be denied.
Default
 Is a procedural concept that occurs when the
defending party fails to file his answer within the
reglementary period.
 Failure to answer within the time allowed
therefor, as the ground for a declaration of
default.
 Default does not technically occur from the failure
of the defendant to attend either the pre-trial or
the trial- but amounts to a waiver of the
defendant’s right to object to the evidence
presented.
 It is the failure to answer.
Affirmative defenses
 A defense is affirmative when it alleges new
matters which, while hypothetically admitting the
allegations in the pleading of the claimant, would,
nevertheless, prevent of bar recovery by the
claiming party.
 One which is not a denial of an essential
ingredient in the plaintiff’s cause of action, but
one which, if established will be a good defense.
 It includes
1. Fraud
2. Statute of limitations
3. Release
4. Payment
5. Illegality
6. Statute of frauds
7. Estoppel
8. Former recovery
9. Discharge in bankruptcy
10. Any other matter by way of confession or
avoidance.
 Before an allegation qualifies as an affirmative
defense, it must be of such nature as to bar the
plaintiff from claiming on his cause of action.
Requisites for the declaration of default
1. The court has validly acquired jurisdiction over the
person of the defending party, either by service of
summons or voluntary appearance.
2. The defending party must have failed to file his
answer within the time allowed therefor.
3. The claiming party must file a motion to declare
the defendant in default.
4. The claiming party must prove that the defending
party has failed to answer within the period
provided by the Rules of Court.
5. The defending party must be notified of the
motion to declare him in default.
6. There must be a hearing set on the motion to
declare the defending party in default.
*The rule on default requires the filing of a motion and
notice of such motion to the defending party, it is not
enough that the defendant failed to answer the complaint
within the reglementary period to be a sufficient ground
for declaration of default.
Periods to file an answer from complaint
1. 15 days after service of summons, unless a
different period is fixed by the court.
2. Where the plaintiff files an amended complaint as
a matter of right, the defendant shall answer the
same, within 15 days after being served with a
copy thereof.
3. Where the amendment of the complaint is not a
matter of right, the defendant shall answer the
amended complaint within 10 days from notice of
the order admitting the same. An answer earlier
filed may serve as the answer to the amended
complaint.
4. Where the defendant is a private foreign juridical
entity and service of summons is made on the
government official designated by law to receive
the same, the answer shall be filed within 30 days
after receipt of the summons by such entity.
5. A supplemental complaint may be answered
within 10 days from notice of the order admitting
the same, unless a different period is fixed by the
court. The answer to the complaint shall serve as
the answer to the supplemental complaint if no
new or supplemental answer is filed.
*The court has no authority to motu propio declare a
defending party in default. A motion to declare the
defendant must be filed by the claiming party before a
declaration of default is made by the court.
Extension of time to answer
 The court has discretion not only to extend the
time for filing an answer but also allow an answer
to be filed after the reglementary period.
 The rule is that the defendant’s answer should be
admitted where it is filed before a declaration of
default and no prejudice is caused to the plaintiff.
Failure to serve the answer to adverse party
 The defendant who files his answer in
time, but failed to serve a copy thereof to
the adverse party may be validly be
declared in default.
 Declaration of default may be set aside
by a timely and proper motion with the
42
requisite affidavit of merit and provided
no lost of time occurs.
2.
Failure to file response under Small claims cases
 A motion to declare defendant in default is a
prohibited motion under Sec.14 (h) of the Rules of
Procedure for Small Claims Cases.
 Should the defendant fail to file his response
within the required period, and likewise fail to
appear at the date set for hearing, the court shall
render judgment on the same day, as may be
warranted by the facts.
3.
4.
While the defendant can no longer take part in
the trial, he is, nevertheless, entitled to notices of
subsequent proceedings. It is submitted that he
may participate at the trial, not as a party but as a
witness.
A declaration of default is not tantamount to an
admission of the truth or the validity of the
plaintiff’s claims.
It does not imply a waiver of rights except that of
being heard and presenting evidence in
defendant’s favour.
Effect of partial default
 When a pleading asserts a claim against several
defending parties and some file and serve their
answers but the others do not, the court shall try
the case against all the defending parties based on
the answers filed and render judgment upon the
evidence presented where the claim states a
common cause of action against them.
Failure to file an answer under the Rule of Procedure for
Environmental cases
 A motion to declare defendant in default is a
prohibited motion.
 Should the defendant fail to answer within the
period provided, the court shall declare the
defendant in default and upon motion of plantiff,
shall receive evidence ex parte and render
judgment based thereon and the reliefs prayed
for.
 It is the court which shall. On its own motion,
declare the defendant in default.
Action of the court after the declaration/order of default
(Sec.3 Rule 9)
1. Proceed to render judgment granting the claimant
such relief as his pleading may warrant.
2. Require the claimant to submit evidence ex parte.
3. The choice of which action to take is a matter of
judicial discretion.
Failure to file a return under the Rule on the Writ of
Amparo
 The rule prohibits a motion to declare respondent
in default.
 In case the respondent fails to file a return, the
court, justice, or judge, shall proceed to hear the
petition ex-parte.
*The rules of court provides for discretion on the part of
the trial court not only to extend the time for filing an
answer but also to allow an answer to be filed after the
reglementary period. Under the rules, the court may
extend the time to plead upon motion and upon such
terms as are just. The court may also allow an answer or
other pleading to be filed after the time fixed by the rules.
Failure to file a return under the Rule on Habeas Data
 The rules does not allow the filing of a motion to
declare the respondent in default.
 If the respondent fails to file his return which
contains, among others, his lawful defense, the
court, justice, or judge shall proceed to hear exparte, granting the petitioner such relief.
Failure to answer under the 1991 Revised Rules on
Summary Procedure
 A motion to declare the defendant in default is a
prohibited motion.
 The defendant who fails to file an answer within
the reglementary period of 10 days from service
of summons, is not supposed to be declared in
default. Instead, the court motu propio or on
motion of the plaintiff, shall render judgment, not
declare him in default.
The rule is that the defendant’s answer should be admitted
where it is filed before a declaration of default and no
prejudice is caused to the plaintiff.
Current judicial trend on default:
1. Default judgments are generally disfavoured.
2. Courts are enjoined to be liberal in setting aside
orders of default.
3. Default orders shall be allowed only in clear cases
of obstinate refusal by the defendant to comply
with the orders of the trial court. Because suit
should, as much as possible, be decided on the
merits and not on technicalities.
Remedies of the defending party declared in default.
1. After notice of order and before judgment. File a
motion under oath to set aside the order of
default and properly show
Effects of declaration or order of default
1. The party declared in default loses his standing in
court. The loss of such standing prevents him
from taking part in the trial.
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a.
2.
3.
4.
that the failure to answer was due to
fraud, mistake, accident, or excusable
negligence.
b. And he has a meritorious defense,
(affidavit of merit)
After judgment and before judgment becomes
final and executory.
a. Motion for new trial
b. Appeal
After the judgment becomes final and executory.
a. Petition for relief from judgment.
A declaration of default by the court is in excess
of and/or without jurisdiction and therefore,
properly correctible by writ of certiorari
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in the counterclaim while the original plaintiff
becomes the defendant.
The filing of a counterclaim gives rise to two
complaints, namely, the one filed by the plaintiff
by way of an original complaint and the one filed
by the defendant by way of counterclaim.
A counterclaim is not intrinsically a part of the
answer because it is a separate pleading. It may,
however, be included in the answer.
Kinds of counterclaim
1. Compulsory
2. Permissive
Compulsory counterclaim
 One that arises out of or is necessarily connected
with the transaction or occurrence that is the
subject matter of the opposing party’s claim.
 Falls within the jurisdiction of the court.
 Does not require for its adjudication the presence
of third parties over whom the court cannot
acquire jurisdiction.
 Otherwise , a counterclaim is merely permissive.
Default is not allowed in the following actions
1. Annulment of marriage.
2. Declaration of nullity of marriage.
3. Legal Separation
*If no answer is filed in any of the above actions, the court
shall order the prosecuting attorney to investigate whether
or not collusion exist between the parties. If there is no
collusion, the court shall order said prosecuting attorney to
intervene for the state in order to see to it that the
evidence submitted is not fabricated.
Elements of a compulsory counterclaim
1. It arises out of, or is necessarily connected with
the transaction or occurrence which is the subject
matter of the opposing party’s claim.
2. It does not require for its adjudication the
presence of third parties over whom the court
cannot acquire jurisdiction and.
3. It is cognizable by the regular courts of justice and
such courts have jurisdiction to entertain the
counterclaim both as to amount and nature.
Judgment by default for refusal to comply with the modes
of discovery
1. If a disobedient party refuses to obey an order
requiring him to comply with the various modes
of discovery.
2. If a party or officer or managing agent of a party
wilfully fails to appear before the officer who is to
take his deposition, or a party fails to serve
answers to interrogatories.
Tests of compulsory counterclaim
1. Are the issues of fact and law raised by the claim
and the counterclaim largely the same?
2. Would re judicata bar a subsequent suit on
defendant’s claim, absent the compulsory
counterclaim rule?
3. Will substantially the same evidence support or
refute plaintiff’s claim as well as the defendant’s
counterclaim?
4. Is there any logical relation between the claim and
the counterclaim?
Counterclaim
 A counterclaim is any claim which a defending
party may have against an opposing party. It
partakes of a complaint by the defendant against
the plaintiff.
 It is in itself a distinct and independent cause of
action and when filed, there are two simultaneous
actions between the same parties. A counterclaim
is a pleading.
 It may refer to a
o Claim for money
o Or some other relief against an opposing
party.
 A counterclaim is permitted by the Rules as a way
of preventing multiplicity of suits by allowing in
one action, the determination of the entire
controversies between the parties.
 When the defendant files a counterclaim against
the plaintiff, the defendant becomes the plaintiff
If the amount of the counterclaim exceeds the jurisdiction
of the court
 The counterclaim should be deemed permissive,
not compulsory.
 Despite the lack of jurisdiction of the court to
adjudicate on the counterclaim, the same may,
nevertheless, be pleaded in the same action, not
to obtain affirmative relief because the court, for
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want of jurisdiction, cannot do so. The purpose
would merely weaken the plaintiff’s claim.
If the counterclaim in excess of the jurisdiction of
the court is interposed in the same action, and the
court finds both the complaint and the
counterclaim meritorious, it will not grant the
relief in the complaint on the ground that the
defendant has a bigger credit.
If the defendant desires to have affirmative relief
on his counterclaim, he may waive the amount in
excess of the jurisdiction of the court.
There may be instances when the RTC has to
dismiss the counterclaim for lack of jurisdiction
over the subject matter. If the counterclaim
interposed is for unlawful detainer, the same
cannot be invoked as a counterclaim in the same
action even if the amount of rentals or damages is
within the jurisdiction of such court. A RTC cannot
adjudicate upon an unlawful detainer case.
Also, a counterclaim for illegal dismissal cannot be
entertained by regular courts for want of
jurisdiction.
The absence of jurisdiction to entertain a
counterclaim because of the amount thereof
appropriately applies to a MTC and equivalent
courts. A MTC of Manila cannot assume
jurisdiction over a counterclaim in excess of
400,000.
The counterclaim must be within the jurisdiction
of the court both as to the amount and the nature
thereof. (Sec.7 Rule 6)
The result will differ however, when the original
action is filed with the RTC. In this court, the
counterclaim may be deemed compulsory
regardless of the amount. Hence, a counterclaim
of 350,000 filed in the RTC of Manila is still a
compulsory counterclaim even if the court would
have no jurisdiction over the amount claim if it is
filed as an original complaint under Sec.7 Rule 6,
an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount.
A party who desires to plead a compulsory
counterclaim should not file a motion to dismiss.
If he files a motion to dismiss and the complaint is
dismissed, there will be no chance to invoke the
counterclaim.
A counterclaim presupposes the existence of a
claim against the party filing the counterclaim.
Hence, where there is no claim against the
counterclaimant, the counterclaim is improper
and it must be dismissed.
In the event that a defending party has a ground
for dismissal and a compulsory counterclaim at
the same time, he must choose only one remedy.
Permissive counterclaim
 A counterclaim is permissive if any of the
elements of a compulsory counterclaim discussed
previously is absent.
 But the most commonly treated feature of a
permissive counterclaim is its absence of logical
connection with the subject matter of the
complaint (it does not arise out of or is not
connected with the plaintiff’s cause of action.
Distinctions between
counterclaim.
compulsory
and
permissive
Compulsory
1. A party has at the time the answer is filed, shall be
contained in the answer because a compulsory
counterclaim not set up shall be barred.
2. It is not an initiatory pleading.
3. Cannot be independently set up, does not require
the certification against forum shopping because
it is not initiatory in character.
4. Failure to answer compulsory counterclaim is not
a cause for a default declaration. It merely
reiterates special defences are deemed
controverted even without a reply, or raises issues
which are deemed automatically joined by the
allegations in the complaint, need not be
answered
5. Docket fees are not paid for a compulsory
counterclaim generally.
Permissive
1. It is not subject to an answer. It may be set up as
an independent action and will not be barred if
not contained in the answer to the complaint.
2. It is considered as an initiatory pleading.
3. It should be accompanied by a certification
against forum shopping and whenever required
by law, also a certificate to file the action issued
by the Lupong Tagapamayapa.
4. It must be answered by the party against whom it
is interposed, otherwise, he may be declared in
default as to the counterclaim.
5. The docket and other lawful fees should be paid
for a permissive counterclaim. The rule in
permissive counterclaim is that for the trial court
to acquire jurisdiction, the counterclaimant is
bound to pay the prescribed docket fees.
A counterclaim not initially set up because of the pleader’s
oversight, inadvertence, excusable neglect, or when justice
requires, may be set up, by leave of court, by amendment
before judgment. If not set up in the action, the
compulsory counterclaim shall be barred.
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A permissive counterclaim however will not be barred.
The bar, refers to a compulsory counterclaim that a
defending party has the time he files the answer.
Counterclaim vs Cross-claim
Cross-claim
 A claim against a co-party
 It must arise from the transaction or occurrence
that is the subject matter of the original complaint
or counterclaim.
Counterclaim
 IS a claim against an opposing party.
 May or may not arise out of the subject matter of
the complaint. It may be compulsory or
permissive.
Counterclaim arising after the answer
 A counterclaim which either matured or acquired
by a party after serving his pleading, may, with the
permission of the court, be presented as a
counterclaim by supplemental pleading before
judgment.
Period to answer a counterclaim
 If a counterclaim is to be answered, the same
must be made within 10 days from service.
Cross-claim after the answer
 A cross-claim which either matured or was
acquired by a party after serving his pleading may,
with the permission of the court be presented as a
cross-claim by supplemental pleading before
judgment.
Effects of dismissal of the complaint on the counterclaim
1. The defendant does not file a motion to dismiss.
Instead, he files an answer and utilizes certain
grounds for a motion to dismiss as affirmative
defences. Included in the answer is a
counterclaim,. He then asks for a preliminary
hearing on the affirmative defences se up, which
is granted by the court. During the hearing on the
affirmative defences, the court decides to dismiss
the complaint. If the complaint is dismissed, the
counterclaim, compulsory or permissive is not
dismissed. “The dismissal of the complaint under
this section shall be without prejudice to the
prosecution in the same or in the separate action
of a counterclaim pleaded in the answer” Sec.6
Rule 16.
2. Plaintiff himself files a motion to dismiss his
complaint after the defendant has pleaded his
answer with a counterclaim. The motion is
granted by the court. The dismissal shall be
limited to the complaint. Sec.2 Rule 17.
3. The complaint is dismissed through the plaintiff’s
fault and at a time when a counterclaim has
already been set up. The dismissal is without
prejudice to the right of the defendant to
prosecute his counterclaim in the same or
separate action. Sec.3 Rule 17.
Omitted cross-claim
 When a pleader fails to set up a cross-claim
through oversight, inadvertence, or excusable
neglect, or when justice requires, he may, by
leave of court, set up the cross-claim by
amendment before judgment.
Period to answer a cross-claim
 It must be answered within 10 days from service.
Third, Fourt etc – party complaint
 Is a claim which a defending party may, with leave
of court, file against a person who is not yet a
party to the action for contribution, indemnity,
subrogation or any other relief in respect og his
opponent’s claim.
 Is actually a complaint independent of, and
separate and distinct, from the plaintiff’s
complaint. Were it not for the above rule, such
third-party complaint would have to be filed
independently and separately from the original
complaint.
 The purpose is to avoid circuitry of action and
unnecessary proliferation of lawsuits and dispose
expeditiously in one litigation all the matters
arising from one particular set of facts.
 Trial courts are not especially enjoined by law to
admit a third-party complaint. They are vested
with discretion to allow or disallow a party to an
action to implead an additional party.
 Thus, a defendant has no vested right to file a
third-party complaint.
 It is not proper to file a third-party complaint
against one who is already a party to the action
such as against the plaintiff or co-defendant. A
Cross-claim
 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.
 It may include a claim that the party against
whom it is asserted is liable, or maybe liable to
the cross-claimant for all or part of the claim
asserted in the action against the cross-claimant.
(Sec.8 rule 6)
 A cross-claim not set up shall be barred. Thus, a
cross-claim cannot be set up for the first time on
appeal.
46

claim against the plaintiff is asserted by way of a
counterclaim.
Requires prior leave of court because it is subject
to judicial discretion.
Intervention is never an independent proceeding but
ancillary and supplemental to an existing litigation and in
subordination to the main proceeding.
When intervention not proper:
 In general, an independent controversy cannot be
injected into a suit by intervention, hence, such
intervention will not be allowed where it would
enlarge the issues in the action and expand the
scope of the remedies.
 It is not proper where there a certain facts giving
the intervenor’s case an aspect peculiar to
himself and differentiating it clearly from that of
the original parties. The proper recourse is to file
his claim in a separate suit.
 Intervention is not intended to change the nature
and character of the action itself, or stop or delay
the placid operation of the machinery of the trial.
 The remedy of intervention is not proper where it
will have the effect of retarding the principal suit
or delaying the trial of the action.
Answer to a third-party complaint
 Governed by the same rule as the answer to the
complaint, hence, within 15 days from service of
summons.
Intervention
 Is a remedy by which a third-party, not originally
impleaded in the proceedings, becomes a litigant
therein to enable him to protect or preserve a
right or interest which may be affected by the
proceedings.
 It is a proceeding in a suit or action by which a
third-person is permitted by the court to make
himself a party, either joining the plaintiff in
claiming what is sought by the complaint, or
uniting with the defendant in resisting the claims
of the plaintiff or demanding something adverse
to both of them.
Requisites for intervention
1. There must be a motion for intervention filed
before the rendition of judgment by the trial
court. Leave of court is required before a person
may be allowed to intervene.
2. The movant must show in his motion that he has
legal interest in the matter of the litigation, the
success of either parties in the action, or against
both parties, or so 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.
3. The intervention must not unduly delay or
prejudice the adjudication of the rights of the
original parties.
4. The intervenor’s right may not be fully protected
in a separate proceeding.
Intervention is allowed when a person has:
1. A legal interest in the matter of litigation.
2. Legal interest in the success of any of the parties.
3. An interest against both parties.
4. When he is so situated as to be adversely affected
by a distribution or disposition of property in the
custody of the court or an officer thereof.
Subject of judicial discretion/Not a matter of right
 Intervention is not a matter of absolute right but
may be permitted by the court when the applicant
shows facts which satisfy the requirements of the
statute authorizing intervention.
Meaning of legal interest
 What qualifies a person to intervene is his
possession of legal interest in the matter of the
litigation or in the success of either parties or an
interest against both of them.

The interest must be of a direct and immediate
character so that the intervenor will either gain or
lose by the direct legal operation of the judgment.

The interest must be actual or material, a
concern which is more than curiosity, or
academic, or sentimental desire, it must not be
indirect and contingent, remote, conjectural,
consequential, or collateral.
Procedure for intervention
1. The motion and pleading shall be served upon the
original parties.
2. The intervenor shall file a motion for intervention
attaching thereto his pleading in intervention.
3. The pleading to be filed depends upon the
purpose of the intervention. If the purpose is to
assert a claim against either or all of the parties,
the pleading shall be called a complaint-inintervention. If the pleading seek to unite with
the defending party in resisting the claim, he shall
file an answer-in-intervention.
4. The answer to the complaint-in-intervention shall
be filed within 15 days from the notice of the
order admitting the same, unless a different
period is fixed by the courts.
47
Time for intervention
 The motion to intervene may be filed at any time
before the rendition of judgment by the trial
court.
 Intervention after trial and decision can no longer
be permitted.
Reply
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
Amendment of pleadings
 A plaintiff has the right to amend his complaint
once at any time before a responsive pleading is
served by the other party or in case of a reply to
which there is no responsive pleading, at any
time within 10 days after it is served.
 Before an answer is served on a plaintiff, the
latter may amend his complaint as a matter of
right.
 The defendant may also amend his answer as a
matter of right before a reply is served upon him.
 Only refers to amendment made before the trial
court not to amendments made before the Court
of Appeals. The Can is vested with discretion to
admit or deny amended petitions before it.
 The right to amend a pleading as a matter of right
according to the rules, be exercised only once.
 Hence, even if no responsive pleading has yet
been served, if the amendment is subsequent to
a previous amendment made as a matter of
right, the subsequent amendment must be with
leave of court.
 Before the service of a responsive pleading, a
party has the absolute right to amend his pleading
regardless of whether a new cause of action or
change in theory is introduced.
 Since a motion to dismiss is not a responsive
pleading, a plaintiff may file an amended
complaint even after the original complaint was
ordered dismissed, provided the order of
dismissal is not yet final.
Is a pleading, the function of which is to deny,
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.
Is a responsive pleading to an answer.
It is not a responsive pleading to a counterclaim or
cross-claim.
The proper response to a counterclaim or crossclaom is an answer to the counterclaim or answer
to the cross-claim.
Filing of a reply is not mandatory
 The filing of a reply to the answer is not
mandatory and will not have an adverse effect on
the plaintiff.
 Sec.10 Rule 6, if a party does not file such reply, all
the new matters alleged in the answer are
deemed controverted or denied.
 No admission follows from the failure to file a
reply.
 Hence, if the answer to the complaint alleges as a
defense the prescription of the action, the failure
of the plaintiff to specifically deny the prescription
will not amount to an admission because the rule
already denies the matter of prescription without
the plaintiff making a specific denial. It is already
ad the rule says, deemed controverted.
 The material allegations in the complaint must be
specifically denied but the allegations of new
matters or material allegations of new matters or
material allegations in the answer need not be
denied because they are deemed denied by the
Rules for the plaintiff.
Mandamus
 The court would be in error if it refuses to admit
an amended pleading when its exercise is a
matter of right. This error is correctible by way of
mandamus.
 The trial court’s duty to admit an amended
complaint made as a matter of right is ministerial.
Amendment by leave of court
 Leave of court is required for an amendment after
service of a responsive pleading.
 This rule assumes more force and effect especially
when the amendment is substantial.
 After a responsive pleading is filed, an
amendment to the complaint may be substantial
and will correspondingly require a substantial
alteration in the defences of the adverse party.
 The amendment is not only unfair to the
defendant, but will cause unnecessary delay in the
proceedings.
 Where no responsive pleading has yet been
served, no defences would be altered. The
amendment of the pleading will not then require
leave of court.
Filing of reply is advisable
 When the defense in the answer is based upon a
written instrument or document, said instrument
is considered an actionable document.
 Hence, the plaintiff has to file a reply under oath if
he desires to deny specifically the genuineness
and due execution of the actionable document,
and avoid an admission of such matters.
Period to file a reply
 A reply may be filed within 10 days from the
service of the pleading responded.
48

In amendments as a matter of right, no leave of
court is required even if the amendment is
substantial.

Amendment to cure a failure to state a cause of action to
conform the evidence
 Sec.5 Rule 10, When issues not raised by the
pleadings are tried with the express or implied
consent of the parties, they shall be treated in all
respects as if they had been raised in the
pleadings.
 Applies to situations wherein evidence not within
the issues raised in the pleadings, is offered by the
parties during the trial and not objected to. In
such a case, said issues not found in the pleadings
are deemed to have been tried with the consent
of the parties. The rule treats the issues as having
been raised in the pleadings even if not actually
raised.
 Also covers situations where a complaint
insufficiently states the cause of action. Such
insufficiency may be cured by evidence presented
during the trial without objection.
 In a situation where issues not raised in the
pleadings are tried with the express or implied
consent of the parties, Sec.5 of Rule 10 authorizes
the amendment of the pleadings to conform to
the evidence upon motion of a party at any time,
even after judgment.
 If the parties fail to amend the pleadings, such
failure will not affect the trial of these issues
because such issues are deemed to have been
raised in the pleadings of the parties. This
provision under the rules virtually authorizes an
implied amendment of the pleadings.
dismissed by the court upon proper motion
seasonably filed by the defendant.
The underlying reason for this rule is that a person
should not be summoned before the public
tribunals to answer for complaints which are
premature.
Amendment to correct a jurisdictional defect before/after
a responsive pleading is filed.
 The court cannot allow such type of amendment
since the court must first possess jurisdiction over
the subject matter of the complaint before it can
act on any amendment has no application upon
an amendment that is made as a matter of right.
 An amendment of the complaint to correct a
jurisdictional error cannot be validly done after a
responsive pleading is served. The amendment
this time, would require leave of court, a matter
which requires the exercise of sound judicial
discretion.
 This requires the performance of a positive act of
the court. If it grants the amendment, it would be
acting on a complaint over which it has no
jurisdiction.
 A complaint cannot be amended to confer
jurisdiction on the court which it was filed. It is an
error to admit the amendment because the court
must first acquire jurisdiction over the subject
matter of the complaint in order to act validly on
the same including its amendment.
Sec.8 Rule 10- An amended pleading supersedes the
original one which it amends.
 The original complaint is deemed superseded and
abandoned by the amendatory complaint only if
the latter introduces a new or different cause of
action.
 Admissions made in the original pleadings cease
to be judicial admissions. They are to be
considered as extrajudicial admissions.
 Although the original pleading is deemed
superseded by the pleading that amends it, it
does not ipso facto follow that the service of new
summons is required.
 Where the defendants have already appeared
before the trial court by virtue of a summons in
the original complaint, the amended complaint
may be served upon them without need of
another summons, even if new causes of action
are alleged. A court’s jurisdiction, once acquired
continues until the case if finally terminated.
 When the defendants have not yet appeared in
court, new summons on the amended complaint
must be served on them. If the trial court has not
yet acquired jurisdiction over them, a new
summons for the amended complaint is required.
Amendment not a remedy when there is no cause of
action
 Sec.5 Rule 10, allows a complaint that does not
state a cause of action to be cured by evidence
presented without objection during trial.
 A complaint that lacks a cause of action. At the
time it was filed, cannot be cured by the accrual of
cause of action during the pendency of the case.
 The curing effect of section 5 is applicable only if a
cause of action in fact exists at the time the
complaint is filed, but the complaint is defective
for failure to allege the essential facts.
 A complaint whose cause of action has not yet
accrued cannot be cured or remedied by an
amended or supplemental pleading alleging the
existence or accrual of a cause of action while the
case is pending.
 Such action is prematurely brought and is,
therefore a groundless suit, which should be
49


The new defendant cannot be deemed to have
already appeared by virtue of summons under the
original complaint in which he is not yet a party.

Supplemental Pleadings
 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 is
sought by filing of a motion with notice to all
parties.
 When a cause of action in the supplemental
pleading complaint is different from the cause of
action mentioned in the original complaint, the
court should not admit the supplemental
complaint.
 A supplemental pleading exists side by side with
the original. It does not replace that which it
supplements.
 Answer to a supplemental complaint is not
mandatory, it may be answered within 10 days
from notice admitting the same, unless a different
period is fixed by the court.
 The answer to the complaint shall serve the
answer to the supplemental complaint if no new
or supplemental answer is filed.



Exception: Motions which the court may act upon
without prejudicing the rights of the adverse
party.
A motion unaccompanied by a notice of hearing is
considered a mere scrap of paper that does not
toll the running of the period to appeal.
Ex-parte motion- Is one which does not require
that the parties be heard and which the court may
act upon without prejudicing the rights of the
other party.
A motion for extension of time- Is not a litigated
motion where notice to the adverse party is
necessary to afford the latter an opportunity to
resist the application, but an ex-parte motion
made to the court in behalf of one or the other of
the parties to the action, in the absence and
usually without the knowledge of the other party
or parties.
Ex-parte motions are frequently permissible in
procedural matters, and also in situations and
under circumstances of emergency, and an
exception to the rule requiring notice is
sometimes made where the notice or the
resulting delay might tend to defeat the objective
of the motion.
Notice of the motion and notice for hearing of the motion
 The written motion, which is require to be heard,
and the notice of the hearing thereof shall be
served in such manner as to ensure its receipt by
the other party at least 3 days before the hearing,
unless the court for good cause sets the hearing
on shorter notice.
 The notice of hearing shall be addressed to all the
parties concerned.
 Without a notice of hearing, the motion is
considered a pro-forma and does not affect the
reglementary period for the appeal or the filing of
the requisite pleading.
 A motion which does not meet the requirements
of Secs.4 and 5 of Rule 15, on hearing and notice
of the hearing, is a worthless piece of paper which
the clerk of court has no right to receive and
which the trial court has no authority to act upon.
Failure of the movant to comply with the
requirements renders their motion fatally
defective.
 A motion for leave to file a motion shall be
accompanied by the motion sought to be
admitted.
 Proof of service is required. No written motion set
for hearing shall be acted upon by the court
without proof of service thereof.
Motions
 A motion is an application for relief other than by
a pleading.
Form of motions
 All motions must be in writing. Except for
o Motions made in open court.
o Motions made in the course of a hearing
or trial.
 The rules that apply to pleadings shall also apply
to written motions with respect to caption,
designation, signature, and other matters of form.
Contents of a motion
1. Statement of the relief sought to be obtained.
2. The grounds upon which the motion is based.
3. The supporting affidavits and other papers.
The last requirement applies only when so mandated by
the Rules or when necessary to prove facts stated in the
motion.
Hearing of the motion
 General Rule: Every written motion shall be set
for hearing by the applicant. Every written motion
is deemed a litigated motion.
50
Motion day
 All motions shall be scheduled for hearing on
Friday afternoons.
 If Friday is a non-working holiday, in the afternoon
of the next working day.
 This rule does not apply to motions requiring
immediate attention.
Purpose of summons in Actions in Personam
 Most basic purpose thereof, is to satisfy the
requirements of procedural due process.
 In actions in personam, the purpose of summons
is not only to comply with due process but also
acquire jurisdiction over the person of the
defendant.
 The action is as one instituted against a person on
the basis of his personal liability, the court would
be devoid of authority to hold one personally
liable for the relief prayed for by the plaintiff
without first vesting upon said court jurisdiction
over the person of the defendant.
Omnibus Motion Rule
 The rule is a procedural principle which requires
that every motion that attacks a pleading,
judgment, or proceeding shall include all grounds
then available, and all objections not so included
shall be deemed waived.
 objections not mentioned therein are not
deemed waived even if not included in the
motion
1. The court has no jurisdiction over the
subject matter.
2. There is another action pending between
the same parties for the same cause (litis
pendencia).
3. Action is barred by prior judgment (res
judicata).
4. Action is barred by the statute of
limitations or prescription.
Strict compliance rule
 The rule that the modes of service must be strictly
followed in order that the court may acquire
jurisdiction over the person of the defendant.
Purpose of summons in actions in rem and quasi in rem
 Jurisdiction over the res is acquired either
o By the seizure of the property under legal
process whereby it is brought into actual
custody of the law.
o As a result of the institution of the legal
proceeding.
 Service of summons to the defendant is not for
the purpose of vesting the court with jurisdiction
but merely for satisfying the due process
requirements.
Summons
 Is the writ by which the defendant is notified of
the action brought against him.
 It is a notice to the defendant that a particular
person named therein has commenced an action
against him in a particular court.
 A direction that the defendant answer the
complaint within the period fixed by the rules and
that, unless he so answers, plaintiff will take
judgment by default and may be granted the relief
prayed for.
Voluntary appearance by the defendant
 Jurisdiction over the person of the defendant is
acquired through a coercive process by the service
of summons by the court or through defendant’s
voluntary appearance or submission to the court.
 Absence of service of summons or even an invalid
service of summons will not prevent the court
from acquiring jurisdiction over the defendant as
long as he performs acts that could be construed
as a voluntary appearance.
 Defendant’s voluntary appearance shall be
equivalent to service of summons.
Mandatory issuance of summons
 Is not discretionary on the part of the clerk of
court but is mandatory requirement.
 Sec.1 Rule 14- The clerk of court shall issue the
corresponding summons to the defendant upon:
o Filing of the complaint.
o The payment of the requisite legal fees.
Sec.20 Rule 14- The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary
appearance.
Knowledge of the defendant or its agents of an action
filed against him- Does not dispense with the need for
summons.
The clerk of court- One who issues summons who shall
sign the same under seal.
Summons must still be filed and served. Thus, jurisdiction
over the person of the defendant cannot be acquired
notwithstanding his knowledge of the pendency of a case
against him, unless he was validly served with summons.
Summons shall be issued upon the filing of the complaint
and the payment of the requisite legal fees.
51
Who serves the summons
 By the sheriff
 His deputy
 Or other proper court official
 Or for justifiable reasons, by any suitable person
authorized by the court issuing the summons.
Service upon an entity without a juridical personality.
 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.
Service upon a prisoner
 When the defendant is a prisoner confined in a jail
or institution, service shall be effected upon him
by the officer having the management of such jail
or institution.
 The jail manager is deemed deputized as a special
sheriff.
Contents of the summons
1. The name of the court and the name of the
parties to the action.
2. A direction that the defendant answer within the
time fixed by the rules.
3. A notice that, unless the defendant so answers,
the plaintiff will take judgment by default and
may be granted the relief prayed for.
4. A copy of the complaint including a copy of an
order for the appointment of a guardian ad litem,
if necessary shall be attached to the original and
each copy of the summons.
Service upon a minor and an incompetent
 Service shall be made:
o Upon the defendant personally and
o On his legal guardian if he has, if he has
none, upon his guardian ad litem.
 The appointment of a guardian ad litem shall be
applied for by the plaintiff.
 If the defendant is a minor, service shall be made
upon his father or mother.
Return and proof of service
 When the service has been completed, the server
shall, within 5 days therefrom,
o serve a copy of the return, personally or
by registered mail, to the plaintiff’s
counsel, and
o shall return the summons to the clerk
who issued it, accompanied by proof of
service.
 After the completion of the service, a proof of
service is required to be filed by the server of the
summons. The proof of service of summons shall
be:
o made in writing,
o shall set forth the manner, place, and
date of service,
o specify any papers which have been
served with the process and
o the name of the person who receives the
same and
o be sworn to when made by a person
other than the sheriff or his deputy.
 A defendant is still bound to comply with the
summons even if service was made without
attaching a copy of the complaint.
 Defendant’s failure to seasonably challenge a
defective service of summons is deemed a waiver
and the court acquires jurisdiction over his
person.
Service upon a private domestic juridical entity
 Service may be made upon the following
persons:
1. President
2. Managing partner
3. General manager
4. Corporate secretary
5. Treasurer
6. In-house counsel
 The above enumeration has been held to be
limited to the persons enumerated and summons
cannot be served upon any other person.
 This list is restricted, limited, and exclusive.
 However, this rule is relaxed and the court may
employ the principle of substantial compliance.
 The liberal construction rule cannot be invoked
and utilized as a substitute for the plain legal
requirements as to the manner in which summons
should be served on a domestic corporation.
Service upon a foreign private juridical entity
 Service upon a foreign private juridical entity
which has transacted business in the Philippines
may be made on a:
1. Its resident agent designated in
accordance with law for that purpose.
2. When there’s no such agent, on the
government official designated by law to
that effect.
3. Or on any of the officers or agents of said
foreign entity within the Philippines.
Uniformity of the rules on summons
 The rules on summons apply with equal force in
actions before the RTC, MTC, MCTC, METC.
52
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
Service upon a foreign private juridical entity not
registered in the Philippines or has no resident
agent service may be effected out of the
Philippines, with leave of court through any of the
following means (EXTRATERRITORIAL SERVICE):
1. By personal service coursed through the
appropriate court in the foreign country
with the assistance of the DFA.
2. By publication in a newspaper of general
circulation in the country where the
defendant may be found and by serving a
copy of the summons and the court
order by registered mail at the last
known address of the defendant.
3. By facsimile or any recognized electronic
means that could generate proof.
4. By such other means as the court may in
its discretion direct.
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.




when the defendant refuses to receive and sign
for the summons.
It was held that the impossibility of prompt
personal service should be shown by stating the
proof of service that effort were made to serve
the defendant personally and that said efforts
failed, hence, the resort to substituted service.
The pertinent facts and circumstances attendant
to the service of summons must be stated in the
proof of service or officer’s return. Otherwise, any
substituted service made in lieu of personal
service cannot be upheld.
This is necessary because substituted service is in
derogation of the usual method of service. It is a
method extraordinary in character and hence,
may be used only as prescribed and in the
circumstances authorized by statute.
Failure to faithfully, strictly and fully comply with
the requirements of substituted service renders
the said service ineffective.
Substituted service of summons
 Only if service in person cannot be made promptly
can the process server resort to substituted
service.
 In case of resort to a substituted service of
summons, proof of service of summons must:
o Indicate the impossibility of service of
summons within a reasonable time.
o Specify the efforts exerted to locate the
defendant.
o State that the summons was served upon
a person of sufficient age and discretion
who is residing in the address, or who is
in charge of the office or regular place of
business of the defendant.
o Pertinent
facts
proving
these
circumstances.
 In a suit in personam against a resident of the
Philippines temporarily absent from the country,
the defendant may be served by substituted
service because a man temporarily out of the
country leaves a definite place of residence or
dwelling where he is bound to return.
 Service of summons may possibly be any of the
following modes unless ruled otherwise upon a
resident temporarily out of the Philippines
o By personal service
o Publication in a newspaper of general
circulation together with a registered
mailing of a copy of the summons and
the order of the court to the last known
address of the defendant.
o By any manner the court may deem
sufficient.
Service upon the Republic of the Philippines
 Service may be effected to the Solicitor General.
Service upon Public Corporations
 When the defendant is a province, city, or
municipality, or like public corporations, service
may be effected on its:
1. Executive head
2. Or such other officers as the law and the
court may direct.
Service upon an unincorporated government agency
 The service of summons must be made on the
Solicitor General.
Service in person of the defendant (Personal service of
summons)
 The preferred mode of service of summons.
 Sec.6 Rule 14- Whenever practicable, the
summons shall be served by handing a copy
thereof to the defendant in person, or if he
refuses to receive and sign for it, by tendering it to
him.
 Service in the person of the defendant is not
personal service, Personal service is a mode by
which pleadings, motions, notices, orders,
judgments, and other papers are served under
Rule 13 Sec.6.
 Personal service is primarily a concept actually
found in Rule 13.
 Tender of summons- Is not a separate mode of
service, it is a part of service in person and applies
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o
By substituted service of summons- if
defendant has a residence or place of
business in the Philippines.
Substituted service may be availed of, if for
justifiable causes, the defendant cannot be served
within a reasonable time. What is a reasonable
time contemplates a period of time longer that
that demarcated by the word “prompt”, and
presupposes that a prior attempt at personal
service within a justifiable time frame, as would
be necessary to bring the defendant within the
jurisdiction of the court had failed.
Manotoc vs CA-Reasonable time is defined as so
much time as is necessary under the
circumstances for a reasonably prudent and
diligent man to do, conveniently, what the
contract or duty requires that should be done.
Reasonable time means no more than 7 days
since an expeditious processing of the complaint
is what the party wants.
To the sheriff, reasonable time means 15 to 30
days because at the end of the month, it is a
practice for the branch clerk to require the sheriff
to submit a return of the summons assigned to
the sheriff for service.
How substituted service is made
o Leaving copies of the summons at the
defendant’s residence.
o Leaving copies of the summons at the
defendant’s office or regular place of
business.
Manotoc vs CA- A person of suitable age and
discretion is one who has attained the age of full
legal capacity 18 yrs old, and is considered to have
enough discernment to understand the
importance of summons.
Discretion- Defined as the ability to make
decisions which represent a responsible choice
and for which an understanding of what is lawful,
right, or wise, may be presupposed.
Thus, to be of sufficient age and discretion, such
person must know how to read and understand
English to comprehend the import of the
summons, and fully realize the need to deliver the
summons and complaint to the defendant at the
earliest possible time for the person to take
appropriate action.
The person must have a relation of confidence to
the defendant, ensuring that the latter would
receive or at least be notified of the receipt of
summons
A competent person in charge of the office or
regular place of business must be one:
o managing the office or business of the
defendant, such as the president or
manager, and
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such individual must have sufficient
knowledge to understand the obligation
of the defendant in the summons, its
importance, and the prejudicial effects
arising from inaction on the summons.
It is not necessary that the person in charge of the
defendant’s regular place of business be
specifically authorized to receive summons. It is
enough that he appears to be in charge.
Where the substituted service has been validly
served, its validity is not affected by the
defendant’s failure to actually receive the
summons from the person with whom the
summons had been left.
It is immaterial that the defendant does nor in
fact receive actual notice.
The rules does not require the sheriff or any
authorized server to verify that the summons left
in the defendant’s residence or office was actually
delivered to defendant.
When defendant prevents service of summons
 The statutory requirements of substituted service
must be followed strictly, faithfully, and fully can
be relaxed. The court frowns an overly strict
application of the rules. It is the spirit, rather than
the letter of the procedural rules that governs.
Summons by publication
 Is available only in actions in rem and quasi in
rem. It Is not available as a means of acquiring
jurisdiction over the person of the defendant in an
action in personam.
 Summons by publication against a resident in an
action in personam is permissible under the
following
1. Sec.14 Rule 14- Where the identity or
whereabouts of a defendant are
unknown.
2. Sec.16 Rule 14- Where the defendant is a
resident temporarily out of the
Philippines.
 The summons by publication under sec.15 or Rule
14 on extraterritorial service of summons has no
application to residents of the Philippines. It only
applies to non-residents.
Against a non-resident, jurisdiction is acquired over the
defendant by service upon his person while he is within the
Philippines.
Summons by publication against a non-resident in an
action in personam is not a proper mode of service. Except
when the defendant is a foreign private juridical entity not
registered and with no resident agent in the Philippines.
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Publication- Is notice to the whole world that the
proceeding has, for its object, to bar indefinitely all who
might be minded to make an objection of any sort against
the right sought to be established.
2.
3.
Publication with leave of court.
Any other matter the court may deem sufficient.
Extraterritorial service of summons applies only where
the action is in rem, that is, an action against the thing
itself instead of against the person, or in an action quasi in
rem where an individual is named defendant and the
purpose of the proceeding is to subject his interest therein
to the obligation burdening his property.
Service upon a defendant whose identity or whereabouts
are unknown
 Where the defendant is designated as an
unknown and cannot be ascertained despite a
diligent inquiry, service may, with leave of court,
be effected upon him by publication in a
newspaper of general circulation and in such
places and for such time as the court may order.
 This rule, authorizes summons by publication in
any action and the rule does not distinguish
whether the action is in personam, in rem, or
quasi in rem. The tenor of the rule authorizes
summons by publication whatever the action may
be as long as the identity of the defendant is
unknown or his whereabouts are unknown.
 The proper recourse for a creditor in the same
situation as petitioner is to locate properties, real
or personal of the resident defendant-debtor with
unknown address and cause them to be attached
under Rule 57. In this case, the attachment
converts the action into a proceeding in rem or
quasi in rem and the summons by publication may
then accordingly be deemed valid and effective.
When a defendant is a non-resident, personal service of
summons within the state is essential to the acquisition of
jurisdiction over the person. Summons on the defendant
must be served by handing a copy thereof to the
defendant in person or if he refuses to receive it by
tendering it to him. This cannot be done if the defendant is
not physically present in the country.
If the action is in personam, extraterritorial service of
summons will not be available. There is no extraterritorial
service of summons in actions in personam.
Where the action is in personam, one brought against a
person on the basis of his personal liability, jurisdiction
over the person of the defendant is necessary for the court
to validly try and decide a case. However, when the
defendant is a non-resident personal service of summons
in the state is essential to the acquisition of jurisdiction
over him.
Extraterritorial service of summons
It is a settled rule that, a non-resident defendant who
refuses to come to the country voluntarily remains beyond
the personal processes of the court which, therefore,
cannot acquire jurisdiction over him.
Requisites for applicability of extraterritorial service of
summons
1. The defendant is a non-resident
2. He is not found in the Philippines
3. The action against him is either in rem or quasi in
rem
*General rule: Extraterritorial service does not apply to a
defendant who is a resident of the Philippines.
*Exception: Where service may, by leave of court, be
effected out of the Philippines when a resident is
temporarily out of the Philippines (Sec.16 Rule 14).
Remedy of attachment against non-resident defendants
not found in the Philippines
 Being an action in personam, the remedy is to file
the suit and at the same time, avail of the
provisional remedy of attachment, one ground
upon which the writ of preliminary attachment
may issue is an action against a party who does
not reside and is not found in the Philippines.
 Jurisdiction over the person of the defendant
would no longer be required when there is a writ
of preliminary attachment of the defendant’s
properties because the suit has assumed the
character of an action quasi in rem, which merely
requires jurisdiction over the res. After availing
extraterritorial service of summons, the suit can
then proceed despite the absence of the
defendant because, in this case, the property of
the defendant would now be the object of judicial
power.
Actions involved in extraterritorial service of summons
1. Actions that affect the personal status of the
plaintiff.
2. Actions which relate to, or the subject matter of
which is property within the Philippines, in which
the defendant claims a lien or interest in property
located in the Philippines.
3. When the defendant’s property has been
attached in the Philippines.
Modes of effecting Extraterritorial service of summons
1. Personal service out of the country with leave of
court.
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Summons when complaint is amended
 If a complaint is amended, as when new causes of
actions are introduced, then there is a need to
serve another summons. Thus, merely serving the
amended complaint is not equivalent to service of
summons.
 Other cases make the need for another summons
dependent on whether or not the defendant has
already appeared in the action at the time of the
amendment of the complaint. Hence, new
summons would be unnecessary when the
defendant has already submitted himself to the
jurisdiction of the court. Sometimes, even if new
causes of actions are alleged.
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Proceedings after service of summons and dismissal of
actions
Motion for bill of particulars
 Although, under the rules, the defendant is
required to answer the complaint within 15 days
from service of summons, the defendant need not
file his answer to the complaint within the
required period if there are matters in the
complaint which are vague or ambiguous or not
averred with sufficient definiteness, instead he
may file a motion for bill of particulars.
 It is an motion that applies to any pleading not
just the complaint, which in the perception of the
movant, contains matters which are not alleged
with sufficient definiteness or particularity.
the discovery procedures and also the mandatory
pre-trial.
Since the purpose of the motion for bill of
particulars is to allow the movant to properly
prepare his own pleading, it would be erroneous
for the motion to ask the court to order the
adverse party to disclose or set forth in his
pleading the evidences relied upon for his cause
of action or defense. These matters are
obtainable by the various modes of discovery.
It would be likewise not be proper for a motion
for bill of particulars to call for the production of
the particulars constituting malice, intent,
knowledge, or condition of the mind, which under
the rules, may be averred generally.
It would be proper to move for a bill of particular
to aver circumstances of fraud or mistake, since
such matters must be alleged with particularity.
Purpose of the bill of particulars in a criminal case
 To enable the movant to properly plead
 And prepare for tiral.
Requirements for the motion
1. It shall put out the defects complained of.
2. Paragraphs wherein they are contained.
3. Details desired.
Action of the court
 Upon the receipt of the motion, the clerk of court
must immediately bring the same to the attention
of the court.
 The motion having been brought to its attention,
the court has 3 possible options:
o To deny the motion outright
o To grant the motion outright
o Hold a hearing on the motion or allow
the parties the opportunity to be heard
upon sound judicial discretion.
When to file a motion for bill of particulars
 Filed before responding to a pleading.
 The period to file the motion refers to the period
for filing the responsive pleading.
 In case directed to a complaint, it must be 15 days
after service of summons.
 In case it is directed to a counterclaim or crossclaim, then the same must be filed within 10 days
from service of the counterclaim or cross-claim.
 In case it is directed to a reply to which no
responsive pleading is provided for by the rules,
the motion for bill of particulars must be filed
within 10 days from the service of said reply.
Compliance with the order
 If the motion for bill of particulars is granted, in
whole or in part, the court shall order the pleader
to submit a bill of particulars to the pleading to
which the motion is directed.
 The compliance must be effected within 10 days
from notice of the order, unless a different period
is fixed by the court.
 In complying the order, the pleader may file the
bill of particulars or a more definite statement
either in a:
o Separate pleading
o Or in the form of an amended pleading.
o In either case, a copy thereof is required
to be served upon the adverse party.
Purpose of the motion for bill of particulars
 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. It is not to enable
the movant to prepare for trial.
 Where the purpose of the movant is to prepare
him for trial, the appropriate remedy is to avail of
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Grounds for Motion to Dismiss (Rule 16, Sec.1)
1. The court has no jurisdiction over the person of
the defending party.
2. The court has no jurisdiction over the subject
matter.
3. The venue is improperly laid.
4. The plaintiff has no legal capacity to sue.
5. That there is another action pending between the
same parties for the same cause.
6. That the action is barred by prior judgment or by
the statute of limitations.
7. That the pleading asserting the claim states no
cause of action.
8. That the claim or demand set forth in the
plaintiff’s pleadings has been paid, waived,
abandoned (laches), or otherwise extinguished.
9. That the claim on which the action is founded is
unenforceable under the provisions of the statue
of frauds.
10. That a condition precedent for filing the claim has
not been complied with.
The bill of particulars submitted becomes part of
the pleading for which it is intended.
Effect of non-compliance with the order of the court
 If the order is not obeyed or if there is an
insufficient compliance of the order, the court has
the following options:
o Order the striking out of the pleading
o Order the striking out of the portions of
the pleading to which the order was
directed.
o To make such other order it may deem
just.
Stay of period to file responsive pleading
 A motion for bill of particulars is not a pleading.
Hence, not a responsive pleading.
 Whether or not this motion is granted, the
movant may file his responsive pleading.
 When a motion of bill of particulars is filed, the
period to file the responsive pleading is stayed or
interrupted.
 The movant may file his responsive pleading
within the period to which he was entitled at the
time the motion for bill of particulars was filed.
Grounds not waived even if not invoked in a motion to
dismiss
1. Lack of jurisdiction over the subject matter.
2. Litis pendencia
3. Res judicata
4. Statute of limitations or prescription.
Motion to dismiss
 While the filing of a motion to dismiss is not
prohibited, the remedy being an integral part of
the Rules of Court, the current policy of the SC is
not to encourage the filing of a motion to dismiss,
but to file an answer to the complaint.
 It is not a pleading. It is merely a motion. A motion
is an application for relief other than by a
pleading.
Omnibus motion rule
 Applies only when a motion to dismiss is filed. If
no motion to dismiss is filed, any of the grounds
for dismissal under Rule 16 may be pleaded as an
affirmative defense in the answer.
 A preliminary hearing may be heard thereon as if
a motion to dismiss was filed subject to the
court’s discretion in case the ground for dismissal
was pleaded as an affirmative defense.
 No defense is waived in this case because no
motion to dismiss was filed. There is indeed an
unmistakable difference in the legal effects
between filing and not filing a motion to dismiss in
relation to waiver of defenses.
Hypothetical admissions of a motion to dismiss
 A motion to dismiss hypothetically admits the
truth of the factual allegations in the complaint.
However, the hypothetical admission extends only
to such matters of fact that have been sufficiently
pleaded and not to mere epithets charging fraud,
allegations of legal conclusions, or erroneous
statements of law, inferences from facts not
stated, matters of evidence or irrelevant matters.
 What is deemed hypothetically admitted are
material allegations, not conclusions.
 The admission of a material allegation in the
complaint when a motion to dismiss is filed, does
not amount to an actual admission of the material
allegation, it is only hypothetical. The admission is
not a judicial admission.
Contents and form of the motion to dismiss
1. Like any other motion, shall state the relief sought
and the grounds upon which it is based and, if
required by the Rules or necessary to prove the
facts alleged therein, it shall be accompanied by
supporting affidavits and papers.
2. The motion shall be set for hearing by the
applicant and shall contain a notice of hearing
addressed to all the parties concerned.
3. Such notice shall specify the time and date of the
hearing which must not be later than 10 days
after the filing of the motion.
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4.
The notice requirement in a motion is mandatory
and its absence renders the motion defective. As a
rule, a motion without a notice of hearing is
considered pro forma and does not affect the
reglementary period for the filing of the requisite
pleading.
2.
3.
4.
Time to file the motion
 Within the time for filing the answer but before
filing said answer, a motion to dismiss may be
filed on any of the grounds mentioned in Rule 16.
 General Rule: A motion to dismiss that is filed
after the answer, is considered filed out of time
and the defending party is estopped from filing
the motion to dismiss
 Exception: A motion to dismiss may be filed even
after the filing of the answer, and will not be
considered filed out of time of the ground raised
in the motion is either of the following and such
grounds appears from the pleadings or the
evidence on record:
1. Lack of jurisdiction over the subject
matter.
2. Litis pendencia
3. Res judicata
4. Barred by the statute of limitations and
prescription.
 They are also the grounds which allow courts to
dismiss cases motu propio on any of such grounds
provided the ground for dismissal is apparent
from the pleadings or the evidence on record.
The judgment or order must be on the merits.
The decision must have been rendered by a court
having jurisdiction over the subject matter and
the parties.
There must be, between the first and second
action, identity of the parties, subject matter, and
causes of action. (The application of the doctrine
does not require absolute identity of the parties
but merely substantial identity of the parties)
*There is substantial identity of parties when there is a
 Community of interest
 Or privity of interest
Between a party in the first and a party in the second case
even if the first case did not implead the latter.
*Res judicata also applies to quasi-judicial proceedings.
No res judicata in criminal proceedings
 Res judicata is a doctrine in Civil law and, thus, has
no application on criminal proceedings.
 Reinvestigation cannot be barred by double
jeopardy.
 The dismissal of a case during preliminary
investigation does not constitute double jeopardy,
preliminary investigation not being part of the
trial.
Litis pendencia: As a ground for dismissal
1. Refers to a situation where two actions are
pending between the same parties for the same
cause of action, so that one of them becomes
unnecessary, and vexatious. It is based on the
policy against multiplicity of suits and authorizes a
court to dismiss a case motu propio.
Res judicata: As ground for dismissal
 Based on two grounds
1. Public policy and necessity, which makes
it to the interest of the state and there
should be an end to litigation (republicae
ut sit litium)
2. The hardship on the individual of being
vexed twice for the same cause (nemo
debet bis vexari et eadem causa)
 Courts will simply refuse to reopen what has been
decided. They will not allow the same parties or
their privies to litigate a new question once it has
been considered and decided with finality.
Litigations must end and terminate sometime and
somewhere.
 Means “A matter adjudged, judicialy acted upon,
or settled my judgment”
 2 concepts
1. Bar by prior judgment par.b Rule 39,
Sec.47.
2. Conclusiveness of judgment par.c
Requisites of litis pendencia
1. The identity of the parties or at least such as
representing the same interest in both actions.
2. The identity of the rights asserted and relief
prayed for, the relief founded on the same facts
3. The identity of the two cases such that judgment
in one, regardless of which party is successful,
would amount to res judicata in the other.
A ground previously invoked in a denied motion to
dismiss may be invoked anew. The denial of a motion to
dismiss does not preclude any future reliance on the
grounds relied thereupon.
Remedy of defendant if the motion is denied
1. The movant shall file his answer within the
balance of the period prescribed by Rule 11 which
he was entitled at the time of serving his motion,
but not less than 5 days in any event. This period
Bar by prior judgment (Requisites)
1. The former judgment or order must be final.
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2.
3.
4.
5.
shall be computed from the receipt of the notice
of denial.
A a rule, the filing of an answer and going through
the usual trial process, and later, the filing of a
timely appeal from an adverse judgment are the
proper remedies against a denial of a motion to
dismiss.
The filing of an appeal from an order denying a
motion to dismiss is not the remedy prescribed by
existing rules. The order of denial, being
interlocutory, is not appealable by express
provision of Sec.1 (b) Rule 41.
Where the judgment or final order is not
appealable, like an interlocutory order, the
aggrieved party may file an appropriate civil
action which are certiorari, prohibition,
mandamus, whichever is proper under the
circumstances. This remedy, however, is
predicated upon an allegation that the denial of
the motion to dismiss was tainted with grave
abuse of discretion amounting to lack of
jurisdiction.
In case the remedy is mandamus, there must also
be a showing that the respondent court
unlawfully neglected the performance of an act
which the law specifically enjoins.
4.
The claim on which the action is founded is
unenforceable under the provisions of the statute
of frauds.
*Where the defendant is barred from refilling the action,
the remedy is to file an appeal.
Effect of dismissal of complaint on the counterclaim
 The dismissal of the complaint shall not prevent
the prosecution in the same or separate action of
counterclaim pleaded in the answer of the
defendant.
 The rule does not distinguish whether it is
compulsory or permissive.
Hearing of the motion to dismiss
 A motion to dismiss is a litigated motion, and
hence, should be heard.
 In the hearing, the parties shall submit their
arguments on the questions of law and their
evidence on the questions of fact involved is such
evidence is available at the time of the hearing.
 If the case goes to trial, the evidence presented
during the hearing of the motion to dismiss shall
automatically be part of the evidence of the party
presenting the same.
 Rule 16 of the Rules of Court sanctions trial-type
proceedings in the sense that the parties are
allowed to present evidence and argue their
respective positions before the court.
 When a motion is based on facts not appearing of
record, the court may hear the matter on
affidavits or depositions presented by the
respective parties, but the court may direct that
the matter be heard wholly or partly on oral
testimony or depositions.
Remedies of the plaintiff if the motion to dismiss is
granted
1. Depending on the ground of dismissal of the
action, the plaintiff may simply refile the
complaint.
2. He may appeal from the order of the dismissal
where the ground relied upon is one which bars
the refilling of the complaint like res judicata,
prescription, extinguishment of obligations etc.
Since the complaint cannot be refilled, the
dismissal is with prejudice. Where the dismissal is
with prejudice, an appeal from the order of
dismissal is not precluded.
3. Where the ground for dismissal is lack of
jurisdiction over the SM the dismissal is without
prejudice, hence no appeal can be had from the
order of dismissal.
4. Plainitff may also avail of a petition for certiorari
when the court gravely abuses its discretion in a
manner amounting to lack of jurisdiction.
Dismissal by the plaintiff
Dismissal by notice of dismissal
 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 issue an order confirming the dismissal.
 It is not the order of dismissal that the dismissal
which operates to dismiss the complaint. As the
name of order implies, said order merely confirms
a dismissal already effected by the filing of the
notice of dismissal.
 Since the order issued by the court merely
confirms the dismissal, it follows that the court
does not have to approve the dismissal because it
has no discretion on the matter.
When complaint cannot be refilled (dismissal with
prejudice)
1. The cause of action is barred by the statute of
limitations.
2. The cause of action is barred by a prior judgment.
3. The claim or demand has been paid, waived,
abandoned or otherwise extinguished.
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4.
Notice of dismissal as a matter of right- Before an
answer or a motion for summary judgment has
been served upon the plaintiff.
Dismissal without prejudice
 General Rule: A dismissal by the filing of the
notice of dismissal is a dismissal without
prejudice. The complaint can be refilled.
 Exception:
o The notice of dismissal provides that the
dismissal is with prejudice.
o The plaintiff has previously dismissed the
same case in a court of competent
jurisdiction based on or including the
same claim.
 If the plaintiff files a notice of dismissal providing
therein a reason that prevents the refilling of the
complaint, the dismissal shall be deemed one with
prejudice even if the notice does not state the
dismissal is with prejudice
The failure of the plaintiff to comply with the
Rules of Court.
The dismissal due to the fault of the plaintiff may be done
by the court on its own motion or upon a motion filed by
the defendant.
Dismissal of a class suit
 A class suit shall not be dismissed or compromised
without the approval of the court.
Pre-trial
 Is a procedural device held prior to the trial for
the court to consider the following purposes:
1. Possibility of amicable settlement or a
submission to alternative modes of
dispute resolution.
2. Simplification of issues.
3. Necessity or desirability of amendments
4. The possibility of obtaining stipulations
or admissions of facts and of documents
to avoid unnecessary proof.
5. Limitation of the number of witnesses.
6. The advisability of a preliminary
reference of issues to a commissioner,
7. The propriety of rendering judgment on
the pleadings, or summary judgment, or
of dismissing the action should a valid
ground therefor to be found to exist.
8. The advisability or necessity of
suspending the proceedings.
9. Such other matters as may aid in the
prompt disposition of the action.
 It is mandatory in civil cases.
 A preliminary conference is likewise mandatory in
both criminal and civil cases under the Rules on
Summary Procedure.
 The court disallows a change in one’s defense
after the termination of the period of testimony
and after the exhibits of both parties have already
been admitted by the court because the noninclusion of the belated defense in pre-trial barred
its consideration during the trial.
 Parties are, accordingly bound by the delimitation
in the pre-trial.
 The parties must disclose during the pre-trial all
issues they intend to raise during the trial, except
those privileged communication or impeaching
matters.
 Issues not included in the pre-trial order may be
considered only if they are impliedly included in
the issues raised or inferable from the issues
raised by necessary implication.
Two dismissal rule
 Applies when the plaintiff has twice dismissed the
actions based on or including the same claim in a
court of competent jurisdiction.
 The second notice of dismissal will bar the refilling
of the action because it will operate as an
adjudication of the claim upon the merits.
 The claim may only be filed twice.
 The second notice triggers the application of the
two dismissal rule and the dismissal is to be
deemed one with prejudice because it is
considered as an adjudication upon the merits.
Dismissal by motion to dismiss
 Once an answer or a motion for summary
judgment has been served on the plaintiff, the
dismissal is no longer a matter of right and will
require the filing of a motion to dismiss not a
mere notice of dismissal.
 The motion to dismiss will now be subject to the
approval of the court which will decide the motion
upon such terms and conditions as are just.
 The dismissal under Sec.2 of Rule 17 (dismissal
without prejudice) is no longer a matter of right
on the part of the plaintiff, but of sound judicial
discretion.
Dismissal due to fault of plaintiff grounds
1. The failure of the plaintiff, without justifiable
reason, to appear on the date of the presentation
of his evidence in chief.
2. The failure of the plaintiff to prosecute his action
for an unreasonable length of time.
3. The failure of the plaintiff to comply with any
order of the court.
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Effect of failure to conduct a pre-trial
 Rule 18 duty of the plaintiff to promptly move ex
parte that the case be set for pre-trial.
 Failure to do so is inexcusable.
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Philippine Mediation Center
 At the start of the preliminary conference, the
judge is mandated to refer the parties and/or
their counsels to the mediation unit of the PMC
for purposes of mediation.
 If mediation fails, the judge will schedule the
continuance of the preliminary conference.
 This rule applies to Metro Manila, Cebu, Davao
City and other places where the Philippine
Mediation Center Units may further be organized
and designated.
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When to file motion to set the case for pre-trial
 To be made by the plaintiff after the last pleading
has been served and filed.
 The motion is to be filed within 5 days after the
last pleading joining the issues has been served
and filed.
 If the plaintiff fails to file the motion, the branch
clerk of court shall issue a notice of pre-trial.

Last pleading
 The last permissible pleading that a party can file
is the reply to the answer to the last pleading
asserting a claim. The claim should be the original
complaint, counterclaim, cross-claim or thirdparty complaint.
 Where the last pleading has not yet been served
and filed- The case is not yet ready for pre-trial.
 However, “the last pleading” need not be liberally
construed as one having been served and filed.
For purposes of pre-trial, the expiration of the
period for filing the last, pleading without it
having been served and filed.

Mediation is a part of pre-trial and the failure of
the plaintiff to appear therein merits sanction on
the part of the absent party.
Failure of the plaintiff to appear at the pre-trial
shall be the cause of the dismissal of the action,
The dismissal shall be with prejudice except when
the court orders otherwise.
Failure of the defendant to appear in the pre-trial
shall be a cause to allow the plaintiff to present
his evidence ex parte and for the court to render
judgment on the basis of the evidence presented
by the plaintiff.
The order of the court allowing the plaintiff to
present his evidence ex parte, does not dispose
of the case with finality. The order is merely
interlocutory, hence, not appealable.
Non-appearance of a party may be excused only
if a valid cause is shown for such non-appearance
or if a representative shall appear in his behalf
fully authorized in writing to enter into any of the
following matters
o An amicable settlement
o Alternative modes of dispute resolution
o Stipulations or admissions of facts and
documents.
An incomplete authority does not satisfy the
requirements of the Rules and should be deemed
the equivalent of having no authority at all.
The written authority must be in the form of a
special power of attorney.
Pre-trial brief
 The parties shall file with the court their
respective pre-trial briefs which should be
received at least 3 days before the date of the
pre-trial.
 This pre-trial brief shall be served on the adverse
party in such a manner that will ensure his receipt
also at least 3 days before the date of the pretrial.
 It must contain the following matters:
1. A statement of their willingness to enter
into an amicable settlement or ADR,
indicating their desired terms thereof.
2. A summary of admitted facts and
proposed stipulation of facts.
3. The issues to be tried or resolved.
4. The documents or exhibits to be
presented, stating the purposes thereof.
5. A manifestation of their having availed of
or their intention to avail of the discovery
procedures or referral to commissioners.
6. The number and names of the witnesses
and the substance of their respective
testimonies.
Notice of pre-trial
 The notice of pre-trial shall be served on the
counsel of the party, if he is represented by a
counsel. Otherwise, the notice shall be served on
the party himself.
 It would be grave abuse of discretion for the court
to allow the plaintiff to present his evidence ex
parte for failure of the defendant to appear
before the pre-trial who did not receive, through
his counsel, a notice of pre-trial.
Duty of parties to appear the pre-trial
 It shall be duty of both the parties and their
counsels to appear at the pre-trial.
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Questions by the judge- During the pre-trial, the judge
shall be the one to ask questions on the issues raised by
the parties, and all questions or comments of counsel or
parties must be directed to the judge to avoid hostilities
between the parties.
The failure to file a pre-trial brief shall have the
same effect as the failure to appear at the pretrial.
A plaintiff who fails to file a pre-trial brief, such
failure shall be the cause for dismissal of the
action.
If it is the defendant who fails to do so, such
failure shall be the cause to allow the plaintiff to
present his evidence ex parte.
Pre-trial order
 This order of the court is issued upon the
termination of the pre-trial.
 It shall be issued within 10 days after the
termination of the pre-trial.
 The order recites the following in detail:
1. The matters taken up in the conference.
2. The action taken thereon.
3. The amendments allowed to the
pleadings.
4. The agreements or admissions made by
the parties as to any of the matters
considered.
 These admissions embodied in the pre-trial order
are binding upon the parties and conclusive upon
them.
 The pre-trial order
1. Defines and limits the issues to be tried.
2. Controls the subsequent course of
action, except if it is modified before trial
to prevent manifest injustice.
 A pre-trial 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.
No termination of pre-trial for failure to settle
 The judge should not allow the termination of
pre-trial simply because of the manifestation of
the parties that they cannot settle the case.
 Instead, he should expose the parties to the
advantages of pre-trial.
 If all efforts to settle fail, the trial judge shall
endeavour to achieve the other purposes of pretrial like, among others, obtaining admissions or
stipulations of fact. He may also require the
production of documents or things requested by a
party under Rule 27 and the results of physical
and mental examination of persons under Rule
28.
Identification and marking of evidence
 No evidence shall be allowed to be presented and
offered during the trial in support of a party’s
evidence-in-chief than those that had been earlier
identified and pre-marked during the pre-trial.
Legal effect of representations and statements in the pretrial brief
 The parties are bound by the representations and
statements in their respective pre-trial briefs.
 Such representations and statements are in the
nature of a judicial admission in accordance with
Rule 129 Sec.4.
Pre-trial in a civil case vs Pre-trial in a criminal case
Civil Cases
1. It is set when the plaintiff moves ex parte to set
the case for pre-trial.
2. The motion to set the case for pre-trial in a civil
case is made after the last pleading has been
served and filed.
3. Considers the possibility of an amicable
settlement as an important objective.
4. The agreements and admissions made in pre-trial
are not required to be signed by both parties and
theirs counsels. However, AM No. 03-1-09-SC July
13,2004, now requires the proceedings during the
preliminary conference and signed by both parties
and or counsel.
5. The sanctions for non-appearance in a pre-trial
are imposed upon the plaintiff and the defendant.
6. A pre-trial brief is specifically required to be
submitted in a civil case.
One day examination of witness rule
 Adherence to this rule shall be required where the
witness shall be fully examined in one day only,
subject to the court’s discretion during the trial on
whether or not to extend the examination for
justifiable reasons.
Most important witness rule
 Where no settlement has been effected, the court
shall follow this rule, where the court shall
determine the most important witnesses, limit the
number of such witnesses and require the parties
and/or counsels to submit to the branch clerk of
court the names, addresses, and contact numbers
of witnesses to be summoned by subpoena.
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Criminal Cases
1. It is ordered by the court and no motion to set the
case for pre-trial is required from either the
prosecution or defense.
2. The 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.
3. Does not include considering the possibility of
amicable settlement of criminal liability.
4. There is a stricter procedure required, all
agreements or admissions made or entered
during the pre-trial conference shall be reduced in
writing and signed by both the accused and
counsel. Otherwise, they cannot be used against
the accused.
5. The sanctions in a criminal case are imposed upon
the counsel for the accused or the prosecutor.
6. A pre-trial brief is not specifically required in a
criminal case.
Modes of discovery
 In general, is a device employed by a party to
obtain information about relevant matters on the
case from the adverse party in preparation for the
trial.
 As contemplated by the rules, the device may be
used by all parties to the case.
 Purpose is to permit mutual knowledge before
trial of all relevant facts gathered by both parties
so that neither party may compel the other to
disgorge facts whatever he has in his possession.
 It is an additional device aside from a pre-trial.
 Duty of the court, aside from preparing the
summons within 1 day from the receipt of the
complaint, the court is required to issue an order
requiring the parties to avail of interrogatories to
parties under Rule 25 and request for admission
by adverse party under Rule 26, or, at their
discretion, make use of depositions under Rule 23,
or other measures under Rule 27 and 28 within 5
days from the filing of the answer. A copy of this
order shall be served upon the defendant
together with the summons. A copy of the order
shall also be served upon the plaintiff.
Preliminary conference under the 1991 Revised Rules on
Summary Procedure
 A preliminary conference shall be held not later
than 30 days after the last answer is filed.
 The rules on pre-trial in ordinary cases shall apply
except when inconsistent with the rules on
summary procedure.
 Preliminary conference is mandatory.
 The failure of the plaintiff to appear in the
preliminary conference shall be the cause for
dismissal of his complaint, and the defendant who
appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim. All
cross-claims shall be dismissed.
 If a sole defendant fails to appear, the plaintiff
shall be entitled to judgment. This rule is
inapplicable to several defendants, who are sued
under a common cause of action and pleaded a
common defense, shall appear at the preliminary
conference.
 Within 5 days from the termination of the
preliminary conference, the court shall issue an
order stating the matters taken up in the
conference.
Modes of discovery under the Rules of Court
1. Depositions pending action. 23
2. Depositions before action or pending appeal.24
3. Interrogatories to parties. 25
4. Admission by adverse party. 26
5. Production or inspection of documents or things.
27
6. Physical and mental examination of persons. 28
Depositions
 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.
 2 methods of taking depositions
1. Oral examination
2. Written interrogatory
 May be sought for a pending action (de benne
esse), future action, or for use in a pending appeal
(in perpetuam rei memoriam)
Preliminary conference in the Court of Appeals and
Supreme Court
 A preliminary conference may be conducted in
the Court of Appeals, but the same is not
mandatory.
 Rule 48, is also made applicable to the Supreme
Court by the Rules in original cases for certiorari,
prohibition, mandamus, quo warranto and habeas
corpus.
Deposition pending action
 Leave of court is not required after an answer has
been served.
 Leave of court is required before the service of an
answer but after jurisdiction has been acquired
over any defendant or over the property subject
of the action.
 Ex abundanti cautela- out of abundant caution or
to be on the same side.
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Deposition of a prisoner- May only be taken with
leave of court and upon such terms as the court
may prescribe.
Within the Philippines, a deposition need not be
taken before a judge, although it may be taken
before one.
It may also be taken before a notary public or
before any person authorized to administer oaths
if the parties stipulate in writing.
Outside the Philippines, a deposition may be
taken before;
1. A secretary of an embassy or legation,
consul, consul-general, vice-consul, or
consular agent of the Republic of the
Philippines.
2. Such person or officer as may be
appointed by the commissions or letters
rogatory.
3. A person authorized to administer oaths
by written stipulation of the parties.
No deposition shall be taken before a person
who is a:
1. Relative within the 6th degree of
consanguinity or affinity of the parties
2. Employee or counsel of the parties
3. One financially interested in the action.

interposed during the course of the deposition
although any objections shall be noted by the
officer upon the deposition.
Any evidence that is objected to shall be taken but
subject to the objection.
Uses of depositions pending actions
1. Against any party who was present or represented
at the taking of the deposition.
2. Against one who had due notice of the deposition.
3. The deposition or any of its parts, may be used at
trial or upon the hearing of a motion or an
interlocutory order.
Purposes of deposition
1. For contradicting or impeaching the testimony of
the deponent as a witness.
2. For any purpose by the adverse party where the
deponent is a party or, at the time of taking the
deposition was an officer, director, or managing
agent of a public or private corporation,
partnership, or association.
3. For any purpose by a party, where the deponent is
a witness whether or not a party, if the court finds
that:
a. The witness is dead
b. That the witness resides more than 100
km 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.
c. That the witness is unable to attend or
testify because of age, sickness, infirmity,
or imprisonment.
d. That the party offering the deposition
has been unable to procure the
attendance of witnesses by subpoena.
e. Or when exceptional circumstances exist,
upon application and notice.
Examination of the deponent
 A party desiring to take the deposition of any
person upon oral examination shall give
reasonable notice in writing to every party to the
action stating the time and place for the taking of
the deposition and the name and address of each
person to be examined.
 After notice is served, the court may make any
order for the protection of the parties and the
deponents.
 The attendance of witnesses may be compelled by
the use of a subpoena.
 The deponent or witness may be examined or
cross-examined following the procedures for
witnesses in a trial. He may be asked questions on
direct, cross, re-direct, or re-cross.
 He has the same rights as a witness and may be
impeached like a court witness.
 Unless otherwise ordered by the court, the
deponent may be examined regarding any matter
not privileged, which is relevant to the pending
action, whether relating to the claim or defense of
any 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.
 The officer before whom the deposition is taken
has no authority to rule on the objections
Effect of substitution of parties
 The substitution of parties do not affect the right
to use the depositions previously taken.
 The same rule also provides that when an action
has been dismissed and another action involving
the same subject and between the parties, or
their representatives or successors in interest, is
afterwards brought, all the depositions lawfully
taken and duly filed in the former action may be
used in the latter as if originally take. (Sec.5 Rule
23)
Effect of taking of deposition of a person
 A person whose deposition is taken by a party
does not, by reason of such deposition, make such
person the witness of the said party.
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A party shall not be deemed to make a person his
own witness for any purpose by taking his
deposition.
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Effect of using the deposition of a person
 The introduction of the deposition, or any part
thereof, makes the deponent the witness of the
party introducing the deposition if used for a
purpose other than that of contradicting or
impeaching the deponent.
 This however, does not make this rule applicable
to the use by an adverse party of a deposition
mentioned in paragraph (b) of Sec.4 Rule 23
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Oral deposition
 A party desiring to take the deposition of any
person upon oral examination shall give to every
party to the action a reasonable notice in writing.
 Such notice is required to contain the following:
1. The time and place for taking the
deposition.
2. The name and address of each person to
be examined, if known, if not known,
there must be a general description
sufficient to identify him or the particular
class or group to which he belongs.
 Guidelines for oral depositions Sec.17 Rule 23
1. The officer whom the deposition is taken
shall put the witness on oath.
2. The testimony of the witness or
deponent must be recorded and be taken
stenographically, unlesws the parties
agree otherwise.
3. All objections made at the time of the
examination shall be noted.
4. Evidence objected to shall be taken but
subject to the objections.
 In lieu of participating in the oral examination,
parties served with notice of taking a deposition
may transmit written interrogatories to the
officers, who shall propound them to the witness
and record of answers verbatim.
 When the testimony is fully transcribed, the
deposition shall be submitted to the witness for
examination and read to or by him, unless such
examination is waived by the witness and the
parties. The witness may desire some changes in
the form and substance, in which case such
changes shall be entered upon the deposition by
the officer with a statement of the reasons of the
witness for making such changes.
 The deposition shall be signed by the witness,
unless the signing is waived by the parties by
stipulation or , the deposition cannot be signed
because the witness is ill, cannot be found or
refuses to sign.
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If the deposition is not signed by the witness, the
officer shall sign it and state on the record the
attendant facts, together with the reason given,
for the non-signing of the deposition.
The deposition may be used as fully as though it
was signed, unless on motion to suppress holds
that the reasons given for the refusal to sign
require rejecting the deposition in whole or in
part.
The officer is required to certify on the deposition
that the witness was duly sworn to by him and
that the deposition is a true record of the
testimony given by the witness.
He shall securely seal the deposition in an
envelope indorsed with the title of the action.
He shall, likewise, promptly file it with the court in
which the action is pending r send it by registered
mail to the clerk of court thereof for filing.
All parties shall promptly be notified of its filing by
the officer taking the deposition and upon
payment of reasonable charges, the officer shall
furnish a copy of the deposition to any party or to
the deponent.
Deposition upon written interrogatories
 A deposition need not be conducted through an
oral examination. It may be conducted through
written interrogatories.
 A party desiring to take the deposition of any
person upon written interrogatories shall serve
the interrogatories upon every other party with a
notice stating the name and address of a person
who is to answer them, the name and descriptive
title and address of the officer before whom the
deposition is to be taken.
 A party served with the interrogatories may also
serve cross-interrogatories upon the party
proposing to take the deposition within 10 days
from service of the written interrogatories.
 The latter may, within 5 days after being served
with re-direct interrogatories. Within 3 days after
being served with re-direct interrogatories, a
party may serve re-cross interrogatories upon the
party proposing to take the deposition.
 A copy of the notice and copies of all
interrogatories served, shall be delivered by the
party taking the deposition to the officer
designated in the notice.
 He shall proceed to promptly take the testimony
of the witness in response to the interrogatories
and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the
notice and the interrogatories received by him.
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Depositions before action
 This type of deposition is availed of when a person
desires to perpetuate his own testimony or that of
another person regarding any matter that may be
cognizable in any court of the Philippines.
 The perpetuation of a testimony is done by filing a
verified petition in the place of the residence of
any expected adverse party.
 The deposition taken under this rule is admissible
in evidence in any action subsequently brought
involving the same subject matter.
under Rules 27b and 29 within 5 days from filing
of the answer.
Interrogatories to parties, written interrogatories vs bill
of particulars
Bill of particulars- Is directed to a pleading and is designed
to seek for a more definite statement or for particulars of
any matter not averred with sufficient definiteness in a
pleading.
Interrogatories to parties- Are not directed against a
particular pleading. Instead, they seek the disclosure of all
material and relevant facts from a party.
Depositions pending appeal
 If an appeal has been taken from a judgment of a
court, including the Court of appeals in proper
cases, or before taking an appeal if the time
therefor has not expired, the court in which the
judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their
testimony for use in the event of further
proceedings in said court.
 The party who desires to perpetuate the
testimony may make a motion in said court for
leave to take the depositions. The notice and
service shall be made in the same manner as if the
action is pending.
 The motion shall state the:
1. Names and addresses of the persons to
be examined.
2. Substance of the testimony he expects to
elicit from each of the persons to be
examined.
3. The reason for perpetuating such
testimony.
 The court shall allow the depositions if it finds
that the perpetuation of the testimony is proper
to avoid a failure or delay of justice.
 The depositions may be taken and used in the
same manner and under the same conditions
prescribed for depositions pending actions.
Written interrogatories- Are not served upon the adverse
party directly. They are instead delivered to the officer
designated in the notice. The service of written
interrogatories is a mode of deposition separate and
distinct from interrogatories to parties.
Procedure
1. The mode of discovery is availed of by filing and
serving upon the adverse party written
interrogatories to be answered by the party
served. If the party is a juridical entity, the written
interrogatories shall be answered by any of its
officers competent to testify in its behalf.
2. No party may, without leave of court, serve more
than one set of interrogatories to be answered by
the same party.
3. The interrogatories shall be answered fully in
writing, signed, and sworn to by the person
making them. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party
submitting the interrogatories within 15 days
after service thereof. This period may, upon the
motion and for good cause shown, be extended or
shortened by the court.
4. The party against whom it is directed may make
objections to the interrogatories. If he does so,
said objections shall be presented to the court
within 10 days after service of the interrogatories.
The filing of the objections shall have the effect of
deferring the filing and service of answer to the
interrogatories until the objections are resolved.
Interrogatories to parties Rule 25
 This mode of discovery is availed of by a party to
the action for the purpose of eliciting material and
relevant facts from any adverse party.
 The rules considers this mode of discover as
important because within 1 day from the receipt
of the complaint, the rule mandates not only the
preparation of the summons but also the issuance
of an order requiring the parties to avail of the
interrogatories to parties under Rule 25 and
request for admission by adverse party under Rule
26.
 The parties, however, may use, at their discretion,
depositions under Rule 23 or other measures
Effect of failure to serve written interrogatories
 A party not served with written interrogatories
may not be compelled by the adverse party to
give testimony in open court, or give deposition
pending appeal, unless allowed by the court for
good shown and to prevent a failure of justice.
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Purpose of admission by adverse party
 The purpose of this mode of discovery is to allow
one party to request the adverse party, in writing,
to admit certain material and relevant matters
which, most likely, 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:
1. Admit genuineness of any material and
relevant document described in and
exhibited with the request, or.
2. Admit the truth of any material and
relevant matter of fact set forth in
request.
 A party may file and serve the written request at
any time after the issues have been joined.
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deferment may be effected by the filing with the
court objections to the request for admission.
Compliance shall be deferred until such objections
are resolved by the court.
Admissions made under this mode of discovery,
whether express or implied, are not final and
irrevocable.
The court may allow the party making the
admission to withdraw or amend the admission
upon such terms as may be just.
To effect the withdrawal, the admitting party
should file a motion to be relieved of the effects
of his admission.
Production or inspection of documents
 Purpose is to allow a party to seek an order from
the court in which the action is pending to:
1. Order any party to produce and permit
the inspection and copying or
photographing, by or on behalf of the
moving party, of any designated
documents, papers, books, accounts,
letters, photographs, objects, or tangible
things no privileged, which constitute or
contain evidence material to any matter
involved in the action and which are in
his possession, custody or control.
2. Order any party to permit entry upon
designated land or other property in his
possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
designated relevant object or operation
thereon.
 This mode of discovery is not only for the benefit
of a party, but also for the court and for it to
discover all the relevant and material facts in
connection with the case before it.
 The scope of this discovery under this mode is to
be liberally construed so as to provide the
litigants with information essential to the fair and
amicable settlement or expeditious trial of the
case.
 The grant of the motion for production of
document is admittedly discretionary on the part
of the trial court judge, nevertheless, it cannot be
arbitrarily or unreasonably denied because to do
so would bar access to relevant evidence that may
be used by a party-litigant and hence, impair his
fundamental right to due process.
 Test in determining the relevancy of documents
is one of reasonableness and practicability.
 Limitation of this discovery procedure: The
documents to be disclosed and produced should
not be privileged.
Effect of not filing a written request for admission
 As a consequence of the failure to avail of this
mode of discovery, the party shall not be
permitted to present evidence on facts that are
material and relevant and which are, or ought to
be, within the personal knowledge of the other
party, unless otherwise allowed by court for good
cause shown and to prevent a failure of justice.
Effect of failure to file and serve a sworn statement of
denial
 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:
o Specifically denying the matters of which
admission is requested.
o 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 less than 15 days from the service
of such request, or within such further time as the
court may allow.
Effect of admission
 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
purposes.
 Likewise, the admission cannot be used against
the admitting party in any other proceedings.
 To avoid the implied admission, the party
requested may have the compliance of the filing
and service of the sworn statement deferred. This
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Filing of a motion
 A motion must be filed by the party seeking the
production or inspection of documents and
things, and the motion must show good cause
supporting the same.
 The order shall specify the time, place, and
manner of making the inspection and taking
copies and photographs and may prescribe such
terms and conditions as are just.
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thereafter made, of the same mental, or physical
condition.
If the party examined refuses to deliver the
report, the court may make an order requiring the
delivery on such terms as are just.
If it is the physician who fails or refuses to make a
report, the court may exclude his testimony if
offered at the trial.
Waiver of privilege
 By requesting and obtaining a report of the
examination or by taking the deposition of the
examiner, the party examined waives any
privilege he 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 in
respect of the same mental or physical
examination.
Privileged documents (Sec.24 Rule 130)
1. Communication between husband and wife.
2. Communication between attorney and client.
3. Communication between physician and patient.
4. Communication between priest and penitent.
5. Communication of public officers involving public
interest.
Those privileged documents/communication not included
in the Rules:
6. Editors may not be compelled to disclose the
source of published news
7. Voters may not be compelled to disclose for
whom they voted.
8. Trade secrets
9. Information contained in tax census returns
10. Bank deposits.
Refusal to comply with the Modes of Discovery Rule 29
Refusal to answer any question upon oral examination
 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.
 If the application is granted, the court shall order
the deponent or refusing party to answer the
question or interrogatory.
 If the refusal is unjustified, the court may require
the refusing party or deponent or the counsel
advising the refusal or both of them to pay the
proponent the amount of the reasonable
expenses incurred in obtaining the order
including attorney’s fees.
 Also a refusal to answer after being directed by
the proper court may be considered a contempt
of that court.
 The court may order that the matters, regarding
which the questions were asked, shall be taken as
established for the purposes of the action in
accordance with the claim of the party obtaining
them.
 The court may issue an order refusing to allow
the disobedient party to support or oppose
designated claims or defenses or prohibiting him
from introducing in evidence of physical or
mental condition.
 The court may issue an order striking out
pleadings or parts thereof, or staying further
proceedings until the order is obeyed or
Physical and Mental Examination of Persons Rule 28
 This mode of discovery applies to an action in
which the mental or physical condition of a party
is in controversy.
1. An action for annulment of a contract
where the ground relied is insanity.
2. A petition for guardianship of a person
alleged to be insane.
3. An action to recover damages for
personal injury where the issue is the
extent of the injuries of the plaintiff.
 A motion must show good cause for the
examination, with notice to the other parties
aside from the party to be examined.
 The motion shall likewise, specify the time, place,
manner, conditions, and scope of the examination
and the person or persons by whom it is to be
made.
 The motion is to be filed with the court where the
action is pending.
 The party examined may request the party
causing the examination to be made to deliver to
him a copy of a detailed written report of the
examining physician setting out his finding and
conclusions.
 After such request and delivery, the party causing
the examination to be made shall be entitled
upon request to receive from the party examined
a like report of any examination previously or
68
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Trial
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dismissing the action or proceeding or any part
thereof, or rendering a judgment by default
against the disobedient party
The court may direct the arrest of any party or
agent of a party for disobeying any of the orders
of the court, except an order to submit to a
physical or mental examination.
Refusal of a party to be sworn after being directed
by the court may be considered a contempt of
that court.
If a party refuses to admit the genuineness of any
document or the truth of such matter of fact, the
court, upon proper application, may order the
former to pay the reasonable expenses in making
such proof including attorney’s fees.
Failure to attend depositions or to serve answers
to interrogatories consequences
o The court may strike out all or any part of
the pleading of that party
o Dismiss the action or proceeding or any
part thereof.
o Enter a judgment by default against that
party.
o In its discretion, order him to pay
reasonable expenses incurred by the
other including attorney’s fees.
The consequences will apply if a party refuses to
answer the whole set of written interrogatories
and not just a particular question. Where the
party upon whom written interrogatories is
served, refuses to answer a particular question in
the set of written interrogatories and despite an
order compelling him to answer the particular
question, still refuses to obey the order, Rule 29
will apply.
When trial is unnecessary
a. When the pleadings of the parties tender no issue
at all, a judgment of the pleadings may be
directed by the court.
b. Where from the pleadings affidavits, depositions,
and other papers, there is actually no genuine
issue, the court may render a summary judgment.
c. Where the parties have entered into a
compromise or an amicable settlement either
during the pre-trial or while the trial is in progress.
d. Where the complaint has been dismissed with
prejudice or when the dismissal has the effect of
an adjudication on the merits.
e. Where the case falls under the operation of the
Rules on Summary Procedure.
f. Where the parties 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 however,
there is no agreement as to all the facts in the
case, trial may be held only as to the disputed
facts.
Notice of trial
 Upon entry of the case in the trial calendar, the
clerk of court shall notify the parties of the date of
trial in such manner as to ensure the receipt of
the notice at least 5 days before such date.
Calendaring of cases
 The clerk of court shall give preference to habeas
corpus cases, election cases, special civil actions,
and those required by law to be preferred.
Session hours
 The session hours of trial courts shall be from 8:30
am to 12:00 pm and from 2:00 pm to 4:30 pm
from Monday to Friday.
 The hours in the morning shall be devoted to the
conduct of the trial.
 The hours in the afternoon shall be utilized for
the conduct of:
a. Pre-trial conferences
b. Writing of decisions, resolutions, or
orders.
c. Continuation of the trial on the merits
whenever rendered necessary as may be
required by the Rules of Court, statute,
circulars in specified cases.
 This schedule may be modified upon request of
the Integrated Bar of the Philippines in multi-sala
courts in places where there are few practicing
lawyers.
 Unless the docket of the court requires otherwise,
not more than 4 cases shall be scheduled for trial
daily.
Is the judicial examination and determination of
the issues between the parties to the action.
Is a judicial process of investigating and
determining the legal controversies between or
among the parties.
During the trial, the parties present their
respective evidence of their claims and defenses.
Such claims or defenses shall constitute the bases
for the judgment of the court.
Trial terminates when the judgment begins.
Trial vs hearing
Hearing is a broader term. It is not confined to the trial and
presentation of the evidence because it actually embrace
several stages in the litigation. It includes pre-trial, and the
determination of granting or denying a motion.
69
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.
need not be conducted because presentation of
evidence would no longer be necessary.
Order of trial Sec.5 Rule 30
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, crossclaim, and fourth-party complaint.
4. The fourth-party complaint and so forth, if any
shall adduce evidence of the material facts
pleaded by them.
5. The parties against whom any counterclaim or
cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order
to be prescribed by the court.
6. The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons, and in the furtherance of justice,
permits them to adduce evidence upon their
original case.
7. Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or submit their
respective memoranda or any other pleadings.
8. 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.
 Unless the court for special reasons otherwise
directs, the trial shall be limited to the issues
stated in the pre-trial order.
 The above order of trial is only the general rule.
The order of trial is subject to the
o Provisions of Sec.2 of Rule 31
o Unless, for special reasons, the court
otherwise directs.
 The normal order of trial may be modified if the
court, in furtherance of convenience and to avoid
prejudice, orders a separate trial of any separate
issue or of any number of claims, cross-claims,
counterclaims, third-party complaints, or issues.
Exceptions (Limitation on the authority to adjourn):
 The court has no power to adjourn a trial for
a period longer than one month for each
adjournment, nor more than 3 months in all,
except when authorized in writing by the
Court Administrator.
 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.
 A party asking for postponement has no
absolute right to expect that his motion
would be granted.
 A grant or denial of motion for postponement
is addressed to the sound discretion of the
court. Such discretion must be exercised
intelligently.
Postponement on the ground of illness requirements:
a. A motion for postponement must be filed.
b. The motion must be supported by an affidavit or
sworn certification showing that:
a. The presence of the party or counsel at
the trial is indispensable.
b. That the character of his illness is such as
to render his non-existence excusable.
 If the adverse party admits the facts to be given in
evidence, the trial shall not be postponed even if
he reserves the right to object to the admissibility
of the evidence.
Reception of evidence
 The judge of the court where the case is pending
shall personally receive the evidence to be
adduced by the parties.
 It may be delegated to the clerk of court who is a
member of the bar, in any of the following cases:
o Default hearings
o Ex parte hearings
o In any case by written agreement of the
parties.
Reopening the case of a party for the purpose of
introducing further evidence.
o The parties may be permitted by the court to
adduce evidence on their original case even after
the presentation of their original evidence
provided:
1. There are good reasons.
2. Such reasons are in the furtherance of
justice.
Agreed statement of facts
 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, but if
the parties agree only on some facts in the issue,
the trial shall be held as to the disputed facts in
such order as the court may prescribe.
 If the parties have agreed to submit the case for
judgment based on the facts agreed upon, a trial
70
o
o
o
o
o
The basis for a motion to reopen a party’s case to
introduce further evidence is Sec. 5 (f) Rule 30.
Under this rule, a party who has the burden of
proof must introduce, at the first instance, all the
evidence he relies upon and such evidence
cannot be given piecemeal.
The obvious rationale of the requirement is to
avoid injurious surprises to the other party and
the consequent delay in the admission of justice.
A party’s declaration of the completion of the
presentation of his evidence prevents him from
introducing further evidence, but where the
evidence is rebuttal in character, whose
necessity, for instance, arose from the shifting of
the burden of evidence from one party to the
other, or where the evidence sought to be
presented is in the nature of newly discovered
evidence, the party’s right to introduce further
evidence must be recognized. Otherwise, the
aggrieved party may avail of the remedy of
certiorari.
Generally, additional evidence is allowed when it
is newly discovered, or where it has been omitted
through inadvertence, or mistake or where the
purpose of the evidence is to correct evidence
previously offered.
2.
3.
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 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.
Demurrer to evidence
o The regular order of trial requires the plaintiff to
adduce evidence in support of his complaint.
During the trial, he presents all the evidences
available to him- object, documentary, and
testimonial.
o Instead of presenting his evidence, the defendant
may move for the dismissal of the case on the
ground that, upon the facts and law, the plaintiff
has shown no right to relief.
Consolidation or severance
Consolidation
o 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.
o The actions to be consolidated must involve a
common question of law or fact. (Sec.1 Rule 31)
o Consolidation or severance is not mandatory and
is within the sound discretion of the court.
o He court may also order a separate trial of any
claim, cross-claim, or third-party complaint, or
issues. The court may do so in furtherance of
convenience or to avoid prejudice.
o The purpose of this is:
1. to avoid multiplicity of suits,
2. guard against oppression and abuse,
3. prevent delays,
4. clear congested dockets
5. and simplify the work of the trial court.
o Kinds of consolidation
1. Quasi consolidation- Where all, except
one of the several of actions are stayed
until one is tried, in which case the
judgment in the one trial is conclusive as
to the others.
Motion to dismiss vs demurrer to evidence
Motion to dismiss
 A motion to dismiss under Rule 16 is made before
the filing of the answer.
 There are several grounds for a motion to dismiss.
 If a motion to dismiss is denied, the defendant
may file his responsive pleading.
 If a motion to dismiss under Rule 16 is granted,
the complaint may be refilled, depending on the
ground for dismissal.
Demurrer to evidence
 Is made after the plaintiff rests his case, after the
completion of the presentation of his evidence.
 Only one ground under Rule 33- The plaintiff has
shown no right to relief.
 The defendant may present his evidence.
 The complaint may not be refilled and the remedy
of the plaintiff is to appeal from the order of
dismissal.
Stage of the proceedings when demurrer to evidence is
availed of
 A demurrer to evidence is availed of by the
defendant after the plaintiff has completed the
presentation of his evidence.
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Ground for a demurrer to evidence
 The defendant may move for dismissal on the
ground that upon the facts and law, the plaintiff
has shown no right to relief.
3.
4.
Effect of denial of the demurrer to evidence
 The defendant shall have the right to present his
evidence.
 When the court denies 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.
 An order denying a demurrer to evidence is
interlocutory and is, therefore not appealable. It
can, however, be subject of a petition for
certiorari in case of grave abuse of discretion.
 The provision of the Rules of Court governing
demurrer to evidence does not apply to an
election case.
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 court may, on its own motion, make a
demurrer.
Judgment
 A judgment is the final ruling by a court of
competent jurisdiction regarding the rights or
other matters submitted to it in an action or
proceeding.
 It is the court’s official and final consideration and
determination of the respective rights and
obligations of the parties.
Requisites of a valid judgment
1. The court of tribunal must be clothed with
authority to hear and determine the matter
before it.
2. The court must have jurisdiction over the parties
and the subject matter.
3. Parties must have been given an opportunity to
adduce evidence in their behalf.
4. The evidence must have been considered by the
tribunal in deciding the case.
5. The judgment must be in writing, personally and
directly prepared by the judge.
6. The judgment must state clearly the facts and the
law on which it is based, signed by the judge and
filed with the clerk of court.
Effect of granting the demurrer to evidence
 The case shall be dismissed.
 However, if on appeal, the order granting the
motion is reversed, the defendant loses his right
to present evidence.
 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.
 Caution, however, must be exercised by the party
seeking the dismissal of a case upon this ground
as, under the rules, if the movant’s plea for
dismissal on the demurrer to evidence is granted
and the order of dismissal is reversed on appeal,
he loses his right to adduce evidence.
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Demurrer in a civil case vs Demurrer in a criminal case
Civil Cases
1. Leave of court is not required before filing a
demurrer.
2. If the demurrer is granted, the order of dismissal
is appealable.
3. If the demurrer is denied, the defendant may
proceed to present his evidence.
4. The court cannot, on its own make a demurrer.
A decision need not be a complete recital of the
evidence presented. So long as the factual and
legal basis is distinctly and clearly set forth, the
judgment is valid.
A decision with nothing to support it, is a patent
nullity and should be struck down and set aside as
void.
A void judgment has no legal and binding effect,
force, or efficacy for any purpose. In
contemplation of law, it is non-existent.
Orders granting or denying a motion to dismiss
 It is required that resolutions disposing of a
motion to dismiss shall state clearly and distinctly
the reasons therefore.
 The orders must clearly state the facts and the law
upon which they are based.
Denial of a petition for review or of a motion for
reconsideration
 The constitution of the Philippines requires that,
the refusal to give due course to, or the denial of a
petition for review or a motion for
reconsideration, must state the legal basis.
Criminal Cases
1. A demurrer is filed with or without leave of court.
2. The order of dismissal is not appealable because
of the constitutional policy against double
jeopardy.
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The dispositive portion and the body of the decision
 Two parts of a judgment
o Body of the judgment (ratio decidendi)
o Dispositive portion of the judgment
(fallo)
 Ratio decidendi (Body of the judgment)- Is not
the part of the judgment that is subject to
execution.
 Fallo (dispositive portion)- One that is subject to
execution because it is which constitutes the
judgment of the court.
 The disposition should state whether the
complaint or petition is granted or denied.
 It is the dispositive part of the judgment that
actually settles and declares the rights and
obligations of the parties, finally, definitely, and
authoritatively, notwithstanding, the existence of
inconsistent statements in the body that may tend
to confuse.
 General rule: Where there is a conflict between
the dispositive portion or fallo of the decision and
the body of the decision, the fallo controls. This
rule rests on the theory that the fallo is the final
order while the opinion in the body is merely a
statement ordering nothing.
 Exception: Where the inevitable conclusion from
the body of the decision is so clear that there was
a mistake in the dispositive portion, the body of
the decision will prevail.
together with all its findings of fact and legal
conclusions are deemed sustained.
Interlocutory orders
 Interlocutory- Refers to something intervening
between the commencement and end of the suit
which decides some point or matter but is not a
final decision of the whole controversy.
 They are those that determine incidental matters
that do not touch on the merits of the case or put
an end to the proceedings.
 Examples:
o Order denying a motion to dismiss.
o Order granting extension of time to file a
pleading.
o One authorizing an amendment.
o Granting or denying applications for
postponement
or
inspection
of
documents.
 They are not decisions or judgments within the
constitutional definition.
 The proper remedy to question an improvident
interlocutory order is a petition for certiorari
under Rule 65.
 One cannot appeal from an interlocutory order.
Permitting appeals on such an order may result in
multiplicity of appeals in a single action, thus,
prolonging the action.
Memorandum decisions
 Is one rendered by an appellate court and
incorporates by reference the findings of fact and
conclusions of law contained in the decision or
order under review.
 The reason for allowing the findings of facts and
conclusions of law to be incorporated by
reference is to avoid the cumbersome
reproduction and repetition of the decision of the
lower court in the decision of the higher court.
 To be valid, however, such decision must not
simply incorporate the findings of fact and the
conclusions of law of the lower court by
reference. It must also provide direct access to
the facts and the law being adopted, which must
be contained in a statement attached to the
decision made an indispensable part of the
decision.
 These are authorized by BP 129 and Rule 51 of
the Rules of Court. Both provide; “Every decision
or final resolution of a court in appealed cases
shall clearly and distinctly state the findings of
facts and the conclusions of law on which it is
based, which may be contained in the decision or
final resolution itself, or adopted by reference
from those set forth in the decision, order, or
resolution appealed from”.
Clarificatory judgment
 Where the judgment is difficult to execute
because of the ambiguity in its terms, it is
suggested that the remedy to avail of is to have
the court, which rendered the judgment, remove
the ambiguity by filing of a motion for a
clarificatory judgment and not to assail the
judgment as void.
Resolutions of the Supreme Court
 Resolutions of the SC denying petitions to review
decisions of the CA, are not “decisions” within the
purview of the constitution.
 Accordingly, a petition to review the decision of
the CA is not a matter of right, but of sound
judicial discretion. And so, there is no need to fully
explan the court’s denial.
Minute resolutions
 Are likewise not decisions falling within the
constitutional requirement.
 When a minute resolution is issued by the
Supreme Court denying or dismissing a petition or
a mtion for reconsideration for lack of merit, it is
understood that the challenged decision or order,
73
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Extension of period to render a decision
 May be set by the Supreme Court within which to
decide a case upon request by the judge
concerned on the account of heavy caseload or by
other reasonable excuse.
 Without an extension granted by the court, a
delay in the disposition of cases is tantamount to
gross inefficiency on the part of the judge.
Although a memorandum decision is permitted
under certain conditions, it cannot merely refer to
the conclusions of law of the lower court. The
appellate court must make full findings of fact and
conclusions of law on its own.
As long as a memorandum decision states the
nature of the case, summarizes the facts with
references to the record, and contains a
statement of the applicable laws and
jurisprudence and the tribunal’s assessment and
conclusions on the case, the constitutional
requirement of a valid judgment will not be
transgressed.
Judgment penned by a judge who did not hear the
evidence
 It is not necessary that the judge who heard the
evidence be the same judge who shall pen the
decision.
 The judge trying the case may die, resign, be
disabled, or transferred to another court.
 In such an eventuality, another judge has to
continue and finish trial.
 The succeeding judge can examine and evaluate
the evidence already presented by the simple
expedient of going over the transcripts of the
testimony of the witnesses in the same manner as
the appellate courts review the evidence on
record.
Rendition of 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.
 Even if the judgment has already been put in
writing and signed, it is still subject to amendment
if it has not yet been filed with the clerk of court.
Period within which to render a decision
 Supreme Court- All cases filed must be decided or
resolved by the Supreme Court within 24 months
from the date of their submission for decision.
 Lower collegiate courts- unless reduced by the
Supreme Court within 12 months.
 Lower courts- 3 months.
 A case is deemed submitted for resolution upon
the filing of the last pleading, brief, memorandum
required by the rules or by the court.
 The ninety-day period for deciding the case
commences from the submission of the case for
decision without memoranda. In case the court
requires or allows its filing, the case shall be
considered submitted for decision upon the filing
of the last memorandum, or the expiration of the
period to do so, whichever is earlier.
 In cases where the court allows the filing of
memoranda, no further orders announcing the
submission of the case for decision is necessary
before they are deemed submitted for decision.
 As a general principle, rules prescribing the time
within which certain acts must be done or certain
proceedings taken, are considered absolutely
indispensable to the prevention of needless
delays and to orderly and speedy discharge of
official business. By their nature, these rules are
regarded as mandatory.
 The speedy disposition of cases by judges is, in
fact, unequivocally directed by Canon 6 of the
Code of Judicial Ethics; “He should be prompt in
disposing of all matters submitted to him,
remembering that justice delayed is often justice
denied.”
Judgment penned by a judge who had ceased to be a
judge
 A decision penned by a judge after his retirement
cannot be validly promulgated and cannot acquire
a binding effect.
 In a like manner, a decision penned by a judge
during his incumbency cannot be validly
promulgated after his retirement.
 When a judge retires, all his authority to decide
any case also “retired” with him.
 Presumption of regularity- The presumption that
the RTC judge, in resolving the case and drafting
his decision, reviewed, evaluated, and weighed all
the evidence on record.
Judgment penned by a judge who has transferred
 A judge who was permanently transferred to
another court of equal jurisdiction before the case
heard by him was decided, may validly prepare
and sign his decision on the said case and send
the same to the court where he was originally
assigned.
 The judge who pens the decision of a case heard
by him before he was assigned or transferred to
another district or branch of the court of equal
jurisdiction is considered an incumbent judge,
albeit assigned to a different branch at the time
the decision was promulgated.
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Judgments of the Supreme Court
 The decisions of the Supreme Court form part of
the legal system.
 Every court must take cognizance of the decisions
of the Supreme Court.
 Said decisions are proper subjects of mandatory
judicial notice.
 It is the duty of the lower courts to obey the
decisions of the Supreme Court and render
obedience to its status as the apex of hierarchy of
courts.
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
it allows a second motion for reconsideration
contrary to the rule that forbids a second motion
filed by the same party or when it allows a party
to file a notice of appeal beyond the period
allowed by the rules.
A ruling of such nature is deemed to be made pro
hac vice, means “One rendered for this one
particular case.”
A ruling expressly qualified as such cannot be
relied upon as precedent to govern other cases.
Obiter dictum
 Is an opinion expressed by a court, which is not
necessary to the decision of the case before it.
 It is neither enforceable as a relief nor a source of
a judicially actionable claim.
 It is a remark made, or opinion expressed by a
judge in his decision upon a case, that is
incidentally or collaterally, and not directly upon
the question before him, or upon a point not
necessarily involved in the determination of the
cause, or introduced by way of illustration, or
analogy or argument.
 Such is not binding as a precedent.
Stare decisis
 Civil Code Art.8- Judicial decisions applying or
interpreting the laws or the constitution shall
form part of the legal system of the Philippines.
 When the Supreme Court has laid down a
principle of law applicable to a certain state of
facts, it will adhere to that principle and apply it to
all future cases where the facts are substantially
the same.
 Stare decisis et non quieta movere (Let the
decision stand and disturb not what is already
settled) Holds a point of law, once established by
the Court, will generally be followed by the same
court and by all courts of lower rank in
subsequent cases involving a similar legal issue.
 Absence
of
powerful
countervailing
considerations, like cases ought to be decided
alike.
 Based on the principle that once a question of law
has been examined and decided, it should be
deemed settled and closed to further argument.
Final judgment
 The term “final”, when used to describe a
judgment may be used in two senses:
o Refers to a judgment that disposes of a
case in a manner that leaves nothing
more to be done by the court in respect
thereto. In this sense, a final judgment is
distinguished from an interlocutory order
which does not finally terminate or
dispose of the case.
 The finality of judgment in this
sense has the effect of ending
the litigation and an aggrieved
party may then appeal from the
judgment.
o By implication from Sec.1 Rule 39, the
word “final” may refer to a judgment
that is no longer appealable and is
already capable of being executed
because the period for appeal has
elapsed without a party having perfected
an appeal or if there has been an appeal,
it has already been resolved by a highest
possible tribunal. In this sense, the
judgment is commonly referred to as
“final and executory.”
Stare decisis vs Res judicata
Re judicata
 The focal point of res judicata is the judgment.
The principle states that a judgment on the merits
in a previous case rendered by a court of
competent jurisdiction would bind a subsequent
case if, between the first and the second actions,
there exists an identity of the parties of subject
matter, and of causes of actions.
Stare Decisis
 The focal point of stare decisis is the doctrine
created. The principle evokes the general rule
that, for the sake of certainty, a conclusion
reached in one case should be doctrinally applied
to those that follow if the facts are substantially
the same even though the parties may be
different.
Rulings pro hac vice
 There are instances when the court suspends the
application of a rule in a particular case, as when
75
Final judgment vs Interlocutory order
Exceptions to immutability of judgments
1. The correction of clerical errors.
2. The so-called nunc pro tunc entries which cause
no prejudice to any party and void judgments.
3. Whenever circumstances transpire after the
finality of the decision rendering its execution
unjust and inequitable.
4. Cases of special and exceptional nature as when
facts and circumstances transpire which render
the judgment’s execution impossible or unjust,
when necessary in the interest of justice to direct
its modification to harmonize the disposition with
prevailing circumstances.
5. When there is a strong showing that a grave
injustice would result from the application of the
rules.
6. When there are grounds for annulment of the
judgment or a petition for relief.
Final order- One which disposes of the subject matter in its
entirety or terminates a particular proceeding or action,
leaving nothing else to be done but to enforce by way of
execution what has been decided by the court. This is
appealable.
Interlocutory order- Does not dispose of the case
completely but leaves something to be decided upon by
the court. Its effects are merely provisional in character
and substantial proceedings have to be further conducted
by the court in order to finally resolve the issue or
controversy. It is not appealable.
Doctrine of Immutability of judgment or Conclusiveness
of judgments
 A judgment that has attained finality can no
longer be disturbed.
 The doctrine, which is sometimes referred to as
“Preclusion of issues” or ”Collateral estoppel”,
holds that, issues actually and directly resolved in
a former suit cannot again be raised in any future
case between the same parties.
 The right of the winning party to enjoy the finality
of the resolution of the case is also an essential
part of public policy and the orderly
administration of justice.
Effect of final judgments
1. If the judgment or final order is on a specific thing,
the same is conclusive upon the title to the thing.
2. If the judgment or final order is in respect to the
probate of a will, or the administration of the
estate of a deceased person, the same is
conclusive upon the will or administration, but the
probate of the will or granting of letters of
administration, shall only be prima facie evidence
of the death of the testator or intestate and not a
conclusive presumption of death.
3. If the judgment or final order is in respect to the
personal, political, or legal condition or status of a
particular person or his relationship to another,
the judgment or final order is conclusive upon the
condition, status, or relationship of the person.
4. In other cases, if the judgment be with respect to
the matter directly adjudged or as to any other
matter that could have been raised in relation
thereto, the judgment or final order is conclusive
between the parties and their successors in
interest
by
title
subsequent
to
the
commencement of the action or special
proceeding, litigating for the same thing and
under the same title and the same capacity.
5. In any other litigation between the same parties
or their successors in interest, that only is deemed
to be adjudged in a former judgment or final
order which appears upon its face to have been
adjudged, or which was actually and necessarily
included therein or necessary thereto.
6. When it is a foreign court or tribunal which
renders a judgment that has become final, and it
has jurisdiction to render such judgment or final
order, the same is conclusive upon the title to the
thing in case of a judgment or final order upon a
specific thing.
Two-fold purpose of
the rule of immutability of
judgments
1. To avoid delay in the administration of justice and
thus, procedurally, to make orderly the discharge
of judicial business.
2. To put an end to judicial controversies, at the risk
of occasional errors, which is precisely why courts
exist. Controversies cannot drag on indefinitely.
The rights and obligations of every litigant must
not hang in suspense for an indefinite period of
time. This doctrine is not merely technicality to be
easily brushed aside, but a matter of public policy
as well as the time-honored principle of
procedural law.
Remedies against a final and executory decision
 The doctrine of immutability of judgment is
subject to an action for annulment and a petition
for relief.
 A final and executory decision can only be
annulled by a petition to annul judgment on the
grounds of:
o Extrinsic fraud
o Lack of jurisdiction
76
7.
8.
In case of a final judgment against a person, such
judgment or final order is presumptive evidence
of a right between the parties and their
successors in interest by a subsequent title.
Foreign arbitral awards may be enforce under RA
9285, or the Alternative Dispute Resolution Act of
2004. The award when confirmed by the RTC shall
be enforced in the same manner as final and
executory decisions of courts of law of the
Philippines.

clearly states the facts and the law on which it is
based.
A judgment dismissing an action for want of
jurisdiction cannot operate as res judicata on the
merits.
Doctrine of law of the case
 Law of the case- Defined as the opinion delivered
on a former appeal.
 Whatever is once irrevocably established as the
controlling legal rule or decision between the
same parties in the case continues to be the law
of the case, whether correct on general principles
or not, as long as the facts on which such decision
was predicated continue to be the facts of the
case before the court.
 This doctrine finds application in cases where an
appellate court passes on a question and remands
the case to the lower court for further
proceedings.
 The question there settled becomes the law of the
case upon subsequent appeal. Consequently, the
court reviewing the succeeding appeal will not
relitigate the case,but instead, apply the ruling in
the previous appeal.
 This does not have the finality of res judicata. It
applies only to the same case, whereas re judicata
forecloses parties or privies in one case by what
has been done in another case.
 Law of the case applies only to questions of law.
Whereas, res judicata, applies to the conclusive
determination of issues of fact. It is generally
concerned with the effect of adjudication in a
wholly independent proceeding.
 The rationale of this rule is to enable an appellate
court to perform its duties satisfactorily and
efficiently, which would be impossible if a
question, once considered and decided by it, were
to be litigated anew in the same case upon any
and every subsequent appeal. Without it, there
would be endless litigation.
In either of the above effects, the judgment or final order
may be repelled by evidence of:
1. Want of jurisdiction
2. Want of notice to the party
3. Collusion
4. Fraud
5. Clear mistake of law or fact.
The judgment or final order has the effect of res judicata
between the parties.
2 aspects of res judicata
1. Bar by prior judgment (estoppel by
verdict)- The judgment or final order is a
bar to the prosecution of a subsequent
action based on the same claim or cause
of action.
2. Conclusiveness of judgment (Rule of
auter action pendent)- The judgment or
final order precludes the relitigation of
particular issues or facts on a different
demand or cause of action,.
Judgment on the merits
 When it amounts to a legal declaration of the
respective rights and duties of the parties, based
upon the disclosed facts.
 Merits, has been, as a matter of substance in law,
as distinguished from a matter of form, refers to
the real or substantial grounds of action or
defense, as contrasted with some technical or
collateral matter raised in the course of the suit.
 There could be a judgment on the merits without
a trial.
 A ruling based on a motion to dismiss, without
any trial or formal presentation of evidence, can
still be a judgment on the merits.
 Dismissal on the ground of failure to state a cause
of action is still a judgment on the merits and
operates as res judicata on a subsequent case
involving the same parties, subject matter and
cause of action as long as the dismissal ruled on
the issues raised.
 What appears to be essential to a judgment on
the merits is that it be a reasoned decision, which
Several judgment

Is one rendered by a court against one or more
defendants, but not against all, leaving the action
to proceed against the others.
 It is proper when the liability of each party is
clearly separable and distinct from that of his coparties, such that the claims against each of them
could have been the subject of separate suits and
judgment for or against one of them will not be
necessarily affect the other.
 Example-judgment against joint debtors.
77
Separate judgment
 This judgment presupposes that there are several
claims for relief presented in a single action.
 Example: Counterclaim, cross-claim, third-party
complaint.
 The court may, after determining the issues
relative to the claim and considering other
circumstances, may render separate judgment.
 The judgment will terminate the action with
respect to that claim and the action shall proceed
as to the remaining claims.

concessions, avoid litigation or put an end to one
already commenced.
A compromise is perfected by mere consent,
manifested by the meeting of the offer and the
acceptance upon the thing and the cause which
constitutes the contract.
Judgment upon a confession (Cognovit actionem)
 This is a judgment rendered by the court when a
party expressly agrees to the other party’s claim
or acknowledges the validity of the claim against
it.
Conditional Judgment
 Is one the effectivity of which depends on the
occurrence or the non-occurrence of an event.
Such a judgment is generally void because of the
absence of a disposition.
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.
 It will come into operation when an answer is
served and filed but the same fails to tender an
issue or admits the material allegations of the
adverse party’s pleading.
 This can only be rendered by the court when
there is a prior motion to the effect filed by the
appropriate party.
 Cannot apply to the following cases:
o Actions for declaration of nullity of
marriage
o Actions for legal separation
o Actions for annulment of marriage
Judgment sin perjuicio
 Is traditionally understood to be a brief judgment
containing only the dispositive portion, without
prejudice to the making of amore extensive
discussion of the findings of fact and law to
support it. This is not actually a final decision,
should be avoided and should not be looked with
favour.
 Its current use may also refer to a dismissal of an
action without prejudice to its being refilled on a
later date as in a dismissal.
Summary judgment
 “Acclerated judgment”
 Is proper where, upon a motion filed after the
issues had been joined and on the basis of the
pleadings and papers filed, the court finds that
there is no genuine issue as to any material fact
except as to the amount of damages.
 It is not proper where there are factual issues to
be resolved by the presentation of evidence.
 Even if there is a complicated question of law, if
there is no issue as to the facts, a summary
judgment is not barred.
 Where only the genuineness and due execution of
the promissory note are the matters deemed
admitted for the failure of the defendant to deny
the same under oath, summary judgment is not
proper.
 In an action for a sum of money, where the debt
and the fact of its non-payment is admitted, and
the only issue raised is the rate of interest or the
damages payable, there is no genuine issue and a
summary judgment may be rendered.
 Summary judgment is appropriate when there are
no genuine issues of fact which calls for the
presentation of evidence in a full-blown trial.
Judgment nunc pro tunc (Now for then)
 Is one intended to enter into the record acts
which had already been done, but which do not
yet appear in the record.
 It is a judgment which orders the entry of
something which was actually previously done.
 Its purpose is not to supply an omitted action by
the court but to enter into the record an action
previously done but which was not reflected on
the record by reason of inadvertence or mistake.
 The power of the court to make such entries is
restricted to placing upon the record evidence of
judicial action which has been actually taken.
Judgment upon a compromise
 This is a judgment rendered by the court on the
basis of a compromise agreement entered into
between the parties to an action.
 A compromise has upon the parties the effect of
res judicata, and under the principle of res
judicata, an issue which had already been laid to
rest by the parties themselves can no longer be
relitigated.
 A compromise- Civil Code, is defined as a contract
whereby the parties, by making reciprocal
78


Executory judgment
 Upon the expiration of the period to appeal from
a judgment or order that finally disposes of the
action or proceedings if no appeal has been duly
perfected.
 After an appeal taken from the judgment or order
has been finally resolved.
 When judgment has become executory, execution
becomes a matter of right on motion of the
prevailing party.
 Within period of appeal from notice of judgment
or final order- Said judgment or final order is not
yet executory except those judgments which,
under the rules are immediately executory
The defending party or the claimant as the case
may be, must invoke the rule on summary
judgment by filing a motion.
The adverse party must be notified of the motion
for summary judgment and furnished with
supporting affidavits, depositions, or admissions,
before hearing is conducted.
Genuine issue- Is an issue of fact which requires the
presentation of evidence as distinguished from a sham,
fictitious, contrived, or false claim.
Judgment on the pleadings vs Summary judgment
Judgment on the pleadings
1. There is an absence of a factual issue in the case
because the answer tenders no issue at all.
2. A motion for the judgment on the pleadings is
filed by a claiming party like a plaintiff or
counterclaimant.
3. Is based upon the pleadings alone.
4. Only a 3-day notice to the adverse party is
required prior to the date of the hearing in a
motion for judgment on the pleadings base on the
regular rules on motions.
Summary judgment
1. It involves an issue, but the issue is not genuine.
The issue is only as to the amount of damages but
not as to any material fact.
2. A motion for summary judgment may be filed
either by the claiming party or defending party.
3. A summary judgment is based on the pleadings,
affidavits, depositions, and admissions.
4. A 10-day notice to the adverse party is required in
a motion for summary judgment. The adverse
party in turn may serve opposing affidavits,
depositions, or admissions at least 3 days before
the hearing.
Post judgment remedies available to the aggrieved party
1. Before a judgment has become final and
executory.
2. After the same becomes executory.
I. Before a judgment has become final and executory
1. Motion for reconsideration.
2. Motion for new trial
3. Appeal
II. After judgment has become final and executory
1. Petition for relief from judgment.
2. Action to annul a judgment
3. Certiorari
4. Collateral attack of a judgment.
Motion for reconsideration
 Object of the motion-directed against a judgment
or a final order.
When to file motion for reconsideration
 A motion for reconsideration of a judgment or
final order is filed within the period for taking an
appeal.
 No motion for extension of time to file a motion
for reconsideration shall be allowed.
 The period for appeal depends on whether the
appeal is by mere notice of appeal or by record of
appeal.
 Notice of appeal- The period for appeal referred
to is 15 days after notice to the appellant of the
judgment or final order appealed from.
 Record of appeal- The period is within 30 days
from notice of the judgment or final order. A
record on appeal shall be required only in Special
Proceedings and in other cases of multiple or
separate appeals.
 The periods begin to run upon the receipt of
notice of the decision or final order appealed
from. Such periods begin upon receipt of notice
by the counsel of record, which is considered
notice to the parties. Service of judgment on the
Entry of judgment
 The entry of judgment refers to the physical act
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become
final and executory.
 The record shall contain the dispositive portion of
the judgment or final order and shall be signed by
the clerk of court with certificate by said clerk of
court that the judgment has already become final
and executory.
The date of the finality of the judgment or final order shall
be deemed to be the date of its entry.
79
party represented by counsel is not considered
the official notice and receipt of the judgment.

Effect of filing of a motion on the period to appeal
 The timely filing of a motion for reconsideration
interrupts the period of appeal.

Grounds for a motion for reconsideration
1. The damages awarded are excessive.
2. That the evidence is insufficient to justify the
decision or final order.
3. That the decision or final order is contrary to law.

What to allege in the motion for reconsideration
 It is not sufficient to mention the ground relied
upon.
 It is necessary for the motion for reconsideration
to specifically point out the findings or conclusions
of the judgment or final order which are not
supported by the evidence or which are contrary
to law, making express reference to the
testimonial or documentary evidence or the
provisions of law alleged to be contrary to such
findings or conclusions.
 Non-compliance with this requirement would
reduce the motion to a mere pro forma motion.



Pro forma motion
 Is one which does not satisfy the requirements of
the rules and will be treated as a motion intended
to delay the proceedings.
 A pro forma motion for reconsideration shall not
toll the reglementary period of appeal.
 Examples:
o It was a 2nd motion for reconsideration.
o It did not comply with the rule that the
motion must specify the findings and
conclusions alleged to be contrary to law
or not supported by the evidence.
o It failed to substantiate the alleged
errors.
o It merely alleged that the decision in
question was contrary to law.
o The adverse party was not given notice
thereof.
The new period becomes significant if either a
motion for reconsideration or motion for new trial
has been filed but was denied or dismissed.
It applies not only to Rule 41 governing appeals
from the RTC but also to Rule 40 governing
appeals from MTC to the RTC, Rule 42 on petitions
for review from the RTC to the CA, Rule 43 on
appeals from quasi-judicial agencies to the CA,
and Rule 45 appeals by certiorari to the SC.
Accordingly, this rule was adopted to standardize
the appeal periods provided in the rules and to
afford fair opportunity to appeal their cases and
to give the trial court another opportunity to
review the case and in the process, minimize any
error of judgment.
It is clear from the Neypes that the ruling shall not
be applied where no motion for reconsideration
or new trial has been filed, in which case, the 15day period for appeal shall run from notice of the
judgment.
The fresh period rule does not refer to the period
within which to appeal from the order denying
the motion for reconsideration or new trial, but to
the period within which to appeal from the
judgment itself because an order denying a
motion for reconsideration is not appealable.
Applies both to civil and criminal cases.
Remedy when the motion is denied
 The remedy from an order denying a motion for
reconsideration is not to appeal from the order of
denial.
 The remedy is to appeal from the judgment or
final order itself subject of the motion for
reconsideration.
 Effective December 27,2007, an order denying a
motion for reconsideration is no longer assailable
by certiorari because of the amendment to Rule
41 by A.M. No. 07-7-12-SC. Deleted from those
matters from which no appeal can be taken, and
from which order a Rule 65 petition may be
availed of, is an order denying a motion for new
trial or reconsideration. The remedy available,
therefore, would be that prescribed under Sec.9
of rule 37 which is to appeal from the judgment or
final order.
Resolution of the motion
 The motion shall be resolved within 30 days from
the time it is submitted for resolution.
Effect of granting a motion for reconsideration
 If the court grants the motion, it may amend such
judgment or final order accordingly.
 The amended judgment is in the nature of a new
judgment which supersedes the original
judgment.
Fresh Period Rule or Neypes Rule
 If the motion is denied, the movant has a fresh
period of 15 days from receipt or notice of the
order denying or dismissing the motion for
reconsideration within which to file an appeal.
80
Partial reconsideration
 If the court finds that a motion affects the issues
of the case as to only a part or less than all of the
matters in controversy, or only one, or less than
all, of the parties to it, the order may grant a
reconsideration as to such issues if severable
without interfering with the judgment or final
order upon the rest.
Motion for new trial
 A new trial is a remedy that seeks to temper the
severity of a judgment or prevent a failure of
justice.
 The grant of a new trial is addressed to the sound
discretion of the court which cannot be interfered
with unless a clear abuse thereof is shown.
When to file a motion for new trial
 A motion for new trial is filed within the period for
taking an appeal.
 No motion for extension of time to file a motion
for new trial shall be allowed.
 Notice of appeal- The period for appeal is 15 days
after notice to the appellant of the judgment or
final order appealed from.
 Record on appeal- The period for appeal is within
30 days from the notice of the judgment or final
order
Single motion rule
 A party shall not be allowed to file a second
motion for reconsideration of a judgment or a
final order. Sec.5 Rule 37.
 The prohibition on a second motion for
reconsideration applies only when the motion is
directed against a judgment or final order.
 The rule does not apply to a motion for
reconsideration of an interlocutory order.
Motion for reconsideration in appealed cases
 A party may file a motion for reconsideration of a
judgment or final resolution within 15 days from
notice thereof, with proof of service on the
adverse party.
 The motion shall be resolved within 90 days from
the date when the court declares it submitted for
resolution.
 The pendency of the motion for reconsideration
shall stay the execution of the judgment or final
resolution sought to be reconsidered, provided
that the motion is filed
o On time
o And by the proper party
o Unless, the court, for good reasons,
otherwise directs.
 The prohibition for a second motion for
reconsideration does not apply when the court
grants express leave to file a second motion for
reconsideration granted for extraordinary
reasons.
 No second motion for reconsideration of a
judgment or final resolution by the same party
shall be entertained, contemplates a situation
where a second motion for reconsideration is filed
by the same party assailing the same judgment or
final resolution.
 A second motion for reconsideration directed
against an amended decision that totally reversed
and set aside a previous ruling is not prohibited.
 In case a party wants to appeal, the period to file
an appeal should be reckoned not from the denial
of the motion for reconsideration of the original
decision, but from the date of petitioner’s receipt
of the notice of denial of the motion for
reconsideration from the amended decision.
Form of the motion for new trial
 It shall be made in writing, stating the grounds or
grounds therefor, a written notice of which shall
be served by the movant on the adverse party.
Grounds for new trial
1. 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.
2. Newly-discovered evidence, which he could not,
with reasonable diligence have discovered and
produced at the trial, and which, if presented,
would probably alter the result.




A motion for the cause based on fraud, accident,
etc shall be supported by
o affidavits of merit.
A motion for the cause based on newlydiscovered evidence shall be supported by:
o Affidavits of the witnesses by whom such
evidence is expected to be given.
o Or by duly authenticated documents
which are proposed to be introduced in
evidence.
Non-compliance with this requirements would
reduce the motion to a mere pro forma motion.
An affidavit of merit should state facts and not
mere opinion or conclusions of law.
Requisites: Newly discovered evidence
1. That the evidence is discovered after trial.
2. That such evidence could not have been
discovered and produced at the trial even with
the exercise of reasonable diligence.
81
3.
4.
5.
That it is material, not merely cumulative,
corroborative, or impeaching.
The evidence is of such weight that it would
probably change the judgment, if admitted.
If the alleged newly-discovered evidence could
have been very well presented during the trial
with the exercise of reasonable diligence, the
same could not be considered newly-discovered
evidence.
motion for new trial on the ground of newlydiscovered evidence.
Period to resolve the motion
 The motion shall be resolved within 90 days from
the date when the court declares it submitted for
resolution.
*The procedure in the new trial shall be the same as that
granted by a RTC. The CA may, however, direct otherwise.
It may therefore adopt its own rules.
*Gross negligence of counsel- Not a ground for new trial.
Resolution of the motion- The motion shall be resolved
within 30 days from the time it is submitted for resolution.
Appeal
 The right to appeal is not 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.
 The general rule: That the remedy to obtain
reversal or modification of judgment on the
merits is appeal. This is true even if the error, or
one of the errors, ascribed to the court rendering
the judgment is its lack of jurisdiction over the
subject matter, or the exercise of power is in
excess thereof or grave abuse of discretion in the
findings of facts or law set out in the decision.
 A party is not allowed to question the decision of
the court on the merits, and invoke the
extraordinary remedy of certiorari under Rule 65
and an ordinary appeal under Rule 41 at the same
time.
 Perfection of an appeal within the statutory or
reglementary period and in the manner
prescribed by law is mandatory and jurisdictional.
Remedy when the motion for new trial is denied
 The remedy is to appeal from the judgment or
final order.
 Certiorari under Rule 65 not applicable.
Effect of granting the motion for new trial
 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.
Partial new trial
 If the court finds that a motion affects the issues
of the case as to only a part, or less than all of the
matters in the controversy, or only one, or less
than all, of the parties to it, the court may grant a
new trial as to such issues if severable without
interfering with the judgment or final order upon
the rest. The effect of this order is a partial new
trial.
 The court may either enter a judgment or final
order as to the rest, or stay the enforcement of
such judgment or final order until after the new
trial.
Judgments or orders that are appealable
 A judgment or final order that completely
disposes of the case.
 Hence, an interlocutory order is not appealable
until after the finality of the judgment on the
merits.
 An order denying a motion for new trial or a
motion for reconsideration.
 A dismissal with prejudice, because it is
considered an adjudication on the merits.
Second motion for new trial
 While a second motion for reconsideration is not
allowed, a second motion for new trial is
authorized by the Rules.
 A motion for new trial shall include all grounds
then available. Those not so included are deemed
waived.
Judgments or orders that are not appealable
1. An order denying a petition for relief or nay
similar motion seeking relief from judgment.
2. Interlocutory orders
3. An order disallowing or dismissing an appeal
4. An order denying a motion to set aside judgment
by consent, confession, or compromise on the
ground of fraud, mistake, duress or any other
ground vitiating consent.
5. Order of execution
New trial in appealed cases
 At any time after the appeal from the lower court
has been perfected and before the CA loses
jurisdiction over the case, a party may file a
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6.
7.

A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims, and third party
complaints, while the main case is pending, unless
the court allows an appeal therefrom.
An order dismissing an action without prejudice.
Issues raised for the first time on appeal are
barred by estoppel.
When errors not raised on appeal may be considered
1. It is an error that affects the jurisdiction over the
subject matter.
2. It is an error that affects validity of the judgment
appealed from.
3. It is an error which affects the validity of the
proceedings.
4. It is an error closely related to or dependent on an
assigned error, and properly argued in the brief.
5. It is a plain and clerical error.
6. Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a
just decision and complete resolution of the case
to serve the best interests of justice or to avoid
dispensing piecemeal justice (Comilang vs
Burcena)
7. Matters not specifically assigned as errors on
appeal but raised on the trial court and are
matters of record having some bearing on the
issue submitted which the parties failed to raise or
which the lower court ignored. (Comilang vs
Burcena)
8. Matters not assigned as errors on appeal but
closely related to an error assigned.
9. Matters not assigned as errors on appeal but
upon which the determination of a question
properly assigned, is dependent. (Comilang vs
Burcena)
10. Appeals in criminal cases- Opens the entire case
for review. The court can correct errors
unassigned in the appeal.
Remedy in case the judgment or final order is not
appealable
 A.M. NO. 07-7-12-SC- An aggrieved part may no
longer assail an order denying a motion for new
trial or motion for reconsideration by way of Rule
65, such ground having been removed from the
enumeration in Sec.1 Rule 41. The proper remedy
is to appeal from the judgment.
Remedy against an order of execution
 General rule: Sole remedy against order of
execution is certiorari under Rule 65, no appeal
may be taken from an order of execution and a
party who challenges such order may file a special
civil action for certiorari under rule 65.
 Exception:
Exceptional
circumstances,
considerations of justice and equity dictate that
there be some mode available to the party
aggrieved of elevating the question to a higher
court. It may be either by an appeal, certiorari,
prohibition, mandamus (City Government of
Makati vs Odena)
Issues that may be raised on appeal
 It is already well-settled in this jurisdiction that a
party may not change his theory of the case on
appeal. (Sec.15 Rule 44)
 A party cannot change the legal theory of this case
under which the controversy was heard and
decided in the trial court.
 It should be the same theory under which the
review on appeal is conducted.
 Points of law, theories, issues, arguments not
adequately brought to the attention of the lower
court will not be ordinarily reviewed by the
reviewing court, inasmuch as they cannot be
raised for the first time on appeal. This will be
offensive to the basic rules of fair play, justice,
and due process.
 Defenses not pleaded in the answer may not be
raised for the first time on appeal.
 It would be unfair to the adverse party who would
have no opportunity to present evidence in contra
to the new theory which it could have done had it
been aware of it at the time of the hearing before
the trial court.
 The appellate court shall consider no error unless
stated in the assignment of errors.
Role of the appellee
 The appellee’s role in the appeal process is
confined only to the task of refuting the assigned
errors interposed by the appellant.
 Since the appellee is not the party who instituted
the appeal, the court explained that he merely
assumes a defensive stance and his interest is
solely relegated to the affirmance of the judgment
appealed from.
 It is highly erroneous for the appellee to either
assign any error or seek any affirmative relief or
modification of the lower court’s judgment
without interposing his own appeal.
Notice of appeal
 An appeal is made 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.
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Record on appeal
 No record on appeal shall be required except in
special proceedings and other cases of multiple or
separate appeals where the law or the Rules of
Court so require.
 In cases of multiple appeals are allowed, a party
may appeal only a particular incident in the case
and not all of the matters involved in the same
case.
 The others which are not made subject of the
appeal remain to be resolved by the trial court.
 The record on appeal is requires so that the
appellate court may have a record of the
proceedings to resolve a separate and distinct
issue raised on appeal, and since the original
records remain with the trial court, it still can
resolve the other issues of the case not made
subject of the appeal.
 Multiple appeals are allowed in special
proceedings, actions for recovery of property with
accounting, actions for partition of property with
accounting, and special civil actions of eminent
domain and foreclosure of mortgage.
 The rationale behind allowing more than one
appeal in the same case is to enable the rest of
the case to proceed in the event that a separate
and distinct issue is resolved by the court and held
to be final.
9.
comply with orders, circulars, or directives of the
court without justifiable cause.
The fact that the order or judgment appealed
from is not appealable.
Diaz vs People
 The dismissal of the appeal upon failure to file the
appellant’s brief is not mandatory, but
discretionary.
 The failure to serve and file the required number
of copies of the appellant’s brief within the time
provided by the Rules of Court does not have the
immediate effect of causing the outright dismissal
of the appeal.
 This means that the discretion to dismiss the
appeal on that basis is lodged in the CA, by virtue
of which the CA may still allow the appeal to
proceed despite the late filing of the appellant’s
brief, when the circumstances so warrant its
liberality.
Grounds for dismissal of an appeal in the Supreme Court
Sec 5, Rule 56
1. Failure to take the appeal within the reglementary
period.
2. Lack of merit in the petition.
3. Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs.
4. Failure to comply with the requirements regarding
proof of service and contents of and the
documents which should accompany the petition.
5. Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause.
6. Error in the choice or mode of appeal.
7. The fact that the case is not appealable to the
Supreme Court.
Grounds for dismissal of an appeal (Sec.1 Rule 50)
1. Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed
by the rules.
2. Failure to file the notice of appeal or the record
on appeal within the period prescribed by the
rules.
3. Failure of the appellant to pay the docket and
other lawful fees as provided in Sec.5 Rule 40 and
Sec.4 of Rule 41.
4. Unauthorized alterations, omissions, or additions
in the approved record on appeal as provided in
Sec.4 Rule 41.
5. Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by the
rules.
6. Absence of specific assignment of errors in the
appellant’s brief, or of page references to the
record as required in Sec.13 paragraphs a,c,d, and
f of Rule 44.
7. Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order.
8. Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
Effects of non-filing of appellant’s brief with the CA
(The Government of the Kingdom of Belgium vs CA)
1. The general rule is for the Court of Appeals to
dismiss an appeal when no appellant’s brief is
filed within the reglementary period prescribed by
the rules.
2. The power conferred to the CA is discretionary
and directory and not ministerial or mandatory.
3. The failure of an appellant to file his brief within
the reglementary period does not have the effect
of causing the automatic dismissal of the appeal.
4. In case of late filing, the appellate court has the
power to still allow the appeal, however, for the
proper exercise of the court’s leniency it is
imperative that:
a. The circumstances obtaining warrant the
court’s liberality.
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b.
5.
6.
That strong considerations of equity
justify an exception to the procedural
rule in the interest of substantial justice.
c. No material injury has been suffered by
the appellee in the delay.
d. There is no contention that the
appellees' cause was prejudiced.
e. At least there is no motion to dismiss
filed.
In case of delay, the lapse must be for a
reasonable period.
Inadvertence of the counsel cannot be considered
as an adequate excuse as to call for the appellate
court’s indulgence except:
a. Where the reckless or gross negligence of
counsel deprives the client of due
process of law.
b. When application of the rule will result in
outright deprivation of the client’s liberty
or property.
c. Where the interests of justice so require.
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A party’s appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice of
the 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.
The notice of appeal does not require approval of
the court. The function of the notice of appeal is
merely to notify the trial court that the appellant
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.
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.
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.
 For the appellant, the filing of a memorandum is
vital to his 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.
Appeal from the Municipal Trial Court to the Regional
Trial Courts (Rule 40)
 An appeal from a judgment or final order of a
Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over
the area to which the former pertains.
 An appeal may be taken within 15 days after
notice to the appellant 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
of appeal within 30 days after notice of the
judgment or final order.
 The notice of appeal shall:
o Indicate the parties to the appeal.
o The judgment or final order or part
thereof appealed from.
o State the material dates showing the
timeliness of the appeal.
 Within the period for taking an appeal, the
appellant shall pay to the clerk of court which
rendered judgment or final order appealed from
the full amount of the appellate court docket and
other lawful fees. Proof of payment thereof shall
be transmitted to the appellate court together
with the original record or record on appeal as the
case may be.
 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 regional trial court.
When the 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.
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.
Appeal from an order dismissing a case for lack of
jurisdiction
 If the dismissal in the MTC is made on the ground
of lack of jurisdiction over the subject matter, and
the RTC on appeal, affirms the dismissal, the
action of the latter court, if it has jurisdiction, shall
not be confined to a mere affirmation of the
dismissal if it has jurisdiction over the subject
matter. Instead, the rule requires the RTC to try
the case on the merits as if the case was originally
filed with it.
 When a case is dismissed pursuant to a motion to
dismiss or motu propio for lack of jurisdiction, the
order of dismissal is one without prejudice
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because the plaintiff may refile the complaint with
the court with the proper jurisdiction.
The order dismissing an action without prejudice
is not appealable. The tenor, however, of Sec.8
Rule 40 on the other hand, indicates that the rule
allows an appeal from a order of the MTC
dismissing a case for lack of jurisdiction. Sec.8
Rule 40 should be considered as an exception to
Sec.1 of Rule 41 which precludes an appeal from
an order dismissing an action without prejudice.
When to appeal
 The appeal shall be taken within 15 days from the
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 the notice of
judgment or final order.
 Habeas corpus cases- The appeal shall be taken
within 48 hours from notice of judgment or final
order.
Appeal from the Regional Trial Court to the Court of
Appeals (Rule 41)
How to appeal
 Filing of notice of appeal with the court which
rendered the judgment or final order appealed
from.
 By serving a copy thereof upon the adverse party.
 Within the period for taking an appeal, the
appellant shall pay to the clerk of court, which
rendered the judgment of final order appealed
from, the full amount of the appellate court
docket fee.
 Within 30 days after perfection of all the appeals,
the clerk of court shall verify the correctness and
completeness of the records and, if incomplete, to
take such measures to complete such records,
certify to the correctness of the records, transmit
the same to the appellate court, and to furnish
the parties with copies of his letter of transmittal
of the records to the appellate court.
 Upon receiving the original record on appeal and
the accompanying documents transmitted by the
lower court, as well as the proof of payment of
the docket and other lawful fees, the clerk of
court of the CA shall docket the case and notify
the parties.
 Within 45 days from the receipt of the notice of
the clerk of court, the appellant shall file a brief
with proof of service upon the appellee.
 Within 45 days from the receipt of the appellant’s
brief, the appellee shall file his own brief with
proof of service to the appellant.
 Within 20 days from the receipt of the appellee’s
brief, the appellant may file a reply brief
answering points in the appellee’s brief not
covered in his main brief.
 Extension of time for the filing of the briefs will
not be allowed, except for good and sufficient
cause and only if the motion for extension is filed
before the expiration of the time sought to be
extended.
 In petitions for certiorari, prohibition, mandamus,
quo warranto and habeas corpus cases, briefs are
not filed, instead, the parties shall file their
respective memoranda within a non-extendible
period of 30 days from receipt of the notice issued
3 modes of appeal from the decision of the RTC
1. Ordinary appeal or Appeal by writ of errorWhere the judgment was rendered by the court in
the exercise of its original jurisdiction. Governed
by Rule 41 and is taken to the CA on questions of
fact or mixed questions of fact and law.
2. Petition for review- Where judgment was
rendered by the court in the exercise of its
appellate jurisdiction. Governed by Rule 42 and is
taken to the CA on questions of fact or mixed
questions of fact and law.
3. Petition for Review on Certiorari or Appeal by
certiorari to the Supreme Court- This mode is
brought to the Supreme Court from the decision
of the RTC in the exercise of its original
jurisdiction and only on questions of law.
2 Modes of appeal from the RTC to the CA
1. 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.
2. Petition for review- Where the judgment was
rendered by the RTC in the exercise of its
appellate jurisdiction.
An appeal under Rule 41 taken from the RTC to the CA
raising only questions of law shall be dismissed, issues
purely of law not being reviewable by said court.
Similarly, an appeal by notice of appeal, instead of by
petition for review from the appellate judgment of a RTC
shall be dismissed.
Rule 41- Ordinary Appeal- Applies to appeals from the
judgment or final order of the RTC In the exercise of its
original jurisdiction
Rule 42- Petition for review- Applies to appeals from the
judgment or final order of the RTC in the exercise of its
appellate jurisdiction.
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by the clerk that all evidences are already
attached to the record.
How to appeal under Rule 42
 The appeal is made by filing a verified petition for
review with the court of appeals.
 Paying at the same time to the clerk of court the
corresponding docket and other lawful fees,
depositing the amount of 500 for costs and
furnishing the RTC and the adverse party with a
copy of the petition.
 The appeal is perfected as to the petitioner upon
the timely filing of a petition for review and the
payment of the corresponding docket and other
lawful fees.
 The petition shall be filed in the proper form
required in Sec.2 of Rule 42:
o Stating among others, a concise
statement of the matters 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 an appeal.
o The petitioner shall , likewise, indicate
the specific material dates showing that
the petition was filed on time.
o The requirement to indicate the relevant
dates is commonly called the Material
Data Rule and applies also to Rule 42 not
only to a petition for certiorari under
Rule 65.
o This petition also requires a certification
against forum shopping.
 The failure to comply with any of the
requirements in Sec.2 Rule 42 regarding the
payment of docket fees and other lawful fees,
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.
 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.
 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.
 If the CA finds 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.
 If the petition is given due 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
Questions that may be raised on appeal
 While Rule 44 provides that the appellant may
include in his assignment of errors any question of
law or fact that has been raised in the court below
and is within the issues framed by the parties.
 Issues raising only questions of law shall be
dismissed, issues purely of law not being
reviewable by the court.
Residual jurisdiction
 The term refers to the authority of a trial court to
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 Sec. 2 Rule 39 and allow withdrawal of the
appeal provided these are done prior to the
transmittal of the original record or the record on
appeal, even if the appeals have already been
perfected or despite the approval of the record on
appeal, or in case of a petition for review under
Rule 42 before the CA gives due course to the
petition.
 The concept of residual jurisdiction of the trial
court is available at a stage in which the court is
normally deemed to have lost jurisdiction over the
case or the subject matter involved in the appeal.
 There is not residual jurisdiction to speak of
where no appeal or petition has even been filed.
Petition for Review from the Regional Trial Courts to the
Court of Appeal Rule 42
 Rule 42 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.
 The 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:
o Upon proper motion.
o 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.
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for decision upon the filing of the last pleading or
memorandum required.
Residual jurisdiction in Rule 42
 The Doctrine of Residual Jurisdiction applies to
Rule 42.
 The RTC loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the
expiration of the time to appeal of other parties.
 However, the RTC, despite perfection of the
appeals, may still issue orders for the protection
and preservation of the rights of the parties which
do not involve any matter litigated by the appeal.
 The residual jurisdiction of the RTC may be
exercised prior to the transmittal of the original
record or the record on appeal.

appeal under Rule 45 only questions of
law may be raised, here the question
raised need not only be questions of law
but also questions of fact or of both law
and fact.
6. Appeals from a judgment or final order in
a petition for a writ of habeas data. The
appeal may raise questions of fact or law
or both.
The mode of appeal prescribed under Rule 45
shall be applicable to both civil and criminal cases,
except in criminal cases where the penalty
imposed is death, reclusion perpetua or life
imprisonment.
Provisional remedies
 A petition for review on certiorari under Rule 45
may include an application for a writ of
preliminary injunction or other provisional
remedies.
 The petitioner may seek the same provisional
remedies by verified motion filed in the same
action or proceeding at any time during its
pendency.
Stay of judgment
 Except in civil cases decided under the Rules on
Summary Procedure, the appeal, as a rule, shall
stay the judgment or final order unless the CA, the
law or the rules shall provide otherwise.
Appeal by Certiorari to the Supreme Court (Rule 45)
 Appeal by certiorari to the SC commonly known as
petition for review on certiorari applies in the ff
cases:
1. Appeal from a judgment or final order of
the RTC in cases where only questions of
law are raised or are involved and the
case is one decided by said court in the
exercise of its original jurisdiction. This
rule applies only when the decision of
the RTC is in the exercise of its original
jurisdiction. Because when the decision is
rendered by the RTC is the exercise of its
appellate jurisdiction, regardless of
whether the appellant raises questions of
fact, questions of law, or mixed questions
of facts and law, the appeal shall be
brought to the CA by filing a petition for
review under Rule 42 and even if only a
question of law is raised.
2. Appeal from the judgment, final order, or
resolutions of the CA where the petition
shall raise only questions of law distinctly
set forth.
3. Appeal from the judgment, final order, or
resolutions of the Sandiganbayan where
the petition shall raise only questions of
law distinctly set forth.
4. Appeal from the decision or ruling of the
Court of Tax Appeals En Banc.
5. Appeals from the judgment or final order
in a petition for a writ of amparo to the
Supreme Court. While in other cases of
Special and important reasons which the court may
consider in allowing the petition
1. When the court below has decided a question of
substance not yet determined by the Supreme
Court.
2. When the court below decided a question of
substance in a way that is probably not in accord
with law or the applicable decisions of the
Supreme Court.
3. When the court below has departed from the
accepted and usual course of judicial proceedings
or so far sanctioned such departure by a lower
court, as to call for the exercise of the power of
supervision of the Supreme Court.
4. Every appeal to the Supreme Court is not a matter
of right, but of sound judicial discretion with the
exception of cases where the death penalty or
reclusion perpetua is imposed.
Questions of law
 Arises when there is doubt as to what the law is
on a certain state of facts, while there is a
question of fact when the doubt arises as to the
truth or falsity of the alleged facts.
 For a question to be one of law, the same must
not involve an examination of the probative value
of the evidence presented by the litigants or any
of them. The resolution of the issue must rely
solely on what the law provides on the given set
of circumstances. Once it is clear that the issue
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invites a review of the evidence presented, the
question is one of fact.
Sec. 1 Rule 45, the petition shall raise only
questions of law, which must distinctly set forth.
As a general rule: A petition for review on
certiorari filed with the court under Rule 45 shall
raise only questions of law and the court is not
duty-bound to analyse again and weigh the
evidence introduced in and considered by the
tribunals below.
Test of whether the question is one of law or of
fact: Whether the appellate court can determine
the issue raised without reviewing or evaluating
the evidence, in which case, it is a question of law,
otherwise it is a question of fact.
When questions of fact may be passed upon in a Rule 45
petition in the Supreme Court:
1. The conclusion of the CA is grounded entirely on
speculations, surmises, and conjectures.
2. The inference made is manifestly mistaken,
absurd, or impossible.
3. There is grave abuse of discretion.
4. The judgment is based on misapprehension of
facts.
5. The findings of facts are conflicting.
6. The CA, in making its findings, went beyond the
issues of the case and the same is contrary to the
admissions of both appellant or appellee.
7. The findings of fact of the CA are contrary to
those of the trial court.
8. The findings of fact are conclusions without
citation of specific evidence on which they are
based.
9. The facts set forth in the petition, as well as in the
petitioner’s main and reply briefs are not disputed
by the respondents.
10. The findings of the CA are premised on the
supposed absence of evidence and contradicted
by the evidence on record.
Factual-issue-bar rule
 In the exercise of its power of review, the
Supreme Court is not a trier of facts and, unless
there are excepting circumstances, it does not
routinely undertake the re-examination of the
evidence presented by the contending parties
during the trial of the case.
 The jurisdiction of the SC in cases brought before
it from the CA is limited to reviewing and revising
the errors of law imputed to it, its findings of fact
being conclusive.
 Findings of fact of the CA when supported by
substantial evidence, are conclusive and binding
on the parties and are not reviewable by the
Court.
 The court, likewise, has the policy of respecting
the findings of facts of specialized administrative
agencies
 The Court is generally precluded from resolving a
Rule 45 petition that solely raises the issue of
damages, an essentially factual question.
Appeals from a judgment in a petition for a writ of
amparo or habeas data, writ of kalikasan
 Any party in a petition for a writ of amparo may
appeal from the final order or judgment of the
court to the Supreme Court under Rule 45
 Although rule 45 mandates raising only questions
of law, an appeal from a judgment in a petition for
writ of amparo,habeas data, kalikasan by way of
exception to the general rule, may raise not only
questions of law but also questions of fact.
Certiorari under rule 45 vs Certiorari under Rule 65
Rule 45
1. It is a mode of appeal.
2. Is a continuation of the appellate process over the
original case.
3. It seeks to review final judgment or final orders.
4. Raises questions of law.
5. An appeal by certiorari under Rule 45 shall be filed
within 15 days from the notice of judgment, final
order, or resolution appealed from.
6. It does not require a prior motion for
reconsideration.
7. Stays the judgment appealed from.
8. The parties are original parties with the appealing
party as the petitioner and the adverse party as
respondent without impleading the lower court or
its judge.
9. Certiorari as an appeal is filed only with the SC.
Review is only of the errors of the appellate court
 Where a case was appealed to the CA, the
decision of which was subsequently appealed to
the SC, it is only the errors of the CA which is
reviewed by the SC in a petition for review on
certiorari, and not those of the trial court, quasijudicial agency, tribunal or officer which rendered
the decision in the first instance.
Referral to the CA
 The court, instead of denying the appeal may
refer the appeal to the CA.
 An appeal by certiorari taken to the SC from the
RTC submitting issues of fact may be referred to
the CA for decision or appropriate action.
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
Rule 65
10. Is a special civil action that is an original action
and not a mode of appeal.
11. It is not part of the appellate process but an
independent action.
12. May be directed against an interlocutory order or
matters where no appeal may be taken from.
13. Raises questions of jurisdiction.
14. A petition for certiorari shall be filed not later
than 60 days from notice of judgment, order, or
resolution sought to be assailed. In case a motion
for reconsideration or new trial is timely filed,
whether such motion is required or not, the 60day period shall be counted from notice of denial
of said motion.
15. A prior motion for reconsideration is required.
16. It does not stay the judgment or order subject of
the petition unless enjoined or restrained.
17. The tribunal, board, officer exercising judicial or
quasi-judicial functions is impleaded as
respondent.
18. Certiorari as a special civil action, may be filed
with the RTC, CA, or the SC.

Or within 15 days from the notice of the denial of
the petitioner’s motion for new trial or motion for
reconsideration filed in due time.
The SC for justifiable reasons, may grant an
extension of 30 days only within which to file the
petition provided:
o There is a motion for extension of time
duly filed and served.
o There is full payment of the docket and
other lawful fees and deposit for costs.
o The motion is filed and served and the
payment is made before the expiration of
the reglementary period.
Form of the petition:
 The petition shall contain all the matters
mentioned in sec.4 of rule 45 including
compliance with the Material Data Rule which
requires the petitioner to indicate the material
dates showing when notice of the judgment
subject of the petition was received and when a
motion for new trial or reconsideration, if any,
was filed and when notice of the denial thereof
was received.
General rule: A party cannot simultaneously file a petition
both under Rules 45 and 65 of the Rules of Court because
said procedural rules pertain to different remedies and
have distinct applications. They are mutually exclusive and
not alternative or cumulative.

Among others, the petition must be verified and
also accompanied by a certification against forum
shopping.
The SC may, on its own initiative, deny the petition on the
ground that:
1. The appeal is without merit.
2. Is prosecuted merely for delay.
3. That the questions raised therein are too
unsubstantial to require consideration.
When a party adopts an improper remedy, his petition may
be dismissed outright.
Exception: The court may set aside technicality for
justifiable reasons as when the petition before the court is
clearly meritorious and filed on time both under Rule 45
and 65. In accordance with the liberal spirit and in the
interest of justice, the court may treat the petition as
having been filed under Rule 45.
For purposes of determining whether the petition should
be denied or given due course, the SC may require the
filing of such pleadings, briefs, memoranda, or the
submission of documents as it may deem necessary.
When a Rule 65 petition is treated as a Rule 45 petition
1. When the petition has been filed within the 15
day reglementary period.
2. Public welfare and the advancement of public
policy dictate such treatment.
3. The broader interests of justice require such
treatment.
4. The writs issued were null and void.
5. The questioned decision or order amounts to an
oppressive exercise of judicial authority.
If the petition is given due course, the SC may require the
elevation of the complete record of the case or specified
parts thereof within 15 days from notice.
Appeals from quasi-judicial bodies (Rule 43)
 The appeal under Rule 43 may be taken to the
Court of Appeals whether the appeal involves a
question of fact, law or both.
 The appeal under Rule 43 may be taken to the CA
by filing a verified petition for review with the CA.
 The appeal shay not stay the award, judgment,
final order, or resolution sought to be reviewed
unless the CA shall direct otherwise upon such
terms as it may deem.
When to appeal
 The appeal which shall be in the form of a verified
petition, shall be filed within 15 days from the
notice of the judgment, final order, resolution
appealed from.
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
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 the notice of the
decision.
 In observance of the doctrine of the hierarchy of
courts, the petition for certiorari should be filed
with the Court of Appeals.
 From the CA, the remedy of the aggrieved party is
an appeal via petition for review in certiorari to
the SC.
 A.M. No. 99-2-01-SC February, 9,1999- All special
civil actions arising out of any decision, final
resolution, or order of the NLRC filed with the SC
after June 1 ,1999 shall no longer be referred to
the CA but shall forthwith be dismissed.
The decision of the Ombudsman is immediately
executory and may not be stayed by the filing of
an appeal or the issuance of an injunctive writ.
Appeals from judgments of the Court of Tax Appeals
 A party adversely affected by a decision or ruling
of the CTA en banc may file with the SC a verified
petition for review on certiorari pursuant to Rule
45.
 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.
Review of judgments of the COMELEC
 A judgment, resolution, or final order of the
COMELEC may be brought by the aggrieved party
to the Supreme Court on certiorari under Rule 45
by filing the petition within 30 days from notice.
 The review by the SC is limited only to the
jurisdictional issue of whether the COMELEC acted
without or in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or
excess of jurisdiction.
 Findings of the COMELEC supported by substantial
evidence, shall be final and non-reviewable.
 Only in exceptional cases, however, when the
action of the COMELEC on the appreciation and
evaluation of evidence oversteps the limits of its
discretion to the point of being grossly
unreasonable, the court is not only obliged but
has the constitutional duty to intervene.
Appeals from the Sandiganbayan
 Decisions and final orders of the Sandiganbayan
shall be appealable to the Supreme Court by way
of certiorari under rule 45 raising pure questions
of law.
Review of rulings of the Ombudsman
 In administrative disciplinary cases, the rulings of
the office of the Ombudsman are appealable to
the Court of Appeals- Rule 43.
 However, it cannot therefore, review the orders
of the Office of the Ombudsman in criminal or
non-administrative cases. If tainted with grave
abuse of discretion- Rule 65 with the SC. If in
criminal cases, there is lack of probable cause the
remedy is also Rule 65 with the SC.
 Remedy of an aggrieved party in criminal
complaints before the Ombudsman is to file with
the Supreme Court a petition for certiorari under
Rule 65. The SC’s power of review is restricted
only to determining whether grave abuse of
discretion has been committed by it. The court is
not authorized to correct every error or mistake
the Office of the Ombudsman other than grave
abuse of discretion.
 But the appeals from the Ombudsman in
administrative cases are now cognizable by the
CA, nevertheless.

in cases in which it is alleged that the
Ombudsman has acted with grave abuse of
discretion amounting to lack or excess of
jurisdiction, a special civil action for certiorari
under Rule 65 may be filed with the Supreme
Court to set aside the Ombudsman order or
resolution.
Review of judgments of the Commission on Audit
 A judgment, resolution, or final order of the COA
may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65 by
filing the petition within 30 days from notice.
Appeals from judgments of the Civil Service Commission
 A judgment, final order or resolution of the CSC
may be taken to the CA under Rule 43.
 The appeal shall be taken within 15 days from
notice.
Appeals from judgments of the Office of the President
 The judgments, resolutions, or final orders of the
office of the president may be taken to the Court
of Appeals under Rule 43.
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
solely on the ground of grave abuse of discretion.
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Remedies after a judgment has become final and
executory
1. Petition for relief from judgment (Rule 38)
2. Petition for annulment of a judgment (Rule 47)
3. Direct action for certiorari under rule 65.
4. Collateral attack of a judgment that is void on its
face.
When to file
 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. (60 days-6 months)
Form of petition
 The petition must be verified and accompanied
with affidavits showing fraud, mistake, accident,
or excusable negligence relied upon and the facts
constituting the petitioner’s good and substantial
cause of action or defense, as the case may be.
Petition for relief from judgment
 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.
 Is an equitable remedy that is allowed only in
exceptional cases when there is no other available
or adequate remedy.
 Also, a party who has filed a motion for new trial,
but which was denied, cannot file a petition for
relief. These two remedies are said to be exclusive
of each other. It is when a party aggrieved by a
judgment has not been able to file a motion for
new trial that a petition for relief can be filed.
Order to answer
 If the petition is sufficient in form and substance
to justify relief, the court, in which it is filed, shall
issue an order requiring the adverse parties to
answer the same within 15 days from the receipt
thereof.
Hearing of the petition
 After the filing of the answer or the expiration of
the period to file the answer, the court shall hear
the petition.
Grounds for a petition for relief
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, or
excusable negligence.
2. When the petitioner has been prevented from
taking an appeal by fraud, mistake, accident, or
excusable negligence.
Action of the court
 After the hearing and the court finds that the
allegations therein are not true, it shall dismiss
the petition.
 If the court finds the allegations to be true, it shall
set aside the judgment, final order or proceeding
complained of. The case then, shall stand as if
such judgment, final order, or proceeding had
never been rendered, issued, or taken.
 The court shall then proceed to hear and
determine the case as if a timely motion for a new
trial or reconsideration had been granted by it.
 Where the prayer of the petitioner is to give due
course to his appeal because he was prevented
from taking an appeal through fraud, accident,
mistake, or excusable negligence, and the court
finds the allegations of the petition to be true, the
court shall set aside the previous denial of the
appeal and shall give due course to the said
appeal. It shall then elevate the records of the
appealed case as if a timely and proper appeal
had been made.
In no. 1- The petition shall be filed with such court and in
the same case. The petition shall pray that the judgment,
order, or proceeding be set aside.
In no.2- The petition shall, likewise, be filed with such court
and in the same case but the prayer this time is that the
appeal be given due course.
Extrinsic Fraud
 The fraud that is a ground for the filing of a
petition for relief is extrinsic fraud.
 That fraud which the prevailing party caused to
prevent the losing party from being heard on his
action or defense.
 Such fraud concerns not the judgment itself but
the manner in which it was obtained.
Preliminary injunction pending petition for relief.
 The court, may grant a preliminary injunction to
preserve the rights of the parties upon the filing of
a bond in favour of the adverse party
The petition is available only to the parties.
The petition for relief is also available to a proceeding
taken after the entry of judgment or final order such as an
order of execution.
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No petition for relief in the following:
 A petition for relief is not available to the CA and
SC
 Rules on Summary Procedure
 Small Claims cases
Intrinsic fraud
 Forgery or perjury- The use of forged
instruments or perjured testimonies during
trial is not an extrinsic fraud. Such evidence
does not preclude a party’s participation in
the trial.
Environmental cases- A petition for relief from judgment
shall be allowed in highly meritorious cases or to prevent a
manifest miscarriage of justice.

Annulment of judgments, final orders, or resolutions
(Rule 47)
 An action for annulment of judgment is a remedy
in law independent of the case where the
judgment sought to be annulled was rendered.
 The purpose of such action is to have the final and
executory judgment set aside so that there will be
a renewal of litigation.
 It is resorted to in cases where the ordinary
remedies of new trial, appeal, petition for relief
from judgment or other appropriate remedies are
no longer available through no fault of the
petitioner.
 The remedy may not be invoked where the party
has availed himself of the remedy of new trial,
appeal, petition for relief, or other appropriate
remedy and lost, or where he has failed to avail
himself of those remedies through his own fault
or negligence.
Offering manufactured evidence is intrinsic
and not extrinsic fraud. Intrinsic fraud is not
sufficient to annul a judgment.
Lack of jurisdiction
 Over the subject matter or over the person of the
defending party.
 The petitioner must show not a mere grave abuse
of discretion but an absolute lack of jurisdiction.
 The concept of lack of jurisdiction, as a ground to
annul a judgment, does not embrace abuse of
discretion. A claim for grave abuse of discretion
will support a certiorari under Rule 65.
Period of filing the action
 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
Who may file the action:
 The petitioner need not be a party to the
judgment sought to be annulled or acquire
personality to file the action for annulment of
judgment.
 What is essential is that the petitioner is one who
can prove the allegation that the judgment was
obtained by use of fraud and collusion and that he
was affected thereby.
 It is a remedy in law independent of the case
where the judgment sought to be annulled is
promulgated.
How the action is commenced
 The action is commenced by the filing of a
verified petition with the proper court. If it is
the judgment or final order of a RTC which is
sought to be annulled, then the action shall
be filed with the Court of Appeals.
Grounds for annulment of judgment
1. Extrinsic fraud
2. Lack of jurisdiction
3. Denial of due process*
Procedure
 A petition for annulment of judgment filed with
the CA shall observe the procedure in ordinary
civil cases.
 Should the CA find a trial necessary, the reception
of evidence may be referred to a member of the
court or to a judge of a RTC.
 A petition filed in the RTC shall also be treated as
an ordinary civil action.
 Although treated as an ordinary civil action, the
court, upon filing of the petition may make an
outright dismissal of the petition as long as it has
specific reasons for its dismissal.
 The dismissal may be made even before the
summons are served,.
*The petition for annulment of judgment is an
extraordinary action. By virtue of its exceptional character,
the action is restricted to the grounds specified in the
Rules.
*The rationale of the restriction is to prevent the
extraordinary action from being used by a losing party to
make a complete farce of a duly-promulgated decision that
has long become final and executory.
*Extrinsic fraud shall not be a valid ground if it was availed
of, or could have been availed of, in a motion for new trial
or petition for relief.
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Effect of judgment of annulment
 A judgment of annulment based on lack of
jurisdiction shall have the effect of setting aside
the questioned judgment and rendering the same
null and void, but the judgment of annulment is
without prejudice to the refilling of the original
action in the proper court.
 The prescriptive period for the refilling of the
original action shall be deemed suspended from
the filing of such original action until the finality of
the judgment of annulment.
 This prescriptive period shall not, however, be
suspended where the extrinsic fraud is
attributable to the plaintiff in the original action.
 When the judgment or final order is set aside and
annulled on the ground of extrinsic fraud, the
court, upon motion, may order the trial court to
try the case as if a motion for new trial was
granted.
 Aside from setting aside of the judgment or final
order and other effects, the judgment of
annulment may include the award of damages,
attorney’s fees and other relief.






Remedy when the questioned judgment has already been
executed
 The court may issue such orders of restitution or
other relief as justice and equity may warrant
under the circumstances.


Annulment of judgments of quasi-judicial bodies
 The silence of BP 129 on the jurisdiction of the CA
to annul judgments or final orders and resolutions
of quasi-judicial bodies, indicates its lack of such
authority.
 It is hence submitted, that a party aggrieved who
desires an annulment of a judgment or resolution
of a quasi-judicial body, enumerated under Rule
43, may avail of a petition for review to the CA
under the said rule and not an action to annul the
judgment or resolution.
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.
Then purpose of certiorari is to correct errors of
jurisdiction only or grave abuse of discretion
amounting to lack or excess of jurisdiction.
Its principal office is only to keep the inferior court
within the parameters of its jurisdiction.
It is a limited form of review, it is restricted to
resolving errors of jurisdiction not errors of
judgment.
Supervisory or Superintending writ- This remedy
is to annul or modify the proceedings of a
tribunal, board, officer, exercising judicial or
extrajudicial functions which has acted without or
in excess of jurisdiction, or with grave abuse of
discretion amounting to lack of jurisdiction.
For this petition to prosper, it is necessary to
allege and show that there is no more appeal, or
any other plain, speedy, and adequate remedy in
the ordinary course of law.
Grave abuse of discretion- Is the capricious and
whimsical exercise of judgment, equivalent to lack
of jurisdiction. The discretion must be grave and
not mere abuse of discretion.
The petition shall be filed not later than 60 days
from notice of the judgment, order or resolution
sought to be reviewed.
In case a motion for reconsideration was filed, the
60-day period starts not from the notice of
judgment but from the notice of the denial of the
motion for reconsideration.
Requisites for petition for certiorari Rule 65
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 grave abuse of
discretion amounting to lack or excess of
jurisdiction.
3. There is no appeal, or any plain, speedy, or
adequate remedy in the ordinary course of law.
Certiorari (Rule 65)
 A petition for certiorari is an original and
independent action and is not part of the
proceedings that resulted in the order assailed.
 Not being part of the proceedings that gave rise to
the assailed order, the petition shall not interrupt
the course of the principal case, unless a
temporary restraining order or writ of preliminary
injunction has been issued, enjoining the public
respondent from further proceeding with the
case.
 The public respondent, in a petition for certiorari,
shall proceed with the principal case within 10
days from the filing of the petition with a higher
The court may dismiss the petition on the following
grounds:
1. There is no showing of a grave abuse of discretion
by any court, agency, or branch of the
government.
2. There are procedural errors, such as violation of
the Rules of Court or Supreme Court circulars, like
the failure to implead private respondent, failure
to attach the pleadings and documents relevant
to the petition, failure to file a motion for
94
reconsideration or failure to allege material dates
in the petition.

Motion for reconsideration and its subsequent denialCondition precedent for filing petition for certiorari.
Exceptions to the rule requiring a motion for
reconsideration
1. Where the order is a patent nullity, as where the
court a quo has no jurisdiction.
2. Where 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. Where 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 or the subject matter of the
action is perishable.
4. Where, under the circumstances, a motion for
reconsideration would be useless.
5. Where the petitioner was deprived of due process
and there is extreme urgency for relief.
6. Where in a criminal case, relief from an order of
arrest is urgent and the granting of such relief by
the trial court is improbable.
7. Where the proceedings conducted were ex parte
or in which the petitioner had no opportunity to
object.
8. Where the issue raised is one purely of law or
public interest is involved.
by law or these rules, the petition shall be filed
with and cognizable only by the Court of Appeals
In election cases involving an act or omission of a
municipal or regional trial court, the petition shall
be filed exclusively with the COMELEC in aid of its
appellate jurisdiction.
Remedy in order to interrupt the course of the principal
issue
 The petitioner should secure a temporary
restraining order or a writ of preliminary
injunction enjoining the public respondent from
proceeding with the case and for the preservation
of the rights of the parties pending such
proceedings.
 When so secured, the public respondent shall not
proceed with the principal case during the period
that the temporary restraining order or writ of
preliminary injunction is in effect.
Collateral attack of a judgment
 As distinguished from a direct attack of
judgment, a direct attack is made through an
action or proceeding, the main object of
which is to annul, set aside or enjoin the
enforcement of such judgment, if not yet
carried into effect, or if the property has been
disposed of, the aggrieved party may sue for
recovery.
 Collateral attack- Is made when, in another
action to obtain a different relief, an attack
on the judgment is made as an incident in
said action. It is proper only when the
judgment , on its face, is null and void as
where it is patent that the court, which
rendered said judgment has no jurisdiction.
Material date (data) rule
 3 material dates that must be stated in a petition
for certiorari brought under Rule 65
1. The date when the notice of the
judgment, final order, or resolution was
received.
2. The date when a motion for new trial or
for reconsideration was filed.
3. The date when the notice of the denial
thereof was received.
 This requirement is for the purpose of
determining the timeliness of the petition.
Execution and satisfaction of judgment
Execution- Is the remedy afforded for the satisfaction of a
judgment. Its object being to obtain satisfaction of the
judgment on which the writ is issued.
Part of the judgment to be executed
 The dispositive portion (fallo) of the judgment is
that part which is subject to execution under Rule
39 of the Rules of Court.
 Jurisprudence considers this portion of the
judgment as that which finally vests upon the
parties, sets conditions for the exercise of those
rights, and imposes the corresponding duties and
obligations.
Certification against forum shopping- Rule 65 requires the
pleader to submit a certification against fourm shopping.
Observance of the hierarchy of courts
 If the petition for certiorari relates to an act or
omission of a municipal trial court, a board, officer
or a person, it shall be filed with the RTC
exercising jurisdiction over the territorial area, as
defined by the SC.
 If the petition involves an act or omission of a
quasi-judicial agency, unless otherwise provided
When execution shall issue:
 Execution is a matter of right upon the expiration
of the period of appeal and if no appeal was
95


perfected from a judgment or order that disposes
of the action or proceeding.
Once a 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.
Judgments and orders becomes final and
executory by operation of law, and not by judicial
declaration. The trial court need not even
pronounce the finality of the order as the same
becomes final by operation of law.
execution may instead file an appropriate special
civil action under 65.
Form and contents of the writ of execution
 The writ of execution is issued in the name of the
Republic of the Philippines and shall state the
following:
o The name of the court which granted the
motion.
o The case number and title
o The dispositive portion of the judgment
or order subject of the execution.
o Shall require the sheriff or other proper
officer to whom it is directed to enforce
the writ according to its terms.
 The writ of execution must conform to the
judgment which is to be executed, substantially to
every essential particular thereof, is settled. It
may not thus, vary the terms of the judgment it
seeks to enforce, nor go beyond its terms. Where
the execution is not in harmony with the
judgment which gives it life and exceeds it, it has
no validity.
Execution shall issue on motion as clearly set forth under
Sec.1 Rule 39. There is, therefore, a need to file a motion
before the issuance of a writ of execution.
Hence, a judge may not order execution of the judgment in
the decision itself.
A motion for the issuance of a writ of execution shall
contain a notice to the adverse party. A motion which does
not contain a notice of hearing of the time and place for
the hearing of the motion as required by the rules, is a
worthless piece of paper which the clerk has no right to
receive and which the court has no authority to act upon.
Lifetime of the writ of execution
 The writ shall continue in effect during the period
within which the judgment may be enforced by
the motion.
 Hence, the writ is enforceable within the 5 year
period from the entry of judgment as provided for
in sec.6 of rule 39 because within that period, the
writ may be enforced by motion.
Where application for execution is made
 Execution shall be applied for in the court of
origin.
 If an appeal has been duly perfected and finally
resolved, the execution may be applied for also in
the court of origin on motion of the judgment.
 In filing a motion for execution of an appealed
decision, there is no need to wait for the records
of the case to be remanded to the court of origin.
All that is required for the appeal to have been
duly perfected and finally resolved before
execution may be applied for.
 This is because the judgment oblige files a motion
for execution in the court of origin, all he has to
do is to:Attach the certified true copies of the
o Judgment of the appellate court.
o Entry of said judgment with notice to the
adverse party.
 Even if the records have not as yet been
remanded to the court of origin. This procedure
prevents needless delays in the execution of the
judgment.
The trial court may refuse to have the judgment executed
on the following cases:
1. When the judgment has already been executed by
the voluntary compliance thereof by the parties.
2. When the judgment has been novated by the
parties. (compromise)
3. When a petition for relief is filed and a preliminary
injunction is granted in accordance with Sec.5
Rule 38. Also, when execution of the judgment is
enjoined by a higher court.
4. When the judgment sought to be executed is
conditional or when the judgment sought to be
executed is incomplete.
5. When facts and circumstances transpire which
would render execution inequitable or unjust.
6. When execution is sought more than 5 years from
its entry without the judgment having been
revived.
7. When execution is sought against property
exempt from execution.
8. When refusal to execute the judgment has
become imperative in higher interest of justice.
No appeal from order of execution:
 Than an appeal may be taken from a judgment or
final order that completely disposes of the cases.
 No appeal may be taken from an order of
execution, A party desiring to assail an order of
96
Exceptional circumstances may prevent the execution of a
judgment or allow the quashal of a writ of execution
already issued:
1. When the writ of execution varies the judgment.
2. When there has been a change in the situation of
the parties making execution inequitable or
unjust.
3. When the execution is sought to be enforced
against property exempt from execution.
4. When it appears that the controversy has never
been submitted to the judgment of the court.
5. When the terms of the judgment are not clear
enough and there remains room for
interpretation thereof.
6. When it appears that the writ of execution has
been improvidently issued.
7. When it appears that the writ of execution is
defective in substance or is issued against the
wrong party or that the judgment debt has been
paid or otherwise satisfied or the writ was issued
without authority.
Revival of judgment
 An action for revival of judgment is no more
than a procedural means of securing the
execution of a previous judgment which has
become dormant after the passage of 5 years
without it being executed upon motion of the
prevailing party.
 It is a new and independent action, different
and distinct from the original case, wherein
the cause of action is the decision itself and
not the merits of the action upon which the
judgment sought to be enforced is rendered.
 Revival of the judgment is premised on the
assumption that the decision to be revived is
already final and executory.
 The action to revive a judgment must be filed
within 10 years from the date the judgment
became final because an action to enforce a
judgment prescribes after 10 years from the
finality of judgment (Art 1144 (3) Civil Code)
 When a judgment is revived, such revived
judgment may also be enforced by motion
within 5 years from the date of its entry and
thereafter by action also before it is barred by
the statute of limitations.
 A revived judgment is deemed a new
judgment separate and distinct from the
original judgment. It is not a continuation of
the original judgment.
 The action to revive the judgment is a new
action and results in a new judgment
constituting a new cause of action with a
new period of limitations. Hence, the 10-year
period to revive the revived judgment shall
commence to run from the date of the finality
of the revived judgment and not from the
date of finality of the old, original judgment.
 A party aggrieved by a decision of the court
may appeal the decision, but only insofar as
the merits of the action for revival is
concerned. The new original judgment which
is already final and executory.
Duty of the sheriff in the execution
 The sheriff’s duty in the execution of the writ is
purely ministerial, he is to execute the order of
the court strictly to the letter. He has no
discretion whether to execute the judgment or
not.
Modes of execution of judgment
1. Execution by motion if the enforcement of the
judgment is sought within 5 years from the date
of its entry.
2. Execution by independent action if the 5-year
period has elapsed and before it is barred by the
statute of limitations.
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
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


The rule is that the court should issue a writ of
execution by motion within 5 years from the
finality of the decision.
A writ of execution issued after the expiration of
that period is null and void.
There is a need for the interested party to file an
independent action for revival of judgment.
The judgment may be enforced after the lapse of
this period and before the same is barred by the
statute of limitations, by instituting an ordinary
civil action.
The reason is that after the lapse of the 5-year
period, the judgment is reduced to a mere right of
action, which judgment must be enforced, as all
other ordinary actions by the institution of a
complaint in the regular form.
Such action must be filed within 10 years from the
date the judgment became final, which is the date
of entry.
Venue of an action to revive a judgment
 If real action- Court of the place where the real
property is located.
 Personal action- Court of the place where the
plaintiff or defendant resides.
When 5-year period is interrupted
 While the rule is that the execution of a judgment
can no longer be effected by mere motion after 5
years from the date of entry of the judgment, the
court in certain instances, allowed execution of
the judgment by mere motion despite the lapse of
the 5-year period.
97
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
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In many instances, the delays in the execution of
the judgment were through causes clearly
attributable to the judgment debtor as when he
employs legal maneuvers to block the
enforcement of the judgment. Delays attributable
to the defendant have the effect of suspending
the running of the prescriptive period for the
enforcement of the judgment.
It has been held that in computing the time limit
for enforcing the final judgment, the general rule
is that the time when execution is stayed, either
by agreement of the parties, for a definite time,
by injunction, or by taking of an appeal or writ of
error shall not be included. Thus, the time during
which execution is stayed should be excluded, and
the said time will be extended by any delay
occasioned by the debtor as when the writ of
execution cannot be enforced within the 5-year
period.
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When the 5-year and 10-year periods do not apply
1. Special proceedings
2. Judgments for support.
Because the periods in these cases never prescribe.
Stay of execution of a judgment.
General rule: An appeal perfected in due time stays the
execution of the judgment.
Exceptions: These judgments are not stayed by a pending
appeal. (In general)
1. Those judgments which by express
provision of the rules are immediately
executory and are not stayed by an
appeal.
2. Those judgments that have become the
object of discretionary execution.
It is called discretionary execution because it is
not a matter of right. The execution of a judgment
under this concept is addressed to the
discretionary power of the court.
A judgment subject to discretionary execution
cannot be insisted upon but simply prayed and
hoped for because a discretionary execution is not
a matter of right.
Good reasons and compelling grounds for the
issuance of the writ must be stated in a special
order after due hearing.
It does not require a final and executory judgment
but simply a final judgment.
It must be strictly construed because it is an
exception to the general rule.
Where it is not in conformity with the rules, the
execution is null and void.
Good reasons- Call for the attendance of
compelling circumstances warranting immediate
execution for fear that favourable judgment may
yield to an empty victory. In this regard, the Rules
do not categorically and strictly define what
constitutes good reasons, and hence, its presence
or absence must be determined in view of the
particular circumstances of the case.
Requisites for discretionary execution:
1. There must be a motion filed by the prevailing
party with notice to the adverse party.
2. There must be a hearing of the motion for
discretionary execution.
3. The motion must be filed in the trial court while it
has jurisdiction over the case and is in possession
of either the original record or the record on
appeal.
4. There must be good reasons to justify the
discretionary execution.
5. The good reasons must be stated in a special
order.
Judgments not stayed by appeal (Specific)
1. Judgment for injunction
2. Judgment for receivership
3. Judgment for accounting
4. Judgment for support.
*Not absolute, because the court is authorized to order
otherwise
Posting of bond as reason for discretionary execution
 The rule is now settled that the mere filing of a
bond by the successful party is not itself a good
reason for ordering the execution pending appeal,
because it is the combination of circumstances
which is the dominating reason that would justify
immediate execution, the bond being only an
additional factor.
 If the mere posting of a bond is sufficient to justify
immediate execution pending appeal, judgments
would be executed immediately, as a matter of
course, once rendered, if all that the prevailing
party needed was to post a bond, immediate
execution will then become a general rule rather
than the exception
Discretionary execution
 The concept of 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.
 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.
98
Where to file an application for discretionary execution
 It shall be filed with the trial court while:
o It has jurisdiction over the case and
o While it is in possession of either the
original record or the record on appeal.
 After the trial court has lost jurisdiction, the
motion for execution pending appeal may be filed
in the appellate court.
Remedy where the judgment subject to discretionary
execution is reversed or annulled
 Where the executed judgment is reversed totally
or partially, or annulled, on appeal or otherwise,
the trial court may, on motion, issue such orders
of restitution or reparation of damages as equity
and justice may warrant under the circumstances.
 There is no need of specifying in the judgment
that there should be restitution because
restitution is expressly provided for in the Rules.
Said rule should apply in the absence of a
disposition to the contrary in the judgment of the
appellate court.
3.
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 sell only so much of the
property that is sufficient to satisfy the
judgment and lawful fees.
The officer may levy on the debts due the
judgment debtor including bank deposits,
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
garnishment.
Money judgments are enforceable only against property
of the judgment debtor.
Execution in case the judgment obligor or obligee dies
 The death of the judgment oblige will not prevent
the execution of the judgment. In case the
judgment oblige dies, execution may issue upon
the application of his executor, administrator or
successor in interest.
 The death of the judgment obligor will not
likewise prevent execution of the judgment.
Execution shall still go on because under the
Rules, execution shall issue against his executor of
administrator or successor in interest, if the
judgment be for the recovery of real or personal
property, or the enforcement of a lien thereon.
 If the death occurs after execution is actually
levied upon any of his property, the same may be
sold for the satisfaction of the judgment
obligation. If there be any surplus after the sale,
the officer making the sale shall account to the
corresponding executor or administrator.
Garnishment of debts and credits
 Garnishment shall be made by:
1. Serving notice upon the third person
having possession or control of the
credits in favour of the judgment obligor.
2. The third person or garnishee shall make
a written report to the court within 5
days from the 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 oblige within 10 working days
from service of notice of the 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.
How to execute judgments for money
 The sheriff shall follow the following steps:
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 oblige or any
other form of payment acceptable to
him.
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
Levy of encumbered property
 In determining properties to be levied upon, the
Rules require the sheriff to levy only on those
properties of the judgment debtor which are not
otherwise exempt from execution.
 For purposes of 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 or for value.
99
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dispossess him of the property and if after the
dispossession, the judgment debtor should
execute acts of ownership or possession or in any
manner disturb the possession of the judgment
creditor, then and only he may be punished for
contempt of court.
A mortgaged property may still be levied upon by
the sheriff to satisfy the judgment debtor’s
obligations if not yet foreclosed.
Effect of levy and sale of property
 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 of 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.
 Even if the right is inchoate, it is still entitled to
protection and must be respected until
extinguished by redemption.
Removal of improvements on the property subject of
execution

The officer shall not demolish or remove them.
These acts can only be done by the officer upon a
special order by the court which will be issued
upon motion by the judgment oblige and after
hearing only after the judgment obligor fails to
remove them within a reasonable time fixed by
the court.
Section 13.
Property exempt from execution. —
Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from
execution:
Execution for the performance of 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.
1. The judgment obligor's family home as provided by law,
or the homestead in which he resides, and land necessarily
used in connection therewith;
Execution for a judgment for the delivery or restitution of
real property
 The officer shall demand from the judgment
obligor to vacate peaceably within 3 working days
and restore possession of the property to the
judgment oblige- Ejectment cases.
 Immediacy of the execution does not mean that
instant execution. When a decision is immediately
executory, it does not mean dispensing with the
required 3 day notice. A sheriff who enforces the
writ without the required notice is running afoul
with the rules.
 If the judgment debtor refuses to vacate, then the
sheriff may enforce the writ by ousting the
judgment debtor and all persons claiming a right
under him, with the assistance, if necessary, of
appropriate peace officers and employing such
means as may be reasonably necessary to retake
possession of such property.
2. Ordinary tools and implements personally used by him
in his trade, employment, or livelihood;
3. Three horses, or three cows, or three carabaos, or other
beasts of burden, such as the judgment obligor may select
necessarily used by him in his ordinary occupation;
4. His necessary clothing and articles for ordinary personal
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;
Contempt
 The writ of possession was not directed to the
judgment debtor but to the sheriff who was
directed to deliver the property to the prevailing
party. As the writ did not command the judgment
debtor to do anything, he cannot be guilty of the
acts described in Rule 71 which is disobedience of
or resistance to a lawful writ, process, order,
judgment or command of a court. The proper
procedure is not for the court to cite the debtor in
contempt. What the officer should do is
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;
100
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;
Principles to be remembered in execution sales
1. A notice of sale is required before the property
levied upon is sold on execution.
2. All sales of property under execution must be
made at a public auction to the highest bidder,
but the execution sale must be preceded by a
valid levy which is indispensable for a valid
execution sale.
3. A levy is the act, whereby the sheriff sets apart or
appropriates a part of the whole of the properties
of the judgment obligor to satisfy the command of
the writ.
4. A levy is necessary only if the obligor cannot
satisfy the judgment in cash, certified check or any
other mode of payment acceptable to the
judgment creditor.
5. A levy upon real property is made by the officer
by performing 2 acts:
a. Filing with the register of deeds a copy of
the order, description of the attached
property and notice of attachment.
b. Leaving with the occupant of the
property copy of the same order,
description, and notice.
6. Non-compliance with any of these requisites is
fatal because a special statutory provision
respecting the manner of carrying out levy of
attachment must strictly be complied with and
departure therefrom shall invalidate the levy.
7. After sufficient property has been sold to satisfy
the execution, no more shall be sold.
8. Any excess property or proceeds of the sale shall
be delivered to the judgment obligor.
9. If the purchaser at the auction refuses to pay the
amount bid by him, the officer may again sell the
property to the highest bidder and the court may
require such purchaser to pay unto the court the
amount of whatever loss, with costs occasioned
by his refusal to pay and if he disobeys the order,
may punish him for contempt.
10. The judgment oblige may bid and if said party is
the purchaser and there is no third party claim, he
need not pay the amount of the bid if it does not
exceed the amount of his judgment. If it does, he
shall only pay the excess.
11. If the purchaser of personal property capable of
manual delivery pays the purchase price, the
officer making the sale must deliver the property
to the purchaser and, if desired, shall execute a
certificate of sale. The sale conveys to the
purchaser all the rights which the judgment
obligor had in such property as of the date of the
levy on execution or preliminary attachment.
12. When the purchaser of any personal property not
capable of manual delivery pays the price, the
officer making the sale must execute and deliver
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.
But no article or species of property mentioned in this
section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon.
Proceedings when property levied upon is claimed by
third persons.
Terceria-Remedy
 A person, not a party to the action, claiming a
property levied upon may execute an affidavit of
his title or right of possession over the property.
 Such affidavit must state the grounds of such right
or title.
 The affidavit shall be served upon the officer
making a levy and a copy thereof must also be
served upon the judgment obligee.
 The officer served with the affidavit of the
claiming third party shall not be bound to keep
the property subject of the claim, unless the
judgment obligee, on demand of the officer, files
a bond approved by the court to indemnify the
claimant in a sum not less than the value of the
property levied upon.
 No claim for damages for taking the property may
be enforced against the bond unless the action
therefor is filed within 120 days from the date of
the filing of the bond.
 The officer shall not be liable to any third-party
claimant for damages for the taking or keeping of
the property, if such bond is filed.
Other remedies may also be claimed by the third party
claimant
 Because nothing contained in the Rules shall
prevent the claiming third person from vindicating
his claim to the property in a separate action.
101
to the purchaser a certificate of sale. Such
certificate conveys to the purchaser all the rights
which the judgment obligor had in such property
as of the date of the levy on execution or
preliminary attachment.
Property so redeemed may again be redeemed within sixty
(60) days after the last redemption upon payment of the
sum paid on the last redemption, with two per centum
thereon in addition and the amount of any assessments or
taxes which the last redemptioner may have paid thereon
after redemption by him, with interest on such last named
amount, and in addition, the amount of any liens held by
said last redemptioner prior to his own, with interest. The
property may be again, and as often as a redemptioner is
so disposed, redeemed from any previous redemptioner
within sixty (60) days after the last redemption, on paying
the sum paid on the last previous redemption, with two
per centum thereon in addition, and the amounts of any
assessments or taxes which the last previous redemptioner
paid after the redemption thereon, with interest thereon,
and the amount of any liens held by the last redemptioner
prior to his own, with interest.
Sale and redemption of property
Section 25.
Conveyance of real property; certificate
thereof given to purchaser and filed with registry of deeds.
— Upon a sale of real property, the officer must give to the
purchaser a certificate of sale containing:
(a)
A particular description of the real property sold;
(b)
The price paid for each distinct lot or parcel;
(c)
The whole price paid by him;
(d)
A statement that the right of redemption expires
one (1) year from the date of the registration of the
certificate of sale.
Written notice of any redemption must be given to the
officer who made the sale and a duplicate filed with the
registry of deeds of the place, and if any assessments or
taxes are paid by the redemptioner or if he has or acquires
any lien other than that upon which the redemption was
made, notice thereof must in like manner be given to the
officer and filed with the registry of deeds; if such notice
be not filed, the property may be redeemed without
paying such assessments, taxes, or liens. (30a)
Such certificate must be registered in the registry of deeds
of the place where the property is situated. (27 a)
Section 27.
Who may redeem real property so sold.
— Real property sold as provided in the last preceding
section, or any part thereof sold separately, may be
redeemed in the manner hereinafter provided, by the
following persons:
Section 33.
Deed and possession to be given at
expiration of redemption period; by whom executed or
given. — If no redemption be made within one (1) year
from the date of the registration of the certificate of sale,
the purchaser is entitled to a conveyance and possession
of the property; or, if so redeemed whenever sixty (60)
days have elapsed and no other redemption has been
made, and notice thereof given, and the time for
redemption has expired, the last redemptioner is entitled
to the conveyance and possession; but in all cases the
judgment obligor shall have the entire period of one (1)
year from the date of the registration of the sale to
redeem the property. The deed shall be executed by the
officer making the sale or by his successor in office, and in
the latter case shall have the same validity as though the
officer making the sale had continued in office and
executed it.
(a)
The judgment obligor; or his successor in interest
in the whole or any part of the property;
(b)
A creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold,
or on some part thereof, subsequent to the lien under
which the property was sold. Such redeeming creditor is
termed a redemptioner. (29a)
Section 28.
Time and manner of, and amounts
payable on, successive redemptions; notice to be given
and filed. — The judgment obligor, or redemptioner, may
redeem the property from the purchaser, at any time
within one (1) year from the date of the registration of the
certificate of sale, by paying the purchaser the amount of
his purchase, with the per centum per month interest
thereon in addition, up to the time of redemption,
together with the amount of any assessments or taxes
which the purchaser may have paid thereon after
purchase, and interest on such last named amount at the
same rate; and if the purchaser be also a creditor having a
prior lien to that of the redemptioner, other than the
judgment under which such purchase was made, the
amount of such other lien, with interest.
Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and
acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the levy.
The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless
a third party adversely to the judgment obligor. (35a)
102
Section 32.
Rents, earnings and income of property
pending redemption. — The purchaser or a redemptioner
shall not be entitled to receive the rents, earnings and
income of the property sold on execution, or the value of
the use and occupation thereof when such property is in
the possession of a tenant. All rents, earnings and income
derived from the property pending redemption shall
belong to the judgment obligor until the expiration of his
period of redemption.
Remedy where judgment is unsatisfied
 When the return of the writ of execution shows
that the judgment is unsatisfied, the judgment
obligee is entitled to an order from the court
which rendered the judgment, requiring the
judgment obligor to appear and be examined
concerning his property and income before the
court or a commissioner appointed by the court.
 This remedy has a limitation because the
judgment obligor cannot be required to appear
before a court or commissioner outside the
province or city in which such obligor resides or is
found.
 It is not only the judgment debtor who may be
examined.
 A person, corporation, or other juridical entity
indebted to the judgment debtor may be required
to appeal before the court or a commissioner
appointed by it, at a time and place within the
province or city where such debtor resides or is
found, and be examined concerning the same.
 Pursuant to the above rules, in the examination of
a person, corporation, or other juridical entity
who has the property of the judgment debtor or is
indebted to him, the court may only authorize the
judgment oblige to institute an action against such
person or corporation for the recovery of such
interest or debt.
 Nothing in the rules gives the court the authority
to order such person or corporation to pay the
judgment oblige and the court exceeds
jurisdiction if it orders the person who denies the
indebted ness to pay the same.
 Execution of judgment can only be issued against
one who is a party to the action, and not against
one, who not being a party to the action did not
have his day in court.
 Due process demands that a court decision can
only bind a party to the litigation and not against
innocent third parties.
103
1991 Revised Rules on Summary Procedure
Effective: November, 15, 1991
Scope:
1.
2.
3.
4.
9. Dilatory motions for postponement.
10. Reply
11. Third-party complaints
12. Intervention
METC
MTC in cities
MTC
MCTC
Subpoena
Section 1.
Subpoena and subpoena duces tecum.
— Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by competent
authority, or for the taking of his deposition. It may also
require him to bring with him any books, documents, or
other things under his control, in which case it is called a
subpoena duces tecum.
A. Civil Cases
1. All cases of forcible entry and unlawful detainer
irrespective of the amount of damages or unpaid
rentals sought to be recovered. Where attorney’s
fees are awarded, the same shall not exceed
20,000 pesos.
2. All other cases, except probate proceedings the
total amount of plaintiff’s claim does not exceed
100,000 or 200,000 in Metro Manila exclusive of
interests and costs.
B. Criminal Cases
1. Violations of traffic law, rules, regulations.
2. Violations of the rental law.
3. Violations of municipal or city ordinances.
4. All other criminal cases where the penalty
prescribed by law is imprisonment not exceeding
6 months or a fine not exceeding 1,000 pesos or
both, irrespective of other penalties accessory or
otherwise or of the civil liability arising therefrom.
5. All offenses involving damage to property through
criminal negligence, the Rules shall govern if the
imposable fine does not exceed 10,000.
C. Not applicable to the following cases:
1. Probate proceedings.
2. Civil cases where the plaintiff’s cause of action is
pleaded in the same complaint with another
cause of action subject to ordinary procedure.
3. A criminal case where the offense charged is
necessarily related to another criminal case
subject to ordinary procedure.
Section 2.
By whom issued. — The subpoena may
be issued by —
(a)
the court before whom the witness is required to
attend;
(b)
the court of the place where the deposition is to
be taken;
(c)
the officer or body authorized by law to do so in
connection with investigations conducted by said officer or
body; or
(d)
any Justice of the Supreme Court or of the Court
of Appeals in any case or investigation pending within the
Philippines.
When application for a subpoena to a prisoner is made, the
judge or officer shall examine and study carefully such
application to determine whether the same is made for a
valid purpose.
No prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution
shall be brought outside the said penal institution for
appearance or attendance in any court unless authorized
by the Supreme Court (2a, R23)
Prohibited motions and pleadings:
1. Motion to dismiss or to quash information except
on the ground of lack of jurisdiction over the
subject matter or failure to comply with the
referral to the appropriate lupon for conciliation.
2. Motion for bill of particulars.
3. Motion for New Trial, Reconsideration of a
judgment, Re-opening 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, prohibition
against any interlocutory order issued by the
court.
8. Motion to declare defendant in default.
Section 3.
Form and contents. — A subpoena shall
state the name of the court and the title of the action or
investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena
duces tecum, it shall also contain a reasonable description
of the books, documents or things demanded which must
appear to the court prima facie relevant. (3a, R23)
Section 4.
Quashing a subpoena. — The court may
quash a subpoena duces tecum upon motion promptly
made and, in any event, at or before the time specified
therein if it is unreasonable and oppressive, or the
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relevancy of the books, documents or things does not
appear, or if the person in whose behalf the subpoena is
issued fails to advance the reasonable cost of the
production thereof.
a court, the disobedience thereto shall be punished in
accordance with the applicable law or Rule. (12a R23)
Section 10.
Exceptions. — 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
residence to the place where he is to testify by the
ordinary course of travel, or to a detention prisoner if no
permission of the court in which his case is pending was
obtained. (9a, R23)
The court may quash a subpoena ad testificandum on the
ground that the witness is not bound thereby. In either
case, the subpoena may be quashed on the ground that
the witness fees and kilometrage allowed by these Rules
were not tendered when the subpoena was served. (4a,
R23)
Section 5.
Subpoena for depositions. — Proof of
service of a notice to take a deposition, as provided in
sections 15 and 25 of Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas for the
persons named in said notice by the clerk of the court of
the place in which the deposition is to be taken. The clerk
shall not, however, issue a subpoena duces tecum to any
such person without an order of the court. (5a, R23)
RULE 22
Computation of Time
Section 1.
How to compute time. — 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 Sunday, or a legal holiday
in the place where the court sits, the time shall not run
until the next working day. (a)
Section 6.
Service. — 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,
tendering to him the fees for one day's attendance and the
kilometrage allowed by these Rules, except that, when a
subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof, the tender need
not be made. The service must be made so as to allow the
witness a reasonable time for preparation and travel to the
place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or
things demanded shall also be tendered. (6a, R23)
Section 2.
Effect of interruption. — 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. (n)
Section 7.
Personal appearance in court. — A
person present in court before a judicial officer may be
required to testify as if he were in attendance upon a
subpoena is sued by such court or officer. (10, R23)
Section 8.
Compelling attendance. — 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 deputy, to arrest the witness and bring
him before the court or officer where his 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 failure to answer the subpoena
was willful and without just excuse. (11, R23)
Section 9.
Contempt. — Failure by any person
without adequate cause to obey a subpoena served upon
him shall be deemed a contempt of the court from which
the subpoena is issued. If the subpoena was not issued by
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