Essential Notes in CIVPRO Finals (Rule 30-61)  Requisites of Motion to Postpone Trial — On the

ground of illness of a party or counsel if it appears

I. Rule 30 — Trial upon affidavit or sworn certification that his
 Judgment can be rendered upon a stipulation of presence at the trial is indispensable and his illness is
facts without the introduction of evidence — such as to render his non-attendance excusable.
provided the parties agree in writing.
o If there are some facts in issue agreed upon and II. Rule 31 — Consolidation or Severance
some in dispute, the trial shall be held as to the  When to consolidate: actions involving common
disputed facts. question of law or fact are pending before the court.
XPN: This is not allowed in actions for  When to order separate trial: In furtherance of
declaration of nullity or annulment of marriage convenience or to avoid prejudice.
and legal separation.  Take note of the rule on permissive joinder of
 GR: The judge of the court where the case is pending parties. They share a common question of law or fact
shall personally receive the evidence. but they didn’t arise from same transaction or series
 XPN: The court may delegate it to its clerk of court of transactions. (S6,R3)
who is a member of the bar. What should be done — File separate complaints for
a. In default or ex parte hearings each count of libel and move to consolidate.
b. Where the parties agree in writing  The consolidation only delayed the issuance of
the desired writ of possession. It prejudiced
Note: The clerk of court has no power to rule on objections to PNB’s right to immediate possession of the
any questions or to the admission of exhibits. property and gave Gotesco undue advantage
for it continues to possess the property during
Article 2030. Every civil action or proceeding shall be the pendency of the consolidated cases despite
suspended: 
the fact that title to the property is no longer in
its name. (PNB v. Gotesco)
(1) If willingness to discuss a possible compromise is
expressed by one or both parties; or 
III. Rule 32 — Trial by Commissioner
(2) If it appears that one of the parties, before the  When: By order of the court
commencement of the action or proceeding, offered to a. By written consent of both parties
discuss a possible compromise but the other party refused b. By motion of either party on the court’s
the offer.  initiative
i. When trial of an issue of fact
The duration and terms of the suspension of the civil action requires the examination of a long
or proceeding and similar matters shall be governed by such account on either side.
provisions of the rules of court as the Supreme Court shall ii. When taking account is necessary
promulgate. Said rules of court shall likewise provide for the for the information of the court
appointment and duties of amicable compounders. (n)  before judgment or for carrying a
judgment or order into effect.
Article 2035. No compromise upon the following questions
iii. When a question of fact other the
shall be valid: 
upon the pleadings arises upon
motion or otherwise in any stage of
(1) The civil status of persons; 
a case.
(2) The validity of a marriage or a legal separation; 
c. In expropriation cases
d. In partition cases.
(3) Any ground for legal separation;   What the commissioner can do — be subjected
to the order of reference, issue subpoena (AT,
(4) Future support;  DT), swear witness, rule upon the admissibility
of eveidence.
(5) The jurisdiction of courts;   If witness refuses to obey a subpoena it is
indirect contempt towards the court that issued
(6) Future legitime. the order of reference.

IV. Rule 33 — Demurrer to Evidence

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  Filed by defendant after plaintiff completed the the Answer fails to tender any issue, that is, if it
presentation of his evidence on the ground that does not deny the material allegations in the
upon the facts and the law, the plaintiff has no complaint or admits said material allegations of
right to relief. the adverse party's pleadings by admitting the
 Risk to the Defendant — Demurrer granted. On truthfulness thereof and/or omitting to deal
appeal the order of dismissal is reversed. with them at all, a judgment on the pleadings is
Defendant is deemed to have waived his right appropriate. On the other hand, when the
to present evidence. Answer specifically denies the material
 DTE in Crim v. Civ — In crim, if filed w/o leave averments of the complaint or asserts
and it is denied = accused waives right to affirmative defenses, or in other words raises
adduce evidence. In civ no need for leave and an issue, a summary judgment is proper
denial is not a waiver against defendant. Grant provided that the issue raised is not genuine.
of DTE in crim is equivalent to acquittal and "A 'genuine issue' means an issue of fact which
therefore not appealable. In civ, DTE is calls for the presentation of evidence, as
appealable and if reverse, waives right of distinguished from an issue which is fictitious or
defendant to present evidence. contrived or which does not constitute a
 If the case dismissed by DTE is appealed and it is genuine issue for trial.” (Iloilo Jar Corp. v.
reversed, the CA should not remand it back to Comglasco)
the RTC because it has enough evidence on  Clearly, the grounds relied on by the Judge are
record to decide the case ad besides, the proper for the denial of a motion for judgment
defendant is deemed to have waived his right to on the pleadings — as to which the essential
present evidence. (Radiowealth v. CA) question, as already remarked, is: are there
 Rule 33 of the Rules of Court, as explained in issues arising from or generated by the
our ruling in Casent, proscribes the court or the pleadings? — but not as regards a motion
tribunal from considering the defendant's for summary judgment — as to which the
evidence in the resolution of a motion to crucial question is: issues having been raised by
dismiss based on a demurrer to evidence. (GMA the pleadings, are those issues genuine, or
Network, Inc. v. Central CATV, Inc.) sham or fictitious, as shown by affidavits,
 All told, the Court finds that the evidence depositions or admissions accompanying the
adduced is wholly insufficient to support the application therefor? (Diman v. Alumbres)
allegations of the Complaint before the SB.  Petitioner (who was the defandant in the
Thus, for failure of petitioner Republic to show original case), in moving for a judgment on the
any right to the relief sought, the Court affirms pleadings without offering proof as to the truth
the SB in granting the Demurrer to Evidence. of her own allegations and without giving
(Republic v. De Borja) respondent the opportunity to introduce
evidence, is deemed to have admitted the
V. Rule 34 — Judgment on the Pleadings material and relevant averments of the
 Judgment based solely on the relief prayed for complaint, and to rest her motion for judgment
without the plaintiff adducing any evidence. based on the pleadings of the parties.
 When: 1) answer fails to tender an issue, or 2) (Sunbanun v. Go)
Otherwise admits the material allegation of the
adverse party’s pleading. 3) During pre-trial if VI. Rule 35 — Summary Judgment
the court finds valid grounds to do so.
 “Comglasco’s defenses of rebus sic stantibus  Rendered by the court without a full-blown trial
and legal or physical impossibility failed to if it finds that except as to the amount of
tender an issue. Such being a sham defense, the damages, there is no genuine issue as to any
answer fails to to tender an issue. JOTP is material fact.
proper. (Comglasco v. Santos Car)  It may be done partially and only to specfied
 What distinguishes a judgment on the pleadings factual issues and the whole case.
from a summary judgment is the presence of  Summary judgment is generally proper in action
issues in the Answer to the Complaint. When where a cause of action is pleaded by or against
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 a party. (declaration of nullity or annulment of  This Court likewise noted that the disputed
marriage or legal separation are not proper order of 22 January 1986, subject of the present
cases to move for summary judgment. appeal, only directed petitioner to turn over to
 When to move: Anytime before the peading in respondent Siy properties which had remained
an asnwer thereto has been served. Means at undelivered to the latter as highest bidder, a
any stage of the litigation. The petitioner in matter which was merely an incident of the
agreeing to proceedto trial during the pre-trial principal case. However, this Court recognized
conference DOES NOT waive its right to therein that the order of the trial court was
summary judgment (Republic v. already final so far as it concerned the dispute
Sandiganbayan) between petitioner and respondent Siy because
 Partial summary judgment cannot be executed it was to resolve the right of the latter to
if the entire case has not yet been resolved. receive the disputed properties to Siy. This is
Also appeal from a partial. Summary judgment based on the settled rule that only a final order
can only be done once the etire case has been or judgment on the merits may be the subject
tried and adjudged it. Is a mere. Interlocutory of an appeal. A final order is defined as one
order.. (Province of Pangasinan v. CA) which disposes of the whole subject matter or
 Under the Rules, summary judgment is terminates a particular proceeding or action,
appropriate when there are no genuine issues leaving nothing to be done but to enforce by
of fact which call for the presentation of execution what has been determined; on the
evidence in a full-blown trial. Even if on their other hand, an order is interlocutory if it does
face the pleadings appear to raise issues, not dispose of a case completely, but leaves
when the affidavits, depositions and something more to be done upon its
admissions show that such issues are not merits.||| (BA Finance Corp. v. CA)
genuine, then summary judgment as  it is only after a judgment has been rendered in
prescribed by the Rules must ensue as a the case that the ground for the appeal of the
matter of law. The determinative factor, interlocutory order may be included in the
therefore, in a motion for summary judgment, appeal of the judgment itself. The interlocutory
is the presence or absence of a genuine issue order generally cannot be appealed separately
as to any material fact.  from the judgment. It is only when such
 A "genuine issue" is an issue of fact which interlocutory order was rendered without or in
requires the presentation of evidence as excess of jurisdiction or with grave abuse of
distinguished from a sham, fictitious, discretion that certiorari under Rule 65 may be
contrived or false claim. (Asian Construction resorted to.
and Development Corp. v. PCI Bank)
In the instant case, Nelia Silverio-Dee appealed
the May 31, 2005 Order of the RTC on the
VII. Rule 36 — Judgments, Final Orders and Entry ground that it ordered her to vacate the
Thereof premises of the property located at No. 3 Intsia
 Judgment is the final determination by a court Road, Forbes Park, Makati City. On that aspect
of the right of the parties in a case submitted the order is not a final determination of the
before it. case or of the issue of distribution of the shares
 Requisites: 1) Court rendering must have of the heirs in the estate or their rights therein.
jurisdiction and 2) Indispensable parties It must be borne in mind that until the estate is
should have been impleaded. partitioned, each heir only has an inchoate right
 lack of authority of the Atty. of a corporation to the properties of the estate, such that no heir
to sign divests the court with jurisdiction over may lay claim on a particular property. (Silverio,
the case and a judgment rendered in such a Jr. v. CA)
case should be set aside.  The order dated November 12, 2002, which
 A judgment without statement of fact on granted the application for the writ of
which the conclusions are based on and laws preliminary injunction, was an interlocutory, not
on which it is based is VOID. a final, order, and should not be the subject of
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 an appeal. The reason for disallowing an appeal
from an interlocutory order is to avoid
multiplicity of appeals in a single action, which
necessarily suspends the hearing and decision
on the merits of the action during the pendency
of the appeals. Permitting multiple appeals will
necessarily delay the trial on the merits of the
case for a considerable length of time, and will
compel the adverse party to incur unnecessary
expenses, for one of the parties may interpose
as many appeals as there are incidental
questions raised by him and as there are
interlocutory orders rendered or issued by the
lower court. An interlocutory order may be the
subject of an appeal, but only after a judgment
has been rendered, with the ground for
appealing the order being included in the
appeal of the judgment itself||| (Pahila-Garrido
v. Tortogo)
