Civil Procedure Reviewer
Civil Procedure Reviewer
Civil Procedure Reviewer
1. Major divisions in law: Similarly, when you are asked to describe a corporation, you will
refer to the building, the office, the employees etc. But a
a) Substantive law – a part of law which creates, corporation, as you know in Persons, is a juridical entity. It is a
defines or regulates rights concerning life, liberty or creature of the law. It is a person under the law but it has no
property, or the powers of agencies or physical existence.
instrumentalities for the administration of public
affairs. (Primicias vs. Ocampo 49 OG 2230) A court has no physical existence, only a legal one.
The power of judicial review is the Supreme Court's power to 2.) Judges are human beings – they die, they resign,
declare a law, treaty, international or executive agreement, they retire, they maybe removed. The court
presidential decree, proclamation, order, instruction, continues to exist even after the judge presiding
over it ceases to do so. In the Supreme Court, for
ordinance or regulation unconstitutional.
example, the justices presiding over it are not the
same justices who presided it in the early part of
Basic concepts in Remedial Law this century yet the Court in some decisions states
that “as early 1905, ‘WE’ have already ruled such as
1.) Court such…” Why do they use ‘WE’? They are talking
about the court, they are not talking about
Describe it.
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So there is only one Constitutional court. All the rest, from the CA
may bring the case to the appellate court which has the power to
down and all other special courts, are only creatures of Congress.
change the decision of the original court.
From the viewpoint of other laws, the Court of Appeals (CA) maybe CIVIL COURTS vs. CRIMINAL COURTS
inferior to the SC but it is a superior court for it exercises
supervision over RTC. In the same manner that the RTC might be Q: Distinguish civil courts from criminal courts.
inferior to the SC and the CA but it has also power of supervision
over MTC. The jurisdiction of the RTC is varied. It is practically a jack A: CIVIL COURTS are those which take cognizance of civil cases
of all trade. The RTC has also the power of supervision over MTC. only, while CRIMINAL COURTS are those which take cognizance of
criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict., 2nd
A superior court may therefore handle civil, criminal cases while an Ed., p. 301)
inferior court may try specified cases only. The SC, CA including the All the courts in the Philippines are both civil and criminal courts.
RTC are considered as superior courts. They can handle both types of cases. The SC decides civil and
criminal cases. The same is true with the CA, RTC and MTC.
The MTC is a first-level (inferior) court so that its power is limited to
specified cases despite of the law which expanded the jurisdiction So, in the Philippines, there is no such thing as a 100% criminal
of the MTC. It does not have any supervisory authority over any court or civil court. During the 70's there was the old Circuit
lower court. Criminal Court. As the name implies, it is purely a criminal court.
But with other courts, this was abolished by BP 129.
ORIGINAL COURT vs. APPELLATE COURT
Q: Distinguish original court from appellate court. With the abolition of those special courts, all their powers were
transferred to the present RTC. Right now, there is no such thing as
A: ORIGINAL COURTS are those where a case is originally a 100% civil court or a 100% criminal court. So, all our courts are
commenced, while APPELLATE COURTS are those where a case is both civil and criminal courts at the same time.
reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91)
So, if you are filing a case for the first time, that case is filed in an
original court. But the case does not necessarily end there. You
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Q: Distinguish Courts of Law from Courts of Equity. HELD: “The question is sometimes asked, in serious inquiry or in
A: COURTS OF LAW are tribunals administering only the law of the curious conjecture, whether we are a court of law or a court of
justice. Do we apply the law even if it is unjust or do we administer
land, whereas COURTS OF EQUITY are tribunals which rule
justice even against the law? Thus queried, we do not equivocate.
according to the precepts of equity or justice, and are sometimes The answer is that we do neither because we are a court both of
called “courts of conscience.” (Ballentine’s Law Dict., 2nd Ed., p. law and of justice. We apply the law with justice for that is our
303) mission and purpose in the scheme of our Republic.”
Courts Of Law dispose cases according to what the promulgated COURTS OF RECORD
law says while Courts Of Equity adjudicate cases based on the
principles of equity. Principle of equity means principles of justice, Those whose proceedings are enrolled and which are bound to
fairness, fair play or of what is right and just without inquiring into keep a written record of all trials and proceedings handled by
the terms of the statutes. them. RA 6031 mandates all MTCs to be courts of record.
Q: Are the Philippine courts, courts of law? Or courts of equity? PROBATE COURTS
Do they decide cases based on what the law says or based on the
Those which have jurisdiction over settlement of estate of
principle of justice and fairness?
deceased persons.
A: In the Philippines, our courts, original or appellate, are both
LAND REGISTRATION COURTS
courts of law and of equity. (U.S. vs. Tamparong 31 Phil. 321)
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Test of Jurisdiction
A: Jurisdiction pertains to the authority to hear and decide a case.
Any act of the court pursuant to such authority, including the
Since jurisdiction refers to power or authority to hear, try and
decision and its consequences is exercise of jurisdiction.
decide a case, it cannot depend on the correctness or rightfulness
of the decision made. (Century Insurance Co. v. Fuentes, 2 SCRA
The authority to decide a case, not the decision rendered, is what
1168 [1961]) Correctness or rightfulness of the decision relates to
makes up jurisdiction. It does not depend upon the regularity of
the exercise of and not to the authority itself.
the exercise of that power or upon the rightfulness of the decision
made. Where there is jurisdiction over the person and subject
The test of jurisdiction is whether the court has the power to
matter, the resolution of all other questions arising in the case is
enter into the inquiry and not whether the decision is right or
but an exercise of jurisdiction. (Herrera vs. Barreto, 25 Phil. 245)
wrong. (Herrera vs. Barreto, 25 Phil. 245)
Q: Why is it important to distinguish jurisdiction from exercise of
Duty of the court to determine its jurisdiction
jurisdiction?
It is the duty of the court to consider the question of jurisdiction
A: Definitely, a court acting as such may commit errors or mistakes
before it looks at other matters involved in the case. It may, and
and questioned later before a higher court. The procedure or
must, do this on its own motion without waiting for the question
remedy in case of a mistake or error would be dependent on
of jurisdiction being raised by any of the parties involved in the
whether it is an error of jurisdiction or an error in the exercise of
proceeding (20 Am Jur 2d, Courts, S 92). Courts are bound to take
jurisdiction also known as error of judgment.
notice of the limits of their authority and they may act accordingly
by dismissing the action even thought the issue of jurisdiction is EXAMPLE: A case of murder was filed in the MTC. The accused, Ken
not raised or not even suggested by counsel (Ace Publicatiions vs. Sur, files a motion to quash because MTC has no jurisdiction over
Commissioner of Customs, 11 SCRA 147) cases of murder. But the court denied the motion to quash.
Meaning, the judge has decided to assume jurisdiction. What is the
Q: What is the effect if the court has no jurisdiction or of absence
error committed?
or lack of jurisdiction?
When the court without authority assumes authority over the case
A: If a court has no jurisdiction, it has no power or authority to try
that is called ERROR OF JURISDICTION – the court committed an
a case and because it has no authority it must not exercise it.
error of jurisdiction.
Exercise of absent authority or power is necessarily nothing. Thus,
without jurisdiction, the entire proceedings would be null and
EXAMPLE: Suppose the case for murder is filed in the RTC where
void.
the court has jurisdiction. But in the course of the trial, it
committed mistakes like the court misinterpreted or misapplied
The only recourse for the court, absent jurisdiction, is to dismiss
the provision of the RPC or the Indeterminate Sentence Law. What
the case motu proprio or on motion for without authority it
error is committed?
cannot act.
Obviously the RTC has the authority to hear and decide the case
Q: What about if it has jurisdiction?
and therefore acted with authority or jurisdiction. There is no error
A: It is the duty of the court to exercise the jurisdiction conferred of jurisdiction.
upon it by law and to render a decision in a case properly
However, in the exercise of such authority it committed a mistake,
submitted to it. Failure to do so may be enforced by way of a
thus, the error committed is error in the exercise of jurisdiction,
mandamus proceeding (20 Am Jur. 2d, S 93).
also known as error of judgment.
Constitutional Guarantee of Access to Courts and Jurisdiction
Q: Is the proceeding null and void?
The Constitutional guarantee of access to courts refers to courts
A: NO. What is committed is an error in the exercise of jurisdiction
with appropriate jurisdiction as defined by law. It does not mean
and if not corrected the error can become final and executory. In
that a person can go to any court for redress of grievances
other words, if not objected to, it will stay.
regardless of the nature or value of his claim. (Santos III v.
Northwest Airlines, 210 SCRA 256 [1992])
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
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Territorial jurisdiction - exercised within the limits of the place A: Jurisdiction over the subject matter is the power of the court to
where the court is located. hear and determine cases of the general class to which the
proceedings in question belong. (Banco Español-Filipino vs.
Extra-territorial jurisdiction - exercised beyond the confines of Palanca, 37 Phil. 291)
the territory where the court is located.
In other words, it is the jurisdiction over the nature of the action.
Examples: Writs of certiorari, prohibition and mandamus are
In criminal cases you have light, less grave and grave offenses. In
enforceable only within the region where the issuing court is
civil cases we have such actions as actions for sum of money,
located; while a writ of execution can be enforced even outside
actions not capable of pecuniary estimation, real and personal
said territory.
actions, action in rem, action in personam etc. This is what we call
the NATURE or classification OF THE ACTION.
ELEMENTS OF JURISDICTION IN CIVIL CASES
The word jurisdiction as applied to the faculty of exercising judicial When a complaint is filed in court, the basic questions that ipso
power is used in different but related senses which are: facto are to be immediately resolved by the court on its own are:
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Jurisdiction over the “subject matter” is not to be confused with Q: How is the subject matter or nature (class) of the action
the term “subject matter of the action”. determined?
Lack of jurisdiction over the subject matter is the proper ground for A: It is a settled rule that jurisdiction over the subject matter is
a motion to dismiss. This is broad enough to include the “nature of determined by the allegations in the complaint (Baltazar vs.
the action.” The term should not be confused with the terms Ombudsman, 510 SCRA 74) regardless of whether or not the
“subject or subject matter of the action” which refer to the plaintiff is entitled to his claims asserted therein (Gocotano vs.
physical facts, the things real or personal, the money, lands or Gocotano 469 SCRA 328; Cadimas vs. Carrion GR No. 180394,
chattels and the like, in relation to which the suit is prosecuted Sept. 29, 2008).
and not the delict or wrong committed by the defendant.
It does not depend upon the pleas or defenses of the defendant in
So if you talk about declaration of nullity of marriage the subject his answer or motion to dismiss. (Cardenas vs. Camus, L-19191,
matter of the action is the marriage of the parties involved not any July 30, 1962; Edward J. Nell Co. vs. Cubacub, L-20842, June 23,
other contract but the nature of the action is that it is not capable 1965; Serrano vs. Muñoz Motors, L-25547, Nov. 27, 1967)
of pecuniary estimation; if it is for foreclosure of mortgage, the
How do you determine then jurisdiction over the subject matter?
thing or subject of the action is the property mortgaged, in specific
performance or rescission of contract, it is the contract involved
It is determined by facts alleged in the complaint and the law in
that is the subject matter of the action.
force at the time of the commencement of the action. (Mercado
v. Ubay 187 SCRA 719)
Q: How is jurisdiction over the subject matter or nature of the
action acquired?
This is true in criminal and civil cases.
So Congress plays an important role in the exercise of judicial In a civil case for collection of sum of money where the complaint
power, namely: alleges that the totality of the demand is P350,000.00, the case is
properly filed with the RTC even if the defendant is able to prove
1. It creates the rights which are sought to be protected or
that it is only P50,000.00 for jurisdiction over the subject matter is
enforced;
2. It defines jurisdiction over the subject matter. determined by the allegations in the complaint not the defense or
Both are of course in the form of substantive laws. evidence presented.
The law that confers jurisdiction refers to substantive law, not a Exception to the rule that jurisdiction is determined by the
procedural law. It likewise does not refer to an administrative order allegations of the complaint
or circular (Malaloan vs. CA, 232 SCRA 249).
The general rule is not applied with rigidity in ejectment cases in
Q: Suppose I will file a case against you in a wrong court. Actually which the defendant averred the defense of the existence of
what you should do is file a motion to dismiss (or in criminal cases a tenancy relationship between the parties.
motion to quash.) but you did not. Since you did not object, you did
In Ignacio vs. CFI of Bulacan (42 SCRA 89), it was held, ”that while
not file a motion to dismiss, you did not file a motion to quash, did
the allegations in the complaint make out a case of forcible entry,
the ‘wrong’ court acquire jurisdiction over the case?
where tenancy is averred by way of defense and is proved to be
A: NO. Jurisdiction over the subject matter cannot be conferred by the real issue, the case should be dismissed for lack of jurisdiction
silence of the parties or by waiver. Estoppel or waiver or silence or as the case should properly be filed with the then Court of Agrarian
failure to object cannot vest jurisdiction in the wrong court because Reform (now DARAB) (De la Cruz vs. CA 510 SCRA 103)
jurisdiction over the subject matter is conferred by law. And when
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The allegation of tenancy in the defendant’s answer did not The court, once jurisdiction has been acquired, retains that
automatically deprive the MCTC of its jurisdiction because the jurisdiction until it finally disposes of the case (De La Rosa vs.
jurisdiction of the court over the nature of the action and the Roldan, 501 SCRA 34).
subject matter thereof cannot be made to depend upon the
defenses set up in the court or upon a motion to dismiss. As a consequence of this principle, jurisdiction is not affected by a
Otherwise, the Court ruled, the question of jurisdiction would new law placing a proceeding under the jurisdiction of another
depend almost entirely on the defendant. Accordingly, the MCTC tribunal except when otherwise provided in the statute or if the
does not lose its jurisdiction over an ejectment case by the simple statute is clearly intended to apply to actions pending even before
expedient of a party raising as defense therein the alleged its enactment (People vs. Cawaling, 293 SCRA 267)
existence of a tenancy relationship between the parties. It is
however, the duty of the court to receive evidence to determine Thus, when RA No. 7691 expanded the jurisdiction of the first level
the allegations of tenancy. If after hearing, tenancy had in fact courts, said courts acquired jurisdiction over cases that under BP
been shown to be the real issue, the court should dismiss the case 129 were originally within the jurisdiction of the RTC. But cases
for lack of jurisdiction. pending already with the RTC at the time of the effectivity of the
law were not affected by such new law unless the parties by
The Court further stressed that a tenancy relationship cannot be agreement, pursuant to Sec. 7 therein, agreed to transfer the
presumed. There must be evidence to prove the tenancy relations pending cases from the RTC to the lower courts especially those
which have reached the pre-trial stage.
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Statement of the Doctrine Since the inception of the doctrine courts have resisted creating
any fixed rules or formulas for its application, “in every case the
question is whether the reasons for the existence of the doctrine
are present and whether the purposes it serves will be aided by its
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A: By having him
The service of summons is intended to give official notice to the
defendant or respondent that an action has been commenced
(1) arrested;
against him. He is thus put on guard as to the demands of the
(2) by service of the warrant of arrest; or
plaintiff as stated in the complaint. The service of summons is an
(3) by his voluntary surrender.
important element in the operation of a court’s jurisdiction upon
Q: Even if he is not arrested, can the court try an accused? a party to a suit because it is the means by which the court
acquires jurisdiction over his person. Without service of
A: Of course not, because the court has not acquired jurisdiction summons, or when the service is improper, the trial and the
over his person. There must first be an arrest or surrender. The judgment being in violation of due process, are both null and
accused can post bail and be released but if he jumps bail there can void. (Avon Insurance PLC v. CA, 278 SCRA 312, 325 [1997])
be trial in absentia. There will be a valid decision because the court
has already acquired jurisdiction. Of course we cannot enforce the The mode of acquisition of jurisdiction over the plaintiff and the
decision until we catch him. defendant applies to both ordinary and special civil actions like
mandamus or unlawful detainer cases (Bar 1994).
How does the court acquire jurisdiction over the person?
First Instance: UPON SERVICE ON HIM OF COERCIVE
In civil cases, it is also a must that the court acquires jurisdiction
over the person of the parties. The manner by which the court PROCESS IN THE MANNER PROVIDED BY LAW
acquires jurisdiction over the parties depends on whether the
The first instance when a court acquires jurisdiction over the
party is the plaintiff or the defendant.
person of the defendant is through a service upon him of the
As to Plaintiff appropriate court process which in civil law is called service of
summons. This is the counterpart of warrant of arrest in criminal
Jurisdiction over the person of the plaintiff is acquired by his/her procedure.
filing of the complaint or petition. By doing so, he submits
himself/herself to the jurisdiction of the court. (Davao Light & So if the defendant was never served with summons, any judgment
Power Co. Inc. v. CA, 204 SCRA 343, 348 [1991]) rendered by the court will not bind him. Even if he is the loser in
the case, judgment cannot be enforced because the court did not
Example: X, a resident of Melbourne, Australia, presented a acquire jurisdiction over his person.
complaint against Y, a resident of Manila, before the CFI of Manila
for accounting and damages. X never came to the Philippines to file The same principle holds true in criminal cases. A court cannot try
the suit and is only represented in this case by counsel. Y files a and convict an accused over whose person the court never
motion to dismiss the complaint on the ground that the court acquired jurisdiction. In criminal cases, the court acquires
acquired no jurisdiction over the person of X. jurisdiction over the person through the issuance and service of a
warrant of arrest. The warrant cannot have its effect even if it was
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issued, if the same had not been served, i.e. by effecting the arrest
affirmative relief except when the relief is for the purpose of
of the accused by virtue of a warrant.
objecting to the jurisdiction of the court over the person of the
defendant.
Q: In criminal cases, how can the warrant of arrest be effected?
Certain actions which could be construed as voluntary appearance
A: Once an information has been filed in court, the court issues a
are:
warrant. Then, the arresting officer will arrest the accused. The
court acquires jurisdiction by ENFORCEMENT OF SERVICE for
1.) when the defendant’s counsel files the corresponding
effective arrest of the accused pursuant to the warrant of arrest. pleading thereon;
2.) when the defendant files a motion for reconsideration
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE of the judgment by default;
3.) when the defendant files a petition to set aside the
JURISDICTION OF THE COURT judgment of default;
4.) when the defendant and plaintiff jointly submit a
Another way to acquire jurisdiction over the person of the accused compromise agreement for the approval of the court;
even if the accused is not arrested is through VOLUNTARY 5.) when the defendant files an answer to the contempt
SURRENDER. Since there is no more need for the warrant, the court charge;
6.) when the defendant files a petition for certiorari
will recall the same.
without questioning the court’s jurisdiction over his
person (Navale v. CA, 253 SCRA 705, 709, 710, 709-712
In civil cases, it is the voluntary submission of the defendant to the [1996])
jurisdiction of the court.
Objections to jurisdiction over the person of the defendant
Q: Defendant was served with summons improperly or irregularly
therefore, he could question the jurisdiction of the court over his An objection to the jurisdiction over the person of the defendant
person. But instead, he did not question the jurisdiction of the may be raised as a ground for a motion to dismiss (Sec. 1(a) Rule
court despite the defective service of court process. Did the court 16). If no motion to dismiss has been filed, the objection may be
acquire jurisdiction over the person of the defendant? pleaded as an affirmative defense in the answer (Sec. 6 Rule 16).
A: YES, because jurisdiction over the person can be acquired by: If a motion to dismiss has been filed, the objection to the lack of
jurisdiction over the person of the defendant must be pleaded in
a.) waiver; the same motion where such ground is available at the time the
b.) consent; or
motion is filed, otherwise it is deemed waived pursuant to the
c.) lack of objection by the defendant. (MRR Co. vs.
Atty. Gen. 20 Phil. 523) omnibus motion rule. The defense of lack of jurisdiction over the
person of the defendant is not one of those defenses which are
This is unlike the jurisdiction over subject matter wherein the case not deemed waived if not raised in the motion to dismiss. Only
could be dismissed upon filing in the wrong court. The SC said that lack of jurisdiction over the subject matter, litis pendentia, res
when you remained silent despite the defects, your silence has judicata and prescription are not waived (Sec. 1 Rule 9 in relation
cured the defect. Meaning, the jurisdiction over your person was to Sec. 8 Rule 15).
acquired by waiver, or consent, or lack of objection.
Effect of pleading additional defenses aside from lack of
Q: Distinguish jurisdiction over the subject matter from jurisdiction jurisdiction over the person of the defendant
over the person of the defendant?
Under the former procedure, if the defendant raises the objection
A: Lack of jurisdiction over the person of the defendant may be of lack of jurisdiction over his person in a motion to dismiss, the
cured by waiver, consent, silence or failure to object, whereas motion must rely only on that particular ground. If the defendant
jurisdiction over the subject matter cannot be cured by failure to appears in court, objects to its jurisdiction over his person and at
object or by silence, waiver or consent. (MRR Co. vs. Atty. Gen. 20 the same time alleges other grounds, the appearance would be
Phil. 523) deemed a general appearance which was in effect a voluntary
submission to the jurisdiction of the court (Republic vs. Kerr 18
Voluntary Appearance as Voluntary Submission To Court’s SCRA 207; WANG Laboratories VS. Mendoza 156 SCRA 44).
Jurisdiction
The above rule was re-examined in La Naval Drug Corporation vs.
Voluntary appearance must be the kind that constitutes voluntary CA 236 SCRA 78). The pronouncements in said case are now
submission to the court’s jurisdiction. Voluntary submission to the embodied in Sec. 20 of Rule 14 which provides: ****The inclusion
court’s jurisdiction cannot be inferred from the defendant’s mere in a motion to dismiss of other grounds aside from lack of
knowledge or existence of a case against him/her. In general, the jurisdiction over the person of the defendant shall not be deemed
form of appearance that would be construed as a voluntary a voluntary appearance.
submission to the court’s jurisdiction is an appearance that seeks
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How is it acquired? In a petition for change of name, the title of the petition must be
complete by including the name sought to be adopted; otherwise,
It is acquired either by the (a) the seizure of the property under the court acquires no jurisdiction over the proceedings. (Telmo vs.
legal process whereby it is brought into actual or constructive Republic, 73 SCRA 29 (1976).
custody of the court’ or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and D. JURISDICTION OVER THE ISSUES
made effective. (Macahilig vs. Heirs of Grace M. Magalit, GR No.
141423, Nov. 15, 2000) Meaning of Issue
Q: A files a case for recovery of ownership against B over a piece of An issue is a disputed point or question to which parties to an
land. What is the res of the case? action have narrowed down their several allegations and upon
which they are desirous of obtaining a decision. (Black’s 5th Ed.,
A: The piece of land is the res of the case. 745 citing Muller v. Muller, 235 Cal App. 2nd 341, 45 Cal. Rptr 182,
184)
What is the nature of the action?
How Jurisdiction Over The Issues Is Conferred and Determined
To recover ownership of real property or real action.
A: The res is the status of the child because it is the object of the A: Jurisdiction over the issue is the authority to try and decide the
litigation. issues raised in the pleadings of the parties. (Reyes vs. Diaz, 73
Phil. 484)
Q: Why is jurisdiction over the res important?
Q: What are pleadings?
A: Sometimes it is a substitute for jurisdiction over the person.
There are instances when the court cannot acquire jurisdiction over A: Rule 6, Section 1 - Pleadings are the written allegation of the
the defendant like when he is abroad. But if the court acquires parties of their respective claims and defenses submitted to the
jurisdiction over the res, the case may go on. Even if the court court for trial and judgment.
cannot acquire jurisdiction over the person of the defendant,
jurisdiction over the res becomes a substitute over the person. In a civil case, pleadings are written statements of the respective
positions of the parties, namely, the claims for the plaintiff and
In the example of action for compulsory recognition, even if the defenses for the defendant.
defendant is a non-resident who is out of the country the object of
litigation is status here in the Philippines, then acquisition of EXAMPLE: X files a case for collection of sum of money against Y.
jurisdiction over the res confers jurisdiction to the court even if the The pleading that X will file will contain the written statements of
defendant is abroad. The res here is the thing or object or status his claim. He will narrate there for instance that Y borrowed money
against which or in relation to which the judgment can be from him promising to pay it on a day certain but when it became
enforced. due no payment was made despite demands so he suffered actual
loss or damage aside from moral damage.
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Jurisdiction over the issues may also be conferred by waiver or JURISDICTION OVER THE SUBJECT MATTER
failure to object to the presentation of evidence on a matter not
raised in the pleadings. Here the parties try with their express or THE SUPREME COURT
implied consent issues not raised by the pleadings. The issues
The highest court of the land is the Supreme Court. It was not
tried shall be treated in all respects as if they had been raised in
affected by the Judiciary Law (BP 129) which reorganized the
the pleadings (Sec. 5 Rule 10).
judiciary in 1983. Being a constitutional court, its jurisdiction is
Jurisdiction Over the Subject Matter Distinguished from found in the fundamental law itself. The SC is both an original and
Jurisdiction Over the Issues appellate court.
Jurisdiction over the issues is conferred by the pleadings and by the Composition
express (stipulation) or implied (failure to object to evidence)
It is composed of the Chief Justice and 14 Associate Justices.
consent of the parties because an issue not duly pleaded may be
validly tried and decided by the court as long as there is no
The Constitution ordains that the President appoints the members
objection from the parties. Jurisdiction over the subject matter is
of the SC and judges of lower courts from a list of at least three
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nominees prepared by the JBC for every vacancy and requires the
c.) Cases raising novel questions of law;
President to issue appointments, for lower courts, within 90 days d.) Cases affecting ambassadors, public ministers and
from submission of the list (Art. VIII, Sec. 9) and to fill the vacancy consuls;
of the SC within 90 days from its occurrence. (Art. VIII Sec. 4(1). All e.) Cases where a doctrine or principle laid down by the
such appointments need no confirmation. (Sec. 9) court en banc or in division may be modified or
reversed;
Divisions and En Banc f.) Cases assigned to a division including motions for
reconsideration which in the opinion of at least 3
The SC sits either en banc or in divisions of 3, 5 or 7 members. At members merit the attention of the Court en banc
and are acceptable to a majority vote of the actual
present, it has 3 divisions of 5 members each.
membership of the Court en banc;
g.) All other cases as the Court en banc by a majority of its
A decision or resolution of a division, when concurred in by a actual membership may deem of sufficient
majority of its members who actually took part in the deliberations importance to merit its attention;
on the issues in a case and voted thereon, and in no case without h.) Cases where the penalty to be imposed is the dismissal
the concurrence of at least 3 of such members, is a decision or of a judge, officer, or employee of the SC,
resolution of the SC. (Sec. 4(3) Art. VIII Constitution). disbarment of a lawyer, or suspension of any of
them for a period of more than one year or a fine of
The Court en banc is not an appellate court to which decisions or P10,000.00, or both;
i.) Cases involving decisions, resolutions or orders of the
resolutions of a division may be appealed. (Circular No. 2-89)
Sandiganbayan, Comelec, COA, or Military
Tribunals;
No doctrine or principle of law laid down by the court in a decision
j.) Habeas corpus against government or military officials;
rendered en banc or in division may be modified or reversed except
by the court sitting en banc. (Sec. 4(3)) Principal Functions of the Supreme Court
How a Case Before a Division is Referred to the Court en banc a. Adjudication (Judicial Power)
b. Administration or Disciplinary power
At any time after a Division takes cognizance of a case and before a c. Rule-making (Rule-making Power)
judgment or resolution therein rendered becomes final and
executor, the Division may refer the case en consulta to the court ORIGINAL JURISDICTION OF THE SUPREME COURT
en banc which, after consideration of the reasons of the division for
Article VIII, Section 5, paragraph 1 of the 1987 Constitution
such referral, may return the case to the Division or accept the case
enumerates the ORIGINAL jurisdiction of the SC:
for decision or resolution.
Section 5. The Supreme Court shall have
Cases assigned to a Division including motions for reconsideration
the following powers:
which in the opinion of at least 3 members merit the attention of
the court en banc and are accepted by the majority vote of the
[1] Exercise original jurisdiction over cases
actual members of the court en banc may be considered as en banc
affecting ambassadors, other public ministers
cases.
and consuls, over petitions for certiorari,
prohibition, mandamus, quo warranto, and
A resolution of the Division denying a party’s motion for referral to
habeas corpus.
the Court en banc of any division shall be final and not appealable
to the Court en banc.
Note that the foregoing provision does not define the
original jurisdiction of the SC as exclusive, hence it can
When a decision or resolution is referred by a division to the Court
be concurrent or exclusive.
en banc, the latter may in the absence of sufficiently important
reasons decline to take cognizance of the same, in which case, the
When is it exclusive and when concurrent?
decision or resolution shall be returned to the referring Division.
(Circular No. 2-89 effective March 1, 1989) Original Exclusive
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a. the CSC (RA No. 7902); b) All cases involving the legality of any
b. Central Board of Assessment Appeals (PD No. 464; BP Blg. tax, impost, assessment, or toll, or any
129; RA No. 7902); penalty imposed in relation thereto.
c. NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA 494;
RA No. 7902) or the Secretary of Labor under the Labor c) All cases in which the jurisdiction of
Code. any lower court is in issue.
d. Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs of
Hinog vs. Melicor, 455 SCRA 460) d) All criminal cases in which the penalty
e. Also, issuance of writ of certiorari, prohibition and
imposed is reclusion perpetua or higher.
mandamus against the RTC.
B. CONCURRENT with the RTC – are those actions affecting e) All cases in which an error or question
ambassadors and other public ministers and consuls (Sec. of law is involved.
21[2] BP Blg 129; Art. VIII Sec. 5 1987 Constitution).
If (a), (b), and (c) also involve questions
C. CONCURRENT with the CA and RTC – are those involving of facts or mixed questions of fact and
habeas corpus, quo warranto, and writs of certiorari, of law, the aggrieved party shall appeal
prohibition, and mandamus against inferior courts and bodies to the Court of Appeals; and its final
(Secs. 9[1], 21[2]2, BP Blg. 129; Art. VIII Sec. 5, 1987
judgment may be appealed to the
Constitution).
Supreme Court. (Subpar 4, Third Par.
For example, a petition for mandamus against the MTC of Sec. 17, Judiciary Act or RA 544)
Cebu City can be filed with the SC, CA, or RTC although the
a) All cases in which the constitutionality or validity
policy of the Supreme Court is that it should be filed with the
of any treaty, international or executive
RTC based on the hierarchy of the courts. (Vergara vs. Suelto, agreement, law, presidential decree,
156 SCRA 758) proclamation, order, instruction, ordinance, or
regulation is in question.
D. CONCURRENT WITH CA, SANDIGANBAYAN and RTC – are
petitions for issuance of writ of Amparo and petitions for So if the RTC, which has the power, declares the law as
Habeas Data, where the action involves public data or unconstitutional, the same has to be appealed directly to the
government office.
SC. It cannot pass through the CA because the SC has exclusive
E. Finally, with the advent of the new law (RA 8249), there is appellate jurisdiction regarding the matter.
now a CONCURRENCE between the SC and the
Sandiganbayan in so far as petitions for certiorari, prohibition, b) All cases involving the legality of any tax, impost,
mandamus, habeas corpus, injunction and other ancillary assessment, or toll, or any penalty imposed in
writs in aid of the Sandiganbayan's APPELLATE JURISDICTION relation thereto.
i.e. only in connection with a case appealed to the
Sandiganbayan. This is related to the legality of tax cases – whether a tax or
tax penalty is legal or not. However, whatever decision the
This concurrent jurisdiction is subject to the doctrine of hierarchy lower court gives, it has to be appealed directly to the SC.
of courts (Liga ng mga Barangay National vs. Atienza 420 SCRA 562;
Lacson Hermanas Inc. vs. Heirs of Ignacio 462 SCRA 290). c) All cases in which the jurisdiction of any lower
court is in issue
APPELLATE JURISDICTION OF THE SUPREME COURT
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no
The appellate jurisdiction is found in Section 5, Paragraph (2), jurisdiction over a case. The aggrieved party, it if wants to raise
Article VIII 1987 Constitution: that issue, it must go to the SC. When the issue is purely
jurisdiction, the SC shall have exclusive appellate jurisdiction.
2) Review, revise, reverse, modify, or affirm
on appeal or certiorari, as the law or the Now, when the law says all cases in which the jurisdiction of any
Rules of Court may provide, final judgments lower court is in issue, the cases involve 100% pure jurisdiction as
and orders of lower courts in: an issue. There are no factual issues involved. If the issue of
jurisdiction is mixed with a factual issue, the appeal should be in
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the CA without prejudice to the filing of the same with the SC later.
“Each Commission shall decide by a majority
So, this is 100% issue of jurisdiction. No factual issue is involved.
vote x x x. Unless otherwise provided by this
Constitution or by law, any decision, order, or
d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher. ruling of each Commission may be brought to
the Supreme Court on certiorari by the
We discussed this in Criminal Procedure. aggrieved party within thirty days from
receipt of a copy thereof.”
e) All cases in which only an error or question of law
is involved. The COMELEC, COA and the CSC act also as courts of justice. They
have powers to decide certain cases within their jurisdiction.
Take note that ONLY an error or question of law is involved. So, if Election cases are covered by the COMELEC, claims against the
there is a mixed question of law and a question of fact, appeal must government, by COA and eligibility or removal from government
be filed with the CA. You only go to the SC if the appeal is 100% service of an appointive employee, by CSC.
legal. That applies to both criminal and civil cases.
Now, according to Section 7, any decision, order or ruling of these
QUESTIONS OF LAW and QUESTIONS OF FACT commissions may be brought to the SC on certiorari, etc. So you
will see that the decisions of the constitutional commissions are
There is a question of law when the doubt or difference arises as to reviewable by the SC.
what the law is on a certain set of facts. There is a question of fact
when the doubt or difference arises as to the truth or falsehood of However, Congress amended the Judiciary Law particularly Section
the alleged facts (Sps. Santos vs. CA 337 SCRA 67). 9 on the jurisdiction of the CA by now making decisions of the CSC
no longer appealable to the SC directly but appealable to the CA.
Example: Where the question is whether or not the debtor has So based on the present law, out of the three constitutional
paid the debt, the issue is one of fact. Where the question is commissions, the only ones whose decisions are appealable
whether or not the manner of payment is of the type which directly to the SC are those of the COMELEC and the COA
produces the legal effect of extinguishing the obligation, the issue
becomes one of law. Also, when under the set of facts the issue is What is the basis for Congress to pass such a law where a decision
whether or not the law on double sales applies, there is a question of a constitutional body (CSC) is reviewable by a non-constitutional
of law. body?
When the issue involves a review of the evidence, it involves a Under the Constitution, decisions of the constitutional
question of fact because evidence, as defined, is the means, commissions are appealable to the SC. Does Congress have the
sanctioned by the rules, of ascertaining in a judicial proceeding the power to change that by making it appealable to the CA?
truth respecting a matter of fact. (Sec. 1 Rule 128)
Yes because the provision, it says: “Unless otherwise provided by
In an action for declaration of nullity of marriage the basis is this Constitution or by law..” Meaning, the decisions are appealable
psychological incapacity. The RTC/Family Court dismissed the case to the SC unless otherwise provided by law. The Constitution itself
finding that there was no psychological incapacity. If the plaintiff gave Congress the power to change it.
wants to appeal from that judgment, can she appeal directly to the
SC? Is it a question of fact or law? SC as Presidential Electoral Tribunal
No. The appeal should be to the CA. The issue raised is a question Article VII, Section 4, last paragraph, 1987 Constitution:
of fact because there is need to review the evidence to resolve it.
“The Supreme Court, sitting en banc, shall be
Suppose the court nullified the marriage on ground of impotence the sole judge of all contests relating to the
and the defendant wants to appeal because he wants to raise the election, returns, and qualifications of the
issue whether or not impotence is a ground for declaration of President or Vice-President, and may
nullity of marriage this would be a question of law because there is promulgate its rules for the purpose.”
no need for review of the evidence to resolve it. So appeal is to the
SC. If there’s an electoral protest for the President and Vice-President,
the matter is not to be decided by the COMELEC but by the SC
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE acting as the Presidential Electoral Tribunal.
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The SC is not a trier of facts which means that passing upon a The jurisdiction of the CA is now governed by BP 129 or the
factual issue is not within the province of the Court (Romy’s Judiciary Reorganization Act of 1980. BP 129 was passed in 1983 by
Freight Service vs. Castro, 490 SCRA 160). The findings of facts of the former Batasang Pambansa which practically abolished all the
regular courts at that time, and also the special courts except the
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Section 5 of EO 33 also amended Sec. 9 of BP 129 to read as CONCURRENT with the SC and RTC are those involving habeas
follows: corpus, quo warranto, and writs of certiorari, prohibition, and
“The Court of Appeals shall have the power to mandamus against inferior courts and bodies (Secs. 9[1], 21[2]2, BP
receive evidence and perform any and all acts Blg. 129; Art. VIII Sec. 5, 1987 Constitution).
necessary to resolve factual issues raised in (a)
cases falling within its original jurisdiction, such as For example, a petition for mandamus against the MTC of Cebu City
actions for annulment of judgments of regional trial can be filed with the SC, CA, or RTC although the policy of the
courts, as provided in paragraph (2) hereof; and in Supreme Court is that it should be filed with the RTC based on the
(b) cases falling within its appellate jurisdiction hierarchy of the courts. (Vergara vs. Suelto, 156 SCRA 758)
wherein a motion for new trial based only on the
ground of newly discovered evidence is granted by Q: Being concurrent, what will happen if such a case is filed
it.” simultaneously in the CA and SC?
So, Section 9 of BP 129, which defines the second highest court of A: The consequence is found in Section 17 of the Interim Rules. In
the land, has been amended by E.O. #33. In February 1995, it was other words, the Interim Rules are still intact.
amended again by RA 7902, known as “The Act expanding the
Interim Rules, Sec. 17. Petitions for writs of
jurisdiction of the CA.”
certiorari, etc. - No petition for certiorari,
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Original Exclusive Administrative bodies are actually part of the executive branch but
[2] Section 9, paragraph 2, BP 129 they act just like courts of justice. They can decide cases and there
are hundreds of administrative agencies in the Philippines. And
(2) “Exclusive” jurisdiction over actions for therefore, if you lose a case before anyone of these bodies, or
annulment of judgments of Regional Trial tribunals, you appeal the decision not with the SC, but to the CA.
Courts;
The amendments by RA 7902 is even more specific by adding this
Q: Actions for annulment of judgments of RTC’s, is this similar to an phrase, “including the SEC, SSS, the Employees Compensation
appeal? Is this the same as appealing the decision of the RTC to the commission and the Civil Service Commission (CSC).”
CA?
That is the addition.
A: No, because in appeal, you are invoking the appellate
jurisdiction of the CA. Here in paragraph 2, it is not appellate but CSC – Before this law was passed, under the Constitution, decisions
original jurisdiction. Meaning, you are filing an action before the of the CSC are appealed to the SC together with the COMELEC and
CA for the first time. And the nature of the action is to annul a the COA. But with the passage of RA 7902, the appeal from the
judgment of the RTC. CSC has been transferred to the CA, so what is left behind in the
Constitution are the COMELEC and the COA.
The implementation is found in Rule 47 of the Rules.
Obviously, the purpose of this statute is to unburden the SC with so
APPELLATE JURISDICTION OF THE COURT OF APPEALS many cases.
Paragraph 3, Sec. 9 of BP 129 defines the appellate jurisdiction of The phrase “except those falling within the appellate jurisdiction
the CA. of the Supreme Court…”means all cases should be appealed to
the CA except those which belong to the SC under the
[3] Section 9, paragraph 3, BP 129 Constitution. We know that already.
(3) Exclusive appellate jurisdiction over all And also “except those falling under the Labor Code of the
final judgments, decisions, resolutions, Philippines.”
orders or awards of the RTCs and quasi-
judicial agencies, instrumentalities, boards or A labor case is not supposed to be filed in court but with a quasi-
commissions, including the Securities and judicial agency known as the NLRC and you start in the local level –
Exchange Commission, the Social Security from the Labor Arbiter, then the decisions of the Labor Arbiter are
Commission, the Employees Compensation appealable to the NLRC and then from there, where will you go?
Commission and the Civil Service
Commission, except those falling within the Q: Is the decision of the NLRC appealable before the CA because it
appellate jurisdiction of the SC in accordance is also a quasi-judicial agency and under the law, all decisions of
with the Constitution, the Labor Code of the quasi-judicial agencies are supposed to be appealed to the CA.
Philippines under PD 442, as amended, the
provisions of this Act, and of subparagraph A: NO. The decision of the NLRC is an exception – except those
(1) of the third paragraph and subparagraph under the appellate jurisdiction of the SC under the Constitution
(4) of the fourth paragraph of Sec. 17 of the and in accordance with the Labor Code (PD 422).
Judiciary Act of 1948.
NLRC decisions cannot be appealed to the CA and the only way to
elevate it is to the SC by what we call certiorari, not appeal.(This is
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already modified in the St. Martin Funeral Homes vs. NLRC case.)
Note that under RA No. 9282, the judgments AND FINAL ORDERS
Also, decisions of the Secretary of Labor, under the Labor Code are
OF THE Court of Tax Appeals are no longer appealable by way of
not reviewable by the CA, but they are reviewable directly by the
petition for review to the CA. Judgments of the CTA rendered en
SC.
banc are appealable to the SC by way of Rule 45 (Sec. 11 RA No.
9282)
And then there is the phrase, "the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph (4) of
Exclusive appellate jurisdiction over decisions of MTCs in cadastral
the fourth paragraph of Section 17 of the Judiciary Act of 1948.”
or land registration cases pursuant to its delegated jurisdiction
(Sec. 34 BP Blg. 129 as amended by RA No. 7691). This is because
So, the new Judiciary Law still makes some reference to the old
decisions of MTCs in these cases cases are appealable in the same
law. This shows that the entire 1948 Judiciary Law has not been
manner as decisions of RTCs (Sec. 34 BP Blg. 129).
totally repealed. Some provisions are still intact because of the
reference.
Power to try and conduct hearings
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HELD: The power of the CA to receive evidence refers only to granted shall be exercised with a view to
incidental facts which were not 100 percent touched upon, or
matters which were simply overlooked by the trial court. You
cannot opt not to present evidence before the RTC. It only
refers to incidental facts.
JURISDICTION OF THE
So the Judiciary law has divided the country into 13 areas called
JUDICIAL REGIONS. From the 1st to the 12th, the 13th is actually in
the National Capital Region (NCR), Metro Manila. Every division is
divided into branches.
The SC shall define the territory over which a branch of the RTC
shall exercise his authority. The law provides:
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Now, the law says, the SC has the power to define the area of its
branch for purposes of supervising that area and the MTC there.
Now, as early as 1983, the SC has already come out with the
administrative order defining the area of responsibility of each
branch throughout the Philippines.
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Q: Suppose the principal amount that you borrowed from me is EXAMPLE: P will file a case against D to recover a piece of land
P300,000, the interest is P30,000. And you are collecting P10,000 worth P20,000.00 only. But her claim for damages exceeds
for moral damages, another P10,000 for expense of litigation, etc. P300,000.
So my total claim is P350,000. Where will I file the case?
Q: In what court will P file a civil case where she wants to recover a
A: MTC. In determining the jurisdictional limit of P300,000, do not piece of land with value of only P20,000?
include the interest, damages, attorney’s fees, etc. So you deduct
A: MTC because of paragraph [2]. As regards the damages of
those from the principal claim even if you put them in your
P300,000.00, MTC still has jurisdiction because such damages,
complaint because the law says, “xxx exclusive of interest, damages
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HELD: The MTC has NO jurisdiction. It should be filed in the HELD: The regular courts have no jurisdiction. That should be
RTC. It is not an action to collect a loan. You are not decided by the Housing and Land Use Regulatory Board
recovering a loan. You are compelling him to comply with the (HLURB) formerly known as NHA. Under PD 957, it is the
agreement – to return the money after certain conditions are HLURB not the RTC or MTC which has the jurisdiction to hear
complied with. You are trying to enforce your agreement. a case involving non-payment of installments over
therefore your action is an action for SPECIFIC PERFORMANCE subdivision lots.
which should be tried by the RTC under paragraph [1].
The counterpart of this case was the case of
“When a party to a contract has agreed to refund to the other
party a sum of money upon compliance by the latter of CT TORRES ENTERPRISES, INC. vs. HIBIONADA – 191 SCRA
certain conditions and only upon compliance therewith may 268 [1990]
what is legally due him under the written contract be
FACTS: This is also the case between the buyers of a
demanded, the action is one not capable of pecuniary
subdivision lot against the subdivision developer. Only this
estimation.” So it is cognizable by the RTC.
time it is the subdivision lot buyers who are suing the
ISSUE #2: But according to the plaintiff, when he filed the developer of the subdivision. The subdivision lot owners filed
complaint, it is entitled “for sum of money” which should fall against the subdivision developer for not maintaining properly
under paragraph [8]. Is the plaintiff correct? the roads of the subdivision. So they filed a case for specific
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So, if it is not reviewable by the CA, in what court can you question
The Court held that the Trial court was incompetent to pass upon
the resolution? Definitely, not the CA, definitely not the SC. I don’t
and nullify: (1) the seizure of the cargo in the abandonment
think it’s with the NLRC. So it will fall under the jurisdiction of the
proceedings, and (2) the declaration made by the District Collector
RTC. Or, it can also fall under paragraph [1,] where the subject
of Customs that the cargo was abandoned and ipso facto owned by
matter of the suit is not capable of pecuniary estimation because
the government. It, likewise, has no jurisdiction to resolve the issue
what is the nature of the demands is to declare unconstitutional
of whether or not the private respondent was the owner of the
this resolution. So it belongs to the jurisdiction of the RTC.
cargo before it was gutted by fire. The trial court should have
rendered judgment dismissing the complaint, without prejudice to
the right of the private respondent to ventilate the issue before the
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Q: How will the RTC decide on the appeal? Summary of RTC jurisdiction:
A: It shall be decided on the basis of the entire record of the 1.) As to the EXCLUSIVE original jurisdiction – Section
19 (BP 129);
proceedings had in the court of origin (MTC) such as memoranda
2.) As to its original CONCURRENT jurisdiction – Section
and/or briefs as may be submitted. This means that witnesses will 21 (BP 129);
not be made to appear again in the appeal. It is only a matter of 3.) As to its APPELLATE jurisdiction – Section 22 (BP
reviewing the testimony, stenographic notes, evidence presented, 129)
memoranda and briefs by the RTC judge.
JURISDICTION OF FAMILY COURTS
Q: What are memoranda and briefs?
Under RA 8369, the Family Courts shall have exclusive
A: It is where the appealing party will argue that the decision is jurisdiction over the following civil cases:
wrong and try to convince the judge that the decision is wrong, and
the other party to counter act that the decision is correct. 1. Petitions for guardianship, custody of children and
habeas corpus involving children;
Q: Assuming that the case is originated in the MTC and
2. Petitions for adoption of children and the revocation
subsequently dismissed by the RTC on appeal, is the decision by the
thereof;
RTC rendered pursuant to its appellate jurisdiction appealable to
the CA? 3. Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to status and
A: YES, but the mode of appeal is now different. The decision of the
RTC in such cases shall be appealable by petition to review to the
CA. The CA may or may not give it due course.
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SECTION 1. Xxxxxx
when the amount of damages is not so alleged in the complaint or
information filed in court the corresponding filing fees need not be
When the offended party seeks to enforce civil
paid and shall simply constitute a first lien on the judgment, except
liability against the accused by way of moral,
in an award for actual damages. (General vs. Hon. Claravall, et al.,
nominal, temperate, or exemplary damages
195 SCRA 623)
without specifying the amount thereof in the
complaint or information, the filing fees
Q: Suppose there was no mention of any claim for moral or
therefore shall constitute a first lien on the exemplary damages, by not stating the amount claimed, can he still
judgment awarding such damages. prove them during the trial? YES
Where the amount of damages, other than But he did not pay docket fee?
actual, is specified in the complaint or
information, the corresponding filing fees shall A: Never mind, once it is awarded, there is now a lien in the
be paid by the offended party upon the filing judgment for the payment of the docket fee.
thereof in court.
For Independent Civil Actions
Except as otherwise provided in these Rules,
no filing fees shall be required for actual In the case of Sun Insurance if the damages was not mentioned in
damages. the complaint in the civil case they are deemed waived. If it is
mentioned, and the amount is fixed you must pay the docket fee at
(b) The criminal action for violation of Batas the start of the case though if it is not complete, you are given the
Pambansa Blg. 22 shall be deemed to include chance to complete the payment or amend the complaint within
the corresponding civil action. No reservation reasonable time.
to file such civil action separately shall be
allowed. In criminal cases, even if there is no mention of damages in the
information, you can still prove and claim them as long as there is
Upon filing of the aforesaid joint criminal and no waiver or reservation.
civil actions, the offended party shall pay in
full the filing fees based on the amount of the When docket fee is due for actual damage:
check involved, which shall be considered as
the actual damages claimed. Where the So in criminal cases, if the claim for moral or exemplary damages is
complaint or information also seeks to recover mentioned in the information, you must pay the docket fee upon
liquidated, moral, nominal, temperate or filing of the information. But whether alleged in the information or
exemplary damages, the offended party shall not, you can claim for actual damages and there is no docket fee
pay additional filing fees based on the for actual damages except in cases under BP 22. That is the
amounts alleged therein. If the amounts are exception which is now embodied in Section 1 paragraph [b] which
not so alleged but any of these damages are was taken from SC circular 57-97 – there is no payment of docket
subsequently awarded by the court, the filing fee for actual damages except in criminal cases for violation of BP
fees based on the amount awarded shall 22 because paragraph [b] says:
constitute a first lien on the judgment.
Upon filing of the aforesaid joint criminal and civil
EMNACE vs CA (2001) GR 126334 actions, the offended party shall pay in full the filing fees
based on the amount of the check involved, which shall
Payment of Filing fees In Case Civil Aspect Is Deemed Impliedly be considered as the actual damages claimed.
Instituted In the Criminal Action:
OTHER CASES ON FILING FEE IN CIVIL CASES:
In any event, the Court now makes that intent plainer, and in the
interest of clarity and certainty, categorically declares for guidance In the case of
of all concerned that when the civil action is deemed impliedly
instituted with the criminal in accordance with Section 1, Rule 111 MANCHESTER DEVELOPMENT CORP. vs. CA – 149 SCRA 562
of the Rules of Court – because the offended party has not waived
FACTS: The plaintiff files a complaint and paid the docket fee
the civil action, or reserved the right to institute it separately, or
but he did not specify the amount of the damages he was
instituted the civil action prior to the criminal action – the rule is as
claiming. He contended that he is claiming for moral damages
follows: (1) when the amount of the damages, other than actual, is
in such amount as the court will grant. Respondent
alleged in the complaint or information filed in court, then the
contended, on the other hand, that it cannot be done, there is
corresponding filing fees shall be paid by the offended party upon
a necessity to state the exact amount of the damages in order
filing thereof in court for trial; (2) in any other case, however, -- i.e.
to determine the correct amount of the docket fee. So the
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Second rule:
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I. Failure to pay the proper docket fee; The legal fees shall be a lien on the monetary or property judgment
in favor of the pauper-litigant.
Xxxx xxxx xxxx
Respondents cannot invoke the above provision in their favor
It can be readily seen that respondents' primary and ultimate because it specifically applies to pauper-litigants. Nowhere in the
objective in instituting the action below was to recover the records does it appear that respondents are litigating as paupers,
decedent's 1/3 share in the partnership's assets. While they ask for and as such are exempted from the payment of court fees.
an accounting of the partnership's assets and finances, what they
are actually asking is for the trial court to compel petitioner to pay The rule applicable to the case at bar is Section 5(a) of Rule 141 of
and turn over their share, or the equivalent value thereof, from the the Rules of Court, which defines the two kinds of claims as:
proceeds of the sale of the partnership assets. They also assert that
until and unless a proper accounting is done, the exact value of the 1) those which are immediately ascertainable; and
partnership's assets, as well as their corresponding share therein, 2) those which cannot be immediately ascertained as to the
cannot be ascertained. Consequently, they feel justified in not exact amount.
having paid the commensurate docket fee as required by the Rules
This second class of claims, where the exact amount still has to be
of Court.
finally determined by the courts based on evidence presented, falls
squarely under the third paragraph of said Section 5(a), which
We do not agree. The trial court does not have to employ
provides:
guesswork in ascertaining the estimated value of the partnership's
assets, for respondents themselves voluntarily pegged the worth
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Now in the examples, there is only one plaintiff and one These are called accion interdictal and the only issue is physical
defendant. possession of the property. The two cases should not be confused
with accion publiciana which is also the recovery of possession.
What about when there are several plaintiffs or defendants?
In unlawful detainer, the plaintiff prays not only to eject the
EXAMPLE: There are four (4) passengers riding on a public vehicle. defendant but also to claim for back rentals or the reasonable
They were all injured when the bus met an accident and all of them amount of the use and occupation of the property in case of
were hospitalized. So after they were discharged, the four of them forcible entry.
wanted to sue the bus company for damages arising from contract
of carriage or culpa contractual. They decided to file only one Q: Suppose the unpaid rentals already amount to almost half a
complaint and, in effect, joined the 4 causes of action. million pesos, where should the case be filed?
Q: What will be now the basis of jurisdiction the claim of each A: The case should still be filed with the MTC. What determines
plaintiff or the totality of the claims of the 4 plaintiffs? jurisdiction is the nature of the action, and not the amount of
recoverable rentals.
A: The totality of the claims. You apply the totality rule because the
law says “where there are several claims or cause of action Q: In an action for forcible entry or unlawful detainer, can the party
between the same or different parties.” present evidence of ownership?
So whether the parties are the same or the parties are different A: The general rule is NO because the MTC cannot adjudicate
embodied in the same complaint the amount of the demand shall ownership. That has to be threshed out in the proper civil action in
be the totality of the claims the totality rule applies in both the RTC. But if evidence of ownership is presented in the forcible
situations. entry or unlawful detainer case, it is only incidental and it is only
resolved to determine the issue of possession. Such declaration of
Totality Rule subject to rule on joinder of parties ownership is not final. The question of ownership must be litigated
in a separate action in the RTC.
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1.) when there is no controversy or nobody is (a) Forcible entry and unlawful detainer cases; and
contesting your petition; or (b) All other claims where the total claim does not exceed
2.) even if the petition is contested where the value of P100,000.00 (outside Metro Manila), or does not exceed
the land to be titled does not exceed P100,000. P200,000.00 (Metro Manila) exclusive of interests and
costs. Probate proceedings are not covered by the rule
on summary procedure even if the gross value of the
In which case, these MTCs can decide and their decisions are estate does not exceed P100,000.00 or P200,000.00.
appealable directly to the CA because in exercise of delegated
jurisdiction it is acting as an RTC. Some basic principles to be remembered in civil cases subject to a
summary procedure:
The value of the lot shall be ascertained by the affidavit of the
claimant or by agreement of the respective claimants if there are (a) Not all pleadings in an ordinary civil action are allowed in
more than one, or from the corresponding tax declaration of the a summary procedure. The only pleadings allowed are
(1) complaint; (2) compulsory counterclaim; (3) cross-
real property.
claim pleaded in the answer, (4) answers to these
pleadings (Sec. 3)
Now do not confuse this P100,000 (Section 34) with the P20,000
(b) The court in a summary procedure may dismiss the case
under Section 33. Section 34 deals with cadastral and land outright on any of the grounds for the dismissal of a civil
registration cases. Section 33 involves civil cases (accion publiciana, action (Sec. 4)
etc.) (c) Should the defendant fail to answer the complaint within
the period of ten (10) days from service of summons, the
C.) SPECIAL JURISDICTION OF MTC court may motu proprio, or on motion of the plaintiff,
render judgment (not an order declaring the defendant
Sec. 35. Special jurisdiction in certain cases. in default) as may be warranted by the facts alleged and
- In the absence of all the Regional Trial limited to what is prayed for (Sec. 6)
(d) There shall be preliminary conference held but there
Judges in a province or city, any Metropolitan
shall be no trial. Instead the parties shall submit
Trial Judge, Municipal Trial Judge, Municipal affidavits and position papers (Secs ,8,9)
Circuit Trial Judge may hear and decide (e) Within thirty (30) days from the receipt of the last
petitions for a writ of habeas corpus or affidavits and positions papers, or the expiration of the
applications for bail in criminal cases in the period for filing the same, the court shall render
province or city where the absent Regiona l judgment (Sec. 10)
(f) As a rule a motion to dismiss is not allowed except on
Trial Judges sit.
either of two grounds (1) lack of jurisdiction over the
subject matter, or (2) failure to comply with the
This is what we call special jurisdiction. It only applies to two (2)
barangay conciliation proceedings (Sec. 19(a))
types of cases: (1) Habeas corpus and (2) hearing of petitions for (g) Although a petition for certiorari is prohibited in cases
bail. subject to summary procedure, the Court in one case
allowed the petition because the trial court gravely
Remember that habeas corpus is not within the jurisdiction of the abused its discretion by indefinitely suspending the
MTC. It is with the RTC. In an application for bail the RTC also has proceedings in ejectment cases thus, acting contrary to
jurisdiction because the offense may be a heinous one, but under the purposes of the Rules on Summary Procedure. The
the law on criminal procedure you can file a petition for bail to SC recognized that because the order of the trial court
cannot be appealed from it being an interlocutory and
have your temporary freedom while the case is going on. That’s
since the proceedings are covered by the Rules on
supposed to be in the RTC. Summary Procedure, a ‘procedural void’ exists. Invoking
its power to suspend the rules to promote substantial
But suppose there is no available RTC judge, all of them are sick or justice, the SC gave due course to the petition pro hac
all of them are attending a convention (this actually happened in vice because of the extraordinary circumstances of the
Davao in 1990) Section 35 provides that the MTC, in the absence of case. The Court observed that allowing the petition
RTC judges, can hear and decide on habeas corpus case petitions would avoid the mischiefs sought to be curbed by the
Rules and would give spirit and life to the Rules on
and applications or petitions for bail in criminal cases.
Summary Procedure (Go vs. CA 297 SCRA 574).
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Rule of Procedure for Small Claims Cases 1 (c) Person is an individual, corporation,
partnership,limited liability partnership, association, or
A.M. No. 08-8-7-SC
other juridical entity endowed with personality by law;
RULE OF PROCEDURE
(d) Individual is a natural person;
FOR SMALL CLAIMS CASES
(e) Motion means a party’s request, written or oral, to
EFFECTIVE OCTOBER 1, 2008 the court for an order or other action. It shall include an
informal written request to the court, such as a letter;
MANILA, PHILIPPINES
(f) Good cause means circumstances sufficient to
SEPTEMBER 2008 justifythe requested order or other action, as
determined by the judge; and
RULE OF PROCEDURE
(g) Affidavit means a written statement or declaration
FOR SMALL CLAIMS CASES of facts that are sworn or affirmed to be true.
SECTION 1. Title.—This Rule shall be known as “The SEC. 4. Applicability.—The Metropolitan Trial Courts,
Rule of Procedure for Small Claims Cases.” Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts shall apply this Rule
SEC. 2. Scope.—This Rule shall govern the procedure in in all actions which are: (a) purely civil in nature where
actions before the Metropolitan Trial Courts, Municipal the claim or relief prayed for by the plaintiff is solely for
Trial Courts in Cities, Municipal Trial Courts and payment or reimbursement of sum of money, and (b)
Municipal Circuit Trial Courts for payment of money the civil aspect of criminal actions, either filed before
where the value of the claim does not exceed One the institution of the criminal action, or reserved upon
Hundred Thousand Pesos (P100,000.00) exclusive of the filing of the criminal action in court, pursuant to
interest and costs. Rule 111 of the Revised Rules Of Criminal Procedure.
These claims or demands may be:
Explanatory Note: The purpose of a small claims process is to
provide an inexpensive and expeditious means to settle disputes (a) For money owed under any of the following:
over small amounts. For purposes of the project, the amount has
been set for claims involving amounts of not more than 1. Contract of Lease;
P100,000.00. The theory behind the small claims system is that
ordinary litigation fails to bring practical justice to the parties when 2. Contract of Loan;
the disputed claim is small, because the time and expense required
by the ordinary litigation process is so disproportionate to the 3. Contract of Services;
amount involved that it discourages a just resolution of the dispute.
4. Contract of Sale; or
The small claims process is designed to function quickly and
informally. There are no attorneys, no formal pleadings and no 5. Contract of Mortgage;
strict legal rules of evidence. The small claims court system is not a
“typical inferior court.” Parties are encouraged to file small claims (b) For damages arising from any of the following:
court actions to resolve their minor disputes as opposed to
1. Fault or negligence;
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2. Quasi-contract; or
inadmissible affidavit(s) or portion(s) thereof shall be
expunged from the record.
3. Contract;
SEC. 8. Payment of Filing Fees.—The plaintiff shall pay the
(c) The enforcement of a barangay amicable settlement
docket and other legal fees prescribed under Rule 141 of
or an arbitration award involving a money claim
the Revised Rules of Court, unless allowed to litigate as an
covered by this Rule pursuant to Sec. 417 of Republic
indigent.
Act 7160, otherwise known as the Local Government
Code of 1991. A claim filed with a motion to sue as indigent (Form 6-SCC)
shall be referred to the Executive Judge for immediate action
Explanatory Note: The kinds of cases that can be filed in Small
in case of multi-sala courts, or to the Presiding Judge of the
Claims Court vary, but the case must seek money only. For
court hearing the small claims case. If the motion is granted
example, a suit cannot be brought in Small Claims Court to force a
by the Executive Judge, the case shall be raffled off or
person or business to fix a damaged good; or to demand fulfillment
assigned to the court designated to hear small claims cases.
of a promised obligation which is not purely for money, or to seek
If the motion is denied, the plaintiff shall be given five (5)
money to compensate for pain and suffering. Some of the kinds of
days within which to pay the docket fees, otherwise, the
cases which are allowed as small claims include the following:
case shall be dismissed without prejudice. In no case shall a
1. Actual damage caused to vehicles, other personal party, even if declared an indigent, be exempt from the
property, real property or person; payment of the P1,000.00 fee for service of summons and
2. Payment or reimbursement for property, deposit, or processes in civil cases.
money loaned;
3. Payment for services rendered, insurance claim, rent, Explanatory Note: A plaintiff may commence an action in the small
commissions, or for goods sold and delivered; claims court by filing a Statement of Claim under oath with the
4. Money claim pursuant to a contract, warranty or Clerk of the first level court in person or by mail. The claim form
agreement; and
shall be a simple nontechnical form approved or adopted by the
5. Purely civil action for payment of money covered
bybounced or stopped check. Supreme Court. The claim form shall set forth
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Defendant. Contract/Agreement
x- - - - - - - - - - - - - - - - - - - - - -x Receipt
Prayer
INDIVIDUAL CORPORATION _PARTNERSHIP SOLE WHEREFORE, plaintiff respectfully prays for judgment to be
PROPRIETORSHIP rendered ordering defendant to pay plaintiff the amount of
P , with interest at the rate of %
NAME OF REPRESENTATIVE: per annum/ per month, from , until fully paid.
; 20 .
3. Plaintiff’s cause of action arose from and is evidenced by: 1. That I am the in the above-entitled case
and have caused this to be
ACTIONABLE DOCUMENT/S AFFIDAVIT/S
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prepared; that I read and understood its contents which are true
and correct of my own personal knowledge and/or based on
authentic records; GREETINGS:
2. That I have not commenced any action or proceeding involving You are hereby required, within ten (10) days from receipt of this
the same issue in the Supreme Court, the Court of Appeals or any Summons, to file with this Court and serve on plaintiff, your
other tribunal or agency; that to the best of my knowledge, no such verified Response to the attached Statement of Claim. The form of
action or proceeding is pending in the Supreme Court, the Court of the required Response is attached hereto.
Appeals or any other tribunal or agency, and that, if I should learn
thereafter that a similar action or proceeding has been filed or is You are required to submit with your Response copies of
pending before these courts or tribunal or agency, I undertake to documents as well as affidavits of any witness to stand as your
report that fact to the Court within five (5) days therefrom. evidence in this case.
IN WITNESS WHEREOF, I have hereunto set my hand this You must present the original documents on the day of the
day of , 20 . hearing. A motion to dismiss is prohibited and shall not be
entertained.
Affiant Your failure to respond within the 10-day period will authorize the
Court to render judgment based solely on the Statement of Claim.
SUBSCRIBED AND SWORN to before me this day of
, 20 . Witness my hand under the seal of this Court, this day of
, 20 , at , Philippines.
NOTARY PUBLIC
BRANCH CLERK OF COURT
(citizenship) (civil status)
(Name)
FORM 3-SCC
Plaintiff,
,
vs. Civil Case No.
Plaintiff,
For:
vs. Civil Case No.
,
For:
Defendant.
,
x----------------------------------x
Defendant.
RESPONSE
x----------------------------------x
Defendant/s respectfully allege/s:
SUMMONS
1. Defendant admits all the allegations in paragraph/s of
TO: the Statement of Claim.
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4. As the Statement of Claim is baseless, defendant is entitled to Once issues are joined upon the filing of the defendant’s Response,
the following counterclaims: this case will be called for Judicial Dispute Resolution (JDR) and
hearing before the Presiding Judge of this Court on
Actual Damages of P at .
Moral Damages of P Failure of the plaintiff to appear at the JDR and hearing shall cause
the dismissal of the Statement of Claim, and the defendant who
Exemplary Damages of P appears shall be entitled to a judgment on his counterclaim. On the
other hand, failure of the defendant to appear at the JDR and
Costs of suit hearing shall cause the Court to render judgment based solely on
the Statement of Claim.
Prayer
A party may not be represented by a lawyer, but may authorize any
WHEREFORE, defendant respectfully prays for judgment to be
other representative to appear in his behalf and participate in all
rendered dismissing the Statement of Claim, and granting the
the proceedings as if the party represented were present. For this
counterclaims, ordering plaintiff to pay defendant the following
purpose, the required authority should be evidenced by
sums:
accomplishing the attached Form 5-SCC (Special Power of
Actual Damages of P Attorney).
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Other reliefs just and equitable under the premises are likewise
(ACKNOWLEDGMENT) prayedfor.
PLAINTIFF
FORM 6-SCC
Plaintiff, ,
, For:
Defendant. ,
x----------------------------------x Defendant.
, unto this Honorable Court, respectfully MOTION FOR APPROVAL OF COMPROMISE AGREEMENT
alleges that:
The parties respectfully allege that:
1. I am a resident of ;
1. Plaintiff filed this claim against defendant for:
4. Due to financial constraint, I cannot afford to pay for the recovery of personal property
expenses of a court litigation as I do not have enough funds for
food, shelter and other basic necessities; 2. The parties have come to an amicable settlement and have
executed a compromise agreement with the following terms and
conditions. (copy terms and condition here)
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Plaintiff Defendant
Plaintiff Defendant
FORM 8-SCC
(Motion for voluntary dismissal of the claim and counterclaim) FORM 9-SCC
, ,
Plaintiff, Plaintiff,
For: For:
, ,
Defendant. Defendant.
x----------------------------------x x----------------------------------x
Plaintiff and defendant, unto this Honorable Court, respectfully Plaintiff/Defendant, unto this Honorable Court, respectfully alleges
allege that: that:
1. Plaintiff and defendant have mutually and voluntarily settled 1. On , a judgment was rendered by the Court,
their claim and counterclaim to the entire satisfaction of each the dispositive portion of which reads:
other; and
2. The judgment is final and unappealable.
2. The parties no longer have a cause of action against each other.
3. The defendant/plaintiff has not complied with the judgment.
WHEREFORE, premises considered, plaintiff and defendant
respectfully pray that the plaintiff’s statement of claim and WHEREFORE, premises considered, it is respectfully prayed that a
defendant’s counterclaim incorporated in his response be
dismissed. writ of execution be issued to implement the judgment of the
Court dated .
Other reliefs just and equitable under the premises are likewise
prayed for. , 20 .
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Plaintiff Defendant
Plaintiff/Defendant
NAME OF PLAINTIFF
Plaintiff/Defendant For:
ORDER
For:
, 20 .
Defendant.
JUDGE
x----------------------------------x
AGREEMENT
FORM 12-SCC
Having failed to resolve the matter through Judicial Dispute
REPUBLIC OF THE PHILIPPINES
Resolution, plaintiff and defendant hereby agree that Judge
shall continue with the hearing on the instant
matter and hereby waive their right to have a different judge hear
the case. ,
20 .
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,
vs. Civil Case No.
Plaintiff,
For:
For:
Defendant.
,
x----------------------------------x
Defendant.
DECISION
x----------------------------------x
This is a small claims action for (state which of the claims or
demands below is the subject of the action filed):
DECISION BASED ON COMPROMISE AGREEMENT
[For money owed under any of the following:
Plaintiff filed this case against defendant for
in the amount of
1. Contract of lease;
.
2. Contract of loan;
Defendant denied plaintiff’s claim on the ground of
and set up a counterclaim for 3. Contract of services;
.
4. Contract of sale; or
The parties, however, reached an amicable settlement and
submitted to the court a compromise agreement, the terms and 5. Contract of mortgage;
conditions of which are as follows:
For damages arising from:
It appearing that the agreement is not contrary to law, morals,
good customs, public moral and public policy, and pursuant to 1. Fault or negligence;
Articles 2028 and
2. Quasi-contract; or
2037 of the Civil Code of the Philippines, the same is hereby
APPROVED and ADOPTED as the Decision of this court. 3. Contract;
The parties are hereby ordered to faithfully comply with the terms The enforcement of a barangay amicable settlement or an
and conditions of the agreement. arbitration award involving a money claim covered by this
Rulepursuant to Section 417 of Republic Act 7160, otherwise known
, 20 . as The Local Government Code of 1991].
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the amount of (state the monetary claims courts have provided a form of alternative dispute
award or damages) with interest of (if applicable under Civil Code resolution (ADR) in the United States.
and/or settled jurisprudence) until fully paid.
Originating around 1912 or 1913, these courts were
SO ORDERED. established primarily as a means for small businesses to
collect money from borrowers through a process that was
(Date of decision.) faster, less formal, and less expensive than traditional civil
litigation. Following the lead of the establishment of the initial
(Signature) small claims court in Kansas, USA in 1912 or 1913, every state
in the United States has created some form of a small claims
Presiding Judge (or Pairing Judge in the absence of written court system.
agreement of theparties that the case shall beheard by the
Presiding Judgewho conducted the JDR) Although the financial claims limits, methods of procedure,
and overall structure vary from state to state, the concept is
Copy furnished: essentially the same, i.e., that relatively minor disputes,
involving dollar amounts that are insufficient to warrant
All parties processing the case through the normal court procedure,
justify expeditious and simplified handling.
Office of the Clerk of Court of
The consumer justice reform movements of the 1960s and
1970s brought renewed research and interest in the small
RATIONALE of the Proposed Rule of Procedure for Small Claims claims courts. This movement emphasized the need for
Cases reform of small claims courts to facilitate the adjudication of
consumer grievances.
A. Introduction
Although “consumer justice reformers” were concerned that
The most significant recurring theme of every program for judicial businesses and corporations were more likely to use attorneys in
reform of the Supreme Court is the pressing need for a more small claims courts thereby placing inexperienced individual
accessible, much swifter and less expensive delivery of justice. defendants at a disadvantage, studies showed that defendants with
an attorney were more likely to win against plaintiffs than
Undeniably, the slow grind of the wheels of justice is the result of a unrepresented defendants, whereas plaintiffs without attorneys
variety of factors, foremost of which is the perennial congestion of did just as well as represented plaintiffs against unrepresented
court dockets which has transformed court litigation into a defendants.
protracted battle, that invariably exhausts the time, effort and
resources of party-litigants, especially the poor. Many strategies The result was an appraisal of the need to bar attorneys and
have been devised to unclog heavy court dockets, and one such collection agencies from the small claims courts.
approach is the use of mandatory Pre-trial and Alternative Dispute
Resolution mechanisms such as mediation, arbitration and Small claims courts in the United States are often considered courts
of equity and are not necessarily bound by the letter of the law.
conciliation. Another scheme that has been widely used in many
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The purpose and structure of the county court system has in many
ways remained the same since 1846. The aim is still to make civil
justice available locally – there are now 223 county courts in
England and Wales. They have continued to be responsive to the
needs of smaller cases which, although small in terms of their
financial value, are important to the litigants involved. However,
recent decades have seen two major changes in relation to small
claims – first, the introduction of a dedicated small claims
procedure in 1973 and secondly, the introduction of the Civil
Procedure Rules reforms of 1998 with emphasis on proportionality.
Since January 1996, when the small claims limit in England and
Wales was trebled overnight to £3,000, district judges have been
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Rule 01 How come it mentions criminal cases and defines criminal actions
when it is supposed to be 1997 Rules on Civil Procedure?
GENERAL PROVISIONS
SECTION 1. Title of the Rules. These Rules NO, Rule 1 is the general provision for the entire Rules of Court.
shall be known and cited as the Rules of You look at the title, “These rules shall be known as the ‘Rules of
Court. Court.’” This is the common denominator from the first to the last
Rule. That’s why it says there ‘special proceedings,’ ‘civil cases’ and
The Rules of Court do not have retroactive ‘criminal cases.’
effect. They can, however, be made
applicable to cases pending at the time of xxxxx
their passage and therefore are retroactive in
that sense. (a) A civil action is one by which a party
sues another for the enforcement or
The rule-making power of the SC has the following protection of a right, or the prevention
limitations: or redress of a wrong.
1) Simplified and inexpensive procedure for the A civil action may either be ordinary or
speedy disposition of cases; special. Both are governed by the rules
2) Uniform for all courts of the same grade; and for ordinary civil actions, subject to the
3) Shall not diminish, increase or modify
specific rules prescribed for a special
substantive rights (Art. VIII Sec. 5[5], 1987
civil action.
Constitution.
Section 2, states in what court or courts the rules apply as it says The moment said claim is filed before a court, the claim is
“these rules shall apply in all the courts except as otherwise converted into an action or suit.
provided by the Supreme Court.” Meaning, applicable to all courts
except when the SC say otherwise. Action and suit
For example: The SUMMARY RULES on procedure which is In this jurisdiction, it is settled that the terms “action” and “suit”
applicable to some cases in the MTC. are synonymous. (Lopez v. Compania de Seguros, 16 SCRA 855).
Another example of when the SC says otherwise is Section 4, that Civil Action and Criminal Action
the rules shall not apply to election cases, land registration,
cadastral, naturalization, insolvency proceedings and other cases A CIVIL ACTION is one by which a party sues another for the
not herein provided for except by analogy. This is actually not a enforcement or protection of a right, or the prevention or redress of
new provision. It used to be in Rule 143, now it is in Rule 1. a wrong. (Sec. 3[a] Rule 1). So the purpose of a civil suit is to
enforce or protect your right or to prevent or redress a wrong.
Sec. 3. Cases governed. These Rules shall
govern the procedure to be observed in A criminal action “is one by which the State prosecutes a person for
actions, civil or criminal, and special an act or omission punishable by law” (Sec. 3[b] Rule 1)
proceedings.
It has been ruled that …”proceedings are to be regarded as criminal
xxxxxx when the purpose is primarily punishment, and civil when the
purpose is primarily compensatory…” (People vs. Godoy @$# SCRA
64).
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Personal action
An action for specific performance is a personal action as
long as it does not involve a claim of or recovery of
All other actions or, when the issue is not one of those – meaning, ownership of real property. (Siosoco v. CA, 303 SCRA 186
it is founded on privity of contract, or on quasi-delict, such as citing La Tondena Distillers v. Ponferrada, 264 SCRA 540)
actions for a sum of money, or damages arising from breach of a
contract, or for the enforcement or resolution of a contract, or for However, where a complaint is denominated as one of specific
recovery of personal property, these are the PERSONAL ACTIONS. performance but nonetheless prays for the issuance of a deed of
(Casilan vs. Tomassi, 90 Phil. 765; Cachero vs. Manila Yellow sale for a parcel of land for the plaintiff to acquire ownership of the
Taxicab, 101 Phil. 523; Bautista vs. Piguing, L-10006, Oct. 31, 1957) land, its primary objective and nature is one to recover the parcel
of land itself and thus, is deemed a real action. (Gochan v. Gochan,
It is filed in the court where the plaintiff or any of the defendants 372 SCRA 356)
resides, at the option of the plainitff.
If the action is denominated as one for specific
Mixed Action performance, but the plaintiff actually seeks for the
issuance of a deed of assignment in his favor of certain
Some textwriters give a third classification: the MIXED ACTIONS shares of stocks to regain ownership and possession of said
where there is a mixture of real and personal actions. Mixed shares, the action is not one for specific performance but a
personal action for the recovery or property. The docket
actions are such as pertain in some degree to both real and
fee therefore, should be computed based on the value of
personal and, therefore, are properly reducible to neither of them,
the property and not based on the docket fee for specific
being brought for the specific recovery of land and for damages performance (National Steel Corporation vs. CA 302 SCRA
sustained in respect of such land. (Dela Cruz vs. Seminary of 522).
Manila, 18 P{hil. 330)
Where it is alleged in the complaint that the defendant
Like an action for recovery of a piece of land with damages it is a breached the contract so that the plaintiff prays that the
mixed action. However, it is more of real rather than personal. If contract be rescinded and that the defendant be ordered to
return possession of the hacienda to the plaintiff, the
the damage is only incidental, then it is more of a real action rather
ultimate purpose or end of the action is to recover
than a personal action like the case of TACAY.
possession of real property and not a mere breach of
contract (De Jesus vs. Coloso 1 SCRA 272)
In a real action realty or an interest therein is the subject matter of
the action. Where the action to annul or rescind a sale of real property
has as its fundamental and prime objective the recovery of
However, not every action involving a real property is a real action real property, the action is real (Emergency Loan Pawnshop
because the realty may only be incidental to the subject matter of Inc. vs. CA 353 SCRA 89).
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 Where an award of a house and lot to the plaintiff was
unilaterally cancelled, an action that seeks to annul the
must also involve any of the following issues: title to, ownership,
cancellation of the award over the said house and lot is a
possession, partition, foreclosure of mortgage or any interest in personal action. The action does not involve title to
real property. ownership or possession of real property. The nature of the
action is one to compel the recognition of the validity of the
Examples: previous award by seeking a declaration that the
cancellation is null and void. (Hernandez v. DBP, 71 SCRA
An action for damages to real property, while involving a 290)
real property, does not involve any of the issues
mentioned. An action to foreclose a real estate mortgage is a real
action, but an action to compel the mortgagee to accept
An action to recover possession of real property plus payment of the mortgage debt and to release the mortgage
damages is a real action because possession of the real is a personal action. (Hernandez v. Rural Bank of Lucena,
property is involved. The aspect of damages is merely an Inc. 81 SCRA 75)
incidental part of the main action, i.e., recovery of
possession of real property. However, an action to An action to annul a contract of loan and its accessory real
recover possession of a personal property is a personal estate mortgage is a personal action. In a personal action,
action. the plaintiff seeks the recovery of personal property, the
enforcement of a contract or the recovery of damages. In
Where the allegations as well as of the complaint do not contrast, in a real action, the plaintiff seeks the recovery of
claim ownership of the lots in question or ask for real property, or, as indicated in Section 2(a), Rule 4 of the
possession of the same but instead seeks for the then Rules of Court, a real action is an action affecting title
execution of a deed of sale by the defendants in favor of to real property or for the recovery of possession, or for
the plaintiff, the action is a personal action. (Adamos v. J. partition or condemnation of, or foreclosure of mortgage
M. Tuazon & Co., Inc. 25 SCRA 529) on, real property (Chua vs. Total Office Products and
Services [Topros], Inc.,471 SCRA 500).
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The distinction between a real action and a personal action is ACTIONS IN PERSONAM, IN REM and QUASI IN REM
important for the purpose of determining the venue of the action.
Questions involving the propriety or impropriety of a particular ACTIONS IN PERSONAM vs. ACTIONS IN REM
venue are resolved by initially determining the nature of the action,
i.e., if the action is personal or real. Definition
A real action is “local”, i.e., its venue depends upon the location of In personam action
the property involved in the location. “Actions affecting title to or
possession of real property, or interest therein, shall be “If the technical object of the suit is to establish a claim
commenced and tried in the proper court which has jurisdiction generally against some particular persons, with a judgment
over the area wherein the real property involved, or apportion which, in theory, at least, binds his body or to bar some
thereof is situated.” (Sec. 1 Rule 4) individual claim or objection, so that only certain persons are
entitled to be heard, the action is IN PERSONAM.” (Grey Alba
A personal action is ‘transitory,’i.e., its venue depends upon the vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
residence of the plaintiff or the defendant at the option of the
plaintiff. A personal action “may be commenced and tried where An example is an action for specific performance; action for
the plaintiff or any of the principal plaintiffs resides or where the breach of contract
defendant or any of the principal defendants resides, or in the case
of a non-resident defendant, where he may be found, at the In rem action
election of the plaintiff.” (Sec. 2 Rule 4).
But, “if the object of the suit is to bar indifferently all who
Hence, if the question involves the venue of an action, the analysis might be minded to make an objection of any sort against
will necessarily involve the following steps: the rights sought to be established, and if anyone in the
world has a right to be heard on the strength of alleging facts
(a) A determination whether the action is real or personal which, if true, show an inconsistent interest, the action is IN
(b) An application of the rules on venue under Rules 4. REM.” (Grey Alba vs. Dela Cruz, 17 Phil. 49; Sandejas vs.
Robles, 81 Phil. 421)
Thus, an action for a sum of money, instituted by a resident of
Manila against a resident of Quezon City, shall be filed either in An example is a probate proceeding, cadastral proceeding.
Manila or Quezon City at the election of the plaintiff because the
action is personal. The purpose of a proceeding in personam is to impose
through the judgment of a court, some responsibility or
An action to annul a sale of a land located in Baguio City where liability directly upon the person of the defendant (Domagas
recovery of ownership is essentially the material issue in the case, vs. Jensen 448 SCRA 663)
must be filed in Baguio City. The action is a real action and must be
filed in the place where the property is situated regardless of the Examples:
residence of the parties (Emergency Loan Pawnshop Inc. vs. CA 353
SCRA 89). A) An action for sum of money;
B) An action for damages.
CLASSIFICATION AS TO THE PLACE OF FILING:
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QUASI IN REM
If the action is in personam the court must acquire jurisdiction over
Text writers gave a sort of third classification as to object. This is the person of the defendant, thru personal service of summons.
called action quasi in rem. “QUASI” means almost. So, ‘quasi in Service of summons by publication is not allowed.
rem’ is almost in rem. Actually, it is in personam but almost in rem.
But if it is in rem jurisdiction over the person of the defendant is
Q: Define an action quasi in rem. not required hence service of summons by publication is sufficient.
A proceeding to subject the interest of a named defendant over a Such is also true to quasi in rem action. What is important is that
particular property to an obligation or lien burdening it. Judgment the court acquires jurisdiction over the res.
is binding upon particular persons.
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
An action quasi in rem is actually in personam because it is directed
only against a particular individual but the purpose of the Q: Define a special proceeding.
proceeding is to subject his property to the obligation or lien
burdening it. The object of the case is the sale or other disposition A: Rule 1, Section 3 [c]:
of property of the defendant over which you have a right or lien
c) A special proceeding is a remedy by which
over the property.
a party seeks to establish a status, a right, or
An action quasi in rem is one wherein an individual is named as a particular fact. (2a, R2)
defendant and the purpose of the proceeding is to subject his
Special proceedings should not be confused with a civil action.
interest thereof to the obligation or lien burdening thje property
Special Proceedings are governed by Rules 72-109 of the Rules of
(Asiavest Limited vs. CA 296 SCRA 539).
Court.
The object of an action quasi in rem is the sale or disposition of the
property whether by attachment, foreclosure or any other form of Distinguish a civil action from a special proceeding.
remedy (Banco Espanol-Filipino vs. Palanca 37 Phil. 921).
A: The following:
Examples of actions quasi in rem:
1.) A CIVIL ACTION is one by which a party sues
another for the enforcement or protection of
(a) Action for partition;
a right, or the prevention or redress of a
(b) Action for accounting.
wrong, whereas,
(c) Such actions are essentially for the purpose of affecting
the defendant’s interest in the property and not to
A SPECIAL PROCEEDING is a remedy by which a
render a judgment against him (Valmonte vs. CA 252
SCRA 92); party seeks to establish a status, a right, or a
(d) attachment; particular fact;
(e) foreclosure of mortgage (Banco Espanol Filipino vs.
Palanca 37 Phil. 921; Sahagun vs. CA 198 SCRA 44). 2.) In a civil action, there are two (2) definite and
particular adverse parties, the party who
ILLUSTRATION: An action to foreclose a mortgage is the best demands a right, called a plaintiff, and the
example of a civil action quasi in rem because there is a defendant other whom the right is sought, called a
defendant, whereas,
(mortgagor) and the object of the case is to have the property
mortgaged sold or disposed of in order to satisfy the mortgage lien In a SPECIAL PROCEEDING, while there is a definite
of the mortgagee. It is in personam because it is directed only party petitioner, there is no definite adverse
against the person who mortgaged to you but once the property is party as the proceeding is usually considered
foreclosed, practically everybody has to respect it. That’s why it is to be against the whole world;
called quasi in rem.
3.) A CIVIL ACTION requires the filing of formal
Or, to borrow the language of the SC in simplifying the term quasi pleadings, whereas
in rem, quasi in rem means ‘against the person in respect to the
res, against the mortgagor in respect to the thing mortgaged.’
In a SPECIAL PROCEEDING, relief may be obtained
Importance of the distinction by mere application or petition;
It determines whether the court must acquire jurisdiction over the 4.) The period to appeal in CIVIL ACTIONS is generally
person of the defendant and thus determine the mode of serving 15 days and the requirement is the filing of a
summons. notice of appeal, whereas
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Cases should, as much as possible, be determined on the merits ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL – 77 Phil. 523
after the parties have been given full opportunity to ventilate their
causes and defences, rather than on technicality or some HELD: Lapses in the literal observance of a rule of procedure
procedural imperfection. After all, technical rules of procedure are will be overlooked:
not ends in themselves but are primarily devised to help in the
proper and expedient dispensation of justice. In appropriate cases, 1) when they do not involve public policy;
therefore, the rules may be construed liberally in order to meet 2) when they arose from an honest mistake or
unforeseen accident;
and advance the cause of substantial justice (Land Bank vs. Celad,
3) when they have not prejudiced the adverse party;
GR No. 164876, Jan. 23, 2006) and
4) when they have not deprived the court of its
DE GUZMAN vs SANDIGANBAYAN - 256 SCRA 171 authority.
HELD: “The Rules of Court was conceived and
One final note, while it is true that the Rules of Court should be
promulgated to set forth guidelines in the dispensation
liberally construed as a general rule, there are certain provisions
of justice but not to bind and chain the hand that
which according to the SC, should be strictly construed because
dispenses it, for otherwise, courts will be mere slaves to
they were intended precisely to minimize delay. These are
or robots of technical rules, shorn of judicial discretion.
provisions on:
That is precisely why courts in rendering real justice have
always been, as they in fact ought to be, conscientiously
1) reglementary periods;
guided by the norm that when on the balance, 2) rule on forum shopping;
technicalities take a backseat against substantive rights, 3) service of summons
and not the other way around. Truly then, technicalities,
should give way to the realities of the situation.” A good example would be provisions which prescribe the time
during which certain acts are going to be done, like the filing of an
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This reminds me of a lawyer who did not comply with the rules and
he was arguing that the rules should be liberally construed. And
then the judge says: “There is a thin line between liberal
construction of the rules and gross ignorance of the rules!” It is
either you did not follow the rules strictly or you do not really know
the rules.
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ORDINARY CIVIL ACTIONS constitute a cause of action since damages are merely part of the
remedy allowed for the injury caused by a breach or wrong.
Rule 02
Injury is the illegal invasion of a legal right while damage is the loss,
CAUSE OF hurt, or harm which results from the injury.
ACTION
SECTION 1. Ordinary civil actions, basis of. -
Every ordinary civil action must be based on a Cause of Action not an issue in administrative cases
cause of action. (n)
While the existence of a cause of action is one that is essential to
Section 1 of Rule 1 is entitled cause of action. Section 1 expresses the existence of a civil action, in administrative cases however, the
the principle that every ordinary civil action must be based on a issue is not whether the complainant has a cause of action against
cause of action. In other words, there cannot be a case unless you the respondent, but whether the respondent has breached the
have a cause of action. norms and standards of the office. (Mutia v. Purisima, 494 SCRA
448)
Under Rule 16, one of the grounds for a motion to dismiss is that
your pleading states no cause of action. Cause of Action in Specific Cases
Sec. 2. Cause of action, defined. - A cause of In breach of contract cases, a cause of action does not require an
action is the act or omission by which a party allegation of the negligence of the defendant but merely the
violates a right of another. (n) following elements:
A: CAUSE OF ACTION is an act or omission by which a party violates b.) The breach of the contract. (Calalas v. CA SCRA 356; FGU
Insurance Corp. v. GP Sarmeinto Trucking Corp. 386
a right of another.
SCRA 312)
ELEMENTS OF A CAUSE OF ACTION
Thus, if a carrier is sued based on a breach of contract of carriage,
negligence need not be proved by the plaintiff, negligence not
There are 3 main elements:
being an element of the cause of action of a suit predicated on a
1) Existence of legal right in favor of the plaintiff by breach of contract. This is true whether or not the defendant is a
whatever means and under whatever law it arises or is public or a private carrier. However, where the defendant is a
created; common carrier there is an additional reason for dispensing with
proof of negligence, i.e., negligence of the common carrier is
2) a correlative obligation on the part of the named presumed. (Art. 1735 & Art. 1756 CC)
defendant to respect and not to violate such right; and
In quasi delict, negligence, as an element, must be alleged and
3) an act or omission on the part of such defendant in
proved. (Art. 2176 CC) but the negligence of those persons
violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff described under Art. 2180 of the Civil Code, although based on
for which the latter may maintain action for recovery of quasi delict is presumed.
damages or other appropriate relief.
Under Art. 2180, following the well-recognized doctrine of vicarious
Briefly stated, it is the reason why the litigation has come about, it liability, certain persons like the father, mother, guardian, owners
is the act or omission of defendant resulting in the violation of and managers of an establishment or enterprise, employee, the
someone’s right. (Phil. National Construction v CA, 514 SCRA 569; State, and teachers or heads of establishments of arts and trades
Agrarian Reform Beneficiaries Association v. Nicolas GR No. are, under specified conditions, liable for acts of persons for whom
168394, Oct. 6, 2008) they are responsible.
There is a fourth element added by some cases and commentators Thus, an employer for instance, is liable for the damage caused by
– the element of damage suffered by the plaintiff. his employees and household helpers acting within the scope of
their assigned tasks. The employer’s negligence in the selection and
Even if there is violation, if there is no damage, then what relief are supervision of his employee is presumed and his liability shall only
you asking for? There can be no action where no damage is
cease if he successfully proves his observance of the diligence
sustained.
required of a good father of a family to prevent damage.
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In an unlawful detainer case, the cause of action does not accrue RIGHT – the creditor has the right to collect;
unless there is a demand to vacate and is not complied with. If, OBLIGATION – every debtor has the obligation to pay;
however, the suit is based on expiration of the lease, notice and DAMAGE – I have not recovered the money;
demand are not required. (Labastida v. CA, 287 SCRA 662) DELICT or wrong – there is NO delict yet.
EXAMPLE of Cause of Action: Why? There is no delict yet because the account is payable next
year. So, it is still premature to file a collection case now because
A borrows money from B promising to pay on a date certain. Upon one element is missing. It is not based on a cause of action and is
due date, A did not pay. Does B have a cause of action? Let us dismissible under Rule 16.
examine whether the elements are present.
Cause of action must be unmistakably stated
RIGHT – the right of the creditor to get back his money;
The mere existence of a cause of action is not sufficient for a
OBLIGATION – The defendant has the obligation to pay back complaint to prosper. Even if in reality the plaintiff has a cause of
the loan under the law on contracts; action against the defendant, the complaint may be dismissed if
the complaint or the pleading asserting the claim “states no cause
VIOLATION or delict or wrong – the account fell due and
of action”. (Sec. 1[g], Rule 16).
the debtor is supposed to pay the creditor, but the former
did not pay the latter;
This means that the cause of action must unmistakably be stated or
DAMAGE – the creditor cannot get back his money. alleged in the complaint or that all the elements of the cause of
action required by substantive law must clearly appear from the
So, the 4 elements are there. Of course, when you file a complaint mere reading of the complaint. To avoid an early dismissal of the
against somebody, you do not prepare the complaint by complaint, the simple dictum to be followed is: “If you have a cause
enumerating the elements. In other words, you just narrate the of action, then by all means, state it! State all of its elements in
facts. It is up for the defendant to analyze. It is the duty of the your pleading!”
lawyer to analyze the complaint whether the 4 elements are
present. Where there is a defect or an insufficiency in the statement of the
cause of action, a complaint may be dismissed not because of the
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You absence or a lack of a cause of action but because the complaint
are crossing the street and you are bumped by X who was driving a “states no cause of action”. The dismissal will therefore, be
car causing you injuries and being hospitalized. You also failed to anchored on a “failure to state a cause of action.”
report for work.
The failure to state a cause of action does not mean that the
RIGHT – it is the right of every person not to be plaintiff has “no cause of action.” It only means that the plaintiff’s
molested. You have the right to walk peacefully and not allegations are insufficient for the court to know that the rights of
to be harmed; the plaintiff were violated by the defendant. Thus, even if indeed
the plaintiff suffered injury, if the same is not set forth in the
OBLIGATION – it is the obligation of every person driving
to be careful so that he will not bump other people. You complaint, the pleading will state no cause of action even if
factually or in reality the plaintiff has a cause of action against the
defendant.
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Another important subject in procedure is distinguishing a cause of ISSUE: Whether or not there is a right of action.
action from a right of action.
HELD: There is NO right of action because the consignee did
Q: Define right of action.
not comply with the conditions precedent.
A: Right of action is the right of the plaintiff to bring an action and
“The right of action does not arise until the performance of all
to prosecute that action to final judgment. (Marquez vs. Varela, 92
conditions precedent to the action. Performance or fulfillment
Phil. 373)
of all conditions precedent upon which a right of action
It is the right of a person to commence and prosecute an action to depends must be sufficiently alleged, considering that the
obtain the relief sought. burden of proof to show that a party has a right of action is
upon the person initiating the suit.”
Q: What are the ELEMENTS of a right of action?
“More particularly, where the contract of shipment contains a
A: There are three elements: reasonable requirement of giving notice of loss of or injury to
the goods, the giving of such notice is a condition precedent
1.) the plaintiff must have a good cause of action; to the action for loss or injury or the right to enforce the
2.) must be instituted by the proper party; and,
carrier’s liability.”
3.) he/she must have performed all conditions
precedent to the filing of the action.
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF
ACTION.
So, you cannot have a right of action unless you first have a cause
A: The following are the distinctions:
of action. That is why the SC said in the case of
When we say that the action has prescribed we should mean that
EXAMPLE: Damage (injury) suit: X, while walking was bumped by a
what has prescribed is the right of action not the cause of action.
vehicle. He filed one case against the owner of the vehicle for
reimbursement of hospital expenses; one case to recover his
Relief, Remedy and Subject Matter
expenses for medicine; another one for doctor’s fees; then another
Relief is the redress, protection, award or coercive measure which case for the lost income.
the plaintiff prays the court to render in his favor as consequence
A single act may sometimes violate several rights of a person.
of the delict committed by the defendant while remedy is the
Nevertheless the plaintiff has only one cause of action regardless of
procedure or appropriate legal form of relief of action which may
the number of rights violated. If a car owner sustains injuries to his
be availed of by the plaintiff as the means to obtain the desired
person and damage to his car as a result of the negligent driving of
relief.
the defendant, two rights of the plaintiff have been violated,
Subject matter is the thing, wrongful act, contract or property namely, his personal right to be safe in his person and his property
which is directly involved in the action, concerning which the wrong right to have his car intact and free from any damage. Under the
has been done and with respect to which the controversy has circumstances, the plaintiff can only file a single action for the
arisen. recovery of damages for both types of injuries. Filing an action to
recover damages to his person and later for damages to his car
SPLITTING A CAUSE OF ACTION would be splitting a single cause of action. This is because there is
one act of violation. If, however, a passenger in the same car was
Sec. 3. One suit for a single cause of action. - A
also injured, the injuries to the passenger gives rise to a cause of
party may not institute more than one suit
action separate and distinct from those sustained by the car owner
for a single cause of action. (3a)
because distinct rights belonging to different persons have been
violated. The injured passenger may file a suit against the
Section 3 is known as the rule against splitting the cause of action.
defendant separate from the suit filed by the car owner.
Purpose:
A cause of action for the reconveyance of title over property does
To avoid the following: not include a cause of action for forcible entry or unlawful detainer.
They are distinct causes of action. What is involved in an ejectment
1) Multiplicity of suits; case is possession de facto or material possession. In an action for
2) Conflicting decisions; and reconveyance, the issue is ownership. (Tecson v. Gutierez, 452
3) Unnecessary vexation and harassment of defendants. SCRA 781; de la Cruz v. CA, 133 SCRA 520).
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The same principle applies to an action to recover the possession of 2.) a judgment upon the merits in any one is available as a
ground for the dismissal of the others. This refers to a
a land. The action must also include the recovery of the fruits
judgment that is final and executor. That is what you call
already taken from the land and appropriated by the defendant. A
barred by prior judgment or RES ADJUDICATA, which is
suit for recovery of the land and a separate suit to recover the also a ground for dismissal under Rule 16, Section 1 [f].
fruits will not be sustained. Also, when one files a complaint for
unlawful detainer on the ground of non-payment of rentals, the
complaint must include the recovery of the rentals in arrears, such EXAMPLE: A collection case was already decided a long time ago
recovery being an integral part of the cause of action for unlawful dismissing it because the court found that the promissory note was
detainer. a forgery. Now, you are reviving the same case – you are filing
again. Under Section 4, the judgment in the first case years ago
A tenant illegally ejected from the land is entitled to two reliefs – would be cited as a basis for the dismissal of the second case.
one for reinstatement and another for damages. Since both reliefs
arose from the same cause of action, they should be alleged in one Note: if the ground is pendency of another action, the phraseology
complaint (Gozon vs. Vda. De Barrameda 11 SCRA 376). of the rule (Sec. 4 R 2) no longer confines the dismissal to the
second action. As to which action should be dismissed would
An action for the recovery of taxes should also include the demand depend upon judicial discretion and the prevailing circumstances of
for surcharges resulting from the delinquency in the payment of the case.
said taxes. The non-payment of taxes gave rise to two reliefs: (a)
the recovery of the unpaid taxes; and (b) the recovery of the SINGLENESS OF A CAUSE OF ACTION
surcharges resulting from non-payment of the taxes. These two
reliefs are results of a single cause of action and which should be
pursued in a single complaint (City of Bacolod vs. San Miguel
Q: How do you determine the singleness of a cause of action?
Brewery, Inc. 29 SCRA 819).
A: The singleness of a cause of action is determined by the
A bank cannot file a civil action against the debtor for the collection
singleness of the delict or wrong committed by the defendant and
of the debt and then subsequently file an action to foreclose the
not by the number of remedies that the law grants the injured
mortgage. This would be splitting a single cause of action (Danao
party. Meaning, a single delict may give rise to two or more
vs. CA 154 SCRA 446; Industrial Finance Corp. vs. Apostol 177 SCRA
possible remedies but it does not mean to say the injured party can
521).
avail of all those remedies simultaneously or one after another.
It has been held however, that an action to collect the amount of (Bachrach vs. Icariñgal, supra; David vs. De la Cruz, L-11656, April
the loan will not preclude a subsequent action for the rescission of 18, 1958)
the mortgage based on violation of the conditions of the mortgage
EXAMPLE: Obligations and Contracts: A violation or a breach of
(Enriquez vs. Ramos 7 SCRA 26).
contract could give rise to a civil action for specific performance or
Sec. 4. Splitting a single cause of action; effect a civil action for rescission of contract. However, it does not mean
of. - If two or more suits are instituted on the to say that the injured party can file both or one after the other.
basis of the same cause of action, the filing of Otherwise, he will be splitting his cause of action.
one or a judgment upon the merits in any
EXAMPLE: There is the Recto Law (on Sales) which provides for 3
one is available as a ground for the dismissal
remedies of an unpaid seller of personal properties: (1) rescind the
of the others. (4a)
contract of sale; (2) exact fulfillment of obligation; and (3)
The remedy of the defendant is a motion to dismiss or if such foreclosure of mortgage. But even the law on Sales is very clear:
motion is not filed, to allege it in the answer as an affirmative the choice of one automatically bars resort to the other because it
defense. will be against splitting the cause of action.
Q: What are the effects of splitting a cause of action? EXAMPLE: Credit Transactions: A bank has two (2) possible
remedies against a debtor for non-payment of a loan secured by a
A: Under Section 4, the following are the effects: mortgaged say, piece of land: (1) foreclose the mortgage on the
land; or (2) file an action to collect the loan. Here, the bank cannot
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file a case against the debtor to collect the loan and at the same
violations. (Larena vs. Villanueva, 53
time file an action to foreclose the mortgage for it will be splitting
Phil. 923)
the cause of action. So it is either you enforce the principal contract
of loan, or, you enforce the accessory contract of mortgage. This is EXAMPLE: A loan with a promissory note where the principal
what happened in the case of amount is payable in installment. The first installment is payable in
2008, the second installment in this year, and the third installment
DANAO vs. CA – 154 SCRA 446 is payable in 2010 without any acceleration clause. So, there is only
one contract of loan but the principal is payable in three
FACTS: The Danao spouses borrowed money from the bank,
installments at different times.
mortgaged their property and then they failed to pay. The
bank filed a civil action to collect the loan. After filing a civil
For non- payment of the first installment, the creditor has a cause
action to collect the loan, the bank instituted an action to
of action and can file one case.
foreclose the mortgage.
Q: Next year, he did not pay the second installment, can the
HELD: “Anent real properties in particular, the Court has laid creditor file another case?
down the rule that a mortgage creditor may institute against
the mortgage debtor either a personal action for debt or a A: YES, because this time it is the exception. Every installment is
real action to foreclose the mortgage. In other words, he may one cause of action even if there is only one note. Remember that
pursue either of the two remedies, but not both.” they are to be performed at different times.
“Evidently, the prior recourse of the creditor bank in filing a RULE #3 (Exception to the exception):
civil action against the Danao spouses and subsequently
resorting to the complaint of foreclosure proceedings, are not All obligations which have matured
only a demonstration of the prohibited splitting up of a cause at the time of the suit must be
of action but also of the resulting vexation and oppression to integrated as one cause of action in
the debtor.” one complaint, and those not so
included would be barred. (Larena
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION vs. Villanueva, 53 Phil. 923)
IN CONTRACTS WITH SEVERAL STIPULATIONS
EXAMPLE: In 2008, the debtor did not pay but the creditor did not
RULE #1 (General Rule):
file any case. Then this year, the second installment was not also
paid.
A contract embraces only one cause
Q: Is the creditor correct if he files two separate actions?
of action because it may be violated
only once, even if it contains several A: He is wrong. When all the installment are already due and the
stipulations. (Quioque vs. Bautista, creditor has not filed any case for the collection of the first
L-13159, Feb. 28, 1962) installment, this time, when he files for collection of the unpaid
second installment, everything must be integrated. If you do not
EXAMPLE: P enters into a contract with N which contains 3
file a claim for one, it is deemed barred.
stipulations: (#1) that next month, P will deliver to N 100 sacks of
rice; (#2) on the same date, P will also deliver to N 100 sacks of
So for example, if you will wait for the entire note to mature, you
corn; and (#3) on the same date, P will also deliver to N 100 sacks
cannot apply rule 2. You should only file one action and you go
of sugar. When the day arrived, nothing was delivered. So three
back to the general rule.
stipulations were violated.
Doctrine of Anticipatory Breach
Q: How many causes of action does N have against P?
RULE #4 (Exception to Rule #2)
A: ONE. The contract is only one cause of action even if it contains
several stipulations. The cause of action is not based on the An unqualified and positive refusal
number of paragraphs violated but on the contract itself. to perform a contract, though the
performance thereof is not yet due,
RULE #2 (Exception to the General Rule): may, if the renunciation goes into
the whole contract, be treated as a
A contract which provides for
complete breach which will entitle
several stipulations to be performed
the injured party to bring the action
at different times gives rise to as
at once. (Blossom & Co. vs. Manila
many causes of action as there are
Gas Corp., 55 Phil. 226)
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Q: What do you mean by joinder of causes of action? An ALTERNATIVE JOINDER exists when your cause of action is
either one or the other. You are not seeking relief from both but
A: Joinder of causes of action is the provision of the Rules which from either one.
allows a party to join in one pleading two or more causes of actions
against the opposing party. A CUMULATIVE JOINDER exists when you are seeking relief for all
your causes of action.
It is the assertion of as many causes of action as a party may have
against another in one pleading. It is the process of uniting two or ALTERNATIVE joinder; Example:
more demands or rights in one action.
Example: D is the debtor of C for P350,000.00 due on January 5, A is the importer of the goods that were shipped on board a
carrier. Upon reaching Cebu City, they were unloaded by the
2008. D likewise owes C P350,000.00 due on February 13, 2008.
arrastre or stevedoring operator. But when the goods were
Both debts are evidenced by distinct promissory notes. D did not delivered to A they were already in a damaged condition. A
pay both debts despite demand. complained to the arrastre which denied liability claiming that the
goods were damaged already before unloading. Then when A went
How many causes of action are there? There are two because there to the carrier, it passed the blame to the arrastre.
are two contracts and therefore two violations. So C can file two
separate actions for collection without violating the prohibition
against splitting a single cause of action. A here has two (2) possible causes of action: (1) an action against
the stevedoring operator under the contract of depositary under
But can C file only one action by joining the two causes of action? the law on Credit Transaction; Or, (2) an action against the carrier
Yes under this Section 5. under the Law on Transportation. So there are 2 possible causes of
action.
C may file a single suit against D for the collection of both debts,
despite the claims being actually separate causes of actions and Q: Can A file a complaint incorporating the two (arrastre and the
having arisen out of different transactions. carrier) both as defendants?
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A: Under Section 5, joinder of causes of action is allowed under the Q: Suppose these passengers were riding on different buses owned
following conditions: by the same operator. All of them met an accident. Well of course
the same kind of case: damage suit, breach of contract against the
a) The party joining the causes of action shall comply with same operator. Now, can their causes of action be joined?
the rules on joinder of parties;
A: NO. They cannot be joined because there is no common
b) The joinder shall not include special civil actions or actions
governed by special rules; question of fact or law. The defense of the operator here is
different from his defense there. Meaning, passenger A has nothing
c) Where the causes of action are between the same parties to do with the complaint of passenger B because there is no
but pertain to different venues or jurisdictions, the joinder common denominator between them. So if you cannot join them
may be allowed in the Regional Trial Court provided one under Rule 3, the joinder of causes of action under Rule 2 is also
improper.
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b.) The joinder shall not include special civil actions or actions PROBLEM: M encroached on my land in Lapulapu with an assessed
governed by special rules value of P20,000. And then he encroached in another land of mine
in Cebu City with an assessed value of P1 million. You will notice
Assume that aside from the above claims of C against D, C who that in the Lapulapu land, the jurisdiction is in the MTC for the case
happens to be the lessor of D wants to eject D from the apartment accion publiciana and the venue is Lapulapu because the property
occupied by D as lessee. May the action be joined with the claims is situated there. In the other case, the jurisdiction is in the RTC and
for money? the venue is Cebu City.
No. An action for ejectment is a special action which cannot be Q: Can I file a case against M joining the 2 cases?
joined with ordinary action. The joinder does not include special
civil actions or those governed by special rules. The reason is A: YES.
confusion in the application of procedural rules would certainly
arise from the joinder of ordinary and special civil actions in a single Q: Where is now the governing venue?
complaint.
A: The venue of the RTC case prevails. Therefore, the case must be
Assume that C has the following causes of action against D: (a) P1M filed in Cebu City.
based on a PN; (b) P1M based on torts; and (c) foreclosure of real
estate mortgage. May the causes of action be joined? PROBLEM: M encroached on my land in Lapulapu with an assessed
value of P1 million. And then he encroached in another land of
Yes, except the foreclosure of real estate mortgage, which is a mine in Cebu City with an assessed value of P1 million also. You will
special civil action. notice that in the Lapulapu land, the jurisdiction is RTC for the case
accion publiciana. In the other case, the jurisdiction is also in the
UNION GLASS AND CONTAINER CORP vs. SEC - 126 SCRA 31 RTC of Cebu City. So both actions, RTC.
Q: In which RTC will you file the case joining the causes of action?
FACTS: (This is still a good ruling) A stockholder of a
corporation who is also the creditor of the corporation A: Either Lapulapu or Cebu City because both are RTCs.
decided to file one complaint against the corporation
asserting several causes of action, among them is his right as a PROBLEM: M encroached on my land in Lapulapu with an assessed
stockholder under the Corporation Code and also his right as a value of P20,000. And then he encroached in another land of mine
creditor under the Civil Code. in Cebu City with an assessed value of P20,000 also. In the Lapulapu
land, the jurisdiction is MTC for the case accion publiciana. In the
HELD: The joinder is improper. In the first place, one is other case, the jurisdiction is also in the MTC. So both actions,
governed by a quasi-judicial body (SEC). So how can the RTC MTC.
try a case when the cause of action is pertaining to the SEC
and it is governed by the special rules of the SEC? So you Q: Can I join in one complaint the 2 actions?
cannot join that.
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A: NO, because the law says provided one of the causes of action
of action may, on motion of a party or on the
falls within the jurisdiction of said court and the venue lies therein.
initiative of the court, be severed and
One of them belongs to the RTC. In the example, both belong to
proceeded with separately. (n)
the MTC.
There is misjoinder when two (2) or more causes of action were
PROBLEM: M encroached on my land more than one year ago and
joined in one complaint when they should no be joined.
the land has an assessed value of only P20,000. So if I will file an
accion publiciana, it has to be filed with the MTC. On the other
EXAMPLE: A case joining an accion publiciana case and a forcible
hand, A encroached my other parcel of land more than one year
ago and the assessed value of the land is P1 million. So my cause of entry case which is not proper because a special civil action
action there is also accion publiciana but triable by the RTC. So I (forcible entry) cannot be joined. In this case there is misjoinder of
decided to file a case naming both of them as defendants. causes of action.
PROBLEM: M encroached on my land in Cebu City one month ago Under Section 6, if there is misjoinder, you do not dismiss the case.
and then he encroached on another land of mine (assessed value of The remedy is to ask the court that the misjoined case be severed
P1 million) also located in Cebu City two years ago. Therefore, one and tried separately. Now, the counterpart, which is still present is
case is forcible entry triable by the MTC and the latter is accion misjoinder of parties under Rule 3, Section 11:
publiciana triable by the RTC.
RULE 3, Sec. 11. Misjoinder and non-joinder of
Q: Can I join them under paragraph [c] although they belong to parties. - Neither misjoinder nor non-joinder
MTC and RTC? of parties ground for dismissal of an action.
Parties may be dropped or added by order of
A: NO, you cannot join them because of paragraph [b] – a forcible the court on motion of any party or on its
entry is special civil action which is also governed by the Summary own initiative at any stage of the action and
Procedure. You cannot join a special civil action. So what is violated on such terms as are just. A claim against a
here is not paragraph [c] but paragraph [b]. misjoined party may be severed and
proceeded with separately. (11a)
d.) where the claims in all the causes of action are principally for
recovery of money, the aggregate amount claimed shall be the So misjoinder of parties and misjoinder of causes of action are not
test of jurisdiction grounds for dismissal of an action. Just remove the misjoined cause
of action or the misjoined party.
The last is only a repetition of the old rule: TOTALITY RULE. There is
nothing new here. So judiciary law, totality rule, basta sums of
money.
As can be gleaned from Sec. 6(a) and (c) of the Truth in Lending
Act, the violation of the said Act gives rise to both criminal and civil
liabilities. Rule 2, Section 5 of the Rules of Court allows these
actions to be joined in one petition. (UCPB vs. Sps. Samuel and
Odette Beluso, GR No. 159912, Aug. 17, 2007).
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Rule 03
So, you cannot sue or be sued unless you are either a person or an
entity authorized by law.
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES: A dead man cannot sue and he cannot be sued because he has no
more personality.
I. Real Parties in Interest
II. Representative Parties Situation: B sued “Rama Eatery.” So, it is “B vs. Rama Eatery.” It is
III. Permissive Parties wrong. Rama Eatery is not a person nor an entity authorized by
IV. Indispensable Parties law. The correct procedure is you sue the owner because he is the
V. Necessary Parties
real person. But the defect is not really substantial. It is only a
Sec. 1. Who may be parties; plaintiff and formal defect that can easily be corrected.
defendant. - Only natural or juridical persons,
Juridical person as parties
or entities authorized by law may be parties
in a civil action. The term "plaintiff" may
The juridical persons who may be parties are those enumerated in
refer to the original claiming party, the
Art. 44 of the Civil Code, namely:
counter-claimant, the cross-claimant, or the
third (fourth, etc.)-party plaintiff. The term 1.) The State and its political subdivisions;
"defendant" may refer to the original 2.) Other corporations, institutions and entities for public
defending party, the defendant in a interest or purpose, created by law; and
counterclaim, the cross-defendant, or other 3.) Corporations, partnerships, and associations for private
third (fourth, etc.)-party defendant. (1a) interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.
Notes:
The plaintiff is the claiming party or more appropriately, Section 15. Entity without juridical personality
the original claiming party and is the one who files the as defendant.- When two or more persons
complaint. The term however, does not exclusively apply not organized as an entity with juridical
to the original plaintiff. It may also apply to a defendant personality enter into a transaction, they may
who files a counterclaim, a cross-claim or third party be sued under the name by which they are
complaint. Hence Section 1 defines “plaintiff” as the generally or commonly known.
claiming party, the counter-claimant, the cross-claimant
or the third-party plaintiff, etc. In the answer of such defendant the names
and addresses of the persons composing said
The defendant does not only refer to the original entity must all be revealed.
defending party. If a counterclaim is filed against the
original plaintiff, the latter becomes a defendant and the Thus, if A, B, C, D and E without incorporating themselves or
former, a plaintiff in the counterclaim. Hence, in Sec. 1, without registering as a partnership, enter into transactions using
the term “defendant” refers also to a defendant in a the common name “Ocean Quest Corporation”, they may be sued
counterclaim, the cross-defendant or the third-party as such. When the defendant “corporation” answers, the names of
defendant, etc. A, B, C, D and E and their addresses must be revealed. Note
however, that the authority to be a party under this section is
Q: Who may be parties to a civil case? confined only to being a defendant and not as a plaintiff. This is
evident from the words, “they may be sued”.
A: Only the following may be parties to a civil action:
Another example of an entity authorized by law which may not be
1) He nuts be either: a natural or juridical person is a labor union or organization under
a. natural or the Labor Code. It is an entity authorized by law to file a case in
b. juridical persons or behalf of its members. Although it may not have been incorporated
c. entities authorized by law.
under the Corporation Law but registered under the Labor Code. A
2) he must have the legal capacity to sue; and legitimate labor organization may sue and be sued in its registered
3) he must be a real party-in-interest. name (Art. 242 [e], Labor Code of the Philippines).
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2) The Roman Catholic Church may be a party and as to its Q: Who is a real party in interest?
properties, the archbishop or diocese to which they
belong may be a party. (Barlin v. Ramirez 7 Phil 47; A: A real party in interest is the party who stands to be benefited or
Verzosa v. Fernandez 49 Phil. 627) injured by the judgment in the suit or the party entitled to the avails
of the suit. (Section 2)
3) A dissolved corporation may prosecute and defend suits
by or against it provided that the suits occur within 3 That definition is taken from the leading case of SALONGA VS.
years after its dissolution, and the suits are in connection
WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is
with the settlement and closure of its affairs. (Sec. 122,
Corporation Code) defined and that definition has been repeated through the years.
4) Under Sec. 21 of the Corporation Code of the Philippines, To be a real party- in- interest, the interest must be “real”, which is
a corporation by estoppel is precluded from denying its present substantial interest as distinguished from a mere
existence and the members thereof can be sued and be expectancy or a future, contingent, subordinate or consequential
held liable as general partners. interest. (Rayo v. Metrobank, 539 SCRA 571; Fortich v. Corona 289
SCRA 624; Figuracion v. Libi 539 SCRA 50. It is an interest that is
5) A contract of partnership having a capital of three
material and direct, as distinguished from a mere incidental
thousand pesos or more but which fails to comply with
the registration requirements is nevertheless liable as a interest in the question. (Samaniego v. Aguila 334 SCRA 438; Mayor
partnership to third persons(Art. 1772 in relation to Art. Rhustom Dagadag v. Tongnawa 450 SCRA 437).
1768 Civil Code).
The determination of who the real party-in-interest is requires
6) A political party incorporated under Act 1459 (now BP going back to the elements of a cause of action. Evidently the
68, Corporation Code) 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.(Lee v. Romillo 161 SCRA 589). Thus,
Remedy when a party impleaded is not authorized to be a party-
in a suit for violation of a contract, the parties-in-interest would be
As to plaintiff: those covered by the operation of the doctrine of relativity of
contracts under Art. 1311 of the Civil Code, namely, the parties,
Where the plaintiff is not a natural or a juridical person or an entity their assignees and heirs. Likewise in a suit for annulment of a
authorized by law, a motion to dismiss may be filed on the ground contract, the real parties in interest would be those who are
that “the plaintiff has no legal capacity to sue.” (Sec. 1[d] R 16) principally or subsidiarily bound by the contract. (Art. 1397 Civil
Code)
When plaintiff is not the real party in interest:
every action must be prosecuted or defended in the name of the
Also, if the plaintiff has capacity to sue but he is not the ‘real party real party in interest
in interest’, the ground for dismissal is a ‘failure to state a cause of
action (Aguila vs. CA 319 SCRA 246; Balagtas vs. CA 317 SCRA 69) So a complaint is dismissible if it is not made in the name of the
not lack of legal capacity to sue.’ real party in interest.
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HELD: The parents are not the real party in interest. They
K started to manage the property. One of the tenants failed to
were not the passengers. The real parties in a contract of
pay rentals. So in accordance with the authority, he hired a
carriage are the parties to the contract itself. “In the absence
lawyer. In preparation of the complaint, it was stated in the
of any contract of carriage between the transportation
caption, “K, plaintiff vs. L, defendant.”
company and the parents of the injured party, the parents are
not real parties in interest in an action for breach of contract.” ISSUE: Is the action properly filed?
Of course, if the child is a minor the parents can file as HELD: NO. The real property in interest is the principal, the
representatives but not as principal party. owner of the property. K is only an attorney-in-fact. An
attorney-in-fact cannot use in his own name because he is not
EXCEPTION: When there is a stipulation in the contract favorable to
the real party in interest. K is given the authority to sue, to
a third person (stipulation pour autrui – Art. 1311, NCC)
manage, hire a lawyer but not as the plaintiff because the real
party in interest is A. The complaint should be captioned as
Example: Third-Party Liability (TPL) in insurance. A insured his car
“A, plaintiff vs. L, defendant.”
with B for TPL. A bumped C. C can file a case against A and B to
recover from the insurance contract. In other words, while only A
Q: Suppose the caption will read: “K, as attorney-in-fact of A,
and B are the parties to the insurance contract yet the third party
plaintiff vs. L, defendant” is the complaint properly filed?
liability stipulation is intended to benefit a third party who may be
damaged by A while driving his car. A: NO. This is even worse because K is admitting that he is only an
attorney-in-fact so it becomes more obvious that he is not the real
Also parties who have not taken part in a contract may show that
party in interest. If K wants to include his name, it should read: “A,
they have a real interest affected by its performance or annulment.
plaintiff, represented by K, his attorney-in-fact vs. L, defendant.”
In other words, those who are not principally or subsidiarily
obligated in a contract, in which they had no intervention, may Q: Does the law require A to come here to file the case?
show their detriment that could result from it. Thus, Article 1313 of
the Civil Code provides that “creditors are protected in cases of A: NO. Take note that the law does not require the principal (A) to
contracts intended to defraud them.” Further, Article 1381 of the come back to file the case because the plaintiff can invoke the
Civil Code provides that contracts entered into in fraud of creditors jurisdiction of the court by filing the complaint and paying the
may be rescinded when the creditors cannot in any manner collect docket fee.
the claims due them. Thus, a creditor who is not a party to a
contract can sue to rescind the contract to redress the fraud Should a lawful possessor be disturbed in his possession, it is the
committed upon him. possessor, not necessarily the owner of the property, who can
bring the action to recover the possession. The argument that the
A mere agent, who is not an assignee of the principal cannot bring complaint states no cause of action because the suit was filed by a
suit under a deed of sale entered into in behalf of his principal mere possessor and not by the owner is not correct (Phil. Trust
because it is the principal, not the agent who is the real party in Company vs. CA 320 SCRA 719).
interest (Uy vs. CA 314 SCRA 69). In case the action is brought
against the agent, the action must be brought against an agent Suits for corporations:
acting in his own name and for the benefit of an undisclosed
principal without joining the principal, except when the contract When the corporate offices have been illegally searched, the
involves things belonging to the principal. The real party-in-interest corporate officer is not the real party in interest to question the
search. The right to contest the transgression belongs to the
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However, the concept of ‘standing’ because of its constitutional Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example
underpinnings is very different from questions relating to whether is a trustee of an express trust, or executor or administrator of the
or not a particular party is a real party-in-interest. Although both estate of a deceased person. When a person dies, what survives
are directed towards ensuring that only certain parties can after him is his estate which represents everything that is left
maintain an action, the concept of standing requires an analysis behind. This later on will be given to his heirs. But for the
of broader policy concerns. The question as to who the real party- meantime under the law on succession, the executor or
in-interest is involves only a question on whether a person would administrator will take charge of his property.
be benefitted or injured by the judgment or whether or not he is
entitled to the avails of the suit (Kilosbayan Inc. vs. Morato 246 Q: If the estate of the deceased has some collectibles, who will file
SCRA 540). the case?
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An additional condition is that the such joinder is not otherwise Q: Why does the law encourage joinder of parties?
proscribed by the provision of the rules on jurisdiction and venue.
A: The following are the reasons:
Series of Transactions
1) to promote convenience in trial;
This pertains to transactions connected with the same subject 2) to prevent multiplicity of suits;
matter of the suit. 3) to expedite the termination of the litigation; and
4) to attain economy of procedure under which several
demands arising out of the same occurrence may be tried
PROBLEM: Suppose some passengers riding a particular common
together thus avoiding the repetition of evidence relating to
carrier are injured because of an accident. All of them want to sue
facts common to the general demands.
the operator of the carrier for damages arising out of the breach of
contract of carriage. Under the Law on Transportation, it is possible Now, take note that when there is joinder of parties, there is
for each passenger to file his own case because their causes of automatically a joinder of causes of action. That is why one of the
action are different from each other. But can they be joined conditions or limitations in joinder of causes of action is you must
together in one complaint against the common carrier? observe the rule on joinder of parties. If joinder of parties is
improper under Rule 3, the joinder of causes of action is also
A: YES because there is a common question of law or fact in the proper under Rule 2, Section 5
causes of actions of the injured passengers: the evidence is
identical; the issues whether the carrier is at fault are the came; Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A
the witnesses for both parties will be the same; the report will be JOINDER OF CAUSES OF ACTION. BUT THERE CAN BE A JOINDER
the same; the defense of the operator against one party will be OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
the same defense as against the other passenger. So, since there is
a common denominator on their causes of action, they can be EXAMPLE: When there is only one plaintiff and one defendant:
joined. Suppose Melissa will secure three (3) loans from me.
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Q: Is there joinder of causes of action? Although normally, a joinder of parties is permissive (Sec. 6 Rule 3),
the joinder of a party becomes compulsory when the one involved
A: Yes. is an indispensable party. Clearly, the rule directs a compulsory
joinder of indispensable parties (Sec. 7, Rule 3).
Q: Is there joinder of parties?
The presence of all indispensable parties is a condition sine qua
A: NONE, because there is only one plaintiff and one defendant. non for the existence of judicial power. It is precisely when an
indispensable party is not before the court that the action should
So, there can be joinder of causes of action without joinder of be dismissed. Thus, the plaintiff is mandated to implead all the
parties because there is only one plaintiff and one defendant. But if indispensable parties considering that the absence of one such
you join parties in Rule 3, automatically, there is joinder of causes party renders all subsequent actions of the court null and void for
of action. This is the relationship of these two provisions. want of authority to act, not only as to their absent parties but
even as to those present. One who is not a party to a case is not
Finally, the last two types of parties to the action are the so-called bound by the decision of the court; otherwise, he will be deprived
indispensable parties and necessary parties. (Section 7 and Section of his right to due process (Sepulveda, Sr. vs. Pelaez 450 SCRA 302).
8, respectively)
Dismissal for failure to implead an indispensable party
INDISPENSABLE PARTY and NECESSARY PARTIES
It has been ruled on various occasions that since the joinder of
Sec. 7. Compulsory joinder of indispensable indispensable parties is compulsory, the action should be dismissed
parties. Parties in interest without whom no when indispensable parties are not impleaded or are not before
final determination can be had of an action the court. The absence of indispensable parties renders all
shall be joined either as plaintiffs or subsequent actions of the trial court null and void for want of
defendants. (7) authority to act, not only as to the absent parties but even as to
those present (MWSS vs. CA 297 SCRA 287).
Sec. 8. Necessary party. A necessary party is
one who is not indispensable but who ought Need of an order to implead an indispensable party
to be joined as a party if complete relief is to
be accorded as to those already parties, or It is noteworthy that the Court in its rulings did not hold that the
for a complete determination or settlement failure to join an indispensable party results in the outright
of the claim subject of the action. (8a) dismissal of the action. An outright dismissal is not the immediate
remedy authorized by the Rules because under the Rules a non-
Notes: joinder (or misjoinder) of parties is not a ground for dismissal of
an action. Instead, parties may be dropped or added by the court
An indispensable party is a real party in interest without
on motion of any party or on its own initiative at any stage of the
whom no final determination can be had of an action.
action and on such terms as are just (Sec. 11 Rule 3). It is when the
(Sec. 7) Without the presence of this party, the judgment
order of the court to implead an indispensable party goes
cannot attain real finality. (Servicewide Specialists, Inc.
unheeded may the case be dismissed. The court is fully clothed
v. CA 318 SCRA 493; De Castro v. CA 384 SCRA 607)
with the authority to dismiss a complaint due to the fault of the
(See also Lucman vs. Malawi GR No. 159794 December 19, 2006) plaintiff as when, among others, he does not comply with any
order of the court (Sec. 3 Rule 17; Plasabas vs. CA GR No. 166519,
A person is not an indispensable party, however, if his interest in March 31, 2009). (See also Pamplona Plantation Co. vs. Tinghil
the controversy or subject matter is separable from the interest of 450 SCRA 421).
the other parties, so that it will not necessarily be directly or
injuriously affected by a decree which does complete justice Effect of absence of indispensable party
between them. Also, a person is not an indispensable party if his
In a relatively recent case, the Court held that whenever it appears
presence would merely permit complete relief between him and
to the court in the course of a proceeding that an indispensable
those already parties to the action, or if he has no interest in the
party has not been joined, it is the duty of the court to stop the trial
subject matter of the action. It is not a sufficient reason to declare
and to order the inclusion of such party. The absence of an
a person to be an indispensable party that his presence will avoid
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Q: Distinguish indispensable from necessary party. PROBLEM: In credit transactions, there is a creditor, debtor and
surety. Debtor borrowed money from the creditor, then another
A: An INDISPENSABLE PARTY must be joined under any and all
acted as the surety. Now, suppose the debtor will not pay, the
conditions, his presence being a sine qua non of the exercise of
creditor files now a case against the surety without the debtor. The
judicial power, for without him, no final determination can be had
debtor was not included in the case.
of the action. (Borlasa vs. Polistico, 47 Phil. 345) Stated otherwise,
an indispensable party must be joined because the court cannot Q: Can the case proceed even without the debtor being sued?
proceed without him. Hence, his presence is mandatory.
A: YES, the case may proceed.
A NECESSARY PARTY ought to be joined whenever possible in
order to adjudicate the whole controversy and avoid multiplicity Now, the surety may be ordered to pay who can sue the principal
of suits, but if for some reason or another he cannot be joined, the debtor for reimbursement. Meaning, there is still a future case.
court may proceed without him and the judgment shall not Thus, there could be no complete relief between those who are
prejudice his rights. (Ibid.) His presence is not mandatory because parties. So, the debtor is a necessary party, and not indispensable.
his interest is separable from that of the indispensable party. He But it is advisable to join the debtor in one case, so that when the
has to be joined whenever possible to afford complete relief to creditor claims from the surety, the latter can automatically claim
those who are already parties. from the debtor. Multiplicity of suits is then, avoided.
Q: Give examples of indispensable party. A and B are the signatories in a PN which reads: “We promise to
pay to the order of C P1M on February 27, 2009. On due date the
A: In an action for partition of land, all the co-owners thereof are debtors failed to pay.
indispensable parties. (De Lara vs. De Lara, 2 Phil. 294) In an action
for annulment of partition, all of the heirs must be made parties. (a) May C sue A alone?
(Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership
of land, the person who claims to be the owner of the land is the Yes. The cause of action against A is separate and distinct
indispensable party defendant and not the one in possession as from the cause of action against B. The tenor of the note
tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 discloses merely a joint obligation. In a joint obligation the
Phil. 938) credit or debt shall be divided into as many equal shares as
there are creditors and debtors, the credits or debts being
Joint debtor considered distinct from each other. (Art. 1208 CC). Being
debtors in a joint obligation, the debtors then are liable
He is an indispensable party in a suit against him but a necessary separately for P500,000.00 each.
party in a suit against his co-debtor.
(b) Is A in a suit against him by C a necessary or an
Solidary debtor indispensable party? He is an indispensable party.
Without him being impleaded as defendant, C cannot
In a suit brought by a creditor against one solidary debtor, the collect the P500,000.00 share of A. Without A there
other solidary debtor is neither indispensable nor a necessary cannot be a final determination of the case against him.
party.
(c) In the suit by C against A is B a necessary or an
indispensable party? B is not an indispensable party. C
Q: Give examples of necessary party.
can collect from A P500,000.00 without impleading B. He
is only a necessary party. Without B being made a party
A: In an action for collection of debt instituted by the creditor to the action, C cannot have a complete relief, i.e., he
against the surety, the principal debtor is merely a necessary party. cannot collect his entire credit of P1M. If he desires a
(Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt complete recovery, B must be impleaded.
instituted by the creditor against the debtor, the guarantor or
surety is merely a necessary property. (Ibid.) In an action for (3) In the above example, assuming that the debtors bound
foreclosure of a real estate mortgage instituted by the first themselves to pay the P1M solidarily, would B an indispensable or
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GENERAL RULE: if there are several real parties in interest, they 2) The parties are so numerous that it is impracticable
shall be included in the case whether indispensable or necessary. to bring them all before the court;
3) The parties actually before the court are sufficiently
Example: There are 30 of us. The general rule is that all parties in
numerous and representatives as to fully protect
interest, indispensable or necessary shall be included because
the interests of all concerned; and
under Sec. 2 “every action must be prosecuted or defended in the
name of the real party-in-interest.” 4) The representatives sue or defend for the benefit of
all. Berses v. Villanueva 25 Phil. 473; Sulo ng Bayan,
EXCEPTION: to the General Rule: Class Suit. Inc. v. Araneta 72 SCRA 347)
A class suit is an action where one or more may sue for the benefit A class suit does not require a commonality of interest in the
of all implying that the parties are so numerous and it is questions involved in the suit. What is required by the Rules is a
impracticble to bring them all to court. common or general interest in the subject matter of the litigation.
The ‘subject matter’ of the action is meant the physical, the things
The requisites for said class action must also be complied with. real or personal, the money, lands, chattels, and the like, in
relation to the suit which is prosecuted and not the delict or
Meaning, some of you will sue to represent the rest. That is also wrong committed by the defendant. It is not also a common
known as the “doctrine of virtual representation.” The concept of question of law that sustains a class suit but a common interest in
a class suit was first enunciated in the old case of the subject matter of the controversy. (Mathay v. Consolidated &
Trust Bank 58 SCRA 559)
BORLAZA vs. POLISTICO – 47 Phil. 345
There is no class suit in an action filed by 400 residents initiated
through a former mayor, to recover damages sustained due to their
FACTS: This case has something to do with raffle. A group of
exposure to toxic wastes and fumes emitted by the cooking gas
people decided to form an association which they called
plant of a corporation located in the town. Each of the plaintiffs has
“Turnuhang Polistico.” You become a member of this
a separate and distinct injury not shared by other members of the
association by contributing a certain sum of money. And then
class. Each supposed plaintiff has to prove his own injury. There is
every Sunday after mass, half of the collection will go to the
no common or general interest in the injuries allegedly suffered by
treasurer of the association. The other half will be raffled off.
the members of the class.
This has been going on for months and years. The time came
when the funds of the association became very big. Some of
There is no class suit in an action for damages filed by the relatives
the members, in behalf of all the members, decided to file a
of the fatalities in a plane crash. There is no common or general
case against the officers to render an accounting of all the
interest in the injuries or death of all passengers in the plane. Each
amounts. The real parties in interest would be the members.
has a distinct and separate interest which must be proven
individually.
ISSUE: Is the suit filed by some members in behalf of some
members proper?
Example is a taxpayer’s suit – filed in behalf of all the taxpayers in
the Philippines. And there is no specific number of persons that is
HELD: YES, because if We will require all the members to
provided by law.
appear, it will be quite impossible. Therefore, some members
must be made to sue but only in behalf of all the members
Another example is a stckholder's derivative suit, though both are
who are not around and it is impracticable to bring them all to
subject to the other requisites of the corresponding governing law
the court. A number of them may sue for the benefit of all.
especially on the issue of locus standi. (Regalado, p. 97)
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It is important to note the following: A: YES, plaintiffs may join in the alternative under the same
principle as alternative joinder of defendants. When several
1) CLASS SUIT persons are uncertain as to who among them is entitled to relief
2) REPRESENTATIVE SUIT
from a certain defendant, they may join as plaintiffs in the
3) DERIVATIVE SUIT – only peculiar to the corporation law
where the minority files a suit in behalf of the entire alternative. This is also sanctioned by the rule on permissive joinder
corporation because an intra-corporate remedy is of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the
useless or because of the failure of the board of principal and his agent may join as plaintiffs in the alternative
directors, deliberate or otherwise, to act in protection of against a defendant. If the agency is proved, the relief is awarded
the corporation (Black’s 5th Ed. 399; Lim vs. Lim-Yu 352 to the principal. If not, award is then made to the agent.
SCRA 216).
Just as the rule allows a suit against defendants in the alternative,
the rule also allows alternative causes of action and alternative
In a derivative, suit, the cause of action belongs to the corporation
defenses (Sec. 2 Rule 8; Sec.5[b] Rule 6; Sec. 20, Rule 14)
and not to the stockholder who initiates the suit. In a class suit, the
cause of action belongs to the members of the class. Assume that X, a pedestrian, was injured in the collision of two
vehicles. He suffered injuries but does not know with certainty
Class suit and permissive joinder of parties
which vehicle caused the mishap. What should X do if he wants to
sue?
In a class suit there is one single cause of action pertaining to
numerous persons while in permissive joinder there are multiple
He should sue the vehicle drivers/owners in the alternative.
causes of action separately belonging to several persons.
P sent some goods to D pursuant to a contract. The goods were
delivered to E, the known agent of D. D did not pay P. D contends
that he has not received the goods. P claims otherwise and insists
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3) fictitious name may be used because of ignorance of In the answer of such defendant, the names
defendant's true name and said ignorance is alleged in the and addresses of the persons composing said
complaint; entity must all be revealed.
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EXCEPTIONS: (When may an action be filed without naming all the Examples of actions which survive the death of a party:
parties in involved?)
Actions and obligations arising from delicts survive (Aguas
v. Llamas 5 SCRA 959)
1. Class suit (Section 12, Rule 3);
2. Entity without juridical personality (Section 15, Rule
3); Actions based on the tortious conduct of the defendant
3. Any co--owner may bring an action for ejectment survive the death of the latter. (Melgar v. Benviaje 179
(Article 487, New Civil Code) SCRA 196)
Instances where substitution of parties is proper Actions to recover real and personal property, actions to
enforce a lien thereon, and actions to recover damages for
an injury to person or property and suits based on the
EFFECT OF DEATH OF A PARTY
alleged tortious acts of the defendant survive. (Board of
Liquidators v. Kalaw 20 SCRA 987). An action for quieting of
Sec. 16. Death of party; duty of counsel. title with damages is an action involving real property. It
Whenever a party to a pending action dies, survives and the claim is not extinguished by the death of a
and the claim is not thereby extinguished, it party. (Saligumba v. Calanog GRT+ 143365 Dec. 4, 2008)
shall be the duty of his counsel to inform the
court within thirty (30) days after such death An action of ejectment survives the death of a party. It
of the fact thereof, and to give the name and continues until judgment because the issue concerning the
illegality of the defendant’s possession is still alive, and
address of his legal representative or
upon its resolution depends the corollary issue of whether
representatives. Failure of counsel to comply and how much damages may be recovered. (Tanhueco v.
with this duty shall be a ground for Aguilar 33 SCRA 236; Vda de Salazar v. CA; Florendo jr.
disciplinary action. v.Coloma 129 SCERA 304)
The heirs of the deceased may be allowed to Actions for the recovery of money, arising from a contract
be substituted for the deceased, without express or implied are not extinguished by the death of the
requiring the appointment of an executor or defendant. (Sec. 20 R 3)
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years, until it was decided. The court was not informed of the
Requisites:
death of the defendant. Until finally, there was a decision.
1) the action must primarily be for recovery of money,
ISSUE: When there is failure to effectuate the substitution of debt, or interest therein;
heirs before the rendition of judgment, is the judgment 2) the claim, subject of the action, arose from contract,
jurisdictionally defective? express of implied; and
3) defendant dies before the entry of final judgment of the
HELD: NO, “the judgment is valid where the heirs themselves court in which the action was pending.
appeared before the trial court and participated in the
proceedings. Therein, they presented evidence in defense of Under this section, the death of the defendant will not result in the
the deceased defendant. It is undeniably evident that the dismissal of the action. The deceased shall be substituted by his
heirs themselves sought their day in court and exercised their legal representatives in the manner provided for in Sec. 16 of this
right to due process.” Rule 3 and the action continues until the entry of final judgment.
No requirement for service of summons The best example here is an action to collect an unpaid loan. And
while the case is pending the defendant died. What will happen to
Service of summons is not required to effect a substitution. the case? The law says: If the defendant dies before the entry of
Nothing in Sec. 16 of this Rule mandates service of summons. the final judgment in the court at the time of death, it shall not be
Instead of service of summons the court shall, under the authority dismissed but it shall instead be allowed to continue until entry of
of the same provision, order the legal representative of the final judgment.
deceased to appear and be substituted for the said deceased
within 30 days from notice. Under the OLD RULES, the case shall be dismissed. So, the civil case
is not suspended but it will be dismissed and the creditor can file a
By virtue of the same rule, it is significant to know that it is not the case against the estate of the deceased under the Rules on Special
amendment of the pleading, but the order of substitution and its Proceedings. But definitely the civil case dies when the defendant
service that effects the substitution of the deceased by his dies.
representative or heir.
Now, under the NEW RULE, the case will not be dismissed but
Note: If the action does not survive (like the purely personal actions rather, the case will now continue until entry of final judgment.
of support, annulment of marriage, and legal separation), the court Meaning, until it becomes final and executory.
shall simply dismiss the case. It follows then that substitution will
not be required. Q: But of course, if the judgment is favorable to you (the plaintiff),
can you move to execute? Can you move to execute the decision
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS against the property of the defendant?
Now, one of the radical changes again introduced by the new rules A: NO, because the law provides, “xxx a favorable judgment
is the effect of the death of the defendant in a money claim – obtained by the plaintiff therein shall be enforced in the manner
action to collect a sum of money. specially provided in these Rules for prosecuting claims against the
estate of a deceased person.”
Sec. 20. Action on contractual money claims.
When the action is for recovery of money Q: And what is that procedure?
arising from contract, express or implied, and
A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of
the defendant dies before entry of final
the Rules of Court, but there will be no execution.
judgment in the court in which the action was
pending at the time of such death, it shall not
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
be dismissed but shall instead be allowed to
continue until entry of final judgment. A Q: We are talking of death of a party in a pending civil action. While
favorable judgment obtained by the plaintiff there is a case and a party dies, what will happen to the case?
therein shall be enforced in the manner
especially provided in these Rules for A: I will distinguish Is that an ACTION WHICH DOES NOT SURVIVE
prosecuting claims against the estate of a or an ACTION WHICH SURVIVES?
deceased person. (21a)
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Requisites: General Rule: The rule does not consider the transferee an
indispensable party. Hence, the action may proceed without the
1) public officer is a party to an action in his official need to imp lead him.
capacity;
Exception: When the substitution by or joinder of the transferee is
2) during the pendency of the action he either dies, resigns, ordered by the court.
or other wise ceases to hold office;
A transferee pendent lite:
3) it is satisfactorily shown to the court by any party, within
30 days after the successor takes office, that there is a
1) stands in exactly the same position as its predecessor-in-
substantial need for continuing or maintaining the
interest, th original defendant; and
action;
2) bound by the proceedings had in the case before the
property was transferred to it, even if not formally
4) that the successor adopts or continues or threatens to
included as defendant. (Herrera, vol. 1 p. 405)
adopt or continue the action of his predecessor; and
The case will be dismissed if the interest of plaintiff is transferred
5) the party or officer affected has been given reasonable
notice of the application therefor and accorded an to defendant unless there are several plaintiffs, in which case, the
opportunity to be heard. remaining plaintiffs can proceed with their own cause of action.
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The third paragraph is new. The other party may contest the claim
of the indigent if he is really an indigent or not.
The rule is that only the Solicitor General can bring and defend
actions on behalf of the Republic of the Philippines and that actions
filed in the name of the Republic of the Philippines or its agencies
and instrumentalities, if not initiated by the Solicitor General will
be summarily dismissed. The authority of the Solicitor General is
embodied in Sec. 35(1) Chapter 12, Title III and Book IV of the
Administrative Code of 1987 (Cooperative Development Authority
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Rule 4 the court may do so without need of waiting for the filing of a
motion to dismiss. (Sec. 4, Rules on Summary Procedure)
VENUE OF ACTIONS
How venue is determined
Q: Define venue.
As said before, in order to know the venue of a particular action,
A: VENUE is the place, or the geographical area where an action is the initial step is to determine if the action is personal or real. If it is
to be filed and tried. In civil cases, it relates only to the place of the personal, the venue is transitory hence, the venue is the residence
suit and not to the jurisdiction of the court. (Manila Railroad of the plaintiff or the defendant at the option of the plaintiff. If the
Company vs. Attoryney General, 20 Phil. 523) defendant is a non-resident, the venue is the residence of the
plaintiff or where the non-resident defendant may be found, at the
Venue not a matter of substantive law
election of the plaintiff.(Sec. 3)
Venue is procedural and not substantive. In civil cases, venue is not
If the action is real, the venue is local hence, the venue is the place
a matter of jurisdiction. (Heirs of Pedro Lopez vs. de Castro, 324
where the real property involved, or any portion thereof, is
SCRA 591 [2000]). Venue becomes jurisdictional only in a criminal
situated. (Sec. 1). However, when the defendant is a non-resident
case. In the latter case, where the information is filed in a place
and is not found in the Philippines, and the action affects the
where the offense was not committed, the information may be
personal status of the plaintiff, or any property of the defendant
quashed for lack of jurisdiction over the offense charged. (Sec. 3, R
located in the Philippines, the venue is the residence of the plaintiff
117) This is not so in a civil case where improper venue is not
or where the property or any portion thereof is situated. (Sec. 3)
equivalent to lack of jurisdiction. Because it is merely procedural,
the parties can waive the venue of a case. VENUE OF REAL ACTIONS
Dismissal based on improper venue Forcible entry and detainer actions shall be
commenced and tried in the municipal trial
1) The trial court cannot motu proprio dismiss a case on the court of the municipality or city wherein the
ground of improper venue. The court may motu proprio
real property involved, or a portion thereof,
dismiss an action in case of lack of jurisdiction over the
subject matter, litis pendencia, res judicata and is situated. (1[a], 2[a]a)
prescription, but not for improper venue. (Rudolf Lietz
Holdings, Inc. v. Register of Deeds of Paranaque City, 344 Q: Why does the law say “tried in the proper court?”
SCRA 68; Universal Robina Corp. v. Lim GR 154338, Oct.
5, 2007) A: It is because proper court will now be the MTC or the RTC,
depending on the assessed value of the property.
2) Unless and until the defendant objects to the venue in a
motion to dismiss, the venue cannot be truly said to be The venue is the placed where the real property or any portion
improperly laid, because the venue although technically thereof is located.
wrong may be acceptable to the parties for whose
convenience the rules on venue have been devised. The If a property is located at the boundaries of two places: file the
trial court cannot preempt the defendant’s prerogative
case in either place at the option of the plaintiff.
to object to the improper laying of the venue by motu
proprio dismissing the case. (Dacuycoy v. IAC 195 SCRA
641) When the case involves two properties located in two different
places:
When court may motu proprio dismiss based on improper venue
1) if the properties are the object of the same transaction,
The court may dismiss on improper venue, at its instance, in an file it in any of the two places; and
action covered by the rules on summary procedure. Under these 2) if they are the subjects of two distinct transactions,
separate actions whould be filed in each place unless
rules, the court may motu proprio dismiss a case from an
properly joined.
examination of the allegations of the complaint and such evidence
as may be attached thereto on any of the grounds apparent
therefrom. The dismissal may be made outright, which means that
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Situation: suppose, there are four (4) plaintiffs and 4 defendants Thus, it should be filed at the residence of the parties. “The
and the 4 plaintiffs reside in 4 different cities or municipalities. So complaint is one for specific performance with damages.
there are 8 choices for venue because the law says, “where the Private respondents do not claim ownership of the lot but in
plaintiff or any of the principal plaintiffs or where the defendant or fact recognized title of defendants by annotating a notice of
any of the principal defendants reside…” lis pendens. In one case, a similar complaint for specific
performance with damages involving real property, was held
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because to be a personal action, which may be filed in the proper court
there is such a thing as nominal defendant and nominal plaintiff.. where the party resides. Not being an action involving title to
or ownership of real property, venue, in this case, was not
EXAMPLE of a nominal party: When a party wants to file a case to improperly laid before the RTC of Bacolod City.” (Adamos vs.
annul an execution sale or to annul a levy, normally it impleads the Tuazon 25 SCRA 30 [1968])
sheriff as party. But the sheriff is not the principal party but is only
a NOMINAL PARTY. So, the residence of the sheriff is not Q: Where several or alternative reliefs are sought in an action, and
considered the sheriff being a nominal party only. the reliefs prayed for are real and personal, how is venue
determined?
This is the original concept of forum shopping which is legitimate
but had later been abused. That is why there is a SC case where A: Where several or alternative reliefs are prayed for in the
Justice Panganiban cited the history of forum shopping entitled complaint, the nature of the action as real or personal is
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259), determined by the primary object of the suit or by the nature of
January 24, 1996) the principal claim. Thus, where the purpose is to nullify the title to
real property, the venue of the action is in the province where the
How to distinguish real from personal action property lies, notwithstanding the alternative relief sought,
recovery of damages, which is predicated upon a declaration of
There are instances when it is easy to distinguish whether the nullity of the title. (Navarro vs. Lucero, 100 Phil. 146)
action is real or personal and there are also instances when it is
difficult. Where a lessee seeks to establish his right to the hacienda, which
was subsequently sold, for the purpose of gathering the crops
EXAMPLE: An action for annulment of a contract of sale or thereon, it is unnecessary to decide whether the crops are real or
rescission of contract of sale of real property. Generally, an action personal property, because the principal claim is recovery of
for annulment or rescission is a personal action. But suppose, I will possession of land so that he may gather the fruits thereof. (LTC vs.
file a complaint to annul or rescind a contract or a deed of sale over Macadaeg, 57 O.G. 3317)
a parcel of land which we made one year ago which land is situated
in Mandaue City and the purpose of my action is to recover the Now, going back to Section 2.
ownership of that land is this a real or personal action?
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Q: Why can you not sue a person not residing here in the
An action may be filed only when:
Philippines and is not found here in the first place?
1.) The action affects the personal status of the plaintiff
A: There is no way for Philippine courts to acquire jurisdiction over and venue is the place where the plaiantiff resides; or
his person. Otherwise, he will not be bound by the decision.
2.) The action affects the property or any portion thereof of
But in our discussion on the element of jurisdiction: subject matter, said defendants is located here in the Philippines, and
person, res and issues, I told you that the res or the thing in dispute venue is the place where the property or any portion
is important because sometimes it takes the place of jurisdiction thereof is located.
over the person of the defendant. So even if the Philippine court
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
cannot acquire jurisdiction over the person of the defendant but
the subject of the controversy (res) is in the Philippines, then the
non-resident defendant can also be sued in the Philippines. The
EXAMPLE: A young child was abandoned by his illegitimate father.
court can now acquire jurisdiction over the res, subject and since
The illegitimate father left the Philippines for good. The son wants
the res is here, the judgment can be enforced. It is not a useless
to file a case against the father for compulsory recognition, at least
judgement anymore.
to improve his status.
EXAMPLE: He is there but he is the owner of a piece of land here. I
Q: Can the child file a case for compulsory acknowledgment here in
want to file a case to recover ownership over the land here in the
the Philippines against the father for compulsory
Philippines.
acknowledgment?
Q: Can I sue the non-resident defendant?
A: YES because the action involves the person status of the
A: YES under Section 3. Even if the person is abroad, the res of the plaintiff. The res is the status of the plaintiff who happens to be in
property in dispute is here and if he loses the case the judgment the Philippines.
can be enforced – transfer the property to you. So it is not a useless
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF
judgment. That is what Section 3 is all about.
OF SAID DEFENDANTS LOCATED HERE IN THE PHILIPPINES
Sec. 3. Venue of actions against nonresidents.
Example: The defendant who is already abroad owns a piece of
- If any of the defendants does not reside and
land located here in the Philippines and I want to recover the
is not found in the Philippines, and the action
ownership of the piece of land.
affects the personal status of the plaintiff, or
any property of said defendant located in the Q: What is the res?
Philippines, the action may be commenced
and tried in the court of the place where the A: The res is the land which is situated here in the Philippines.
plaintiff resides, or where the property or any Therefore I can sue that defendant even if he is there because the
portion thereof is situated or found, (2[c]a) court can acquire jurisdiction over the res.
Q: What is the difference between the non-resident defendant in In order to validly sue in the Philippine court, a defendant who is no
Section 2 and the non-resident defendant in Section 3? longer residing here and is no longer found here, the action must
be:
A: In Section 2, the non-resident defendant may be found in the
Philippines. But in Section 3, he does not reside and is not found in 1) action in rem; or
the Philippines. So, physically, he is not around. 2) at least quasi-in rem.
Venue of ordinary civil actions against non-residents: In the examples given, if the action is for compulsory recognition,
that is actually an action in rem. In the suit which involves a
1) Non-resident but found in the Philippines; property here in the Philippines, at least that is an action quasi-in
rem.
a) for personal actions, where the plaintiff resides or
where he may be found at the election of the But if the action is purely in personam, then there is no way by
plaintiff;
which you can sue him. Example is an action to collect an unpaid
b) for real actions, where the property is located.
loan.
2) Non-resident not found in the Philippines
Q: Where is now the proper venue of the action against the non-
residents?
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A: The law says where the plaintiff resides – action which affects
While the first two rarely pose a problem, the third has been a
the personal status of defendants, where the property of the
source of controversy in the past.
defendant located here in the Philippines
A stipulation that “any suit arising from this contract shall be filed
Sec. 4. When rule not applicable. - This rule shall not apply - only in Quezon City” is exclusive in character and is clear enough to
a) In those cases where a specific rule or law preclude the filing of the case in any other place. In this case, the
provides otherwise; or residences of the parties are not to be considered in determining
the venue of the action.
b) Where the parties have validly agreed in writing
before the filing of the action on the exclusive How about a stipulation that the “parties agree to sue and be sued
venue thereof. (3a, 5a) in the courts of Manila?”
Libel could give rise to a civil action for When the note matured, J did not pay so C filed a case to
damages. It is considered under the RPC as
collect the unpaid loan here in Cebu City but J challenged the
one of the independent civil actions. The
criminal action for libel shall be filed venue on ground that the venue is agreed upon which is
simultaneously or separately in the RTC of the: Manila. According to C, the venue is correct because both of
us are residing here in Cebu City and under Rule 4, the venue
a.) province or city where the libelous article is is where I reside or you reside, at my option.
printed and first published; or
b.) where any of the offended parties actually ISSUE: Who is correct in this case?
resides at the time of the commission of the
offense. HELD: Plaintiff is correct notwithstanding the stipulation.
Why? When. the parties stipulated on the venue of the civil
If one of the offended party is a public officer, whose
action, other than those found in the Rule of Court, the
office is in the City of Manila at the time of the
commission of the offense, the action shall be filed (a) in stipulated venue is considered merely as an ADDITION to
the RTC of Manila, or (b) in the RTC of the province where the parties reside. Unless the stipulation contains
where he held office at the time of the commission of RESTRICTIVE words which shows the intention of the parties
the offense. to limit the place stipulated as the exclusive venue.
2.) Section 5 (4), Article VIII, 1987 Constitution – The SC may So in the second exception where there is an agreement in writing
order a change of venue or place of trial to avoid a
on the exclusive venue, the word exclusive is very important as
miscarriage of justice as what happened in the case of
taken in the ruling in POLYTRADE vs. BLANCO. So if the venue is not
Mayor Sanchez.
exclusive, Rule 4 still applies and the stipulated venue is just an
additional one.
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING
BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE Of course, there are stipulations where you can see clearly the
THEREOF. intention of the parties to limit the venue. But sometimes, there
are stipulations in which it is difficult to decipher the real intention
The parties may agree on a specific venue which could be in a place of the parties whether exclusive or not. Examples of clear
where neither of them resides. Take note that the stipulation must stipulations which calls for the application of the POLYTRADE
be: ruling: in the City of Manila only or the suit shall be filed in the City
of Manila and in no other place.
1) in writing;
2) made before the filing of the action and The Polytrade doctrine was further applied in the case of
3) exclusive as to the venue. Unimasters Conglomeration Inc. v. CA 267 SCRA 759. In this case, it
was ruled that a stipulation stating that “all suits arising out of this
Agreement shall be filed with/in the proper courts of Quezon City,”
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is only permissive and does not limit the venue to the Quezon City
b. “In case of litigation hereunder, venue shall be in the
courts. As explained the said case: City Court or Court of First Instance of Manila as the
case may be for determination of any and all questions
“In other words, unless the parties made very clear, by employing arising thereunder.” (Phil. Bank of Communications v.
categorical and suitably limiting language, that they wish the venue Trazo, GR 165500, Sug. 30, 2006)
of the actions between them to be laid only and exclusively at a
definite place, and to disregard the prescriptions of Rule 4, c. “It is hereby agreed that in case of foreclosure of this
agreements on venue are not to be regarded as mandatory or mortgage under ACT 3135, as amended, and Presidential
Decree No. 385, the auction sale shall be held at the
restrictive, but merely permissive, or complementary of said
capital of the province, if the property is within the
rule.xxxThere must be, to repeat, accompanying language clearly territorial jurisdiction of the province concerned, or shall
and categorically expressing their purpose and design that actions be held in the city, if the property is within the territorial
between them be litigated only at the place named by them, jurisdiction of the city concerned”(Langkaan Realty
regardless of the general precepts of Rule 4; and any doubt or Development, Inc. v. UCPB GR 139427, Dec. 8, 2000)
uncertainty as to the parties’ intentions must be resolved against
d. “All court litigation procedures shall be conducted in the
giving their agreement a restrictive or mandatory aspect. Any other
appropriate courts of Valenzuela City, Metro Manila”
rule would permit of individual, subjective judicial interpretations (Auction in Malinta, inc. v. Luyaben GR 173979, Feb. 12,
without stable standards, which could well result in precedents in 2007)
hopeless inconsistency.”
Examples of words with restrictive meanings are: xxx “only”,
However, there are cases in which you cannot find the word “solely”, “exclusively in this court”, “in no other court save –“,
exclusive or the word only, and yet the SC said it seems the “particularly”, “nowhere else but/except --, or words of equal
intention of the parties to limit the venue as exclusive as what import xxx” (Pacific Consultants International Asia, Inc. v.
happened in the 1994 case of Schonfeld, GR 166920 Feb. 19, 2007)
GESMUNDO vs. JRB REALTY CORP – 234 SCRA 153 Cases like Hoechst, Inc. v. Torres, 83 SCRA 297 and Bautista v. de
Borja 18 SCRA 474 and other rulings contrary to the Polytrade
FACTS: This involves a lease contract which contain a doctrine are deemed superseded by current decisions on venue.
stipulation on venue. Here is the language of the lease
contract: “venue for all suits, whether for breach hereof or In Supena v. de la Rosa 334 Phil. 671, it was ruled that Hoechst had
damages or any cause between the LESSOR and the LESSEE, been rendered obsolete by recent jurisprudence applying the
and persons claiming under each, being the courts of doctrine enunciated in Polytrade (Auction in Malinta Inc. v.
appropriate jurisdiction in Pasay City…” Luyaben)
In other words, if there is a case, they agreed to file it in the This conflict was resolved in the case of PHIL. BANKING vs.
court of Pasay City. TENSUAN (228 SCRA 385) where the SC ruled that the ruling in
BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has been
ISSUE: Is this intention of the parties to make Pasay City an rendered obsolete by the POLYTRADE ruling and subsequent cases
exclusive venue? reiterated it. So the ruling in POLYTRADE is the correct ruling.
Forget what the SC said in the abovementioned two cases.
HELD: Pasay City is the exclusive venue. “It is true that in
Polytrade Corporation v. Blanco, a stipulation that ‘The When stipulation would be contrary to public policy of making
parties agree to sue and be sued in the City of Manila’ was courts accessible to all who may have need of their service
held to merely provide an additional forum in the absence of
any qualifying or restrictive words. But here, by laying in Pasay SWEET LINES vs. TEVES – 83 SCRA 361
City the venue for all suits, the parties made it plain that in no
other place may they bring suit against each other for breach
contract or damages or any other cause between them and FACTS: This is a Cagayan de Oro case which involves Sweet
persons claiming under each of them.” In other words, the Lines, a shipping company with the head office in Cebu. The
intention of the parties is to make Pasay City the exclusive respondent Teves is the former City Fiscal of Davao City,
venue. former Mayor and became judge of CFI of Cagayan de Oro
City.
The following stipulations were likewise treated as merely
permissive and did not limit the venue: There was a group of passenger who rode on the Sweet Lines
bound for Cebu City. During the trip, they were given a crude
a. xxxThe agreed venue for such action is Makati, Metro treatment by the officers of the vessel. When they came back
Manila, Philippines (Mangila v. CA 435 Phil. 870). in Cagayan de Oro City, they filed a suit for damages against
Sweet Lines. They file the case in the former CFI, now RTC, of
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Judge Teves denied the motion to dismiss the case despite the
HELD: The ruling in Sweet Lines vs. Teves does not apply. You
stipulation. According to him, it is unfair. If I will dismiss the
are bound by the stipulation. Why? You are a lawyer so you
case based on this stipulation, the aggrieved parties will be
klnow the implication of the stipulation signed.
discouraged in going to Cebu. It is very expensive and they will
be inconvenienced. But, if the case will go on in Cagayan de Q: Distinguish JURISDICTION from VENUE.
Oro, it will not inconvenienced Sweet Lines because they have
their branch office, their manager and their own lawyer. A: The following are the distinctions:
ISSUE: Whether or not Cagayan de Oro is the proper venue. 1) JURISDICTION refers to the authority of the court to
hear the case, whereas
HELD: YES. Judge Teves was correct in not dismissing the case.
VENUE refers only to the place where the action is
First of all, the stipulation is placed in the ticket. These people to be heard or tried;
never even bothered to read this. Nakalagay na iyan diyan eh.
So either you take it or you leave it. Therefore, the passengers 2) JURISDICTION over the subject matter cannot he
did not have a hand in preparing that stipulation. So the waived; whereas
contract is a contract of adhesion.
VENUE is waivable and can be subject of agreement;
Second, again for the sake of equity, to be fair that these poor 3) JURISDICTION is governed by substantive law –
people will be compelled to go to Cebu to file a case there. Judiciary Law, BP 129; whereas
They will be discouraged. It is very expensive to go back and
forth to Cebu. Whereas, Sweet Lines has the resources, the VENUE is governed by procedural law – Rule 4 of the
means, the lawyers here in Cagayan to litigate. Therefore, it Rules of Court;
would be inequitable to compel them or to apply the
stipulation there. 4) JURISDICTION establishes a relation between the
court and the subject matter; whereas
The ruling in SWEET LINES is an exception to POLYTRADE despite VENUE creates a relation between the plaintiff and
the exclusive stipulation. The SC said that the refusal of the court to defendant, or petitioner and respondent; and
apply it is correct. There is no grave abuse of discretion on the part
of Judge Teves. 5) JURISDICTION or lack of it over the subject matter
is a ground for a motu proprio dismissal; whereas
ARQUERO vs. FLOJO – 168 SCRA 54
VENUE is not except in cases subject to summary
procedure.
FACTS: Arquero here is lawyer and the municipal mayor of the
municipality of Sta. Teresita, Cagayan Valley. He sent a
telegram through the RCPI branch in Cagayan addressed to a BAR QUESTION: State in what instance the jurisdiction and venue
coincide.
Congressman in stating: I will go there to Manila, I will see
you in your office on this particular date.
A: In CRIMINAL CASES because in criminal cases, venue is territorial
When he went to the office of the congressman after a few
jurisdiction. But in civil cases, jurisdiction and venue are two
days, who was mad at him telling him “So you are here to ask
different things. They do not coincide.
for a favor for your own but your telegram was charged
collect! Arquero was stunned and embarrassed because he
paid for the telegram.
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Rule 5
The Rules on Procedure starting with Rule 6, the title of the subject
matter is procedure in Regional Trial Courts. However, by express
provisions in Section 1, the procedure in the Regional Trial Court
and the procedure in the Municipal Trial Court is the same.
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Construction of pleadings On the other hand, if you are the party sued, you also have to file
your pleading or your defense. It is known as the ANSWER. The
In this jurisdiction, all pleadings shall be liberally construed so as to defenses of a party are alleged in the answer to the pleading
do substantial justice (Concrete Aggregate Corp. v. CA 266 SCRA asserting a claim against him. If I file a complaint against you, in
88). Pleadings should receive a fair and reasonable construction in response, you will file an answer.
accordance with the natural intendment of the words and language
used and the subject matter involved. The intendment of the In the last paragraph, an answer may be responded by a REPLY. I
pleader is the controlling factor in construing a pleading and should file a complaint. You file an answer invoking your defenses. If I
be read in accordance with its substance, not its form. want to respond to your defenses, I will file a REPLY.
While it is the rule that pleadings should be liberally construed, it COMPLAINT ANSWER REPLY
has also been ruled that a party is strictly bound by the allegations,
That is the pattern.
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Note however, that when a case falls under the Rules on Summary The fact is essential if it cannot be stricken out without leaving the
Procedure, the only pleadings allowed to be filed are: statement of the cause of action insufficient.
Permissive Counterclaims, third-party complaints, reply and What are not ultimate facts:
pleadings-in-intervention are prohibited. (Sec. 9, IV)
1) evidentiary or immaterial facts;
2) legal conclusions, conclusions or inferences of facts from
Pleading and motion
facts not stated, or incorrect inferences or conclusions
from facts stated;
1.) the purpose of a pleading is to submit a claim or defense
3) the details of probative matter or particulars of
for appropriate judgment while the purpose of a motion
evidence, statements of law, inferences and arguments;
is to apply for an order not included in the judgment;
4) an allegation that a contract is valid or void is a mere
conclusion of law.
2.) a pleading may be initiatory like a complaint while a
motion can never be such as it is filed in a case that is
For EXAMPLE: Mr. P wants to sue Mr. R to collect an unpaid loan.
already pending in court;
Mr. R borrowed money from Mr. P and refused to pay. Normally, it
3.) A pleading is always filed before judgment while a starts with an introduction: “Plaintiff, through counsel, respectfully
motion may be filed after judgment; alleges that…” Then it is followed by paragraphs which are
numbered. For instance:
4.) There are only 9 kinds of pleadings while any application
for a relief other a judgment can be made in a motion' Illustration:
however, there are only three motions which actually
seek judgment namely: 1) Plaintiff Mr. P, of legal age, is a resident of 79 P. del
Rosario St., Cebu City; whereas defendant Mr. R
a) a motion for judgment on the pleadings (R 34); also of legal age, is a resident of 29 Pelaez St. Cebu
b) a motion for summary judgment (R 35); City where summons and other processes of this
c) Demurrer to Evidence court may be served;
5.) a pleading must be written while a motion may be oral 2) On Nov. 7, 2008, defendant secured a loan from
when made in open court or in the course of a hearing or plaintiff in the sum of P30,000.00 payable within
trial. one (1) year form said date with legal interest;
Plaintiff further prays for such other reliefs as may be just and
equitable under the premises.
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Sec. 5 – Defenses – Defenses may either be In the example above, when the answer states:
negative or affirmative.
"The defendant did not secure a loan from the plaintiff on Nov. 6,
A NEGATIVE DEFENSE – is the specific denial
2008 in the amount of P30,000.00 payable within one year."
of the material fact or facts alleged in the
pleading of the claimant essential to his b.) Answer; AFFIRMATIVE DEFENSES
cause or causes of action.
Q: Define an AFFIRMATIVE defense.
An AFFIRMATIVE DEFENSE – is an allegation
of a new matter which, while hypothetically A: In paragraph (b), it is briefly called a defense of confession and
admitting the material allegations in the avoidance because, while the defendant may admit the material
pleading of the claimant, would nevertheless allegation in the complaint, however, he will plead a new matter
prevent or bar recovery by him. which will prevent a recovery by the plaintiff. I admit what you are
saying in the complaint but still you are not entitled to recover
Defenses may either be negative or affirmative. from me.
b.) Answer; NEGATIVE DEFENSES; EXAMPLE: Defendant may say: Defendant admits the allegation in
par. 2 of the Complaint, but alleges that the action has prescribed.
Q: Define a NEGATIVE defense.
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Or, you sue me because according to you, I entered into a contract A: YES. There is no rule which limits my counterclaim to the same
and I refused to comply. So, you file a case against me for specific amount you are claiming. A counterclaim need not diminish or
performance or for damages. Then I say: “It’s true that I entered defeat the recovery sought by the opposing party, but may claim
into a contract with you. It’s true I did not comply. But there is relief exceeding in amount or different in kind from that sought by
nothing you can do because the contract is oral and the contract is the opposing party. (De Borja vs. De Borja, 101 Phil. 911)
covered by the statute of frauds. In order to be enforceable, we
should have reduced it into writing. Since we never reduced it into Q: You file a case against me for recovery of unpaid loan. My
writing, I am not bound to comply.” counterclaim is, rescission of partnership contract. Is the
counterclaim proper?
c.) COUNTERCLAIMS
A: Yes although there is no connection between what you are
Sec. 6. Counterclaim. - A counterclaim is any asking and what my answer is. But what is important is that we are
claim which a defending party may have the same parties. If you will not allow me to file my counterclaim
against an opposing party. (6a) against you, that will be another case in the future. So to avoid
multiplying suits, clogging the dockets of the court and making the
EXAMPLE: You file a case against me for damage to your car. proceedings more expensive, violating the purpose of the rules, the
According to you in your complaint, while you were driving your car parties are allowed to include all their claims against each other in
along the highway carefully, I came along driving recklessly and one case.
bumped your car causing damages amounting to P50,000.00 for
repair. Your allegation is based on negligence on my part. Same capacity rule
My answer is denial: “That is not true! I deny that! I was the one DE BORJA vs. DE BORJA - 101 Phil 911
driving carefully and you were driving carelessly and negligently.
Therefore, if you are the proximate cause of the accident, I’m not
liable for the damage of your car.” That’s my answer – I’m not FACTS: A died, of course, what survives after that is the
liable because you are negligent. Because you were the one estate. X was appointed as administrator or legal
negligent, my car was also damaged. I am not liable for the damage representative. W owes a sum of money to the estate of A
on your car. As a matter of fact, you are the one that should be and X filed a case against W to collect the unpaid loan. X is
held liable to pay for the damage of my car. I am now claiming for called the REPRESENTATIVE PARTY under Rule 3, Section 3. W
the damage of P50,000.00. That is called COUNTERCLAIM. filed an answer and stated that W has a claim against X. W
filed a counterclaim against X in the case.
Nature of a counterclaim
HELD: The counterclaim is improper. When X sued W, X is not
A counterclaim is in the nature of a cross-complaint. Although it suing in his own personal capacity. He is acting as
may be alleged in the answer, it is not part of the answer. Upon its administrator of the estate of A. The real plaintiff is the estate
filing, the same proceedings are had as in the original complaint. of A. X is just the legal representative. Therefore, you cannot
For this this reason it is to be answered within ten (10) days from file a counterclaim against X in the latter’s personal capacity
service. when X is suing W in a representative capacity.
According to a lawyer who is fluent in Cebuano, he called it balos. The SC said that the plaintiff should be sued in a counterclaim in
He was explaining to his client that they have counterclaim. the SAME CAPACITY that he is suing the defendant. That’s a
principle to remember.
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Under the Rules, there are two types of counterclaim: The second requisite is the most important. A counterclaim, to be
compulsory, must arise out of or connected with the transaction or
1) COMPULSORY COUNTERCLAIM and, occurrence constituting a subject matter of the opposing party
2) PERMISSIVE COUNTERCLAIM. concerned. It must arise out of or is connected with a transaction
or occurrence constituting a subject matter of the opposing party’s
Q: How do you distinguish one from the other? When is a claim. It must be logically related to the subject matter of the main
counterclaim compulsory and when is it permissive? action.
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in So the rule is, if the counterclaim did not arise out of or is not
Section 7. If we will outline Section 7, we will see that a connected with the transaction or occurrence constituting the
counterclaim is compulsory if the following requisites are present: subject matter of the opposing party’s concern, the counterclaim
must be permissive in nature.
1) It is cognizable by the regular courts of justice;
PROBLEM: Emily filed a case against Regina for damages arising
2) It arises out of or it is connected with a transaction or
from a vehicle collision. According to Emily, the case of the accident
occurrence constituting a subject matter of the opposing
party’s claim; is the negligence of the defendant in driving her car. Her car
bumped the car of Emily and was damaged. So, Emily is holding
3) It does not require for its adjudication the presence of Regina liable for the damage on her car. Regina denied that she
third parties of whom the court cannot acquire was negligent. According to Regina, “No, I am not negligent. As a
jurisdiction; matter of fact, you (Emily) were the one negligent, and because of
that negligence, my car was also damaged. So you should be the
4) It must be within the jurisdiction of the court, both as to
the amount and the nature thereof, except that in an one to pay damages.”
original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount; and Q: Is the counterclaim of Regina arising out of or is connected with
the transaction or occurrence constituting the subject matter of
5) The defending party has a counterclaim at the time he the opposing party?
files his answer.
A: YES because we are talking of the same bumping. You bumped
The fifth requisite is not found in Section 7 but in Rule 11, Section my car, you say I bumped your car. So we are talking of the same
8: event or transaction.
Rule 11, Sec. 8. Existing counterclaim or cross- PROBLEM: T files a case against me for recovery of a piece of land.
claim. - A compulsory counterclaim or a cross- According to her, she is the owner of the land which I’m occupying.
claim that a defending party has at the time Now, I file my answer, and then I said, “T, I spent a lot of money for
he files his answer shall be contained therein. necessary expenses to preserve the land. You are also liable to
(8a, R6) reimburse me for the expenses for the necessary improvements I
introduced on the land.” Under the law on Property, a defendant
Another way of saying it is, the counterclaim has already matured
or possessor is entitled to reimbursement for necessary
at the time he files his answer. That is the fifth requisite.
improvements and expenses. So she is trying to recover the piece
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PROBLEM: T files a case against me for recovery of a piece of land. Q: What will happen to my case now?
My counterclaim against her is damages arising from a vehicular
A: My case will be dismissed because I did not raise that cause of
collision.
action as a counterclaim as it is compulsory.
Q: Is my counterclaim arising out of a subject matter of your
PROBLEM: A files a case against me for recovery of a piece of land.
action?
After trial, the decision is against me. The court said that I should
A: NO. It is completely different. Thus, that is a permissive return the land to her. I will file a case against her. She moved to
counterclaim. dismiss – barred, because I should have raised that as a
counterclaim. I cannot file another case involving that cause of
MELITON vs. CA – 216 SCRA 485 action. That is the effect of failure to raise the compulsory
counterclaim in the case filed against you.
HELD: “It has been postulated that while a number of criteria PROBLEM: Now, suppose the counterclaim is PERMISSIVE. My
have been advanced for the determination of whether the cause of action against her is damages arising against a vehicular
counterclaim is compulsory or permissive, the one compelling collision.
test of compulsoriness is the logical relationship between the
claim alleged in the complaint and that in the counterclaim, Q: Is the counterclaim allowed?
that is, where conducting separate trials of the respective
claims of the parties would entail a substantial duplication of A: Yes, allowed.
effort and time, as where they involve many of the same
Q: My decision is not to file a counterclaim but to file another case
factual and/or legal issues.”
against her. Is that allowed?
Logical Relationship Test
A: Yes, that is allowed. Meaning, I may or may not raise it as a
The logical relationship test between the claim and the counterclaim because it is permissive. I am permitted to raise it as
counterclaim has been called: The one compelling test of a counterclaim but I am not obliged. I may decide to file another
“compulsoriness.” Under this test, any claim a party has against an action against you. That is the importance between a compulsory
opposing party that is logically related to the claim being asserted counterclaim and a permissive counterclaim.
by the opposing party, and that it is not within the exception to the
Third Requisite: IT DOES NOT REQUIRE FOR ITS
rule is a compulsory counterclaim. Its outstanding quality is
ADJUDICATION PRESENCE OF THIRD PARTIES OF WHOM THE
flexibility. (Tan v. Kaakbay Finance Corporation 404 SCRA 518)
COURT CANNOT ACQUIRE JURISDICTION.
Q: What is the importance of determining whether the claim is
Meaning, if my counterclaim against you will involve the presence
compulsory or permissive?
of an indispensable party who is, let’s say, abroad, and therefore,
A: A compulsory counterclaim must be invoked in the same action. the court cannot acquire jurisdiction over him, if I don’t allege it as
It cannot be the subject matter of a separate action. Unlike in counterclaim in my answer, I will not be barred from filing a
permissive counterclaim where you have the choice of invoking it separate action.
in the same case, or in a separate action, compulsory counterclaim
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE
must be invoked in the same action otherwise it will be barred.
JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND
That is found in Rule 9, Section 2:
NATURE THEREOF
Rule 9, Sec. 2. Compulsory counterclaim, or
Rules:
cross-claim, not set up barred. - A compulsory
counter-claim or a cross-claim, not set up
1) A counterclaim before the MTC must be within the
shall be barred. (4a) jurisdiction of the said court, both as to the amount and
nature thereof.
Let us try to apply that principle to the case cited.
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A: Because the MTC has no jurisdiction over the P350,000 amount MACEDA vs. CA – 176 SCRA 440
for the necessary expenses. This time, that is the missing element.
Q: How will the defendant claim reimbursement? HELD: “The jurisdiction of the MTC in a civil action for sum of
money is limited to a demand that does not exceed P100,000
A: He has to file with the RTC a case for reimbursement. He cannot (now P300,000) exclusive of interest and costs. A
use that as a counterclaim for the forcible entry case because the counterclaim beyond its jurisdiction and limit may be pleaded
MTC has no jurisdiction on a counterclaim where the amount is only by way of defense to weaken the plaintiff’s claim, but not
over P300,000.00. to obtain affirmative relief.”
I will reverse the problem: Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT
THE TIME HE FILES HIS ANSWER
PROBLEM: The plaintiff filed against the defendant an action for
accion publiciana – recovery for a piece of land where the value of How can I make a claim against you which is not yet existing? Even
the property is P1 million. So the case should be filed in the RTC. if all the other requisites are present, the counterclaim would still
Now, the defendant is claiming for the reimbursement of the not be compulsory because how can one invoke something now
improvements thereon (necessary expenses) amounting to which he can acquire in the future?
P50,000.
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So, those are the five essential elements. You remove one, the
counterclaim, he must choose only one remedy. If he decides to file
counterclaim becomes permissive.
a motion to dismiss, he cannot set up his counterclaim. But if he
opts to set up his counterclaim, he may still plead his ground for
Q: Again. What is the importance of distinguishing whether the
dismissal as an affirmative defense in his answer.
counterclaim is compulsory or permissive?
COUNTERCLAIMS IN CRIMINAL CASES
A: If the counterclaim is compulsory, the defendant is obliged
under the law to raise it as a counterclaim in the action where he is
JAVIER vs. IAC – 171 SCRA 605
being sued. If he fails to invoke it, it is barred forever (Rule 9
Section 2). FACTS: The Javier spouses filed a criminal case against Leon
Gutierrez Jr, under BP 22 or the Bouncing Check Law, for
If the counterclaim is permissive, the defendant has a choice of issuing a bad check. The criminal case was filed before the RTC
raising it as a counterclaim in the case filed against him or he may of Makati. The complainants did not reserve the civil action.
decide to file another action against the plaintiff, raising it as his The implication is that the claim for civil liability is deemed
cause of action. It is permitted but not obliged. instituted with the criminal case.
Compulsory and Permissive Counterclaim compared: Gutierrez in turn filed a civil action for damages against the
Javier spouses in the RTC of Catarman, Northern Samar,
1) A compulsory counterclaim arises out of or is necessarily where he accused the spouses of having tricked him into
connected with the transaction or occurrence that is the signing the check.
subject matter of the other party's claim, while a
permissive counterclaim is not; What happened now is that he was being criminally sued in
Makati but defending himself in Catarman, Northern Samar.
2) A compulsory counterclaim does not require for its He is explaining in the Samar court what he should be doing in
adjudication the presence of third parties of whom the
the Makati court.
court cannot acquire jurisdiction while a permissive
counterclaim may require such;
HELD: The civil case in Samar should be dismissed. It must be
3) A compulsory counterclaim is barred it not set up in the in the Makati court that Gutierrez, as accused in the criminal
action, while a permissive counterclaim is not; charge of violation of BP 22, should explain why he issued the
bouncing check. He should explain that story in Makati and
4) A compulsory counterclaim need not be answered, no not in Samar.
default, while a permissive counterclaim must be
answered otherwise the defendant can be declared in This should have been done in the form of a counterclaim for
default.
damages for the alleged deception by the Javier spouses. In
A plaintiff who fails or chooses not to answer a compulsory fact, the counterclaim was compulsory and should have been
counterclaim may not be declared in default, principally because filed by Gutierrez upon the implied institution of the civil
the issues raised in the counterclaim are deemed automatically action for damages in the criminal case.
joined by the allegations of the complaint (Gojo v. Goyala, GR No.
What the SC is saying is, since the civil action for damages is
26768, Oct. 30, 1970)
impliedly instituted in the criminal case, and he wants to hold you
General Rule: A compulsory counterclaim not set up in the answer liable for filing this case, he should file a counterclaim against you
is deemed barred. in the criminal case. What is unique was that for the first time in
the Philippine Procedural Law, SC laid down the rule that there is
Exceptions: such thing as a counterclaim in a criminal case, because, normally,
counterclaims are only recognized in civil cases. But since the civil
1. if it is a counterclaim which either matured or was action is deemed instituted in the criminal case, the accused can
acquired by a party after serving his answer. In this case file a counterclaim against the offended party in the criminal
it may be pleaded by filing a supplemental answer or action.
pleading before judgment (Sec. 9 R 11);
The trouble in this ruling is that, it has been subjected to a lot of
2. When a pleader fails to set-up a counterclaim through
criticisms by academicians – professors of Remedial Law, authors –
oversight, inadvertence, excusable negligence, or when
justice requires, he may, by leave of court, set up the they criticized the ruling. It provokes more problems than answers.
counterclaim by amendment of the pleading before A justice of the SC remarked, “I think we made a mistake (privately
judgment (Sec. 10, R 11). ba) in the Javier ruling. Kaya it was never repeated.
The filing of a motion to dismiss and the setting up of a compulsory The SC, in 1997, had another chance to comment on Javier in the
counterclaim are incompatible remedies. In the event that a case of—
defending party has a ground for dismissal and a compulsory
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BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS- COMPLAINT (Collection case – Main Action)
CLAIM. MORTZ and CHARLES, plaintiffs
-versus-
A: The following are the distinctions:
JET and PAO, defendants
1) A COUNTERCLAIM is a complaint by the defendant
against the plaintiff, whereas,
2.) Now, according to Jet, every centavo of the loan went to
A CROSS-CLAIM is a claim by a defendant against a Pao. So Jet files a cross-claim against Pao:
co-defendant;
CROSS-CLAIM ON THE MAIN ACTION
2) The life of the CROSS-CLAIM depends on the life of Defendant JET, now cross-claimant
the main action. A cross-claim is merely a
consequence of the case filed by the plaintiff -versus-
against the defendants. No main action, no cross- Defendant PAO, now cross-defendant
claim (RUIZ, JR. vs. CA, infra). Whereas,
In a COUNTERCLAIM, you can kill the main action, 3.) Jet also says, “Actually I have a case against Mortz and
still the counterclaim survives. Charles because they entered my land and gathered
some of its product”. So, he filed a counterclaim against
3) A COUNTERCLAIM may be asserted whether or not both Mortz and Charles. In the counter-claim of Jet, the
it arises out of the same transaction or occurrence defendants are Mortz and Charles for the accounting of
that is the subject matter of the action, whereas, the improvements on the land:
A: Not allowed! It has no connection with the Plaintiff MORTZ, now cross-claimant
subject matter of the main action.
-versus-
Take note that a cross-claim is any claim by one party against a co- Plaintiff CHARLES, now cross-defendant
party arising out of the transaction of occurrence that is the subject
matter of the original action or of a counterclaim therein. So, a
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6.) But Charles says, “I’m not the owner of the car but 1) when it is outside the jurisdiction of the court;
Mortz. So he files a cross-claim against Mortz:
2) if the court cannot acquire jurisdiction over third parties
whose presence is necessary for the adjudication of said
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO cross-claim. In which case, the cross-claim is considered
permissive;
Plaintiff CHARLES, now cross-claimant
3) cross-claim that may mature or may be acquired after
-versus-
service of the answer (Riano 2007, p. 285)
Plaintiff MORTZ, now cross-defendant
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
There are six (6) cases which are to be decided in the same action.
This rarely happens, but it is possible under the rules. The obvious
Sec. 9. Counter-counterclaims and counter-
PURPOSE of these is to avoid multiplicity of suits and toward these
cross-claims. A counterclaim may be asserted
ends. According to the SC, the rules allow in a certain case and
against an original counter-claimant.
even compel a petitioner to combine in one litigation these
conflicting claims most particularly when they arise out of the same A cross-claim may also be filed against an
transaction. The rule does not only allow a permissive counterclaim original cross-claimant.(n)
but the parties are even compelled to raise them in a compulsory
counter-claim. Section 9 is a new provision. There is such a thing as counter-
counterclaim and counter-cross-claim. The concept of counter-
RUIZ, JR. vs. CA – 212 SCRA 660 counter-claim is not new. As a matter of fact, that was asked in the
bar years ago.
FACTS: Dean files a case against Jet and Pao. Jet files a cross-
EXAMPLE: C filed against you an action to collect a loan. You filed a
claim against Pao. After a while, the case against Jet and Pao
counterclaim against her to recover a piece of land. Of course, she
was dismissed.
has to answer your counterclaim. But she will say, “Actually you
have been molesting me with your claim when actually you have
ISSUE: What happens to the cross-claim of Jet against Pao?
no right over my land.” So, she files an injunction to stop you from
HELD: When the main action was dismissed, the cross-action molesting her. In other words, based on your counter-claim against
must also be dismissed. The life of a cross-claim depends on her to recover my land, she will file a counterclaim to stop you
the life of the main action. If the main action is dismissed, the from molesting her. In effect, there is counterclaim to a
cross-claim will have to be automatically dismissed. counterclaim.
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A: Yes, that pleading is called a REPLY. 2) The filing of a REPLY is generally optional, whereas
A: No. As a general rule, the failure to file a reply has no effect. Sec. 11. Third, (fourth, etc.) - party complaint.
Section 10 says that if a party does not file such reply, all the new A third (fourth, etc.) party complaint is a
matters alleged in the answer are deemed controverted. Meaning, claim that a defending party may, with leave
all the affirmative defenses raised in the answers are automatically of court, file against a person not a party to
denied. the action, called the third (fourth, etc.) party
defendant, for contribution, indemnity,
So, whether you file a reply or not, the defenses are deemed subrogation or any other relief, in respect of
automatically disputed. The filing of a reply is OPTIONAL. his opponent's claim. (12a)
Exceptions: THIRD PARTY COMPLAINT is the procedure for bringing into a case
a third person who is not a party to the case.
1) Where the answer is based on an actionable document
(Sec. 8 R 8); and It is a procedural device whereby a “third party” who is neither a
2) To set up affirmative defenses in the counterclaim
party nor privy to the act or deed complained of by the plaintiff,
((Rosario vs. Martinez, GR No. L-4473, Sept. 30, 1952)
may be brought into the case with leave of court, by the defendant,
Note: Only allegations of usury in a Complaint to recover usurious who acts as third-party plaintiff to enforce against such third-party
interest are deemed admitted if not denied under oath. Hence, if defendant a right for contribution, indemnity, subrogation or any
the allegation of usury is contained in an answer it is not necessary other relief, in respect of the plaintiff’s claim. The third-party
for the plaintiff to file a reply thereto in order to deny that complaint is actually independent of and separate and distinct from
allegation under oath. (Regalado, p. 146) the plaintiff’s complaint. Were it not for this provision of the Rules,
it would have to be filed independently and separately from the
A reply should not be confused with the answer to a counterclaim original complaint by the defendant against the third party.
which is also filed by the plaintiff.
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Example #1: Two debtors borrowed P100,000 from Janis (creditor) BAR QUESTION: Janis files a case against Nudj to recover an unpaid
and they shared the money 50-50. When the debt fell due, the loan. Now the reason is that Carlo also owes Nudj. Nudj says, “I
creditor filed a case against one of them. So, one of them is being cannot pay you because there is a person who has also utang to
made to pay the P100,000. Not only his share but also his co- me. What I will pay you depends on his payment to me.” File agad
solidary debtor. So if I am the one liable when actually my real si Nudj ng third-party complaint against Carlo. Is the third-party
liability is only 50,000. What will I do? I will file a third party complaint proper?
complaint against my co-debtor for contribution.
A: NO. There is no connection between the main action and the
3rd-party complaint – the loan of Nudj to Janis and the loan of
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CAPAYAS vs. CFI – 77 PHIL. 181 EXAMPLE: Tato is a registered owner of a car
and then sold it to Philip. Philip is the actual
HELD: There are four (4) possible tests to determine the
owner. However, Philip did not register the
propriety of a third-party complaint. In order for it to be
sale to the LTO. The registered owner is si
allowed, it must pass one of them. That is the reason when
Tato lang gihapon although he is no longer the
you file it, you need the permission of the court to determine
real owner. While Philip was driving that car it
whether it is proper or not and the original plaintiff may
bumped the car of Lewee Tanduay. Lewee
object to the propriety of the third-party complaint.
researched the owner of the car at LTO and
ang lumabas ay si Tato. So ang ginawa ni
There are the FOUR TESTS (any one will do):
Lewee, ang kinasuhan nya ay si Tato na walang
1. A third-party complaint is proper if it arises out of malay...under the law, the registered owner is
the same transaction on which plaintiff is based, or liable. Of course, when Tato got the
although arising out of another or different complaint, “Wala akong alam sa sinasabi nyo,
transaction, is connected with the plaintiff's claim. that car is no longer mine. I sold that two
years ago, I have no idea what happened.”
EXAMPLE: A creditor sued only one solidary
debtor. So you can file a third-party complaint So obviously, Tato arrived at the conclusion
for contribution. Anyway, there is only one that si Philip and nakabangga. Tato filed a
loan and our liability arises out of the same third-party complaint against Philip because
promissory note. he is the real owner. When Philip got the
third-party complaint, and because he knows
(A third-party complaint is proper if the third- the story, in fact he was the one driving, ang
party’s complaint, although arising out of ginawa niya, nilabanan niya ng diretso si
another transaction, is connected with the Lewee. Meaning, instead of Tato fighting
plaintiff’s claim.) Lewee, Philip fought Lewee directly. Frontal
na ba. Sabi ni Philip, “I was not at fault, you
EXAMPLE: The car owner is sued for culpa
(Lewee) are at fault.” So here is a situation
aquiliana for damages arising from vehicular
where Lewee sues Tato, Tato sues Philip but
collision and he files a third-party complaint
Philip fights Lewee, as if he is the real
against the insurance company for indemnity
defendant, then the third party complaint
based on the contract of insurance. So it is
must be proper. It must be related.
connected with plaintiff’s claim, and that is
precisely the purpose of my insurance Take note that there is a close similarity between a third-party
coverage. complaint and a cross-claim because as we have learned, a cross-
claim must also be related to the same action.
2. Whether the third party defendant would be liable
to the original plaintiff or to the defendant for all
SAMALA vs. VICTOR – 170 SCRA 453
or part of the plaintiff's claim against the original
defendant. Although the third party defendant's
liability arises out of another transaction.
FACTS: This case involves a vehicular accident. Philip, while
EXAMPLE: Sublease. Roy leased his property riding on a passenger jeep owned by Tato, the jeep was
to Eric. Eric subleased it to Rudolph. If Roy’s bumped by the truck of Lewee, injuring Philip. Philip filed a
property is damaged, Roy will sue Eric. But Eric case for damages arising from breach of contract against Tato.
will also sue Rudolph. The sub-lessor has the Tato filed a third-party complaint against Lewee. After trial,
right to file a third-party complaint against the the court found that Tato has not at fault. The fault is entirely
sub-lessee for the damaged leased property against Lewee . So the action against Tato was dismissed, but
which is now occupied by the sub-lessee. The the court held that Lewee be directly liable to Philip.
third-party defendant Rudolph would be liable
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ISSUE #2: How can the court award damages to Philip based BUT in the light of the ruling in the case of
on the theory of culpa aquiliana when his complaint is based
on culpa contractual? Can Lewee be held liable for culpa- CABAERO vs. CANTOS, supra
contractual?
The SHAFER ruling has to be set aside for the meantime
HELD: YES. That is also possible because “the primary purpose because there is no such thing as third-party complaint in
of this rule is to avoid circuitry of action and to dispose of in criminal cases now. In other words, forget it in the meantime.
one litigation, the entire subject matter arising from a Also, forget counterclaims in criminal cases even if they arose
particular set of fact it is immaterial that the third-party out of the main action.
plaintiff asserts a cause of action against the third party
defendant on a theory different from that asserted by the This case refers to JAVIER on whether or not there is such a
plaintiff against the defendant. It has likewise been held that thing as a compulsory counterclaim in criminal cases. SC said,
a defendant in a contract action may join as third-party “Huwag muna samok!” If we will allow it in criminal cases it
defendants those liable to him in tort for the plaintiff’s claim will only complicate and confuse the case. The attention
against him or directly to the plaintiff.” might be divested to counterclaims or cross-claims or third-
party complaints, etc.
Another interesting case which is to be compared with the
abovementioned case is the 1989 case of HELD: “The trial court should confine itself to the criminal
aspect and the possible civil liability of the accused arising out
SHEAFER vs. JUDGE OF RTC OF OLONGAPO – 167 SCRA 386 of the crime. The counter-claim (and cross-claim or third party
complaint, if any) should be set aside or refused cognizance
NOTE: This case although it refers to third-party complaint is without prejudice to their filing in separate proceedings at the
related to criminal procedure. This is similar to the case of proper time.”
JAVIER where the issue is, is there such a thing as a
counterclaim in a criminal case where the offended party did We will go to the old case of
not make a reservation. In SHAFER, is there such a thing as a
third-party complaint in a criminal case? REPUBLIC vs. CENTRAL SURETY CO – 25 SCRA 641 [1968]
FACTS: Shafer while driving his car covered by TPL, bumped FACTS: Hannah filed a case against Rina for a liability
another car driven by T. T filed a criminal case against S for amounting to P350,000. So it was filed in RTC. Rina filed a
physical injuries arising from reckless imprudence. T did not third-party complaint against ConCon Insurance Company for
make any reservation to file a separate civil action. So indemnity insurance but the maximum insurance is only
obviously, the claim for civil liability is deemed instituted. P50,000. The insurance company moved to dismiss on the
ground that the court has no jurisdiction because third-party
Shafer was covered by the insurance, so he filed a third-party complaint is only for P50,000 which is supposed to be within
complaint against the insurance company insofar as the civil the competence of the MTC.
liability is concerned. The insurance company questioned the
propriety of d third-party complaint in a criminal case, ISSUE: Is the insurance company correct?
because according to the insurance company, the third-party
complaint is entirely different from the criminal liability.
HELD: NO. The insurance company is wrong. The third-party
complaint is only incidental. The third-party complaint need
not be within the jurisdiction of the RTC where the principal
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EXAMPLE: A third party complaint is proper when not one of the third-party
defendants therein is a party to the main action. If one or more of
A B C D E the defendants in a counterclaim or cross-claim is already a party
to the action, then the other necessary parties may be brought in
A files a B files a 3rd C files a 4th D files a 5th under this section.
complaint party party party
against B complaint complaint complaint The best example of Section 12 is the case of:
against C against D against E
SAPUGAY vs. CA – 183 SCRA 464
A’s car was bumped by B. But B contented that the reason that he
bumped A’s car was because he was bumped by C and the same FACTS: Mobil Philippines filed a case against Sapugay, its
goes to C, D, E. B then files a 3rd party complaint against C. C files a gasoline dealer. Sapugay filed an answer and interposed a
4th party complaint against D. D files a 5th party complaint against counterclaim for damages against Mobil and included
E. Meaning, pasahan, ba. They will throw the liability to the one Cardenas (the manager of Mobil) who is not a plaintiff.
who did it. That is a good hypothetical example of how a fourth,
fifth, sixth party complaint can come into play. ISSUE: Whether or not the inclusion of Cardenas in the
counterclaim is proper where he is not a plaintiff in the Mobil
Rule on Venue and Jurisdiction Inapplicable case.
Jurisdiction over the third-party complaint is but a continuation of HELD: The inclusion of Cardenas is proper. The general rule
the main action and is a procedural device to avoid multiplicity of that the defendant cannot by a counterclaim bring into the
suits. Because of its nature, the proscription on jurisdiction and action any claim against persons other than the plaintiff,
venue applicable to ordinary suits may not apply. (Eastern admits of an exception under this provision (Section 12) –
Assurance vs. Cui, 105 SCRA 622 [1981]) meaning, if it is necessary to include a 3rd person in a
counterclaim or cross-claim, the court can order him to be
Grounds for Denial of Third-Party Complaint brought in as defendants. In effect, the bringing of Cardenas
in the case is sanctioned by the Rules.
a. When allowance would delay resolution of the original
case or when the third-party defendant could not be The case of SAPUGAY should not be confused with the case of:
located; and
CHAVEZ vs. SANDIGANBAYAN – 198 SCRA 282
b. When extraneous matters to issue of possession would
FACTS: Petitioner Francisco Chavez (former solicitor general)
unnecessarily clutter a case of forcible entry.(del Rosario
represented the government for PCGG. The case arose out of
v. Jimenez 8 SCRA 549)
PCGG cases wherein Enrile was sued for accumulation of his
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Rule 7
A: In the complaint, YES. They shall all be named. It is possible that
the title alone will reach 3 or more pages.
PARTS OF A PLEADING
BUT in subsequent pleadings like the answer, reply, it is not
necessary to write the name of everybody. What the law requires is
Sec. 1 – Caption. The caption sets forth the to write the name of the first plaintiff followed by the term ‘ET AL”.
name of the court. The title of the action, and Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al,
docket number if assigned. defendants.
The title of the action indicates the names of So the rule is, it is only in the complaint where the name of all the
the parties. They shall all be named in the parties are required to be stated, but in subsequent pleadings, no
original complaint or petition; but in need. But there is an EXCEPTION to this rule. There are instances
subsequent pleadings it shall be sufficient if where the law does not require the name of the parties to be
the name of the first party on each side be stated even in the complaint.
started with an appropriate indication when
there are other parties. Q: What are the instances where the law does not require the
name of the parties to be stated even in the complaint or pleading?
Their respective participation in the case shall
be indicated.
ILLUSTRATION:
COMPLAINT
So, there must be a caption, title. Take note, the title of the action
A: These are the following:
indicates the names of the parties. They shall all be named in the
original complaint or petition; but in the subsequent pleadings, it shall
1.) Subsequent Pleading (e.g. answer, reply, etc.)
be sufficient if the name of the first party of each side be stated
(Section 1);
without the others. You only write the first name of plaintiff and
defendant and followed by the word ‘ET AL”. 2.) Class suit (Rule 3, Section 12);
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept 3.) When the identity or name of the defendant is
of permissive joinder of parties. Now is it necessary that they unknown (Rule 3, Section 14);
shall be named?
4.) When you sue an entity without judicial personality
(Rule 3, Section 15);
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It is not the caption of the pleading but the allegations therein (c) Relief - The pleading shall specify the relief
which determine the nature of the action and the court shall grant sought, but it may add a general prayer for
relief warranted by the allegations and proof even if no such relief such further or other relief as may be
is prayed for (Solid Homes Inc. vs. CA, 271 SCRA 157; Banco Filipino deemed just or equitable. (3a, R6)
vs. CA, 332 SCRA 241; Lorbes vs. CA 351 SCRA 716). Thus, a
complaint captioned as unlawful detainer is actually an action for (d) Date - Every pleading shall be dated. (n)
forcible entry where the allegations show that the possessor of the
land was deprived of the same by force, intimidation, strategy, In the body, you state your allegations or defenses. Then at the
threat or stealth. Likewise, a complaint for unlawful detainer is end, you state the relief which we call PRAYER – what you are
actually an action for collection of a sum of money where the asking the court: “Wherefore, it is respectfully prayed that
allegations of the complaint do not disclose that the plaintiff judgment be rendered ordering defendant to pay plaintiff his loan
demanded upon the defendant to vacate the property but merely of P1 million with interest of 10% p.a. from this date until fully
demanded to pay the rentals in arrears. paid.” Then, you end up with the date of the pleading: “Davao City,
Philippines, December 10, 1997.”
In one case, while the complaint was denominated as one for
specific performance, the allegations of the complaint and the A pleading is divided into paragraphs so numbered as to be readily
relief prayed for actually and ultimately sought for the execution of identified. Normally, a complaint starts: “Plaintiff, thru counsel,
a deed of conveyance to effect a transfer of ownership of the respectfully alleges that x x x.” Then first paragraph, second
property in question. The action therefore, is a real action (Gochan paragraph and so on. The first paragraph is normally the statement
vs. Gochan, 372 SCRA 256). Also although the complaint was of the parties and their addresses which is required under Rule 6
denominated as one for reformation of the instrument, the where a complaint must state the names:
allegations of the complaint did not preclude the court from
1. Plaintiff Juan dela Cruz is of legal age, a resident of
passing upon the real issue of whether or not the transfer between
Davao City whereas defendant Pedro Bautista, is also of
the parties was a sale or an equitable mortgage as the said issue
legal age and a resident of Davao City.
has been squarely raised in the complaint and had been the subject
of arguments and evidence of the parties. (Lorbes vs. CA 351 SCRA
2. On such and such a date, defendant secured a loan
716).
from plaintiff in the amount of so much payable on this
date.
If the petitioner filed before the SC a petition captioned “Petition
for Certiorari” based on Rule 65 but the allegations show that the
3. The loan is now overdue but defendant still refused to
issues raised are pure questions of law, the cause of action is not
pay.
one based on Rule 65 which raises issues of jurisdiction, but on
Rule 45 which raises pure questions of law. The allegations of the So every paragraph is numbered so that it can easily be identified
pleading determine the cause of action and not the title of the in the subsequent pleadings. So in his Answer, the defendant will
pleading (De Castro vs. Fernandez, Jr. GR No. 155041, Feb. 14, just refer to the #, “I admit the allegations in paragraph #5)
2007)
Paragraph [b] is related to Rule 2 on joinder of causes of action.
Sec. 2. The body. - The body of the pleading Can you file one complaint embodying two or more causes of
sets forth its designation, the allegations of action? YES.
the party's claims or defenses, the relief
prayed for, and the date of the pleading. (n) EXAMPLE: Angelo wants to file a case against Ina to collect three
unpaid promissory notes. So, there are three causes of action. The
a) Paragraphs - the allegations in the body of lawyer of Angelo decided to file only one complaint collecting the
a pleading shall be divided into paragraphs so three promissory notes. Now, how should he prepare the
numbered as to be readily identified, each of complaint containing the three promissory notes?
which shall contain a statement of a single
set of circumstances so far as that can be Plaintiff respectfully alleges: 1. that he is of
done with convenience. A paragraph may be legal age x x x.
referred to by its number in all succeeding
pleadings. (3a)
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ANSWER TO THE THIRD CAUSE OF ACTION x x x. A signed pleading is one that is signed either by the party himself or
his counsel. Section 3, Rule 7 is clear on this matter. It requires that
Do not combine them together in one paragraph. Even in trial a pleading must be signed by the party or counsel representing
when you present your exhibits, you might get confused because him. Therefore, only the signature of either the party himself or his
you combined all the three causes of action in one paragraph. But counsel operates to validly convert a pleading from one that is
with this one, the presentation is clearer, the outline is clearer and unsigned to one that is signed. (Republic vs. Kenrick Development
it is more scientifically arranged than joining them in one story. Corp. 351 SCRA 716)
Under paragraph [c], the pleading must state the relief sought. But “It has been held that counsel’s authority and duty to sign a
it may add a general prayer for such further other relief as may be pleading are personal to him.” He may not delegate it to just any
just and equitable like yung mga pahabol na “Plaintiff prays for person because the signature of counsel constitutes an assurance
such further or other relief which the court may deem just or by him that:
equitable.”
1. he has read the pleading;
The relief or prayer, although part of the complaint, does not 2. that to the best of his knowledge, information and belief,
constitute a part of the statement of the cause of action. It does there is a good ground to support it; and
3. that it is not interposed for delay.
not also serve to limit or narrow the issues presented (UBS vs. CA
332 SCRA 534)
Under the Rules of Court, it is counsel alone, by affixing his
signature, who can certify to these matters.
It is the material allegations of the complaint, not the legal
consequences made therein or the prayer that determines the
“The preparation and signing of a pleading constitute legal work
relief to which the plaintiff is entitled. (Banco Filipino vs. CA 332
involving practice of law which is reserved exclusively for the
SCRA 241).
members of the legal profession. Accordingly however, counsel
may delegate the signing of a pleading to another lawyer but
It is important to remember that the court may grant a relief not
cannot do so in favor of one who is not. In so ruling the Court cites
prayed for as long as the relief is warranted by the allegations of
The Code of Professional Responsibility, the pertinent provision on
the complaint and the proof. (Lorbes vs. CA).
which provides:
Q: Is the prayer or relief part of the main action?
Rule 9.01 – A lawyer shall not delegate to any unqualified person
A: NO, it is part of the complaint or answer but it may indicate the performance of any task which by law may only be performed
what is the nature of the cause of action. Cause of actions are mere by a member of the Bar in good standing.
allegations. Prayer is not part of the action but it is important
“A signature by agents of a lawyer amounts to signing by
because it might enlighten us on the nature of the cause of action.
unqualified persons, something the law strongly proscribes.
That is the purpose of relief or prayer.
Therefore, the blanket authority entrusted to just anyone is void.
EXAMPLE: Angelo filed a case against Ina for annulment of a Any act taken pursuant to that authority is likewise void. Hence,
contract of sale. If you look at the caption, it is a personal action there is no way it could be cured or ratified by counsel.” (Republic
vs. Kenrick Development Corp.)
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Q: When a lawyer signs a pleading, what is he certifying? Q: What do you mean by this?
A: Second paragraph says, he is certifying that he has read the A: A lawyer will file a pleading in court, he will say this is his
pleading, that to the best of his knowledge, information and belief, address, and then he moves his office without telling the court or
there is a good ground to support it, and it is not interposed for the opposing counsel of his new address. So, the court will be
delay. That is called as an IMPLIED CERTIFICATION IN A sending notices and orders to his old address and it is returned to
PLEADING (Arambulo vs. Perez, 78 Phil. 387). That was already sender because the lawyer already moved to another place. So, it
asked in the bar once. causes delay.
BAR QUESTION: What is the meaning of the phrase “Implied So, in order to penalize the lawyer, subject to disciplinary action, it
Certification in a Pleading”? is his obligation to inform the court and even the opposing counsel
about his new address so that all court orders, decisions and all
A: “Implied Certification in a Pleading” means that when a lawyer pleadings will be served on his address. I think what prompted the
signs a pleading he is certifying that he has read it, to the best of his SC to insert this is the fact that it has been the cause of delays in
knowledge, information and belief there is a good ground to many cases.
support it, and it is not interposed for delay.
Disciplinary action on counsel in the following cases:
Section 3, last paragraph:
1. deliberately filing an unsigned pleading;
An unsigned pleading produces no legal 2. deliberately signing a pleading in violation of the Rules;
effect. However, the court may, in its 3. alleging scandalous or indecent matter in the pleading;
or
discretion, allow such deficiency to be
4. failing to promptly report a change of his/her address.
remedied if it shall appear that the same was
due to mere inadvertence and not intended Signature of a disjoined party
for delay. Counsel who deliberately files an
unsigned pleading, or signs a pleading in
violation of this Rule, or alleges scandalous or The Court rules that the absence of the signature of the person
indecent matter therein, or fails to promptly misjoined as a party-plaintiff in either the verifification page or
report to the court a change of his address, certification against forum shopping is not a ground for the
shall be subject to appropriate disciplinary dismissal of the action. There is no judicial precedent affirming or
action. (5a) rejecting such a view, but we are comfortable with making such a
pronouncement. A disjoined party plaintiff has no business
So, when a pleading is not signed it produces no legal effect. It is as participating in the case as a plaintiff in the first place, and it would
if no pleading has been filed. make little sense to require the disjoined party in complying with
all the requirements expected of plaintiffs (Chua v. Torres GR No.
Q: Now, suppose it was just an inadvertent omission, it was not 151900, Aug 30, 2005).
intentional maybe because he was hurrying to file the pleading, the
lawyer had it filed when actually he has not signed it yet.
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VERIFICATION
a) the affiant has read the pleading, and
b) that the allegations therein are true and correct of his
Sec. 4. Verification - Except when otherwise personal knowledge or based on authentic records (Sec.
specifically required by law or rule, pleadings 4 as amended by A.M. No. 00-2-10, May 1, 2000)
need not be under oath, verified or
accompanied by affidavit. (5) Significance of Verification
A pleading is verified by an affidavit that the The purpose of verification is to insure good faith in the averments
affiant has read the pleading and that the of a pleading or are true and correct, not merely speculative.
allegations therein are true and correct of his (Sarmiento vs. Zaratan GR No. 167471, February 5, 2007).
knowledge and belief.
Effect of lack of Verification
A pleading required to be verified which
contains a verification based on "information Lack of verification in a pleading is a formal defect, not
and belief," or upon "knowledge, information jurisdictional defect, and can be cured by amendment. (Phil. Bank
and belief," or lacks a proper verification, of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
shall be treated as an unsigned pleading. (6a)
The absence of a verification may be corrected by requiring an
Q: What do you understand by verification in a pleading? oath. The rule is in keeping with the principle that rules of
procedure are established to secure substantial justice and that
A: It means that there is an affidavit accompanying the pleading technical requirements may be dispensed with in meritorious
that the pleader will certify that he prepared the pleading, that all cases. (Pampanga Sugar Development Company, Inc. vs. NLRC 272
allegations therein are true and correct. For example: In the SCRA 737) The court may order the correction of the pleading or
pleading the plaintiff will say: act on an unverified pleading if the attending circumstances are
such that strict compliance would not fully serve substantial justice,
I, Juan de la Cruz of legal age, after being which after all, is the basic aim for the rules of procedure. (Robert
sworn in accordance with law, hereby say Development Corp. vs. Quitain 315 SCRA 150; Joson vs. Torres 290
SCRA 279)
that:
I am the plaintiff in the above entitled case. Q: What do you think will happen if a pleading is verified by a party
I caused the preparation of this complaint; and it turns out that the allegations are false? And that he
deliberately made those allegations false and under oath.
I read the allegations therein;
And they are true and correct of my own A: Well, you know your Criminal Law. That will be a ground for the
prosecution for the crime of perjury, because that is a false
knowledge.
affidavit. But if the pleading is not verified, even if they are false,
Signed there is no perjury, because perjury requires a sworn statement by
Affiant the accused.
Subscribed and sworn to before me on this
Q: Does the law require every pleading to be verified?
2nd day of October 2001, in the City of Cebu,
Philippines.
A: NO. The GENERAL RULE is, pleadings need not be under oath,
EXCEPT when otherwise specifically required by law or this rule.
Panfilo Corpuz
When the law or rules require a pleading to be verified, then it
Notary Public must be verified, otherwise it is formally detective. If the law is
That is what you call verification of a pleading. That the pleader, silent, verification is not necessary and the pleading is filed
whether plaintiff or defendant, will attest that the allegations in his properly.
complaint or in his answer are true and correct of his own
knowledge. And then, he will sign it, and then below that, there will Litigants not required to read the very same document to be filed
be the so-called “JURAT” - Subscribed and sworn to before me on in court
this day of December 1997, in the City of Cebu, Philippines.
Generally, a pleading is not required to be verified unless required
Then, signed by the notary public. Meaning, statements, in the
by law or by the Rules of Court. Verification, when required, is
pleading are confirmed to be correct, under oath, by the
intended to secure an assurance that the allegations of a pleading
defendant. That is called, the verification of a pleading.
are true and correct; are not speculative or merely imagined; and
How is a Pleading Verified have been made in good faith. To achieve this purpose, the
verification of a pleading is made through an affidavit or sworn
A pleading is verified by an affidavit. This affidavit declares that: statement confirming that the affiant has read the pleading whose
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However, the Rules do not require the litigants to read the very
CERTIFICATION OF NON-FORUM SHOPPING
same document that is to be filed before the courts; what the Rules
require is for a party to read the contents of a pleading without any Sec. 5. Certification against forum shopping.--
specific requirement on the form or manner in which the reading is The plaintiff or the principal party shall
to be done. That a client may read the contents of a pleading certify under oath in the complaint or other
without seeing the same pleading to be actually filed with the court initiatory pleading asserting a claim for relief,
is, in these days of e-mails and other technological advances in or in a sworn certification annexed thereto
communication not an explanation that is hard to believe. The and simultaneously filed therewith:
variance between the dates of the Petition and the Verification
does not necessarily lead to the conclusion that no verification was a) that he has not theretofore commenced
made, or that the verification was false. (Sps. Valmonte v. Alcala, any action or filed any claim involving the
GR No. 168667, July 23, 2008) same issues in any court, tribunal or quasi-
judicial agency and, to the best of his
BAR QUESTION: Name as many pleadings as you can which must knowledge, no such other action or claim is
be verified. pending therein;
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In Bases Conversion Development Authority GR No. 144062, Authority to sign Certification of Non Forum Shopping
November 2, 2006, while only one petitioner signed the
verification and certification, it was held that such fact is not A board resolution purporting to authorize a person to sign
fatal to the petition. The Court ruled that the signature of a documents on behalf of the corporation must explicitly vest such
principal party satisfies the requirement because under the authority. The signing of verifications and certifications against
Rules it is clear that the certification may be signed by a
forum shopping is not integral to the act of filing; this may not be
principal party.
deemed as necessarily included in an authorization merely to file
In HLC Construction and Development Corp. vs. Emily Homes cases. (MCWD vs. Margarita A. Adala, GR No. 168914, July 4, 2007)
Subdivision Homeowners Association 411 SCRA 504, the Court
ruled that the signature of only one petitioner substantially Pleadings requiring a certification
complied with the rules because all the petitioners shared a
common interest and invoked a common cause of action or The certification against forum shopping is mandatory in filing a
defense. complaint and other initiatory pleadings asserting a claim (Sec.5)
This initiatory pleadings include not only the 1. original complaint
Lack of certification not cured by subsequent submission
but also 2.permissive counterclaim, 3. cross-claim, 4. third (fourth)-
party complaint, 5. complaint in intervention, 6. petition or any
In appeal by certiorari to the Supreme Court, the lack of
application in which a party asserts a claim for relief. The rule does
certification is generally not curable by the submission thereof
not require a certification against forum shopping for a compulsory
after the filing of the petition. Sec. 5, Rule 45 of the 1997 Rules
counterclaim because it cannot be the subject of a separate and
provides that failure of the petitioner to submit the required
independent adjudication. It is therefore, not an initiatory pleading
documents that should accompany the petition, including the
(UST vs. Surla, 294 SCRA 382)
certification, required in Sec. 4, Rule 45, shall be sufficient ground
for the dismissal thereof.
It bears stressing that the Rule distinctly provides that the required
certification against forum shopping is intended to cover an
Exceptions
initiatory pleading, meaning an incipient application of a party
In certain exceptional circumstances, however, the Court has asserting a claim for relief. The answer with a counterclaim is a
allowed the belated filing of the certification. In all these cases, responsive pleading, filed merely to counter petitioner’s complaint
there were special circumstances or compelling reasons that that initiates the civil action and is a claim for relief that is derived
justified the relaxation of the rule. only from, or is necessarily connected with, the main action or
complaint. It is not an initiatory pleading (Sps. Carpio vs. Rural Bank
Lack of authority to sign certification of Sto. Tomas Batangas, supra)
The same liberal construction applies to certifications against UST HOSPITAL vs. SURLA - 294 SCRA 382 [Aug. 17, 1998]
forum shopping signed by the person on behalf of a corporation
which are unaccompanied by proof that said signatory is
HELD: The certification of non-forum shopping applies only to
authorized to file a petition on behalf of the corporation. A liberal
permissive counterclaims because there is no possibility of
interpretation is given to the rule more so where the petitioner did
forum shopping in compulsory counterclaims.
submit a certification against forum shopping, but he failed only to
show proof that the signatory was authorized to do so. In several
“The proviso in the second paragraph of Section 5, Rule 7, of
cases, (Shipside Incorporated vs. CA 404 SCRA 981; Ateneo de Naga
the 1997 Rules of Civil Procedure, i.e., that the violation of the
University vs. Manalo 458 SCRA 325, etc) the Court permitted the
anti-forum shopping rule ‘shall not be curable by mere
subsequent submission of proof of authority to sign the
amendment . . . but shall be cause for the dismissal of the
certification against forum shopping.
case without prejudice,’ being predicated on the applicability
of the need for a certification against forum shopping,
Signing the Certification when the plaintiff is a juridical person
obviously does not include a claim which cannot be
A juridical entity, unlike a natural person, can only perform physical independently set up.”
acts through properly delegated individuals. The certification
Effect of non-compliance
against forum shopping where the plaintiff or a principal party is a
juridical entity, like a corporation, may be executed by properly
The failure to comply with the required certification is “not
authorized persons. This person may be the lawyer of the
curable by a mere amendment” and shall be a cause for the
corporation. As long as he is duly authorized by the corporation
dismissal of the action (Sec. 5).
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Q: Now, suppose I will amend the complaint because at first there If a complaint is dismissed for failure to comply with required
was no certification of non-forum shopping, therefore, certification, the plaintiff cannot appeal from such order. This
automatically the defect is cured. Now, is it automatic? is because an order dismissing an action without prejudice is
not appealable. The remedy provided for under Sec. 1 of Rule
A: Look at the 2nd paragraph, it says, “failure to comply with the 41 is to avail of the appropriate special civil action under Rule
foregoing requirements shall not be curable by mere amendment 65 (Sec. 1[g], Rule 41 as amended, Rules of Court.
of the complaint or other initiatory pleading, but shall be cause for
the dismissal of the case without prejudice.” In other words, the Effect of willful and deliberate forum shopping –
complaint will be dismissed but you can still re-file the case with
the inclusion of the certification against forum shopping. Pursuant to Sec. 5, it will result to a summary dismissal, that
is, without need of a motion to dismiss and hearing and the
“Unless otherwise provided, upon the motion after hearing” – dismissal is with prejudice.
meaning, it is now discretionary on the court to determine whether
to dismiss or not to dismiss. Of course, it is a ground for dismissal, Effect of submission of a false certification
but the court may say, “Okay, we will just amend it. We will not
It shall constitute:
dismiss.” But definitely, you cannot insist that because I already
amended, everything is cured. That is for the court to determine
1) indirect contempt
whether to dismiss or not to dismiss. So, mere amendment does 2) without prejudice to the corresponding administrative
not cure automatically the missing certification. (I don’t agree and criminal sanctions (Sec.5)
because the unless otherwise provided appears to qualify the
dismissal without prejudice. In other words, the court can order the Effect of non-compliance with the undertakings
dismissal with prejudice.)
It has the same effect as the submission of a false certification
I think this provision that mere amendment does not cure (Sec.5), hence shall constitute indirect contempt without
automatically the missing certification for non-forum shopping was prejudice to the corresponding administrative and criminal
taken by the SC from its ruling in the 1995 case of sanctions (Sec. 5).
HELD: “The mere submission of a certification under All pleadings, motions and papers filed in court by counsel
Administrative Circular No. 04-94 after the filing of a motion shall bear in addition to counsel’s current Professional Tax
to dismiss on the ground of non-compliance thereof does not Receipt Number (PTR), counsel’s current IBP official receipt
ipso facto operate as a substantial compliance; otherwise the number indicating its date of issue. Pleadings motions and
Circular would lose its value or efficacy.” papers which do not comply with this requirement may not be
acted upon by the court, without prejudice to whatever
As a matter of fact, if the certification is deliberately false there are disciplinary action the court may take against the erring
many other sanctions – contempt, possible administrative actions counsel who shall likewise be required to comply with the
against the lawyer or criminal case for perjury. requirement within 5 days from notice. Failure to comply with
such requirement shall be a ground for further disciplinary
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sanction and for contempt of court (Circular No. 10, July 24,
1985; Bar Matter No. 287, September 26, 2000.
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Rule 8
defense become incomplete, a certain element of cause of action
disappears then it must be a statement of ultimate fact.
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Q: What are the essential elements of a cause of action?
Pleadings must only state the ultimate facts where one relies on his Evidentiary Facts
defense or complaint. You must omit the statement of mere
evidentiary facts. Q: What are evidentiary facts?
The ultimate facts refer to the essential facts of the claim. A fact is A: Evidentiary facts are the facts which will prove the ultimate
essential if it cannot be stricken out without leaving the statement facts. They should not be stated in the pleading. They should be
of the cause of action insufficient (Ceroferr Realty Corporation vs. brought out during the trial. They are proper during the trial but
CA 376 SCRA 144). The ultimate facts are the important and they have no place in your pleading.
substantial facts which form the basis of the primary right of the
Evidentiary facts refer to those which are necessary to prove the
plaintiff and which make up the wrongful act or omission of the
ultimate fact or which furnish evidence of the existence of some
defendant. The ultimate facts do not refer to the details of
other facts.
probative matter or to the particulars of evidence by which the
material elements are to be established. They are the principal,
determinate, constitutive facts, upon the existence of which, the In the law on Evidence, ultimate facts are called factum
entire cause of action rests. (Tantuico, Jr. vs. Republic, 204 SCRA probandum as distinguished from factum probans (evidentiary
428) facts).
Distinguish ultimate facts from evidentiary facts EXAMPLE: In a land dispute, the question is: Who has been in
possession of the land for a long time? I claim I’m the one. So, I will
ULTIMATE FACTS vs. EVIDENTIARY FACTS
say, “plaintiff has been in possession of this land continuously for
the past 30 years.” That is a statement of ultimate fact because
Q: What are ultimate facts? that shows your right – your right over the property – that you
cannot be driven out.
A: Ultimate facts are those which are essential to one’s cause of
action or defense. Suppose the lawyer wants to impress the court that the statement
is true, the pleading describing continuous possession for the past
Ultimate facts refer to those which directly form the basis of the 30 years from 1967 to 1997. And therefore, the lawyer will now
right sought to be enforced or the defense relied upon. If the prepare the complaint in this manner:
ultimate facts are not alleged, the cause of action will be
insufficient. Plaintiff has been in possession of the said
property continuously, openly for the past 30
Q: How do you determine whether a fact is essential to your cause years from 1967 to 1997 as may be borne out by
of action or defense? the following:
A: The test to determine whether the fact is essential to your cause He entered the property in 1967. He cleared the
of action is: if the statement in the pleading cannot be deleted property by cutting the grass. In 1968, he planted
because if you delete it, the statement of your cause of action or 20 coconut trees. In 1969, he planted 50 coconut
trees. In 1970, he planted mango trees. In 1971, he
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Plaintiff has been in continuous possession of the Q: Apart from evidentiary facts, what are the other matters that
property for 30 years from 1967 up to the present. should not be stated in the pleading?
A: The following:
That is the ultimate fact.
1.) Facts which are presumed by law;
Then, during the trial, you present the plaintiff and you ask the 2.) Conclusions of fact or law;
plaintiff: Mr. Plaintiff, when did you occupy the property? – “1967” 3.) Matters which are in the domain of judicial notice
need not be alleged.
– When you first occupied the property, describe it. – “Ah, bagnot!
I have to clean it. So I clean it in 1967.” – In 1968, were you still
FACTS WHICH ARE PRESUMED BY LAW
there? – “Oh yes!” – What did you do in 1968? – “I planted coconut
trees.” – Did you pay taxes in 1968? – “Yes!” – Where’s the receipt? Presumptions under the law need not be alleged in a pleading.
– “Eto o!” When a fact is already presumed by law, there is no need to make
that allegation because your cause of action would still be
The evidentiary facts should be brought out in court not in the
complete.
pleadings, otherwise your pleading become kilometric. That is what
is meant by the phrase that you only state the ultimate facts Example: Negligence in culpa contractual
omitting the statement of evidentiary facts.
Q: In a case of breach of contract against an operator of the
Another Example: common carrier. Do you think it is necessary for the plaintiff to
allege that the driver acted negligently? Is an allegation that the
In a collection case you can just allege:
driver of the carrier acted with negligence required?
“The defendant borrowed money and then it fell
A: NO. There must be negligence, otherwise, there would be no
due. I made demands for him to pay, but despite
repeated demands he refused to pay.” cause of action. However there is no need to allege it in the
complaint because under the Civil Code, whenever there is a
You do not have to state in your complaint that “when the account breach of contract of carriage, there is a presumption of negligence
fell due last November 5, I called him up by telephone. He promised on the part of carrier. It is not for the passenger to prove that the
to pay in November 7 and called him again and he promised to pay common carrier is negligent. It is for the common carrier to prove
tomorrow…” Those are evidentiary facts which can be brought that it is not negligent.
forward during the trial.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-
Under Section 1, you state the ultimate facts on which you base existing contract between the parties, the liability of the defendant
your claim or defense. How do you state the facts? Section 1 says hinges on negligence. There must be allegation of negligence. The
that statement of ultimate facts must be stated in a methodical and defendant must be alleged to have acted negligently to hold him
logical form and you must use plain, concise and direct statements liable otherwise, there is no cause of action. It becomes an
or language. The simpler the language, the better. A pleading is ultimate fact which should be alleged in the pleading.
not a vehicle for you to show your mastery of the English language.
The judge might throw away your complaint for not using simple CONCLUSIONS OF FACT OR LAW
language.
How do you present the facts? In a methodical and logical form. It Conclusions of law or conclusions of fact must not be stated in the
is a matter of writing style. Every person has his style of writing. pleading. A statement of fact is different from a conclusion of fact
Corollarily, every person expects you to write in a methodical or or law.
logical form. We have said earlier that a pleading actually tells a
story. Plaintiff tells the court his story. Defendant tells his story, For EXAMPLE, where plaintiff said that he is entitled to moral
too. Each presentation must be methodical and logical. damages or attorney’s fees. That is not a statement of fact but your
conclusion.
What is the first test whether you style is methodical or logical?
The best exercise is your own answer in examinations. In a Statement of fact is to cite the basis why you are entitled – you
must state the reason why you are entitled. The statement of the
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The complaint alleges that the defendants are holding the A: No, the complaint will remain insofar as the sufficient cause of
plaintiff’s property in Trust for the plaintiff without any explanation action is stated. The insufficiency of one will not affect the entire
of the facts from which the court could conclude whether there is a pleading if the other cause of action is insufficient.
trust or not. The SC in the case of MATHAY said that that
statement is merely a conclusion of the plaintiff. You must state EXAMPLE:
the basis of your statement that they are holding your property in
I read a case about a passenger who was about to
trust.
board a bus. Of course when you are a passenger and
So a statement of law is not allowed although there is an exception you get hurt, that is culpa contractual. If you are not a
under the second paragraph of Section 1 which says that “if a passenger and you get hurt due to the negligence of
defense relied on is based on law, the pertinent provisions thereof the driver, that is culpa aquiliana. So it depends
and their applicability to him shall be clearly and concisely stated.” whether there is a contract of carriage or none.
Sometimes a defendant when he files his answer, it is purely based
In that case, the passenger was about to board a bus.
on law. He must cite the legal provision in his answer and explain
As a matter of fact, the left foot had already stepped
WHY it is applicable to him.
on the bus. The bus suddenly sped up. He fell. He
Test to Distinguish Conclusions of Law from Statement of Facts was injured. What is the basis against the carrier? Is
there a contract or none? There is because one foot
If from the facts in evidence the result can be reached by the was already on it but others say there was no contract
process of natural reasoning adopted in the investigation of truth, yet. You don’t really know whether your cause of
it becomes an ultimate fact to be found as such. action is culpa contractual or culpa aquiliana. You
want to claim damages but you are not sure whether
If on the other hand resort must be had to artificial process of the your case is based on culpa contractual or culpa
law in order to reach a final determination, the result is a aquiliana. It’s either one of the two. It sometimes
Conclusion of Law (herrera Vol. I) happens.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR Now, if I am the lawyer for the plaintiff and I am tortured to make
DEFENSES my choice, I may allege 2 possible alternative causes of action. I
will draft the complaint in such a way that I will show to the court
that my cause of action is either culpa contractual or culpa
Sec. 2. Alternative causes of action or aquilana. I will make sure that both allegations are covered. You
defenses. - A party may set forth two or more cannot be wrong because the law does not require you to make a
statements of a claim or defense choice.
alternatively or hypothetically, either in one
cause of action or defense or in separate Pleading alternative causes of action normally leads to inconsistent
causes of action or defenses. When two or claims. For instance, the elements of a cause of action based on a
more statements are made in the alternative contractual theory are inconsistent with those of a cause of action
and one of them if made independently based on a quasi-delict. As previously discussed, a suit based on a
would be sufficient, the pleading is not made breach of contract of carriage for example, does not require an
allegation and proof of negligence because it is not an element of a
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The rule allowing alternative defenses is consistent with the ALLEGATION OF A CONDITION PRECEDENT
omnibus motion rule which requires that all motions attacking a
pleading shall include all objections then available, and all Sec. 3. Conditions Precedent. - In any
objections not so included shall be deemed waived (Sec. 8, Rule 15) pleading, a general averment of the
performance or occurrence of all conditions
However, during that trial, you have to choose among them which precedent shall be sufficient. (3)
you think is true based on evidence. The problem is that you
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(c) Prior resort to barangay conciliation proceedings is A: “I am the court’s appointed guardian of the plaintiff minor
necessary in certain cases (Book III, Title I, Chapter 7, having been appointed guardian by the court in this case based on
Local Government Code of 1991);
an order.” You have to emphasize that the court appointed you.
(d) Earnest efforts toward a compromise must be
undertaken when the suit is between members of the Section 4 says, “the legal existence of an organized association of
same family and if no efforts were in fact made, the case persons that is made a party...” It means that the defendant is a
must be dismissed (Art. 151 Family Code); corporation existing by virtue of the Philippine Corporation Law.
There is no presumption that you are corporation. That is the
(e) Arbitration may be a condition precedent when the reason why facts showing capacity to sue and be sued, etc. must be
contract between the parties provides for arbitration averred with particularity.
first before recourse to judicial remedies.
There’s a case which you will study in Corporation Law whether a
The failure to comply with a condition precedent is an independent
foreign corporation can sue in Philippine court. Under the law, it
ground for a motion to dismiss: that a condition precedent for filing
can sue provided it is licensed to do business in the Philippines.
the claim has not been complied with (Sec. 1[j], Rule 16)
The SC emphasized that if a foreign corporation is suing somebody
A: According to Section 3, a general averment will be sufficient. in Philippine courts, the complaint must specifically allege that a
You need not specifically allege compliance of conditions foreign corporation is doing business in the Philippines with a
precedent. Therefore, an averment of the performance or license to do. Otherwise, it cannot sue.
occurrence of all conditions precedent may be made generally and
“A party desiring to raise an issue as to the
it shall be sufficient.
legal existence of any party or the capacity of
ALLEGATION OF CAPACITY TO SUE OR BE SUED any party to sue or be sued in a
representative capacity, shall do so by
Sec. 4. Capacity - Facts showing the capacity specific denial, which shall include such
of a party to sue or to be sued or the supporting particulars as are peculiarly within
authority of a party to sue or to be sued in a the pleader's knowledge…” (section 4, 2nd
representative capacity or the legal existence sentence)
of an organized association of persons that is
made a party, must be averred. A party EXAMPLE: You are the plaintiff corporation with juridical capacity.
desiring to raise an issue as to the legal I am the defendant. Suppose I will deny your capacity to sue. I will
existence of any party or the capacity of any deny that you are a corporation licensed to do business in the
Philippines. Now, the law requires me to deny your legal capacity
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and I must state the reason or basis of such denial – why you are
Sometimes a party invokes a judgment of a court or cite a previous
not of legal age, why you are not a corporation.
case like res adjudicata to dismiss a case.
This is so because the law says that when you deny or when you
Q: Suppose you will ask the court to dismiss the case because there
question the legal existence of a party or the capacity of any party
was already judgment rendered by the court years ago and you
to sue and be sued, you shall do so by specific denial which shall
simply say, “There was a previous judgment.” Is this sufficient?
include such supporting particulars as are peculiarly within the
defendant’s knowledge. You cannot plead a general statement A: YES because the law presumes that the judgment is valid. And
that you deny. Your denial must be particular. You must be more the presumption is that the court had jurisdiction. You do not have
specific about what you are denying. to say that the court had jurisdiction over the subject matter,
issues, etc. when it tried the case years ago. So, it can be averred
ALLEGATION OF FRAUD OR MISTAKE
generally.
Q: In the second sentence, why is it that malice, intent, etc. may be Q: What averments must be done with PARTICULARITY?
averred generally?
A: The following:
A: A general averment of malice or intent suffices because one
1.) Rule 8, Section 4, first sentence – Capacity to sue
cannot describe or particularize what is in the mind of a party. I
and be sued;
cannot describe in detail the malice or the knowledge in your mind. 2.) Rule 8, Section 4, 2nd sentence – Legal existence of
I can only say it in general terms. This is borne out of human any party to sue or be sued;
experience. 3.) Rule 8, Section 5, first sentence – Fraud or mistake
Fraud, on the other hand, is employed openly, by overt acts. How ACTIONABLE DOCUMENTS
you are deceived is not only in the mind. Those are manifested by
external acts. Therefore, one can describe how a fraud was
committed by the other party. Sec. 7. Action or defense based on document.
Whenever an action or defense is based upon
Sec. 6. Judgment. In pleading a judgment or a written instrument or document, the
decision of a domestic or foreign court, substance of such instrument or document
judicial or quasi-judicial tribunal, or of a shall be set forth in the pleading, and the
board or officer, it is sufficient to aver the original or a copy thereof shall be attached to
judgment or decision without setting forth the pleading as an exhibit, which shall be
matter showing jurisdiction to render it. (6) deemed to be a part of the pleading, or said
copy may with like effect be set forth in the
pleading. (7)
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EXAMPLE:
A: There are two (2) options:
COMPLAINT
1.) The substance of such instrument or document,
1. Plaintiff B is xxx of legal age xxx;
shall be set forth in the pleading and the original or
Defendant A is xxxxxxx;
a copy thereof shall be attached as an exhibit; or
2. On Dec. 31, 1997 def. A secured a
2.) The copy of the document may with like effect be
loan from plaintiff B which is
quoted in the pleading, in which case, there is no
covered by a promissory note
need to attach the copy.
worded as follows:
In the first one, there is no need to copy it. Just mention the PROMISSORY NOTE:
substance or features of the promissory note. In the second case,
the entire document must be quoted in the pleading.
December 31, 1997
EXAMPLE:
For value received, I promise to pay “B” P1 million not later
PROMISSORY NOTE: than one year from date with 2 percent per annum.
So, you copy the entire promissory note verbatim. There is no need
to attach a copy of the promissory note. That is the second way.
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Q: Suppose in the first way, the promissory note was not attached.
2.) If signed by another, it was signed for him and with his
What will happen? authority;
A: The party violates Rule 8, Section 7. The adverse party may Q: Pretty Maya told Papa Paul that her housemate Sexy
move to dismiss the complaint for violation of the rules, if such Regina wanted to borrow money from him. Paul agreed.
document could not be secured. Maya signed the promissory note: “Regina as principal,
signed by Maya.” But actually, Regina never ordered
If an actionable document is properly pleaded in your pleading in Maya to use her (Regina’s) name. When the note fell due
the manner mentioned in Section 7, the adverse party is now without payment, Paul sued Regina. Regina denied
obliged to follow Section 8 if he wants to contest such document. agency but failed to verify her answer. What is the
effect?
Sec. 8. How to contest such documents. When
an action or defense is founded upon a A: Pretty Maya becomes agent of Sexy Regina. So, the
written instrument, copied in or attached to defense of unauthorized signature is automatically out.
the corresponding pleading as provided in
the preceding section, the genuineness and 3.) At the time it was signed, it was in words and figures
due execution of the instrument shall be exactly as set out in the pleading of the party relying
deemed admitted unless the adverse party, upon it;
under oath, specifically denies them, and sets Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of
forth what he claims to be the facts; but the P50,000 on a promissory note. Mr. Tiamzon admitted
requirement of an oath does not apply when liability but only to the amount of P5,000. Mr. Tiamzon
the adverse party does not appear to be a used falsification as a defense but his answer was not
party to the instrument or when compliance verified. What is the effect?
with an order for an inspection of the original
A: Mr. Tiamzon admits the genuiness of the promissory
instrument is refused. (8a)
note – that it was really P50,000.
Q: Does every pleading have to be under oath?
4.) The document was delivered; and
A: GENERAL RULE: NO.
5.) The formal requisites of law, such as seal,
acknowledgement (notarization) or revenue stamp
EXCEPTION: Except when the law requires it. Example: Section 8,
which it lacks, are waived by it.
Rule 8.
The SC said in HIBBERD that if you admit the genuineness and due
EXAMPLE: If the plaintiff sues you based on a promissory note execution of the actionable document, defenses which are
which is properly pleaded under Section 7 and you would like to inconsistent with genuineness and due execution are deemed
contest the genuineness and due execution of the note like when automatically waived. Meaning, any defense which denies the
the figure was altered to P20,000 instead of P1,000 only, so there genuineness or due execution of the document is deemed
is falsification, then you must deny the genuiness and due automatically waived.
execution in your answer specifically and most importantly your
answer must be VERIFIED AND UNDER OATH. Q: What are the defenses which are no longer allowed once you
admit the genuineness and due execution of the actionable
To contest: document?
(a) You must specifically deny the genuineness and due A: The following:
execution of the document under oath; and
(b) You set forth what you claim to be the facts.
1.) The signature appearing in the document is a
forgery;
If the denial is not verified and under oath, the genuineness and
2.) In case it was signed by an agent in behalf of the
due execution of the promissory note is deemed admitted. corporation or partnership, or a principal, the
signature was unauthorized;
Q: When you say “you have admitted the genuiness and due 3.) The corporation was not authorized under its
execution of the document,” what are the specific facts that you charter to sign the instrument;
have deemed admitted? 4.) The party charged signed it in some other capacity
than that alleged in the pleading; and
A: The answer is found in the landmark case of HIBBERD vs. RHODE 5.) It was never delivered. (Hibberd vs. Rhode, supra)
(32 Phil. 476): 6.) The document was not in words and figures as set
out in the pleadings (Imperial Textile Mills vs. CA
183 SCRA 584)
1.) The party whose signature it bears signed it;
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Q: Define negative defense. Q: Suppose the pleader will say, “Defendant specifically denies the
allegations in paragraph 2,4,7…” without any further support for
A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant the denial. Is the denial specific?
denies the statement in the complaint by stating the facts and the
reason/s on which his denial is based. A: NO. A denial does not become specific simply because he used
the word ‘specific.’ (Cortes vs. Co Bun Kim, 90 Phil. 167) What
Q: How is a specific denial done? makes a denial specific is compliance with Section 10.
A: Rule 8, Section 10: SECOND MODE: Where a defendant desires to deny only a part of
an averment, he shall specify so much of it as is true and materia l
Sec. 10. Specific denial. A defendant must
and shall deny only the remainder.
specify each material allegation of fact the
truth of which he does not admit and, Sometimes an allegation may consist of 2 or more parts. Therefore
whenever practicable, shall set forth the the answer may admit part 1 but part 2 is denied. Or, the substance
substance of the matters upon which he of the allegation is actually admitted by the qualification there is
relies to support his denial. Where a denied.
defendant desires to deny only a part of an
averment, he shall specify so much of it as is EXAMPLE: Plaintiff alleges that the “Defendant is in possession of
true and material and shall deny only the the property under litigation in bad faith.” Now, the defendant may
remainder. Where a defendant is without admit that the property is in his possession but he denies the
knowledge or information sufficient to form a qualification in bad faith – possession is not in bad faith. Based on
belief as to the truth of a material averment that, the defendant should say, “Defendant admits that portion of
made in the complaint, he shall so state, and paragraph no. 2 that he is in possession of the property in question;
this shall have the effect of a denial. (10a) but denies that he is a possessor in bad faith” or something to that
effect.
Purpose of specific denial
THIRD MODE: Where a defendant is without knowledge or
The purpose is to make the defendant disclose the information sufficient to form a belief as to the truth of a material
matters alleged in the complaint which he succinctly averment made in the complaint, he shall so state, and this shall
intends to disprove at the trial, together with the matter have the effect of a denial
which he relied upon to support the denial. The parties
are compelled to lay their cards on the table (Aquintey Meaning, I am not in a position to admit or to deny because I have
vs. Tibong, GR No. 166704, December 20, 2006) no knowledge. How can I admit or deny something which I do not
know?
Q: So what are the modes of specific denial?
EXAMPLE: Plaintiff claims for moral damages because Defendant
A: Under Section 10, there are three (3) MODES OF SPECIFIC destroyed his reputation. Defendant does not know that Plaintiff
DENIAL: had sleepless nights, wounded feelings, serious anxiety, etc. Here,
Defendant cannot admit or deny those.
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I have read pleadings where the pleader would say, “Defendant has
existence of the loan that is denied? Is it the amount? The date?
no knowledge or information sufficient to form a belief as to the
The place?
truth of the allegation in paragraphs 6, 7, 8, 9… of the complaint
and therefore he denies the same.” Actually, there is something The effect of this kind of denial is an admission.
wrong there. How can you deny something that you have no
knowledge of. Just state, “I have no knowledge.” Then period! And When a specific denial must be coupled with an oath:
is has the automatic effect of a denial.
(a) A denial of an actionable document (Sec. 8); and
However, the SC warned that he third mode of denial should be (b) A denial of allegations of usury in a complaint to recover
done in good faith. If the fact alleged is such that it is within your usurious interest (Sec. 11)
knowledge, it is impossible that it is not within your knowledge,
The allegations of usury which requires a specific denial under
you cannot avail of the third mode of denial. Otherwise, if you will
oath are:
avail of the third mode in bad faith, your denial will be treated as
an admission. That is what happened in CAPITOL MOTORS vs. (a) Allegations of usury in a complaint (not allegations of
YABUT (32 SCRA 1). usury in the answer), and
(b) The complaint is filed to recover usurious interests (Sec.
In CAPITOL MOTORS, suppose I file a case against you, “Defendant 11, R 8)
borrowed money from plaintiff in the sum of P10,000 payable one
year from said date.” And then you say, “I have no knowledge or Matters not deemed admitted by the failure to make a specific
information…” There is something wrong there. What you are denial:
trying to say there is “I do not know whether I borrowed money
from you or not.” a) The amount of unliquidated damages (Sec.11);
b) Conclusions in a pleading which do not have to be
denied at all because only ultimate facts need be alleged
How can that be? It is either you borrowed money or you did not!
in a pleading (Sec. 1 R 8);
That is why the SC said in CAPITOL MOTORS, if you borrowed c) Non-material averments or allegations are not deemed
money, you say so. And if you did not, deny it. And then I will allege admitted because only material allegations have to be
there, “The defendant have made partial payments.” Then you will denied. (Sec. 11)
say, “I have no knowledge.” My golly! You do not even know
whether you paid me? In other words, talagang evasive bah! You Sec. 11. Allegations not specifically denied
are trying to be clever and evasive. And if you do that, all your deemed admitted. Material averment in the
denials will be treated as admissions. That is the warning in the complaint, other than those as to the amount
third mode. of unliquidated damages, shall be deemed
admitted when not specifically denied.
Negative Pregnant Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not
A negative pregnant does not qualify as a specific denial. It is denied under oath. (1a, R9)
conceded to be actually an admission.
While the law says ‘material averment in the complaint,” this rule
In a pleading, it is a negative implying also an affirmative and which extends to counterclaims, cross-claims and third-party complaints.
although is stated in a negative form really admits the allegations (Valdez vs. Paras, L-11474, May 13, 1959)
to which it relates.
The reason for the rule on specific denial is that, if there is a
Example: material averment in the complaint and was not specifically denied,
it is deemed admitted. However under Section 11, there are
A complaint alleges: averments in the complaint which are not deemed admitted even
when not specifically denied.
“Plaintiff extended a loan to Defendant in the amount of
P500,000.00 on July 27, 2006 in Cebu City.” GENERAL RULE: Material averment in a complaint shall be deemed
admitted when not specifically denied.
The defendant in his Answer states:
EXCEPTION: Instances when averments in the complaint are not
“Defendant specifically denies that Plaintiff extended a loan to
deemed admitted even when not specifically denied:
Defendant in the amount of P500,000.00 on July 27, 2006 in Cebu
City.” 1.) Amount of unliquidated damages;
2.) Immaterial averments (Worcester vs. Lorenzana, 56
The answer is a mere repetition of the allegations made in the O.G. 7932, Dec. 26, 1960)
complaint. The answer is vague as to what it really denies. Is it the 3.) Evidentiary matters; because a party is only obliged
to aver ultimate facts; (Agaton vs. Perez, L-
19548, Dec. 22, 1966)
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Rule 9
These defenses may be raised at any stage of the proceedings even
for the first time on appeal EXCEPT that lack of jurisdiction over the
EFFECT OF FAILURE TO PLEAD
subject matter may be barred by laches (Tijam vs. Sibonghanoy GR
Section 1. Defenses and objections not No. L-21450, April 15, 1968).
pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in Now, the traditional rule to remember notwithstanding the
the answer are deemed waived. However, SIBONGHANOY Doctrine, is that, when there is a defect in the
when it appears from the pleadings or the jurisdiction of the court over the subject matter, the defect can be
evidence on record that the court has no raised at any stage of the proceeding even for the first time on
jurisdiction over the subject matter, that appeal (Roxas vs. Raferty, 37 Phil. 957). This is because everything
there is another action pending between the is null and void. Jurisdiction over the subject matter cannot be
same parties for the same cause, or that the conferred by agreement between the parties, by WAIVER, by
action is barred by a prior judgment or by silence of the defendant.
statute of limitations, the court shall dismiss
the claim. (2a) LITIS PENDENTIA. You file an another case while another action is
pending between the same parties for the same cause. That is
GENERAL RULE: Defenses or objections not pleaded in a motion to actually splitting a cause of action because there is already an
dismiss or on answer are deemed waived. If you do not plead your action and then you file another action. The action can be
defense, the same is deemed waived. The court has no jurisdiction dismissed on the ground that there is a pending action.
over the issues.
A pending action to annul a mortgage is not a bar to an action for
EXAMPLE: In a collection case against you, you did not raise the foreclosure of the same mortgage for the reason that, although the
defense of payment in your answer. But during the trial, you parties are or may be the same, the rights asserted and the relief
attempted to prove that the loan has already been paid, that prayed for in the two actions are dissimilar.
cannot be done because the defense of payment is deemed waived
because you did not raise it in your answer. In other words, the A plea of the pendency of a prior action (litis pendencia) is not
court never acquired jurisdiction over the issue. available unless the prior action is of such a character that, had a
judgment been rendered therein on the merits, such a judgment
So, there is no such thing as a surprise defense because the would be conclusive between the parties and could be pleaded in
defense must be pleaded. If you want to surprise the plaintiff bar of the second action. The rule is applicable, between the same
during the trial by not raising your defense in your answer, you will parties, only when the judgment to be rendered in the action first
be the one who will be surprised because the court will not allow instituted will be such that, regardless of what party is successful, it
you. When the parties go to court, the plaintiff already knows will amount to res judicator against the second action (Hongkong
what are the defenses. They are already in the answer. Shanghai Bank v. Aldecoa and Co., GR No. 8437, March 23, 1915).
EXCEPTIONS: RES ADJUDICATA – There was already a prior final judgment then
you file another case regarding the same issue. That is also splitting
Q: What defenses or objections can be taken cognizance of by the a cause of action.
court despite the fact that they are not raised in the motion to
dismiss or answer? PRESCRIPTION is not found in the old rule but is taken from
decided cases. Among which are the cases of
A: Under Section 1, Rule 9, the following:
PNB vs. PEREZ (16 SCRA 279) & PEPSI COLA vs. GUANZON
1.) That the court has no jurisdiction over the subject (172 SCRA 571)
matter;
2.) That there is another action pending between the HELD: “The rule on waiver of defenses by failure to plead in
same parties for the same cause (litis pendentia); the answer or in a motion to dismiss does not apply when the
3.) That the action is barred by prior judgment (res plaintiff’s own allegations in the complaint show clearly that
adjudicata); and the action has prescribed in such a case the court may motu
4.) That the action is barred by statute of limitation propio dismiss the case on the ground of prescription.”
(prescription).
Q: Can the court dismiss the action based on any of these grounds
Take note that the exceptions can be raised at any time during or without the filing of a motion to dismiss?
after the trial, or even for the first time on appeal. In other words,
the court shall dismiss the claim if any of the foregoing grounds A: YES. It would seem so because the second sentence says, “When
appears from the pleadings or the evidence on record. it appears from the pleadings or the evidence on record … the
court shall dismiss the claim.” (This is an important change)
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Under the 1964 Rules, one of the grounds that you can raise at any
during the hearing and to cross-examine the witnesses presented.
stage of the proceeding before judgment is failure to state a cause
However, it would not amount to a waiver of the defendant’s right
of action, but it disappears under the new rules. Does it mean to
to present evidence during the trial dates scheduled for the
say that you cannot raise it anymore? NO. It can still be raised
reception of evidence for the defense. It is error for the court to
because it can be taken care of by another rule – Rule 33 on
issue an order not denominated as an order of default but provides
Demurrer.
for the application of the effects of default as when the defendant
who has filed an answer is not allowed to present evidence
Sec. 2. Compulsory counterclaim, or cross-
because of her absence during the presentation of evidence by the
claim, not set up barred. A compulsory
plaintiff (Monzon Spouses Relova vs. Addio Properties, Inc. GR
counterclaim, or a cross-claim, not set up
1712827, September 17, 2008)
shall be barred. (4a)
Requisites before a party may be declared in default:
See discussions on Rule 6, Sections 7 and 8 on counterclaim and
cross-claims, respectively.
1. The Court must have acquired jurisdiction over the
person of the defendant thru a valid service of summons
RULE ON DEFAULT or voluntary appearance;
2. The defending party must have failed to file his answer
within the reglementary period or within the period
Sec. 3. Default; declaration of. If the fixed by the court;
defending party fails to answer within the 3. there must be a motion to declare the defendant in
time allowed therefor, the court shall, upon default;
motion of the claiming party with notice to 4. The defending party must be notified of the motion to
the defending party, and proof of such declare him in default (Sec. 3 R 9)
5. There must be a hearing of the motion to declare the
failure, declare the defending party in
defendant in default; and
default. Thereupon, the court shall proceed 6. There must be proof of such failure to answer.
to render judgment granting the claimant
such relief as his pleading may warrant, Where no defaults are allowed:
unless the court in its discretion requires the
claimant to submit evidence. Such reception 1. Annulment of marriage;
of evidence may be delegated to the clerk of
court. (1a, R18) 2. Declaration of nullity of marriage;
3. Legal Separation;
xxxxxx
4. Special Civil Actions of certiorari, prohibition and mandamus
A defending party is declared in DEFAULT if he fails to answer the where comment instead of an answer is required to be filed; and
complaint within the time allowed therefor. The rule on answer is
found in Rule 11. And under Rule 11 as a rule, you have 15 days to 5. Summary Procedure.
file an answer counted from the time you are furnished a copy of
the complaint together with the summons The required hearing is mandated by Sec. 4 of Rule 15 which states:
It is the failure of the defendant to answer within the proper “Sec. 4. Hearing of motion – Except for motions which
period, not his failure to appear nor failure to present evidence the court may act upon without prejudicing the rights of
which is the basis of a declaration of default. the adverse party, every written motion shall be set for
hearing by the applicant.”
It does not occur from the failure of the defendant to attend either
the pre-trial or the trial. Failure to file an answer under the Rule on Summary Procedure
If the period to answer lapsed and there is no answer, the plaintiff Under this rule, the defendant is not supposed to be declared in
will move to declare the defendant in default on the ground of default. Instead the court motu proprio, or on motion of the
failure to file an answer to the complaint. So, the court will issue plaintiff, shall render judgment (not to declare the defendant in
an order of default declaring you as a defaulted defendant. default) as may be warranted by the facts alleged in the complaint
and limited to what is prayed for (Sec. 6, II, 1991Rule on Summary
The defendant’s non-appearance in the hearing and the failure to Procedure). This represents a principal distinction between default
adduce evidence does not constitute default when an answer has in regular civil proceedings and the rule on summary procedure.
been filed within the reglementary period. The failure of the
defendant to attend the hearings for the presentation of the Also, under the Rule on Summary Procedure, the plaintiff is
evidence of the adverse party amounts not to a default, but to a prohibited from filing a motion to declare the defendant in default
waiver of the defendant’s right to object to the evidence presented
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HOWEVER under Section 3, it is discretionary upon the court to RAMIREZ vs. COURT OF APPEALS – 187 SCRA 153
require the claimant to submit evidence. EX-PARTE RECEPTION of
evidence is OPTIONAL for the court. And such reception of
HELD: “The failure to furnish a copy of the answer to the
evidence may be delegated to the clerk of court. This is related to
adverse party in itself is sufficient or valid basis for
Section 9, Rule 30:
defendant’s default.”
Rule 30, Sec. 9. Judge to receive evidence;
delegation to clerk of court. The judge of the
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Effect of pendency of a Motion to Dismiss or for Bill of Particulars Answer filed out of time may be admitted
Q: May a defendant be declared in default while a motion to Where there is no declaration of default, answer may be admitted
dismiss (Rule 16) or a motion for bill of particulars (Rule 12) even if filed out of time. Where answer has been filed, there can be
remains pending and undisposed of? no declaration of default anymore. (Guillerma S. Sablas vs. Esterlita
S. Sablas and Rodulfo Sablas, GR No. 144568, July 3, 2007)
A: NO, because under the filing of a motion to dismiss or motion
for bill of particulars interrupts the running of the period to answer. (a) Effect of order of default. - A party in
It will run again from the moment he receives the order denying his default shall be entitled to notice of
motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87 subsequent proceedings but not to take part
Phil. 437) in the trial. (2a, R18)
But said motions must follow the requirements otherwise they will So if you are declared in default, you cannot take part in the trial.
be treated as mere scraps of paper and will not toll the running of You lose your standing in court, you cannot cross-examine the
the period to answer. witness of the plaintiff assuming there is a reception of evidence.
You cannot object to his evidence. You cannot even present your
In the case of
own evidence when you are in default.
DEL CASTILLO vs. AGUINALDO – 212 SCRA 169 [1992]
Right of a party in default
FACTS: The defendant filed a motion to dismiss under Rule 16
He is entitled to notice of:
but his motion to dismiss did not contain notice of time and
place of hearing and the motion was denied. Can he file an 1. Motion to declare him in default;
answer after filing the motion to dismiss?
2. Order declaring him in default;
HELD: NO. He can be ordered in default. The motion is a
useless piece of paper with no legal effect. 3. Subsequent proceedings; and
“Any motion that does not comply with Rule 16 4. Service of final orders and judgments.
should not be accepted for filing and if filed, is not
entitled to judicial cognizance and does not affect Note: A defendant declared in default cannot take part in the trial,
any reglementary period. Not having complied with but he cannot be disqualified from testifying as a witness in favor
the rules, the motion to dismiss filed by the of non-defaulting defendants (Cavile vs. Florendo GR No. 73039,
defendant did not stay the running of the Oct. 9, 1987)
reglementary period to file an answer.”
If the defendant was declared in default upon an original
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEV’T CORP. – complaint, the filing of the amended complaint results in the
214 SCRA 295 [1992] withdrawal of the original complaint, hence, the defendant is
entitled to file an answer to the amended complaint as to which he
FACTS: Because of the filing of the motion to dismiss is 15 was not in default.
days, the defendant filed a motion to dismiss on the 8th day.
It was denied. So there is still 7 days to file an answer. On the Judicial discretion to admit answer filed out of time
15th day, instead of filing an answer, he filed a motion for
reconsideration but such motion was also denied. Can he still It is within the sound discretion of the trial court to permit the
file an answer? defendant to file his answer and to be heard on the merits after the
reglementary period for filing the answer expires. The Rules of
HELD: NO MORE. The filing of the motion to dismiss Court provides for discretion on the part of the trial court not only
interrupted the period to file an answer. When you receive an to extend the time for filing an answer but also to allow an answer
order, you still have the balance to file your answer. And you to be filed after the reglementary period. It is not correct to say
did not file an answer instead, you file a motion for that a trial court has no recourse but to declare a defending party
reconsideration. You took the risk. So defendant’s motion for in default when he fails to file an answer within the required
reconsideration which merely reiterated his ground in the period. In fact, the rule is that the answer should be admitted
motion to dismiss did not stay the running of the period to file where it is filed before a defending party is declared in default and
an answer. no prejudice is caused to the other party and that there is no
showing that the defendant intends to delay the case (Sablas vs.
Sablas GR 144568, July 3, 2007) The hornbook rule is that default
judgments are generally disfavored (Paramount Insurance Corp.,
vs. A.C. Ordonez Corporation, GR No. 175109, August 6, 2008).
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The issuance of orders of default should be the exception rather 1. File a motion to lift or set aside the order of default. The
than the rule and to be allowed only in clear cases of obstinate motion must be verified and under oath;
refusal by the defendant to comply with the orders of the trial 2. He must explain why he failed to file an answer due to
court (Lorbes vs. CA GR 139884 February 15, 2001) because suits FAME; and
should as much as possible, be decided on the merits and not on 3. He must also show that he has a meritorious defense.
technicalities (Samartino vs. Raon GR 131482 July 3, 2002). Thus, in
In such a case, the order of default may be set aside on such terms
practice, an answer under oath containing the defenses of the
and conditions as the judge may impose in the interest of justice
defendant, may under the rules on liberal interpretation, be
(Sec. 3b)
deemed as equivalent of an affidavit of merit.
Remedies of a defending party declared in default:
The policy of the law is to have every litigant’s case tried on the
merits as much as possible. Hence, judgments by default are
(1) Remedy after notice of order and before judgment – The
frowned upon. A case is best decided when all contending parties defendant must file a motion under oath to set aside the
are able to ventilate their respective claims, present their order of default and show that
arguments and adduce evidence in support thereof. (Sablas vs. a. the failure to answer was due to fraud,
Sablas GR 144568 July 3, 2007). accident, mistake or excusable negligence
(FAMEN) and that
HOW TO LIFT ORDER OF DEFAULT b. the defendant has a meritorious defense, i.e.,
there must be an affidavit of merit (Sec. 3[b],
(b) Relief from order of default. - A party Rule 9); Villareal vs. CA 295 SCRA 511;
Republic vs. Sandiganbayan GR No. 148154,
declared in default may at any time after
December 17, 2007; Republic vs.
notice thereof and before judgment file a Sandiganbayan, 540 SCRA 431)
motion under oath to set aside the order of
default upon proper showing that his failure (2) Remedy after judgment and before judgment becomes
to answer was due to fraud, accident, final and executor – The defendant may file a motion for
mistake or excusable negligence and that he new trial under Rule 37. He may also appeal from the
has a meritorious defense. In such case, the judgment as being contrary to the evidence or the law
(Talsan Enterprises, Inc. vs. Baliwag Transit, Inc. 310
order of default may be set aside on such
SCRA 156; Lina vs. CA 135 SCRA 637)
terms and conditions as the judge may
impose in the interest of justice. (3a, R18) (3) Remedy after the judgment becomes final and executory
– The defendant may file a petition for relief from
Q: What is the remedy of a defendant who has been declared in judgment under Rule 38 (Balangcad vs. Justices of the CA
default? GR No. 83888, February 12, 1992; Republic vs.
Sandiganbayan [supra])
A: One remedy under Section 3 paragraph [b] is that, provided
there is still no default judgment, he can still file a motion to set (4) Where the defendant has however, been wrongly or
improvidently declared in default, the court can be
aside the order of default upon a proper showing that his failure to
considered to have acted with grave abuse of discretion
answer was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable amounting to lack of jurisdiction and when the lack of
negligence) and that he has a meritorious defense. [The discussions jurisdiction is patent in the face of the judgment or from
on FAME is in Rule 37 – New Trial or Reconsideration] the judicial records, he may avail of the special civil
action of certiorari under Rule 65 (Balangcad vs. Justices,
Meaning, even if you are a victim of FAME, if you have no supra)
meritorious defense, the court will not lift the order of default.
Implied Lifting of the Order of Default
Upon proof, the court will set aside or lift the order of default and
will give the defendant an opportunity to answer, where he will “While it is true that there was no positive act on the part of the
plead his supposed meritorious defenses. In effect, he regains his court to lift the default order because there was no motion nor
standing in court. order to that effect, the anti-graft court’s act of granting
respondent the opportunity to file a responsive pleading meant the
Q: When can the defendant avail of this remedy? lifting of the default order on terms the court deemed proper in
the interest of justice. It was the operative act lifting the default
order and thereby reinstating the position of the original defendant
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Failure to Appeal without defendant's fault A: Both Bentong and Bayani will win the case. So Bayani will be
benefited by the answer of his co-defendant Bentong. Hence, there
Petition for Relief from Judgment within 60 days from notice of
judgment but within 6 months from entry thereof is still a possibility that a defaulted defendant can win based on our
example.
Annulment of Judgment under R 47
On the other hand it is absurd if the answer of Bentong will not
benefit the defaulting defendant.
PARTIAL DEFAULT
EXAMPLE: Gary filed a case against Bentong and Bayani based on a
(c) Effect of partial default. - When a pleading promissory note on a loan secured by both, and Bayani defaulted.
asserting a claim states a common cause of Bentong answered alleging payment. Suppose, Bentong proved
action against several defending parties, such defense, the effect is both Bentong and Bayani are absolved. If
some of whom answer and the others fail to you say that Bayani should lose because the answer of Bentong will
do so, the court shall try the case against all not benefit Bayani, there will be two conflicting decisions: “Bayani
upon the answers thus filed and render is in default and thus, should pay the loan; and there is no more
judgment upon the evidence presented. (4a, loan as far as Bentong is concerned.” Do you mean a loan is paid
R18) and at the same time unpaid? That’s absurd!
This presupposes that there are two or more defendants. Say, one NOTE: that to apply the principle, there must be a common cause
or some of the defendants made an answer and the others did not. of action. If there is no common cause of action, while there may
So, one or some of the defendants were declared in default, the be a trial, the answer of Bentong is only for him. After the trial,
others were not. Bentong might be absolved from liability but the defaulting
defendant Bayani will be held liable because Bentong’s answer
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. does not cover Bayani. That is when there is no common cause of
Bayani did not. Bayani was declared in default but there can be no action. In the case of
judgment against Bayani in the meantime because under
paragraph [c], the case will go to trial based on the answer of CO vs. ACOSTA (134 SCRA 185 [1985]) reiterating the case of
Bentong. The case will be tried against both Bentong and Bayani LIM TANHU vs. RAMOLETE (66 SCRA 425)
based on the answer of Bentong.
FACTS: Bentong and Bayani were (solidary debtors) sued by
Gary for a loan evidenced by a promissory note. Bentong filed
The principle here is that, the answer filed by the answering
an answer but Bayani defaulted. The case was tried based on
defendant will automatically benefit the non-answering defendant. Bentong’s answer. Gary move to drop Bentong from the case
The defense of Bentong will also be Bayani’s defense. Anyway but retained Bayani, the defaulted defendant so that Gary can
there is a common or identical cause of action. secure an immediate judgment.
So, there is no common cause of action among them. Q: Suppose during the trial, only P200,000 was proved. What
should be the amount of the default judgment?
ISSUE #2: Is the insurance company an indispensable party?
Because if it is so and he is removed from the case, the case A: Only P200,000 as proved because it did not exceed the amount
cannot proceed without him. prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the
amount prayed for in the complaint although it may be less than it.
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Now suppose he did not answer because he thinks the claim is fair A: UNLIQUIDATED DAMAGES are those which are still subject to
and so he will just pay. Then, the contingency is paragraph [d] – evidence before it can properly be awarded such as the
rest assured that the judgment will not exceed the amount or be presentation of receipts in terms of actual damages, or taking of
different in kind from that prayed for. At least, you will not be testimonies to determine mental anguish or besmirched reputation
surprised. in cases of moral damages.
Q: If the defendant filed an answer but failed to appear during trial, LIQUIDATED DAMAGES are those which are already fixed and
what will happen? proof or evidence to establish the same are not required. An
example is an obligation with a penal clause like an agreement to
A: The case will proceed and there will be a presentation of construct a house and upon failure to finish the same within a
evidence EX-PARTE. stipulated period, the contractor is liable for P10,000 for every day
of delay. The amount is already fixed based on the contract price
Now if a person is declared in default, it is also possible that an Ex and the penalty provided and such other circumstances as
Parte presentation of evidence will be ordered. stipulated.
MANGELIN vs. CA – 215 SCRA 230 [1992] So, in an action for unliquidated damages, let the defendant be
declared in default anyway the court can never award those
ISSUE: What is the difference between ex-parte presentation
damages. Because if I will zanswer, damages can be awarded. In
of evidence by virtue of default judgment AND ex-parte
other words, I will win the case simply because there is no way for
presentation of evidence by failure to appear during the trial
the court to award the damages. And most damages are usually
those unliquidated damages.
HELD: In reception of evidence due to DEFAULT ORDER,
paragraph [d] applies – the judgment cannot exceed the (e) Where no defaults allowed. - If the
amount or be different in kind from that prayed for in the defending party in an action for annulment or
complaint. declaration of nullity of marriage or for legal
separation fails to answer, the court shall
BUT if there’s an ex-parte reception of evidence against a order the prosecuting attorney to investigate
defendant who filed an answer but FAILED TO APPEAR during whether or not a collusion between the
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Rule 10
EXAMPLE: The plaintiff files his complaint or the defendant files his
answer and then later on he realizes that his cause of action is
AMENDED AND SUPPLEMENTAL PLEADINGS
wrong or that his defense is wrong. He would like to change his
Part I. AMENDMENTS complaint or change his answer. All he has to do is amend his
complaint or answer. The court cannot stop him from changing
Sec. 1. Amendments in general. - Pleadings
his complaint or changing his answer because the purpose of
may be amended by adding or striking out an
litigation is: the real nature of controversy will be litigated in
allegation or the name of any party, or by
court. You cannot normally stop the party from ventilating his real
correcting a mistake in the name of a party or
cause of action or his real defense so that the rule is that
a mistaken or inadequate allegation or
amendments should be liberally allowed in the furtherance of
description in any other respect, so that the
justice and that the real merits of the case will come out in court.
actual merits of the controversy may speedily
That is what you have to remember about concept of amendments
be determined, without regard to
and the policy of the rules on amendments.
technicalities, and in the most expeditious
and inexpensive manner. (1) TYPES OF AMENDMENTS:
Pleadings may be amended by: The following are the important points to remember here:
1) adding an allegation of a party FIRST, there are two types of amendment of pleadings under the
2) adding the name or substituting a party
rules:
3) striking out an allegation of a party;
4) striking out the name of a party;
1) An amendment as a matter of right; or
5) correcting a mistake in the name of a party; and
2) An amendment as a matter of judicial discretion
6) correcting a mistake or inadequate allegation or
description in any other respect.
SECOND, an amendment could be
So you can amend by removing something, adding something, or
1) a formal amendment; or
changing something by substituting another word. You can amend
2) a substantial amendment
by removing an entire paragraph, an entire sentence, a phrase, or a
word. As a matter of fact, before reaching Rule 10, there are These are the same classification under the Rules on Criminal
provisions where amendments have already been touched upon, Procedure under Rule 110.
one of which is Rule 1, Section 5:
Amendment as a MATTER OF RIGHT; and
Sec. 5. Commencement of action.- A civil Amendment as a MATTER OF JUDICIAL DISCRETION
action is commenced by the filing of the
original complaint in court. If an additional
defendant is impleaded in a later pleading, AMENDMENT AS A MATTER OF RIGHT simply means that the
the action is commenced with regard to him party has the unconditional action or right to amend his pleading.
on the date of the filing of such later The court has no right to prevent him from amending. The
pleading, irrespective of whether the motion opposite party has no right to oppose the amendment. If the court
for its admission, if necessary, is denied by refuses to admit the amended pleading such refusal is correctible
the court. by mandamus.
Q: What is the policy of the law on amendments? AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply
means that the court may or may not allow the amendment. So
A: Section 1 says that the purpose of amendment is that the actual the other party has the right to oppose. This is also known as
merits of the controversy may speedily be determined without amendment by leave of court.
regard to technicalities, and in the most expeditious and
inexpensive manner. According to the SC, amendments to AMENDMENT AS A MATTER OF RIGHT
pleadings are favored and should be liberally allowed in order
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Section 2 refers to an amendment made before the trial court, A motion to dismiss is not a responsive pleading
not to amendments before the Court of Appeals. The CA is vested
with jurisdiction to admit or deny amended petitions filed before it If a motion to dismiss is filed, an amendment to the complaint
(Navarro vs. Vda. De Taroma, 478 SCRA 336). would still be a matter of right during the pendency of the motion
to dismiss. Such a motion is not a responsive pleading and its filing
Q: How about if you want to amend your reply? You cannot say does not preclude the exercise of the plaintiff’s right to amend his
before a responsive pleading is served because there is no more complaint (Paeste vs. Jadrigue 94 Phil. 179; Republic vs. Ilao 4 SCRA
responsive pleading to the reply. 106; Remington Industrial Salesvs. CA 382 SCRA 499).
A: So under Section 2, the plaintiff can amend his reply at any time In a case, the defendant, instead of filing an answer filed a motion
within ten (10) days after it is served. to dismiss on the ground that the plaintiff is not a juridical person
and thus, cannot be a party to the case. The plaintiff filed a motion
Before the service of a responsive pleading, a party has the to admit an amended complaint which was admitted by the trial
absolute right to amend his pleading, regardless of whether a new court. As to whether or not plaintiff could so amend his complaint
cause of action or change in the theory is introduced (Bautista vs. as a matter of right, the Supreme Court reiterated the rule that a
Maya-Maya Cottages, Inc. 476 SCRA 416). party may amend his pleading once as a matter of right at any time
before a responsive pleading is served. The Court declared that a
Applicability of Mandamus motion to dismiss is not a responsive pleading and so the duty of
the trial court is to admit the amended complaint. Such duty is a
The court would be in error if it refuses to admit an amended
ministerial one because the amendment, under the circumstances,
pleading when its exercise is a matter of right. This error is
is a matter of right. In fact the plaintiff should not have filed a
correctible by mandamus (Breslin vs. Luzon Stevedoring 84 Phil.
motion to admit the amended complaint (Alpine Lending Investors
618; Ong Peng vs. Custodio 1 SCRA 780) because the trial court’s
vs. Corpuz 508 SCRA 45).
duty to admit an amended complaint made as a matter of right is
purely ministerial (Alpine Lending Investors vs. Corpuz 508 SCRA Even if the motion to dismiss is granted by the court, the plaintiff
45). may still amend his complaint as a matter of right before the
dismissal becomes final as long as no answer has yet been served.
Q: Is there any other instance when amendment is a matter of
(Bautista vs. Maya-Maya Cottages Inc. [supra]).
right even if there is already an answer or even in the middle of
the trial? Following the above rule, an amendment to the complaint sought
to be made one month after notice of the order dismissing the
A: Yes, there is a second instance, when the amendment is
complaint can no longer be allowed because the order of dismissal
FORMAL IN NATURE as found in Section 4:
has already become final due to the failure to perfect an appeal. As
a rule, the aggrieved party must perfect his appeal within the
Sec. 4. Formal amendments. - A defect in the
period as provided for by law. The rule is mandatory in character. A
designation of the parties and other clearly
party’s failure to comply with the law will result in the decision
clerical or typographical errors may be
becoming final and executory and, as such, can no longer be
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After a responsive pleading is filed, an amendment to the 1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
complaint may be substantial and will correspondingly require a
substantial alteration in the defenses of the adverse party. The
amendment of the complaint is not only unfair to the defendant The second sentence of Section 3 says that such leave may be
but will cause unnecessary delay in the proceedings. Leave of court refused if it appears that the motion was made with intent to
is thus, required. On the other hand, where no responsive pleading delay. Meaning, the motion to amend is dilatory.
has yet been served, no defenses would be altered. The
Example: a case is filed against the defendant based on a cause of
amendment of the pleading will not then require leave of court
action then trial…trial…then the case is already about to end. Then
(Siasoco vs. CA 303 SCRA 186).
the plaintiff says he wants to amend his complaint and change his
Amendment discretionary cause of action. I don’t think the court will allow it. That’s too
much.
Under R 10 Sec. 3 of the 1997 Revised Rules of Court, the trial court
is accorded sound discretion to grant or deny the admission of any Or, the defendant will say that he would like to change his defense.
proposed substantial amendments to a pleading after a responsive I don’t think the court will agree with that situation because it
pleading has been filed. Generally, where the trial court has appears that the motion to amend is already dilatory. Why did it
jurisdiction over the case, proposed amendments are denied if such take you one year to realize that your cause of action or your
would result in delay, or would result in a change of a cause of defense is wrong? So that is a limitation where the court may
action or defense or change the theory of the case, or are refuse to apply the principles on liberality. The liberal policy
inconsistent with the allegations in the original complaint. (Vivian becomes weaker or is working against you the longer you delay
Locsin, et al., vs. Sandiganbayan, et al., GR No. 134458, August 9, your amendment because it might already be interpreted to be
2007) dilatory.
Now if you will notice, there is another limitation found in the old
rules that is gone here, and that is: That the amendment will not
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Similarly, in an action for damages filed before the then CFI against
presented by the parties during the trial and was not objected to.
a sheriff for an alleged illegal levy upon the property of the
The provision also covers situations where, to conform to evidence
plaintiff, the latter sought to amend his complaint after an answer
not objected to by the adverse party. Thus, a complaint which fails
has been served by the defendant. The amendment was made
to state a cause of action may be cured by evidence presented
when the plaintiff realized that the amount alleged as damages was
during the trial.
below the jurisdiction of the court. The SC held that it was error to
admit the amendment because the court must first acquire For example, a complaint filed by a guarantor to collect a sum of
jurisdiction over the subject matter of the complaint in order to act money from the debtor fails to state a cause of action if the
validly on the same including its amendment (Gaspar v. Dorado 15 complaint does not allege that the creditor of the debtor has been
SCRA 331). paid by the guarantor even if in fact there was payment. However,
if during the course of the proceedings, evidence is offered on the
In other words, if based on the original complaint the court has no
fact of payment without objection from the debtor, the defect in the
jurisdiction over the subject matter and the defendant has already
complaint was cured by the evidence. The plaintiff may then move
filed an answer, can I still amend the complaint so that the court
for the amendment of his complaint to conform to the evidence.
will have jurisdiction? No, that will not be allowed. So, jurisdiction
(Philippine Export and Foreign Loan Guarantee Corporation vs.
by the court cannot be conferred by amendment when the original
Philippine Infrastructures Inc. 419 SCRA 6).
complaint shows that the court has no jurisdiction.
No amendment where no cause of action exists:
EXAMPLE: I will file a complaint for an unpaid loan and the amount
is exactly P200,000 only. Where should I file the complaint? MTC. Q: May a complaint that lacks a cause of action at the time it was
But by mistake I file it in the RTC and later I realized that the case filed be cured by the accrual of a cause of action during the
should have been filed in the MTC because the jurisdiction of the pendency of the case?
RTC should be above P200,000. So I will amend my complaint and
change the complaint and say that my claim is P200,001.00. The This was the basic issue raised in one significant case (Swagman
obvious purpose of the amendment is to make the case fall within Hotels and Travel Inc vs. CA, 455 SCRA 175). When the case was
the jurisdiction of the RTC. According to the SC, it cannot be done. filed none of the promissory notes subject of the action was due
and demandable but two of the notes became due during the
The rule here is when in its face, the complaint shows that the pendency of the action.
court has no jurisdiction over the subject matter, the court has no
authority to act in the case. And if you move to amend it and ask Sec. 5 of Rule 10 allows a complaint that does not state a cause of
the court to allow the amendment, you are assuming that the court action to be cured by evidence presented without objection during
has the authority to act on the case. But the court can’t allow it the trial. The trial court ruled that even if the private respondent
because the court has no authority to act. So the court even is not had no cause of action when he filed the complaint for a sum of
authorized to allow the amendment because it has no authority to money and damages because none of the three promissory notes
act in the first place. How can you allow something when you do was due yet, he could nevertheless recover on the first two
not have the authority to act? promissory notes which became due during the pendency of the
case in view of the introduction of evidence of their maturity
So according to the SC, when its on very face the complaint shows during the trial.
that the court has no jurisdiction, the court has only one authority
and its only authority is to dismiss the case. So with that an The court rules that such interpretation is erroneous. It further
amendment cannot confer jurisdiction. said:
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF “Amendments of pleadings are allowed under Rule 10 of the 1997
CURING A PREMATURE OR NON-EXISTING CAUSE OF ACTION Rules of Civil Procedure in order that the actual merits of a case
may be determined in the most expeditious and inexpensive
Meaning, on its very face, there is no cause of action, there is no manner without regard to technicalities, and that all other matters
case. There is no delict or there is no wrong. Now how can you included in the case may be determined in a single proceeding,
create a delict or wrong by amending your complaint? In effect, thereby avoiding multiplicity of suits. Section 5 thereof applies to
you are creating something out of nothing. situations wherein evidence not within the issues raised in the
pleadings is presented by the parties during the trial, and to
Amendment to cure a failure to state a cause of action:
conform to such evidence the pleadings are subsequently amended
on motion of a party. Thus, a complaint which fails to state a cause
If the complaint failed to aver the fact that certain conditions
of action may be cured by evidence presented during the trial.
precedent were undertaken and complied with, the failure to so
allege the same may be corrected by an amendment to the
“However, the curing effect under Section 5 is applicable only if a
complaint. Section 5 of Rule 10 likewise applies to situations
cause of action in fact exists at the time the complaint is filed, but
wherein evidence not within the issues raised in the pleadings is
the complaint is defective for failure to allege the essential facts.
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1.) In a NON-EXISTENT cause of action, there is yet no AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
delict or wrong committed by the defendant
(Limpangco vs. Mercado, 10 Phil. 508)
whereas
Now, the classifications of amendments under the rule on criminal
In an IMPERFECT cause of action, a delict or wrong procedure are the same because there is such a thing as
has already been committed and alleged in amendments on the criminal complaints or information as a matter
the complaint, but he cause of action is of right on the part of the prosecution and amendments as a
incomplete (Alto Surety vs. Aguilar, L-5625, matter of judicial discretion. And under the rules of criminal
March 16, 1945); and procedure, an amendment can either be formal or substantially
received. There is some difference in the rules.
2.) a NON-EXISTENT cause of action is not curable by
amendment (Limpangco vs. Mercado, 10 Phil. How do you differentiate the amendment of a pleading, under the
508; Surigao Mine vs. Harris, 68 Phil. 113) rules on civil procedure and the amendment of a criminal
whereas complaint or information in criminal cases? Take note that there is
no Answer in criminal cases. The accused is not obliged to file
an IMPERFECT cause of action is curable by
answer but the counterpart of answer in criminal cases is the plea,
amendment (Alto Surety vs. Aguilar, L-5625,
where he pleads either guilty or not guilty.
March 16, 1945; Ramos vs. Gibbon, 67 Phil.
371). Under the rules on criminal procedure, at anytime before the
arraignment or before he enters plea, the amendment of
BAR QUESTION: Suppose the filing of the complaint will lapse on
information is a matter of right, either in form or in substance.
January 20 and I will file the complaint today so the running of
EXAMPLE: The prosecution files information against you for
the period will be interrupted. Suppose I will amend my
homicide and then the prosecution wants to agree to murder. Can
complaint next month, on February. Question: Is prescription
it be done? YES, for as long as the accused has not yet entered his
properly interrupted? When an original complaint is amended
plea.
later, when is the prescriptive period for filing the action
interrupted? Upon the filing of the original complaint or upon the So it is almost the same as in civil cases. For as long as there is no
filing of the amended complaint? responsive pleading, the amendment is a matter of right, whether
in substance or in form.
A: It DEPENDS upon the nature of the amendment:
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plaintiff has a valid and subsisting cause of action at the time his
Q: Is my ruling correct?
action is commenced, the defect cannot be cured or remedied by
the acquisition or accrual of one while the action is pending, and a A: YES because of Rule 9, Section 1 – objections and defenses not
supplemental complaint or an amendment setting up such after raised in the answer are deemed waived.
accrued cause of action is not permissible. The action in the case at
bar is prematurely brought and is, therefore, a groundless suit, The defendant will now move to be allowed to amend the pleading
which should be dismissed by the court upon proper motion so that I raised that defense. The plaintiff will object to the
seasonably filed by the defendant. The underlying reason for this amendment. The judge will ask the plaintiff, “is the obligation
rule is that a person should not be summoned before the public paid?” “NO. The defendant never paid it,” answered the plaintiff.
tribunals to answer for complaints which are premature. (Swagman So if the defense is false, why are you afraid? Anyway, he cannot
Hotels and Travel, Inc. vs. CA and Neal Christian, GR No. 161135, prove it. So I will allow the amendment.
April 8, 2005)
However, if the plaintiff will answer that the defendant has already
Q: But suppose the parties never bothered to amend the pleadings, paid the obligation but that he never raised such matter in his
is there a valid judgment? answer. The plaintiff now will be in bad faith. So I will allow the
amendment.
A: YES because the law says, “but failure to amend does not affect
the result of the trial of these issues.” So, there is a valid trial and So in other words, in any way my ruling is correct because I know
the court acquires jurisdiction over the issues because of their how to apply the rule. So the court will allow the amendment and
implied or express consent. The best example is FAILURE TO shall do so with liberality… so LIBERALITY should be the rule on
OBJECT. amendment. Section 5 is a rule more on equity. While, Rule 9,
Section 1 is a rule of law. Section 5 is a relaxation of that law on
“if the evidence is objected to at the trial on the ground technicality.
that it was not within the issues made by the pleadings,
the court may allow the pleadings to be amended and The last sentence, “the court may grant a continuance to enable
shall do so with liberality if the presentation of the merits the amendment to be made.” ‘Continuance’ means postponement.
of the action and the ends of substantial justice will be It means, postponement of the case to allow the defendant to
subserved thereby.” amend his answer first.
EXAMPLE: The defendant during the trial attempted to prove the Part II. SUPPLEMENTAL PLEADINGS
obligation that it is paid. The lawyer of the plaintiff is alert and
objected thereby, “You cannot prove that defense because you Sec. 6. Supplemental pleadings. - Upon
never raise a defense of payment in your answer.” Is the objection motion of a party the court may, upon
correct? YES because of Rule 9, Section 1. The court affirmed the reasonable notice and upon such terms as are
plaintiff that one cannot prove the defense of payment because just, permit him to serve a supplemental
you never raised it in your answer. There is no express or implied pleading setting forth transactions,
consent. occurrences or events which have happened
since the date of the pleading sought to be
Q: But the defendant said, “If that is so your honor, may we be supplemented. The adverse party may plead
allowed to amend our answer so that we will now raise the thereto within ten (10) days from notice of
defense of payment and prove it in court?” Can the court allow the the order admitting the supplemental
defendant to amend his answer in the middle of the trial just to pleading. (6a)
prove a defense that is not raised?
The second part of Rule 10 is on supplemental pleadings
A: The rule says YES, the court may allow the pleadings to be
amended and shall do so with liberality if the presentation of the A supplemental pleading is one which avers facts occurring after
merits of the action and the ends of substantial justice will be the filing of the original pleadings and which are material to the
subserved thereby. matured claims and/or defenses therein alleged. (Herrera vol. 1 p.
603)
That is why you can say that the power of the court in enforcing the
Rules of Court is very wide. For example, I am the judge and the Cause of action in supplemental pleadings
defendant never raised the issue of payment in his answer and he
is now rising such defense. The plaintiff’s lawyer will now object The cause of action stated in the supplemental complaint must be
and alleged that he cannot prove such defense for he never raised the same as that stated in the original complaint. Otherwise, the
it in his answer. The judge sustained the objection, “You cannot court should not admit the supplemental complaint (Asset
prove a defense that is never raised in your answer.” Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)
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When the cause of action stated in the supplemental complaint is That is the distinction emphasized in the New Rule – Rule 11,
different from the causes of action mentioned in the original Sections 9 and 10:
complaint’ the court should not admit the supplemental complaint;
the parties may file supplemental pleadings only to supply Rule 11, Section 9. Counterclaim or cross-claim
deficiencies in aid of an original pleading, but not to introduce new arising after answer. – A counterclaim or cross-
and independent causes of action (Young vs. Spouses Sy, 503 SCRA claim which either matured or was acquired by a
151). party after serving his pleading may, with the
permission of the court, be presented as a
counterclaim or cross-claim by supplemental
Answer to a supplemental pleading; not mandatory
pleading before Judgment.
“Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court are Rule 11, Section 10. Omitted counterclaim or cross
relevant, thus: claim. – When a pleader fails to set up a
counterclaim or a cross-claim through oversight,
Sec. 6. Supplemental pleadings. – xxxxx The adverse inadvertence, or excusable neglect, or when
party may plead thereto within ten (10) days from justice requires, he may, by leave of court, set up
notice of the order admitting the supplemental the counterclaim or cross-claim by amendment
pleading. before judgment.
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That is related to the rule in evidence that what need not be Q: Is that proper?
proved: judicial notice, judicial admissions.
A: YES because these are not two separate loans but one loan and
THIRD DISTINCTION: the installments are interrelated.
The filing of an AMENDED pleading could be a matter of right SUPERCLEAN SERVICES INC. vs. CA – 258 SCRA 165 [1996]
or of judicial discretion under Sections 2 and 3; whereas
The filing of a SUPPLEMENTAL pleading is always a matter of FACTS: Superclean Service Corp. is a company engaged in
judicial discretion under Section 6. There is always leave of janitorial services. A government corporation, the Home
court. Development and Mutual Fund (HDMF) sought a public
bidding on who will be the company who shall provide
Now, let us cite cases which are relevant to our topic on janitorial services to the offices of the HDMF for the year
supplemental pleadings. 1990.
LEOBRERA vs. CA – 170 SCRA 711 Superclean won as it was the lowest bidder. It was suppose to
start providing the service for the year 1990. However, the
FACTS: Karen went to the bank and obtained a loan – housing
HDMF refused to honor the award. So, on November 8, 1989,
loan. A promissory note was issued payable next year. After
Superclean filed in the RTC of Manila a complaint for
few months, Karen went back to the bank and secured a
mandamus and certiorari against HDMF alleging that at public
second loan – agricultural loan with another promissory note.
bidding for janitorial services for the year 1990, it won as the
lowest bidder but HDMF refused without just cause, to award
When the first note became due, Karen failed to pay. So the
the contract to them.
bank sued Karen on the first promissory note. When the case
was still going on, the second loan became due. So the bank
The problem was that 1990 already ended and the case was
sought to file a supplemental complaint against Karen to
still on-going. So it was already rendered moot and academic.
collect the second loan. The maturity of the second loan
What Superclean did was to file a supplemental complaint in
1991 alleging that because the contract of service was the
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EXAMPLE: A party would to insert an entirely new paragraph. That It has been held however, that the original complaint is deemed
paragraph would be underlined. The purpose for such marking is superseded and abandoned by the amendatory complaint only if
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Rule 11
excluded and of course the last day is included. And if the last day
is the next working day, it is done on the next business day. Here,
WHEN TO FILE RESPONSIVE PLEADINGS
there is an automatic extension.
What are discussed in this rule are periods. The question when a
defendant wants to file an answer is, “How many days does he Rule 22, Sec. 2. Effect of interruption. Should
have?” There must be a deadline. Rule 11 applies to all persons – an act be done which effectively interrupts
natural and juridical such as a corporation. the running of the period, the allowable
period after such interruption shall start to
SECTION 1. Answer to the complaint. The run on the day after notice of the cessation of
defendant shall file his answer to the the cause thereof.
complaint within fifteen (l5) days after
service of summons, unless a different period The day of the act that caused the
is fixed by the court. (1a) interruption shall be excluded in the
computation of the period. (n)
Section 1 is the GENERAL RULE – the defendant has a period of 15
days after service of summons within which to file his answer. The Alright, a good example of this is the period to file an answer which
procedure is when a plaintiff files a complaint in court, the court is 15 days and then you filed a motion to dismiss under Rule 16
will issue summons (which is the counterpart of warrant of arrest somewhere in between. Now, what is the principle to be
in criminal cases). The sheriff of the court will look for the remembered here?
defendant and serve him a copy of the complaint. From that day
on, the defendant has 15 days to file his answer. The filing of the motion to dismiss will now interrupt the running of
the 15-day period. And when your motion is denied, if you receive
The rules says, “unless a different period is fixed by the court.” That the order of the denial now, you continue computing the balance
would be the EXCEPTION to the 15-day period to file answer. Now, within the remaining period to file your answer.
when are these instances when the court may fix a different
period? They are those mentioned in Rule 14, Sections 14, 15, and Now, some people can’t understand this second sentence – “The
16 –these are instances when service of summons by publication is day of the act that caused the interruption shall be excluded in the
prescribed. computation of the period.” The meaning of this is exemplified in
the case of LABITAD vs. CA (July 17, 1995). For EXAMPLE:
Let’s give example to the general rule.
We will assume that on November 30 (end of the month), you were
EXAMPLE: If the defendant is served with a copy of the complaint served with summons by the court. So you have 15 days to file your
and summons today (January 13,1998), the last day to file an answer from November 30. Let us say, on December 10, you filed a
answer will be January 28, 1998. Just add 15 days to January 13. motion to dismiss under Rule 16. So, the remaining of the period to
file an answer is interrupted. And let us say on December 15 or 5
In computing the period, you follow the rule known as “exclude the days thereafter, your motion was denied, you receive a copy of the
first, include the last day rule” under Article 13 of the New Civil order of denial.
Code. I think you know how to apply that. When you receive the
complaint today or when you are summoned today, you start My QUESTION is, how many days more do you have or left to file
counting the period tomorrow. Such rule is also found in Section 1 your answer? Five days?
of Rule 22 on Computation of Time:
How many days did you consume?
Rule 22, Sec. 1. How to compute time. - In
computing any period of time prescribed or From November 30 to December 10 = 10 days, and from December
allowed by these Rules, or by order of the 10 to December 15 = not counted. And you still have 5 days, so
court, or by any applicable statute, the day of December 20.
the act or event from which the designated
period of time begins to run is to be excluded Now if you ask majority of lawyers here, they will give the same an-
and the date of performance included. If the swer. BUT according to LABITAD, that computation is wrong. You
last day of the period, as thus computed, falls actually have six (6) days.
on a Saturday, a Sunday, or a legal holiday in
So your deadline to file you notice to appeal is December 21. Why?
the place where the court sits, the time shall
not run until the next working day. (n)
Now, when did you file your motion? December 10. Therefore,
December 10 is not counted because it is already interrupted.
Under Section 1, Rule 22 the act itself from which the designated
period of time where the case will run is to be excluded. Meaning,
So actually, you did not consume 10 days but only 9 days. That is
when you receive the summons, you count one but today is
the explanation of the SC in the case of LABITAD – the day you filed
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a) When the foreign corporation has a designated resident Sec.3. Answer to amended complaint. Where
agent, the summons shall be served to the resident the plaintiff files an amended complaint as a
agent, and he has 15 days to answer, just like any matter of right, the defendant shall answer
defendant in Section 1. the same within fifteen (l5) days after being
served with a copy thereof.
b) On the other hand, if the foreign corporation does not
have any designated resident agent in the Philippines,
Where its filing is not a matter of right, the
then under the Corporation Code, the summons shall be
served to the government official designated by law to defendant shall answer the amended
receive the same, who is duty bound to transmit it to the complaint within ten (10) days from notice of
head office of the corporation abroad. And the the order admitting the same. An answer
corporation now has 30 days from receipt of summons earlier filed may serve as the answer to the
to file its answer. amended complaint if no new answer is filed.
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Sec. 8. Existing counterclaim or cross-claim. A A: YES, upon motion and on such terms as may be just, the court
compulsory counterclaim or a cross-claim may extend the time to plead.
that a defending party has at the time he files
Normally, the lawyer will file a motion for extension of time to
his answer shall be contained therein. (8a,
answer on the 15th, the 14th, or the 13th day. That’s very
R6)
common. The common reason of the lawyers for the extension is
One of the requisites to make a counterclaim compulsory is that pressure of work. Others are because of the traditional mañana
the defending party has the counterclaim at the time he files his habit. We usually act during the deadline.
answer. This is related with Section 7, Rule 6.
Take note that when you file your motion for extension, do it
Sec. 9. Counterclaim or cross-claim arising within the original 15-day period. Do not file your motion on the
after answer. A counterclaim or a cross-claim 16th day because there is nothing to extend. So the extension is
which either matured or was acquired by a usually filed within the 15-day period.
party after serving his pleading may, with the
Q: Now what happens if the lawyer fails to file such a motion? So
permission of the court, be presented as a
the 15 days already expired, then on the 18th, he will now file an
counterclaim or a cross-claim by
answer. Now what should the lawyer do?
supplemental pleading before judgment. (9,
R6) A: The lawyer can use the second paragraph, “The court may also,
upon like terms, allow an answer or other pleading to be filed after
Sec. 10. Omitted counterclaim or cross-claim.
the time fixed by these Rules.” The correct motion is “MOTION TO
When a pleader fails to set up a counterclaim
ADMIT LATE ANSWER.”
or a cross-claim through oversight,
inadvertence, or excusable neglect, or when EXAMPLE: The deadline is 3 days ago. I failed to file my answer but
justice requires, he may, by leave of court, now it is ready. So, “motion to admit belated answer.”
set up the counterclaim or cross-claim by
amendment before judgment. (3a, R9) Normally, the courts here are liberal in allowing extensions. The
general rule is that the court frowns on default. As such as possible
We already discussed this before. As a matter of fact, Sections 9 both sides must be heard. So in the spirit of liberality, courts are
and 10 illustrates the distinction between an amended pleading to usually liberal in allowing these extensions in time to file answers.
a supplemental pleading.
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PLEADING PERIOD
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Rule 12
movant may be deprived of the opportunity to submit an
intelligent responsive pleading.
BILL OF PARTICULARS
When not proper
Section 1. When applied for; purpose. Before 1) Since the purpose of the motion for bill of particulars is
responding to a pleading, a party may move to allow the movant to properly prepare his own
pleading, it would be erroneous for the motion to ask
for a definite statement or for a bill of
the court to order the adverse party to disclose or to set
particulars of any matter which is not averred forth in his pleading the evidences relied upon for his
with sufficient definiteness or particularity to cause of action or defense. These are matters obtainable
enable him properly to prepare his by the various modes of discovery. Besides under Sec. 1
responsive pleading. If the pleading is a reply, of Rule 8, pleadings are meant to contain only a direct
the motion must be filed within ten (10) days statement of the ultimate facts which constitute the
party’s claims or defenses. Matters of evidentiary facts
from service thereof. Such motion shall point
are to be omitted.
out the defects complained of, the
paragraphs wherein they are contained, and 2) It would likewise not be proper for a motion for a bill of
the details desired. (1a) particulars to call for the production of the particulars
constituting malice, intent, knowledge, or condition of
Q: Define Bill of Particulars. the mind which, under Sec. 5 Rule 8, may be averred
generally. To require a pleader to do so would be to
A: A bill of particulars is a more definite statement of any matter require the statement of evidentiary facts in a pleading.
which is not averred with sufficient definiteness or particularity in
It would not however, be incorrect to move for a bill of
a pleading so as to enable the opposing party to prepare his
particulars to require the averment of the particular
responsive pleading. (Section 1)
circumstances of fraud or mistake. Under Sec. 5 Rule 8,
When filed such matters must be alleged with particularity.
The motion shall be filed before responding to a pleading. Hence, it 3) A motion for bill of particulars to require a pleader to set
must be filed within the period granted by the Rules (R11) for the forth matters showing the jurisdiction of the court to
render its judgment is not proper. The provisions of Sec.
filing of a responsive pleading.
6 Rule 8 are clear: In pleading a judgment it is sufficient
to aver the same generally.
The motion shall point out:
In Republic vs. Sandiganbayan 540 SCRA 431, the Court ruled that
1. The defects complained of; an allegation that the “defendant acted” ‘in unlawful concert’ with
2. The paragraphs wherein they are contained; and
the other defendant in illegally amassing assets, property and funds
3. The details desired.
in amounts disproportionate to the latter’s income”, is a proper
The motion must comply with the requirements for motions under subject of a motion for bill of particulars. Plaintiff is bound to clarify
Secs 4, 5, and 6 of R 15. Otherwise the motion will not suspend the the specific nature, manner and extent of the alleged collaboration
period to answer (Filipino Fabricator vs. Magsino, GR No. 47574, between the defendants. The allegation in the complaint does not
Jan. 29, 1988). actually state the ultimate facts to show the alleged “unlawful
concert”. Allegations couched in general terms are not statements
Purpose: To aid in the preparation of a responsive pleading of ultimate facts.
The purpose of the motion is to seek an order from which court An action cannot be dismissed on the ground that the complaint is
directing the pleader to submit a bill of particulars which avers vague or indefinite. The remedy of the defendant is to move for a
matters with “sufficient definiteness or particularity” to enable the bill of particulars or avail of the proper mode of discovery. (Galeon
movant to prepare his responsive pleading (Sec. 1), not to enable vs. Galeon GR No. L-30380, Feb. 28, 1973)
the movant to prepare for trial. Where the purpose of the movant
is to enable him to prepare for trial, the appropriate remedy is to Necessary that complaint states a cause of action
avail of the discovery procedures from Rules 23 to 29 and even of a
pre-trial under Rule 18. As long as the allegations of a complaint make out a cause of
action, the ambiguity in some allegations of the complaint or the
In less technical terms, a function of a bill of particulars is to clarify failure to allege facts with sufficient particularity does not justify
the allegations in the pleading so an adverse party may be the filing of a motion to dismiss. The proper remedy is to file a
informed with certainty of the exact character of a cause of action motion for a bill of particulars.
or a defense. Without the clarifications sought by the motion, the
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plaintiff’s consent is vague, So, I’m asking the plaintiff should give
prepare for trial. The motion shall specify the
more specifics. How did I fool you? In what way did I employ fraud?
alleged defects of the complaint or information
In what way was the fraud exercised?”
and the details desired. (10a)
There is an identical provision in Rule 116, Section 9 of the Rules on A: Many lawyers have abused Rule 12.
Criminal Procedure.
In what way? A complaint is filed but even if the allegations are
RULE 116, SEC. 9. Bill of particulars. – The accused clear he will file a motion for bill of particulars claiming that he
may, before arraignment, move for a bill of cannot understand. Then, he will set the motion for hearing 2
particulars to enable him properly to plead and weeks from now. Then the motion is denied because it has no
merit, then, and only then will he file an answer. In other words,
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Rule 13
Service upon the parties’ counsel of record is tantamount to service
upon the parties themselves, but service upon the parties
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS themselves is not considered service upon their lawyers. The
reason is simple – the parties, generally, have no formal education
or knowledge of the rules of procedure, specifically, the mechanics
Section 1. Coverage. This Rule shall govern of an appeal or availment of legal remedies; thus, they may also be
the filing of all pleadings and other papers, as unaware of the rights and duties of a litigant relative to the receipt
well as the service thereof, except those for of a decision. More importantly, it is best for the courts to deal only
which a different mode of service is with one person in the interest of orderly procedure – either the
prescribed. (n) lawyer retained by the party or the party himself if he does not
intend to hire a lawyer (De los Santos vs. Elizalde GR 141810 &
As a general rule, service of all pleadings is governed by Rule 13. So, 141812, February 2, 2007; Hernandez vs. Clapis, 87 Phil. 437; Javier
this rule governs pleadings “except those for which a different Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
mode of service is prescribed.” An example of the exception is the
service of complaint which is governed by Rule 14. So Rule 13 There was even a case when the client volunteered to get the copy
applies to all pleadings except complaint. of the decision. But he party failed to give it to his lawyer. Is the
lawyer bound, or is the party also bound? NO, because the rule is
What is the difference between filing and service of pleadings? service to lawyer binds the client and not the other way around.
Section 2:
So, to avoid all these problems, there must be a uniform rule
Sec. 2. Filing and service, defined. Filing is the UNLESS, the law says, SERVICE UPON THE PARTY HIMSELF IS
act of presenting the pleading or other paper ORDERED BY THE COURT.
to the clerk of court.
Example is in the case of
Service is the act of providing a party with a
copy of the pleading or paper concerned. If RETONI, JR. vs. CA – 218 SCRA 468 [1993]
any party has appeared by counsel, service
upon him shall be made upon his counsel or HELD: “Usually, service is ordered upon the party himself,
one of them, unless service upon the party instead of upon his attorney, [1] when it is doubtful who the
attorney for such party is, or [2] when he cannot be located or
himself is ordered by the court. Where one
[3] when the party is directed to do something personally, as
counsel appears for several parties, he shall when he is ordered to show cause.”
only be entitled to one copy of any paper
served upon him by the opposite side. (2a) There are rare circumstances however where service to the lawyer
doe,s not bind the client. These are cases of negligence; where the
When you say FILING, you present the pleading or other papers to lawyer is in bad faith for gross negligence; where he deliberately
the office of the clerk of court. When you say SERVICE, you furnish a prejudiced his client. So it is unfair that the party may be bound by
copy of the pleading or paper concerned to a party, or if he is the service to the lawyer because of those circumstances. One such
represented by a lawyer, you must furnish a copy of the pleading to instance happened in the case of
the lawyer.
BAYOG vs. NATINO – 258 SCRA 378 [1996]
The GENERAL RULE, when a party is represented by a lawyer, the
service should be to the lawyer and not to the party. Service to a
party is not valid. What is valid is service to the counsel. Service to HELD: “Notice to the lawyer who appears to have been
the lawyer binds the party. But service to the party does not bind unconscionably irresponsible cannot be considered as notice
the lawyer and the party, unless the court orders direct service to to his client. The application to the given case of the doctrine
the party. that notice to counsel is notice to parties should be looked
into and adopted, according to the surrounding
If a party has not appeared by counsel, then common reason circumstances; otherwise, in the court’s desire to make a
suggests that service must be made upon him. short cut of the proceedings, it might foster, wittingly or
unwittingly, dangerous collusions to the detriment of justice.
It has been held that notice or service made upon a party who is It would then be easy for one lawyer to sell one’s rights down
represented by counsel is a nullity. As a rule, notice to the client the river, by just alleging that he just forgot every process of
and not to his counsel of record is not notice in law unless for the court affecting his clients, because he was so busy.”
instance when the court or tribunal orders service upon the party
or when the technical defect in the manner of notice is waived Q: Now, if there are 5 defendants in the same case and there is
(Heirs of Benjamin Mendoza vs CA GR 170247, September 17, only one (1) lawyer for all, is the lawyer entitled to 5 copies also?
2008).
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HELD: “Where a pleading is filed by ordinary mail or by private It must be stressed that the affidavit is very important.
messengerial service, it is deemed filed on the day it is
actually received by the court, not on the day it was mailed or B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER
delivered to the messengerial service.”
PAPERS Sec. 4. Papers required to be filed and served.
What about filing by FAX machine? In the case of Every judgment, resolution, order, pleading
subsequent to the complaint, written motion,
GARVIDA vs. SALES, JR. - April 18, 1997 notice, appearance, demand, offer of
judgment or similar papers shall be filed with
HELD: “Filing a pleading by facsimile transmission is NOT
the court, and served upon the parties
sanctioned by the Rules of Court. A facsimile is not a genuine
and authentic pleading. It is, at best, an exact copy preserving affected. (2a)
all the marks of an original. Without the original, there is no
way of determining on its face whether the facsimile pleading Under the law, before you file, there must be service to the
is genuine and authentic and was originally signed by the opposing party’s counsel. And all documents, as a rule, shall be
party and his counsel. It may, in fact, be a sham pleading.” filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint…. Why subsequent’?
Q: Now, how do you prove that really the pleading was filed? Meaning, answer, counterclaim, cross-claim.
A: Section 12. This is a new rule on how to prove that a pleading is Q: Do you mean to tell me the complaint does not have to be
filed – served to the defendant by the plaintiff?
Sec. 12. Proof of filing. The filing of a pleading A: Of course not! It is the sheriff who will serve it to the defendant.
or paper shall be proved by its existence in So, the plaintiff does not really have to go to the defendant to
the record of the case. If it is not in the serve the complaint. The complaint is brought to the court because
record, but is claimed to have been filed the summons will be issued.
personally, the filing shall be proved by the
written or stamped acknowledgment of its But if you are the defendant’s lawyer, you go directly to the
filing by the clerk of court on a copy of the plaintiff’s lawyer to serve the answer because an answer is a
same; if filed by registered mail, by the pleading ‘subsequent’ to the complaint. Moreover, the manner of
registry receipt and by the affidavit of the serving complaint is not governed by 13 but by Rule 14.
person who did the mailing, containing a full
statement of the date and place of depositing Alright, every paper is required to be filed and served. Some people
the mail in the post office in a sealed do not understand this – “Every judgment, resolution, order… shall
envelope addressed to the court, with be filed with the court and served to the parties...” Well of course,
postage fully prepaid, and with instructions with respect to pleadings, motions, etc., you file and serve because
to the postmaster to return the mail to the there must be proof of service to the adverse party.
sender after ten (10) days if not delivered. (n)
Sec. 5. Modes of service. Service of pleadings,
Q: Suppose I filed it in court PERSONALLY, but it is not there, motions, notices, orders, judgments and
therefore, there is no showing that I filed it in court personally. So other papers shall be made either personally
how do I prove it? or by mail. (3a)
A: Just show your copy which is duly stamped and received by the Q: How do you SERVE a pleading to the opposite party?
court. Definitely, the fault is not yours but with the clerk of court.
A: Either:
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of
it, it had been lost between the post office and the court? 1) personally (Sec. 6)or
2) by mail (Sec. 7); or
A: Prove it by presenting the registry receipt and the affidavit of 3) Substituted service under Section 8 in case of failure of
the server, the personal service or by registered mail
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In Marinduque Mining and Industrial Corporation, GR 161219, HELD: NO. The address of the lawyer is at the 9th floor. So,
October 6, 2008, petitioners maintain that the trial court should you serve it on the 9th floor and not at the ground floor with
have considered the notice of appeal as not filed at all because somebody who is not even connected with the law office.
respondent (NAPOCOR) failed to comply with the rule under Sec.
11 requiring that the service and filing of pleadings and other “Notices to counsel should properly be sent to the address of
papers shall be done personally. On the other hand, respondent record in the absence of due notice to the court of change of
argues that the rules allow resort to other modes of service and address. The service of decision at the ground floor of a
filing as long as the pleading was accompanied by a written party’s building and not at the address of record of the party’s
explanation why service or filing was not done personally. counsel on record at the 9th floor of the building cannot be
Respondent maintains that it complied with the rules because the considered a valid service.”
notice of appeal contained an explanation why it resorted to
“Service upon a lawyer must be effected at the exact given
service and filing by registered mail – due to lack of manpower to
address of the lawyer and not in the vicinity or at a general
effect personal service.
receiving section for an entire multi-storied building with
The Court held: many offices.”
“Under Sec. 11, Rule 13 of the Rules, personal service of pleadings But the case of PLDT should not be confused with what happened
and other papers is the general rule while resort to the other in the case of
modes of service and filing is the exception. When recourse is
PCI BANK vs. ORTIZ – 150 SCRA 680 [1987]
made to the other modes, a written explanation why service or
filing was not done personally becomes indispensable. If no
explanation is offered to justify resorting to the other modes, the FACTS: This time, the office of the lawyer is located on the 5th
discretionary power of the court to expunge the pleading comes floor. And again, the habit of the process server is that instead
into play. of going to the 5th floor, he would just approach the receiving
station on the ground floor. Now, of course the receiving
In this case, NAPOCOR complied with the Rules. NAPOCOR’s notice
clerk, everytime the lawyer passes by, gave it to the lawyer.
of appeal was served and filed by registered mail – due to lack of
And the lawyer here did not question the practice.
manpower to effect personal service. This explanation is acceptable
for it satisfactorily shows why personal service was not practicable. Now, when a decision against PCI Bank was served, the lawyer
(Citing Solar Team Entertainment, Inc. vs. Ricafort, 355 Phil. 404; claimed they are not bound because there was no proper
Public Estates Authority vs. Caoibes, 371 Phil. 688). service.
How are pleadings served personally? ISSUE: Was there proper service?
Personal service is made by: HELD: While is true that the service was improper, but the
trouble is, it was going on for some time and you are not
(a) delivering a copy of the papers served personally to the
party or his counsel, or
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Respondent COA contends that the service of the COA resolution to Take note, comparing Section 7 with Section 3, service by ordinary
petitioner’s resident corporate auditor is tantamount to a service mail may be allowed for purposes of service (Section 7), but for
upon the petitioner itself. Petitioner, on the other hand, argues purposes of filing (Section 3), the law does not recognize the
that the resident corporate auditor is not its employee but that of ordinary mail. If you do it, it will be treated as personal filing. In
the respondent. registered mail, the date of receipt is considered the date of filing
not the date of mailing.
The SC agreed with the contention of the DBP that the resident
corporate auditor of the DBP is neither an official nor an employee Q: Now, when is service by mail deemed complete?
of the DBP. He does not come within the definition of “clerk or
A: Section 10:
person having charge” of the office that may be validly served with
a copy of the resolution of the respondent as contemplated by the
Sec. 10. Completeness of service. xxxxxx
Rules. In fact, the resident corporate auditor is an extension of the
Service by ordinary mail is complete upon the
respondent COA and no department of the petitioner was actually
expiration of ten (10) days after mailing,
served with a copy of the resolution. (DBP v.COA GR 166933 August
unless the court otherwise provides.
10, 2006).
Service by registered mail is complete upon
Q: So, when is personal service complete?
actual receipt by the addressee, or after five
(5) days from the date he received the first
A: It is completed upon actual delivery.
notice of the postmaster,xxx
a) By handling a copy to defendant; or
b) tendering him a copy if he refuses. Note: whichever date is earlier. (8a)
Sec. 10. Completeness of service. Personal So that is for the people who refuse to claim their mail even if they
service is complete upon actual delivery. are already notified. He knows it is an order he expects to be
Service by ordinary mail is complete upon the adverse so he will try to defeat the service by not claiming it. NO,
expiration of ten (10) days after mailing, you are at a disadvantage because after the expiration of so many
unless the court otherwise provides. Service days, service is deemed completed. That is what you call
by registered mail is complete upon actual@ CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the
receipt by the addressee, or after five (5) process of the law by simply not claiming his mail. You can be
days from the date he received the first bound by a decision which you never read. That is constructive
notice of the postmaster, whichever date is service.
earlier. (8a)
SUBSTITUTED SERVICE OF PLEADINGS
SERVICE OF PLEADINGS BY MAIL Sec. 8. Substituted service. If service of
pleadings, motions, notices, resolutions,
orders and other papers cannot be made
Sec. 7. Service by mail. Service by registered under the two preceding sections, the office
mail shall be made by depositing the copy in and place of residence of the party or his
the office, in a sealed envelope, plainly counsel being unknown, service may be
addressed to the party or his counsel at his made by delivering the copy to the clerk of
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Substituted service is effected by delivering the copy to the clerk of The registry return card shall be filed immediately upon its receipt
court, with proof of failure of both personal service and service by by the sender. Or, in lieu thereof, of the unclaimed letter together
mail (Sec. 8). with the certified or sworn copy of the notice given by the
postmaster – that is a constructive service.
How to prove service
Now in practice among lawyers when we serve by registered mail,
Sec. 13. Proof of service. Proof of personal we only attach the original in the registry receipt and there is a
service shall consist of a written admission of quotation there in the original pleading, “Copy sent by registered
the party served, or the official return of the mail, this 17th day of January, 1998 to Atty. Juan dela Cruz, counsel
server, or the affidavit of the party serving, for the plaintiff per registry receipt no. 123 hereto attached,” and
containing a full statement of the date, place nobody complains.
and manner of service. If the service is by
ordinary mail, proof thereof shall consist of But in reality, the law does not allow that. There must be an
an affidavit of the person mailing of facts affidavit of the person who mailed it. The surrender of a registry
showing compliance with section 7 of this receipt alone is not sufficient because if you send the registry
Rule. If service is made by registered mail, receipt, it is not reflected to whom that letter is addressed so how
proof shall be made by such affidavit and the will the court know that the registry receipt really corresponded to
registry receipt issued by the mailing office. the pleading that you mailed? It might be another letter like a love
The registry return card shall be filed letter for your girlfriend or a letter to your creditor. The registry
immediately upon its receipt by the sender, receipt will not indicate kung ano ang na-mailed to his address. But
or in lieu thereof the unclaimed letter we just allow it because it is too tedious – everytime you file,
together with the certified or sworn copy of affidavit?!!
the notice given by the postmaster to the
addressee. (10a) But take note, the CA and the SC enforce this strictly. Even if you
mail a petition at may nakalagay na “Copy sent by registered mail”
Q: How do you prove that you furnished the opposing lawyer a without the affidavit, outright dismissal yan for lack of proof of
copy by PERSONAL SERVICE? service. The SC and the CA are very strict about this requirement.
a) through the written admission of the party served as Sec. 9. Service of judgments, final orders or
admitted that he had been furnished with a copy. resolutions. Judgments, final orders or
b) The other alternative is that you file the affidavit of your resolutions shall be served either personally
employee, or messenger, that he served the copy in the
or by registered mail. When a party
office of so and so. (containing full statement of facts).
summoned by publication has failed to
c) Or, the official return of the server for judgments,
orders, etc., from the court. appear in the action, judgments, final orders
or resolutions against him shall be served
The procedure is that there is a pleading and in the last portion upon him also by publication at the expense
there is that part which states: of the prevailing party. (7a)
Copy received : January 16, 1998 There are three (3) modes again of serving court orders or
By : (Signed) Atty. X judgments to parties:
Counsel of Plaintiff
1) personally;
Q: If it is by ORDINARY MAIL, how do you prove in court that you 2) registered mail; or
3) service by publication, if a party is summoned by
served a copy?
publication and has failed to appear in the action.
A: If it is ordinary mail, proof thereof shall consist of an affidavit of Note: No substituted service
the person mailing of facts showing compliance with Section 7.
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Court orders or judgments orders have to be served also, either resorted to registered mail because Section 11 says, “Whenever
personally or by registered mail. That’s why if you go to the court,
there are employees there who are called process servers.
Everyday, they go around from law office to law office to serve
court orders, notices and judgments. And that is personal service.
But if the lawyer is a Manila lawyer, or is out of town, chances are
the clerk of court will apply registered mail.
That is a radical provision. In other words, there are two (2) ways of
service and filing: personal or by mail. And the law says, personal
service is preferred to mail. Meaning, personal service is
prioritized.
A: The law requires that you must give an explanation why you
resorted to mail and not to personal service.
Now, I think the purpose of this new provision has been provoked
by some malpractices of the lawyers. There were some instances
before which have been confirmed especially in Metro Manila. The
opposing counsel is holding office just across the street and he will
send a motion to be received today. Instead of serving you, he will
mail it. They will deliberately do it because it could not reach you
on time. I think if you do that, I will not consider your motion.
Take note that courts are not covered by Section 11. It only applies
to lawyers and parties. The court does not have to explain why it
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practicable, the service and filing of pleadings and other papers with the clause ‘whenever practicable.’”
shall be done personally EXCEPT WITH RESPECT TO PAPERS
EMANATING FROM THE COURT.”
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“There is nothing in the records of the present case showing “Here, Santos failed to present such proof before CA but only
how, when and to whom the delivery of the registry notices of did so in the present proceedings. Clearly then, proof should
the subject registered mail of petitioner was made and always be available to the post office not only of whether or
whether said notices were received by the petitioner. The not the notices of registered mail have been reported
envelope containing the unclaimed mail merely bore the delivered by the letter carrier but also of how or to whom and
notation “RETURN TO SENDER: UNCLAIMED” on the face when such delivery has been made.”
thereof and “Return to: Court of Appeals” at the back. The
“Consequently, it cannot be too much to expect that when
respondent court should not have relied on these notations to
the post office makes a certification regarding delivery of
support the presumption of constructive service.”
registered mail, such certification should include the data not
The case of JOHNSON was reiterated in only as to whether or not the corresponding notices were
issued or sent but also as to how, when and to whom the
SANTOS vs. CA – 293 SCRA 147 [Sept. 3, 1998] delivery thereof was made. Accordingly, the certification in
the case at bar that the first and second notices addressed to
Atty. Magno had been "issued" can hardly suffice the
FACTS: Jesus Santos, was sued for damages on by Omar requirements of equity and justice. It was incumbent upon the
Yapchiongco before the CFI. CFI dismissed the complaint for post office to further certify that said notices were reportedly
lack of merit. CA reversed and declared Santos liable for received.”
damages.
This last section, Section 14, has something to do with real actions,
On 15 June 1995, the decision of the CA was sent by land titles – notice of lis pendens.
registered mail to Santos’ counsel, Atty. Magno. On the same
day, the corresponding notice of registered mail was sent to Sec. 14. Notice of lis pendens. In an action
him. The mail remained unclaimed and consequently returned affecting the title or the right of possession of
to the sender. After 3 notices, the decision was returned to real property, the plaintiff and the defendant,
the sender for the same reason. when affirmative relief is claimed in his
answer, may record in the office of the
On 27 September 1995, a notice of change of name and registry of deeds of the province in which the
address of law firm was sent by Atty. Magno to CA. On 28 property is situated a notice of the pendency
March 1996, the same decision of CA was sent anew by of the action. Said notice shall contain the
registered mail to Atty. Magno at his present address which names of the parties and the object of the
he finally received on 3 April 1996. On 17 April 1996, Magno action or defense, and a description of the
withdrew his appearance as counsel for Santos. property in that province affected thereby.
Only from the time of filing such notice for
On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos, record shall a purchaser, or encumbrancer of
entered his appearance and moved for reconsideration of the property affected thereby, be deemed to
CA's decision of 6 June 1995. Yapchiongco opposed the have constructive notice of the pendency of
motion on the ground that the period for its filing had already the action, and only of its pendency against
expired. the parties designated by their real names
HELD: “The rule on service by registered mail contemplates 2 The notice of lis pendens hereinabove
situations: mentioned may be cancelled only upon order
of the court, after proper showing that the
(1) Actual service - the completeness of which is notice is for the purpose of molesting the
determined upon receipt by the addressee of the
adverse party, or that it is not necessary to
registered mail;
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NOTICE OF LIS PENDENS is a notice of pending action or litigation A: YES. The law states that “The plaintiff and the defendant may
between the parties involving title to or right of possession over register when affirmative relief is claimed in this answer.” In such
real property. case, a defendant may register and normally it is done when there
is a counterclaim. The defendant is also interposing a defense with
Requisites:
the same property.
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Rule 14
jurisdiction over the person of the defendant (Haban vs. Vamenta,
33 SCRpersonal
SUMMONS
Section 1. Clerk to issue summons. Upon the Effect of Non-Service
filing of the complaint and the payment of
the requisite legal fees, the clerk of court Unless the defendant voluntarily submits to the jurisdiction of the
shall forthwith issue the corresponding court, non-service or irregular service of summons renders null and
summons to the defendants. (1a) void all subsequent proceedings and issuances in the action from
the order of default up to and including the judgment by default
Summons is the writ by which the defendant is notified of the and the order of execution.
action brought against him (Cano-Gutierrez vs. Gutierrez, 341
SCRA 670; Guanzon vs. Arradaza 510 SCRA 309). The non-service or invalidity of service of summons may be a
ground for dismissal for lack of jurisdiction over the person of the
Summons in civil cases is the counterpart of warrant of arrest in defending party.
criminal cases. Under the Rules on Criminal Procedure, when an
information is filed in court, the judge will issue a warrant of arrest. Note: Where the defendant has already been served with
In civil cases, when a complaint is filed in court, the court will issue summons on the original complaint, no further summons is
what is known as a summons under Section 1. required on the amended complaint if it does not introduce new
causes of action. (Ong Peng vs. Custodio, GR No. 14911, March 25,
The issuance of summons is not discretionary on the part of the 1961)
court or the clerk of court but is a mandatory requirement. Section
1 directs that the clerk of court shall issue the corresponding But where the defendant was declared in default on the original
summons to the defendant upon complaint and the plaintiff subsequently filed an amended
complaint, new summons must be served on the defendant on the
(a) the filing of the complaint, and amended complaint as the original complaint was deemed
(b) the payment of the requisite legal fees. withdrawn upon such amendment (Atkins vs. Domingo GR No. L-
19565, March 24, 1923)
The use of the term “shall” leaves no doubt as to the mandatory
character of service of summons. General Rule: When an additional defendant is joined, summons
must be served upon him.
Purpose of summons
Exceptions:
Jurisdiction over the person of the defendant in a civil case is
acquired either by his voluntary appearance or service of summons 1. When the administrator of a deceased party defendant
upon him (Minucher vs. CA GR No. 142963, Feb. 11, 2003) substitutes the deceased;
2. Where upon the death of the original defendant his heirs
In actions in personam are made parties; and
3. In cases of substitution of the deceased under Sec. 16 R
In action in personam, the purpose of summons is not only 3)
a) to notify the defendant of the action against him Note: In these instances, the service of the order of substitution is
b) but also to acquire jurisdiction over his person sufficient.
(Umandap vs. Sabio, Jr. 339 SCRA 243).
In actions in rem or quasi in rem
The mere filing of the complaint does not enable the court to
acquire jurisdiction over the person of the defendant. By the filing In an action in rem or quasi in rem, jurisdiction over the defendant
of the complaint and the payment of the required filing and docket is not mandatory and the court acquires jurisdiction over an action
fees, the court acquires jurisdiction only over the person of the as long as it acquires jurisdiction over the res. The purpose of
plaintiff, not over the person of the defendant. Acquisition of summons in these actions is not the acquisition of jurisdiction over
jurisdiction over the latter is accomplished by a valid service of the defendant but mainly to satisfy the constitutional requirements
summons upon him assuming he does not make a prior voluntary of due process (Gomez vs. CA 420 SCRA 98; Biaco vs. Phil.
appearance in the action. Service of summons logically follows the Countryside Rural Bank 515 SCRA 106; PCI Bank v. Alejandro 533
filing of the complaint. SCRA 738).
Service of summons is required even if the defendant is aware of Uniformity of the rules on summons
the filing of the action against him. His knowledge of the existence
of a case is not one of the modes by which a court acquired The rules on summons apply with equal force in actions before the
RTC and first level courts. This is because the procedure in the first
level shall be the same as in the second level except (a) where a
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In Pagalaran vs. Bal-latan 13 Phil. 135, the defendant was served a) If the defendant has not filed answer to the original
summons but without a copy of the complaint. She did not appear complaint there must be another summons issued on
the amended complaint. A new summons must be
and file her answer as ordered. The trial court then issued an order
served all over again based on the amended complaint.
declaring her in default. A principal issue raised in the SC was (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
whether or not the proceedings in the trial court should be
annulled on the ground that the defendant had never been b) If the defendant has already filed an answer to the
summoned pursuant to the Rules because she was not served a original complaint or he has already appeared in the
copy of the complaint. action, and after that the complaint is amended, there is
no need of issuing new summons on the amended
The SC, while admitting that the service of summons was defective, complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March
1961)
treated the defect as having been waived by the defendant’s failure
to seasonably challenge the trial court’s jurisdiction over her Q: Connecting the question with Rule 11 (on periods to file
person. She should have appeared to challenge the jurisdiction of pleadings), suppose the defendant was served with summons on
the court. the original complaint and before he could answer, there is now an
amended complaint, so there will be new summons on the
Q: If a complaint is amended and an additional defendant is
amended complaint, what is the period to file an answer?
included, is there a necessity of issuing new summons on the
additional defendant? A: The period to file an answer is 15 days all over again. There will
be another period of 15 days to file an answer to the amended
A: YES. When an additional defendant is included in the action,
complaint upon receipt of the amended complaint and the
summons must be served upon him for the purpose of enabling the
summons.
court to acquire jurisdiction over his person. The case is
commenced against the additional defendant upon the Q: Suppose the defendant has already filed an answer to the
amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691) original complaint and after that there is an amended complaint,
what must the plaintiff do?
Q: Suppose a defendant, who has already been summoned, died,
and there was substitution of party (under Rule 3), his legal A: This time, there is no need of summons. All that the plaintiff has
representative was substituted in his place, is there a necessity of to do is to furnish the defendant a copy of the amended complaint
issuing new summons on the substituted defendant? together with the motion to admit it. Just serve the defendant a
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HELD: Appearance in the action is not only limited to the filing A: In the case of
of an answer. When defendant files a motion for extension of
LAUS vs. COURT OF APPEALS – 214 SCRA 688
time to file his answer, that is already an appearance in the
action. If a defendant files a motion for Bill Of Particulars
under Rule 12, that is already considered as an appearance in HELD: The service of summons is valid because the service of
the action. summons is MINISTERIAL. Service of summons may be made
at night as well as during the day, or even on a Sunday or
SEC. 3 By whom served – the summons may
holiday because of its ministerial character.
be served by the sheriff, his deputy, or other
proper court officers, or for justifiable SEC. 4 Return – When the service has been
reasons by any suitable person authorized by completed, the server shall, within five (5)
the court issuing the summons (5a) days therefrom, serve a copy of the return,
personally or by registered mail, to the
Q: Who can serve summons? Who are authorized by law to serve
plaintiff’s counsel and shall return the
summons?
summons to the clerk who issued it,
accompanied by proof of service (6a)
A: Under Section 3, the following:
The person who served the summons is the sheriff or his deputy.
1) Sheriff;
2) Deputy sheriff; After that, it is the duty of the sheriff to inform the court what has
3) Other proper court officer (court employees); or happened – was he able to serve the copy of the complaint,
4) For justifiable reasons, by any suitable person authorized together with the summons to the defendant? If so, on what day?
by the court issuing the summons. The duty of the sheriff after service of summons is that he should
make a report to the court as to what happened. That is what is
Note: The enumeration is exclusive
called a sheriff's return.
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Substituted service when proper For substituted service of summons to be valid, it is necessary to
establish the following:
If the defendant cannot be served in person within a reasonable
time, only then may substituted service under Sec. 7 be availed of. 1) The impossibility of the personal service of summons
The sheriff or server must first exert all efforts to serve the within a reasonable time;
defendant in person. If this effort fails, then substituted service can
2) The efforts exerted to locate the person to be served;
be made. This effort must be stated in the proof of service. This is and
required because substituted service is in derogation of the usual
mode of service (Laus vs. CA 219 SCRA 688; Umandap vs. Sabio, Jr. 3) Service upon a person of sufficient age and discretion
339 SCRA 243; Samartino vs. Raon 383 SCRA 66; Hamilton vs. Levy residing in the same place as defendant or some
344 SCRA 821. competent person in charge of his office or regular place
of business.
Second Mode: SUBSTITUTED SERVICE (Section 7)
In substituted service, the sheriff's return must show that an effort
What is substituted service? or attempt was exerted to personally serve the summons on the
defendant and that the same failed. (Sps. Venturanza vs. CA GR.
SEC. 7 Substituted Service – If, for justifiable No. 77760, Dedc. 11, 1987)
causes, the defendant cannot be served
within reasonable time as provided in the Within a reasonable time has been interpreted to contemplate a
preceding section, service may be effected (a) period of time longer than that demarcated by the word “prompt”
by leaving copies of the summons at the and presupposes that a prior attempt at personal service had failed
defendant’s residence with some person of (Laus vs. CA 219 SCRA 688).
suitable age and discretion then residing
The case of Manotoc vs. CA 499 SCRA 21, is more specific:
therein, or (b) by leaving the copies at
defendant’s office or regular place of
“….Reasonable time is defined as so much time as is necessary
business with some competent person in
under the circumstances for a reasonably prudent and diligent man
charge thereof (8a)
to do, conveniently, what the contract or duty requires that should
be done….Under the Rules, the service of summons has no set
If the defendant cannot be served personally or in person under
period….Since the defendant is expected to try to avoid and evade
Section 6, the sheriff may resort to what is known as SUBSTITUTED
service of summons, the sheriff must be resourceful, persevering,
SERVICE OF SUMMONS under Section 7. This time, you can course
canny, and diligent in serving the process on the defendant.” For
it to somebody else. The place is important and the person to
substituted service to be available there must be several attempts
whom you will serve it.
by the sheriff to personally serve the summons within a reasonable
On service in person under Section 6, it is immaterial where you period…”Several attempts” means at least three (3) tries,
find the defendant. What is important is it is served in person. preferably on at least two different dates. In addition the sheriff
must cite why such efforts were unsuccessful. It is only then that
But if you want resort to substituted service under Section 7), you impossibility of service can be confirmed or accepted.
better have to do it by leaving copies of the summons:
“The Sheriff must describe in the Return of Summons the facts and
1.) at the defendant’s residence with some person of circumstances surrounding the attempted personal service (citing
suitable age and discretion residing therein; or Domagas vs. Jensen, 448 SCRA 663). The efforts made to find the
defendant and the reason behind the failure must be clearly
narrated in detail in the Return. The date and time of the attempts
on personal service, the inquiries made to locate the defendant,
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“Discretion is defined as the ability to make decisions which It is likewise required that the pertinent facts proving these
represent a responsible choice and for which an understanding of circumstances be stated in the proof of service or in the officer’s
what is lawful, right or wise may be presupposed. Thus, to be of return. The failure to comply faithfully, strictly and fully with all the
sufficient age and discretion, such person must know how to read foregoing requirements of substituted service renders the service
and understand English to comprehend the import of the of summons ineffective (Jose vs. Bayon 414 SCRA 216; Miranda vs.
summons, and fully realize the need to deliver the summons and CA 326 SCRA 278).
complaint to the defendant at the earliest possible time for the
person to take appropriate action. Thus, the person must have a Service of summons to resident defendant but temporarily out –
‘relation of confidence’ to the defendant, ensuring that the latter Substituted service in addition to service by publication under
would receive or at least be notified of the receipt of summons. Section 16 in relation to Sec. 15
The sheriff must therefore, determine if the person found in the
alleged dwelling or residence of defendant is of legal age, what the In a suit in personam against a resident of the Philippines
recipient’s relationship with the defendant is, and whether said temporarily absent from the country, the defendant may be served
person comprehends the significance of the receipt of the by substituted service because a man temporarily out of the
summons and his duty to deliver it to the defendant or at least country leaves a definite place of residence or a dwelling where he
notify the defendant of said receipt of summons. These matters is bound to return. He also leaves his affairs to someone who
must be clearly and specifically described in the Return of protects his interests and communicates with him on matters
Summons.” affecting his affairs or business (Montalban vs. Maximo 22 SCRA
1070; Valmonte vs. CA 252 SCRA 92).
“A competent person in charge of the office or regular place of
business” defined If the defendant is out of the country, he cannot be expectedly
served within a reasonable time. The fact that “for justifiable
“A competent person in charge of the office or regular place of causes, the defendant cannot be served within a reasonable time,”
business” must be the one managing the office or business of constitutes the operative fact that triggers the application of
defendant, such as the president or manager; and such individual substituted service. This mode of service in the case of a resident
must have sufficient knowledge to understand the obligation of the temporarily absent from the country is, of course, in addition to the
defendant in the summons, its importance, and the prejudicial summons by publication authorized by Sec. 16 in relation to Sec. 15
effects arising from inaction on the summons. Again, the details of this Rule.
must be contained in the Return (Manotoc vs. CA)
An ineffective substituted service has certain adverse effects. First,
It is not necessary that the person in charge of the defendant’s the period to file a motion to dismiss for lack of jurisdiction over
regular place of business be specifically authorized to receive the the defendant’s person does not commence to run since the court
summons. It is enough that he appears to be in charge (Guanzon v. has no jurisdiction to adjudicate the controversy as to him, unless
Arradaza 510 SCRA 309). he voluntarily submits to the jurisdiction of the court (Laus vs. CA
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219 SCRA 688). Second, the trial court does not acquire jurisdiction
service of summons? Can a sheriff resort to Section 7 (substituted
over the person of the defendant (Laus vs.CA 219 SCRA 688;
service) immediately?
Litonjua vs. CA 80 SCRA 246).
A: NO. Section 7 cannot be applied unless you attempt Section 6
When defendant prevents service of summons (Service in person). The sheriff has to try several times to reach the
defendant in person. Sheriff is not allowed to resort to substituted
What if diligent efforts were undertaken by the Sheriff to serve
service without attempting service in person several times.
summons upon the defendant but he was prevented from effecting
such service by the defendant himself? Q: So what is the condition?
In one case, the Sheriff was forced to serve the summons upon the
A: Substituted service of summons can only be applied by the
subdivision security guard because he was refused entry therein
sheriff if there is failure of personal service within reasonable time
upon instruction of the defendant.
for justifiable causes [under Rule 14, Section 7]. So if the wife says,
“come back tomorrow,” so you have to come back tomorrow and
The SC ruled:
you cannot yet serve substituted service of summons.
“We have ruled that the statutory requirements of substituted
Q: But suppose, the sheriff has gone to your house 5 times,
service must be followed strictly, faithfully, and fully and any
everytime he goes there you are not around, is substituted service
substituted service other than that authorized by the Rules is
of summons allowed?
considered ineffective (Paluwagan ng Bayan Savings Bank vs. King
GR 78252, April 12, 1989, 172 SCRA 60). However, we frown upon A: YES. I will now serve it on you (through your wife) and that is
an overly strict application of the Rules. It is the spirit, rather than valid. The law prefers service in person than substituted.
the letter of the procedural rules, that governs. Substituted service according to SC, should only be resorted to if
there is failure of personal service within reasonable time for
“In his Return, the sheriff declared that he was refused entry by the
justifiable causes. (Mapa vs. CA, 214 SCRA 417)
security guard in the subdivision. The latter informed him that
petitioner prohibits him from allowing anybody to proceed to her
MAPA vs. CA – 214 SCRA 417
residence whenever she is out. Obviously, it was impossible for the
sheriff to effect personal or substituted service of summons upon HELD: If a sheriff resorts to substituted service under Section
petitioner. We note that she failed to controvert the sheriff’s 7 and when he makes his return, his return must specify that
declaration. Nor did she deny having received the summons “I have tried many times to resort to personal service, but he
through the security guard. cannot do it”. He must outline his efforts to apply Section 6,
otherwise the return is defective.
“Considering her strict instruction to the security guard, she must
bear its consequences. Thus, we agree with the trial court that “Impossibility of prompt service should be shown by stating
summons has been properly served upon petitioner and that it has the efforts failed. This statement should be made in the proof
acquired jurisdiction over her. of service. This is necessary because substituted service is in
derogation of the usual method of service.”
The summons was therefore, properly served” (Robinson vs.
Miralles 510 SCRA 678).
Now, of course, if I tried several times to serve you personally but I
SEQUIOTO vs. LETRONDO - L-11580, July 20, 1959 failed, and then I make a return but I did not explain, there is still a
valid service but you must explain in court. There is a presumption
FACTS: Summons was served by the sheriff on the defendant’s that you did not exert efforts. To make it a complete return, you
daughter, a 12-year old and a grade four pupil. The child must outline several attempts to make personal service.
threw the summons away. The father did not receive the
summons, and he was declared in default. [Substituted service of summons may still be considered as VALID
even if the sheriff failed to state in his return of the facts of the
HELD: The service of summons is void because defendant’s impossibility of prompt service if the server subsequently explains
daughter, under the circumstances, is not a person of suitable in court, by giving testimony, the facts why he resorted to a
discretion. substituted service. The plaintiff should not be made to suffer for
the lapses committed by an officer of the court]
Q: Suppose, the sheriff goes to the defendant’s house and says, “Is
this the residence of Mr. Juan dela Cruz?” “Yes.” “Is he around?” TOYOTA CUBAO INC. vs. CA – October 23, 1997
“No, he left for work, but he will be back 5 hours from now.” The
sheriff left the summons to the wife, sufficient of age and
discretion. In other words, the sheriff resorted to substituted HELD: “A law prescribing the manner in which the service of
summons should be effected is jurisdictional in character and
service of summons under Section 7. Is there a valid substituted
its proper observance is what dictates the court’s ability to
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Rule 13, SEC. 6. Personal service. - Service of SERVICE BY PUBLICATION UNDER SECTION 14
the papers may be made by delivering (Suing an Unknown Defendant)
personally a copy to the party or his counsel,
or by leaving it in his office with his clerk or
with a person having charge thereof. If no Going back to Section 9, Rule 13:
person is found in his office, or his office is
not known, or he has no office, then by Rule 13, SEC. 9. Service of judgments, final
leaving the copy, between the hours of eight orders or resolutions. - Judgments, final orders
in the morning and six in the evening, at the or resolutions shall be served either
party's or counsel's residence, if known, with personally or by registered mail. When a
a person of sufficient age and discretion then party summoned by publication has failed to
residing therein. (4a) appear in the action, judgments, final orders
or resolutions against him shall be served
FIRST DISTINCTION: In Rule 13, that is known as personal service. upon him also by publication at the expense
In Rule 14, that is known as substituted service. Service of of the prevailing party. (7a)
summons is governed by a different rule (Rule 14) from service of
pleadings, judgments and other papers (Rule 13). Under Rule 13, when a party summoned by publication has failed
to appear in the action, meaning the defendant failed to file an
Now, what is substituted service in Rule 13? Let us go back to answer, the decision can also be served upon him by publication.
Section 8, Rule 13.
As a rule summons by publication is available only in actions in rem
Rule 13, SEC. 8. Substituted service. - If service or quasi in rem. It is not available as a means of acquiring
of pleadings, motions, notices, resolutions, jurisdiction over the person of the defendant in an action in
orders and other papers cannot be made personam.
under the two preceding sections, the office
and place of residence of the party or his Against a resident, the recognized mode of service is service in
counsel being unknown, service may be person on the defendant under Sec. 6. In a case where the
made by delivering the copy to the clerk of defendant cannot be served within a reasonable time, substituted
court, with proof of failure of both personal service will apply (Sec. 7), but not summons by publication which is
service and service by mail. The service is permissible however, under the conditions set forth in Sec. 14
complete at the time of such delivery. (6a) (where the identity or whereabouts of the defendant are unknown)
and in Section 16 (when the defendant is a resident temporarily
SECOND DISTINCTION: In Rule 14, substituted service means if you out of the Philippines).
cannot serve the defendant in person, then you serve the
summons at the residence of the defendant with some person of Against a non-resident, jurisdiction is acquired over the defendant
suitable age and discretion residing therein or by leaving copies at by service upon his person while said defendant is within the
the defendant’s office or regular place of business with some Philippines. As once held, when the defendant is a non-resident,
competent person in charge thereof. That is substituted service of personal service of summons in the state is essential to the
summons under Rule 14. acquisition of jurisdiction over him (Banco de Brasil vs. CA 333
SCRA 545). This is in fact the only way of acquiring jurisdiction over
But in Rule 13, substituted service of other pleadings, judgments, his person if he does not voluntarily appear in the action. Summons
orders, etc., if personal service or service by registered mail have by publication against a non-resident in an action in personam is
not a proper mode of service.
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And the first one is service upon defendant whose identity or Now, one thing that you have to remember is, the whereabouts of
whereabouts are unknown. That is what you call suing an the defendant is unknown, but he is in the Philippines. That is the
unknown defendant. Or, the defendant is known but his condition. If he is in the United States, this will not apply. What is
whereabouts are not known. But definitely, he is in the Philippines. contemplated by Section 14 is that the address of the defendant is
That is the important condition. So, let us read Section 14: unknown but it is positive that he is in the Philippines.
Sec. 14. Service upon defendant whose identity ILLUSTRATION: Suppose your friend borrowed money from you.
or whereabouts are unknown. In any action Never paid you and just disappeared and the last time you heard,
where the defendant is designated as an he is residing somewhere in General Santos City. So you wanted to
unknown owner, or the like, or whenever his sue by having the summons under Section 14 because his exact
whereabouts are unknown and cannot be whereabouts is unknown. So you file a motion for leave to serve
ascertained by diligent inquiry, service may, summons by publication under this rule. The question is, should the
by leave of court, be effected upon him by court allow it? Of course the tendency is to say “yes” because his
publication in a newspaper of general whereabouts is unknown and cannot be ascertained by diligent
circulation and in such places and for such inquiry.
time as the court may order. (16a)
Q: Now what kind of an action is an action to collect an unpaid loan
Under this provision, service of summons is allowed: where the defendant cannot be located anymore?
2) where the defendant is known but his whereabouts are A: In the cases of
unknown and cannot be ascertained by diligent inquiry.
FONTANILLA vs. DOMINGUEZ – 73 Phil. 579
Take note that to avail of summons by publication, there must be
leave of court. You must file a motion, under Rule 14, for HELD: In this case, SC said service of summons is possible even
permission to have defendant summoned by publication and the if the action is in personam because service by publication
court will issue an order allowing the defendant be served with when the whereabouts of the defendant is unknown is
summons by publication where the complaint and the summons be allowed whether the case is in personam or in rem. It is
ordered published. The service may be effected upon him by proper in all actions without distinction provided, the
publication in a newspaper of general circulation and in such places defendant is residing in the Philippines but his identity is
and for such time as the court may order. unknown or his address cannot be ascertained.
Section 14 allows service of summons by publication, if the So if we will follow this case what will be our answer? YES, because
whereabouts of the defendant is unknown, after diligent inquiry it is allowed in any action without distinction.
and with leave of court. However, Section 17 requires that the
application for leave to effect service by publication must be PANTALEON vs. ASUNCION – 105 Phil 755
accompanied by a motion in writing, supported by an affidavit
setting forth the grounds for the application (Pacana-Gonzales vs.
CA, GR No. 150908, Jan. 21, 2005) HELD: NO, because service of summons by publication under
this section is allowed only where the action is in rem or quasi
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But look at the new rule on Section 14 – “in any action.” What does
domestic corporation must have been registered with the
that mean – na puwede na ang action in personam? Is the intention Securities and Exchange Commission and that the SEC records
of this clause to abrogate the previous ruling in PANTALEON, would, therefore, reveal not just the correct address of the
MAGDALENA ESTATE, CONSOLIDATE PLYWOOD? If that is the corporate headquarters of Good Earth but also the addresses
intention, we are going back to the original ruling laid down in the of its directors and other officers.”
earlier case of FONTANILLA vs. DOMINGUEZ which preceded all the
Foregoing distinctions no longer applicable
other cases.
Summons by way of publication may with leave of court be
In the FONTANILLA case, the SC said that service of summons by
availed of where a defendant involved in any action (in rem,
publication is proper in all actions without distinctions provided the quasi in rem and in personal) is designated as an unknown
defendant is residing in the Philippines but he is unknown or his owner or whenever his whereabouts are unknown and cannot
address cannot be ascertained. But the FONTANILLA ruling was be ascertained. The summons shall be effected through
abrogated by PANTALEON vs. ASUNCION, CITIZEN’S SURETY, publication in a newspaper of general circulation and in such
MAGDALENA ESTATE cases. That is why to me, this is a very places and for such time as the court sets.
controversial issue whether Section 14 of Rule 14 applies only to
In Santos vs. PNOC GR No. 170943, Sept. 23, 2008) the
cases in rem or quasi in rem in these decisions or it is now Supreme Court held that the in rem/in personal distinction
obsolete, or it is now applicable whether in personam or in rem or was significant under the old rule because it was silent as to
quasi in rem. the kind of action to which the rule was applicable. Because of
this silence, the court limited the application of the old rule to
So I was wondering what is the meaning of this – “in any action” – in rem actions only. This has been changed. The present rule
whether there is an intent to return to the old rule and cancel the expressly states that it applied to any action where the
rulings in MAGDALENA. To me, this is a question mark. Even Justice defendant is designated as unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
Jose Feria, in his note, cannot answer it. Sabi niya, “in any action
ascertained by diligent inquiry. Thus, it now applies to any
but there is a case, decided in MAGDALENA...” He is the author, action, whether in personal, in rem or quasi in rem.
one of the authors, but he cannot explain the intention. Sabi niya:
“the SC earlier ruled…” I asked, “but why did you insert that?” Kaya If property is attached and later the defendant appears (and
to my mind, it is still a question mark. Maybe it is just an voluntarily submits to the jurisdiction of the court), the case
inadvertent amendment without any intention to abrogate the becomes mainly a suit in personam ( Villareal vs. CA GR No.
ruling in MAGDALENA, PANTALEON, etc. But maybe that is the 107314, Sept. 17, 1998)
intention.
SERVICE BY PUBLICATION UNDER SECTION 15
So, let us wait for the proper case at the right time to find what is
(Extraterritorial Service)
the intention of the phrase “in any action.”
BALTAZAR vs. CA – December 8, 1988 When the defendant is not residing in the Philippines and he is not
physically around he must be served with summons even if he is
abroad and that is what is called extraterritorial service. We go
FACTS: Good Earth Enterprises, a domestic corporation was back to the basic question:
sued. Sheriff went to the address of the corporation but the
corporation was no longer there. It moved to another place. Q: Can you sue in the Philippines a defendant who is not residing in
Subsequently, the sheriff returned the summons to the court. the Philippines and who is not around physically?
Plaintiff Baltazar filed a motion for leave to serve the
summons and a copy of the complaint upon defendant Good A: NO, you cannot because there is no way for the court to acquire
Earth by publication
jurisdiction over his person EXCEPT when action is in rem or quasi
in rem, like when the action is the personal status of the plaintiff
ISSUE: Can there be a proper service by publication in this who is in the Philippines or the properties of the defendant are in
case? the Philippines. And the venue is where the plaintiff resides or
where the property is situated. That is found in Section 3, Rule 4:
HELD: NO. Service by Publication (Section 14) will not apply
because there was no diligent inquiry made by the sheriff. Rule 4, SEC. 3. Venue of actions against
nonresidents – If any of the defendants do not
“Under Section 14, therefore, petitioner must show that the reside and is not found in the Philippines, and the
address of Good Earth was ‘unknown’ and that such address action affects the personal status of the plaintiff or
could not be ascertained by diligent inquiry. More any property of said defendant located in the
importantly, We do not believe that the acts of the sheriff Philippines, the action may be commenced and
satisfied the standard of ‘diligent inquiry’ established by
tried in the court of the place where the plaintiff
Section 14 of Rule 14. The sheriff should have known what
every law school student knows, that Good Earth being a resides, or where the property or any portion
thereof is situated or found.
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Q: In what instances can you sue in the Philippine courts a Q: How do you serve summons for such a defendant in Sect. 15?
defendant who does not reside and is not found in the Philippines?
The other way of asking is, when may a defendant be sued and A: Service may, with leave of court, be effected in the Philippines:
served with summons by extraterritorial service?
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c.) In any other manner the court may deem sufficient. So, aside from publication, another copy will be sent by registered
(Carriaga vs. Malaya, 143 SCRA 441)
mail to his last known address.
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A: The non-resident is given not less than 60 days to file an answer. But the third mode applies only when you are serving the
It is given a longer period in order to give him more time. This is summons abroad. You cannot apply this when you are serving
related with Section 1 rule 11: “The defendant shall file his answer the summons in the Philippines. So it does not also fall under
to the complaint within 15 days after service of summons, UNLESS the third mode. This mode of service, like the first two, must
a different period is fixed by the court.” be made outside of the Philippines such as through the
Philippine Embassy in the foreign country where the
And take note that under Section 17, there must be a motion to defendant resides.
effect service of summons by publication.
REASON #2: Under Section 17, leave of court is required when
Sec. 17. Leave of court. Any application to the serving summons by publication. There must be a motion
court under this Rule for leave to effect where the court will direct that the summons be served in
service in any manner for which leave of that manner.
court is necessary shall be made by motion in
writing, supported by affidavit of the plaintiff In this case, was there any motion filed here? Wala man ba.
or some person on his behalf, setting forth Was there any order of the court authorizing it? Wala rin. So it
the grounds for the application. (19) does not comply with Sections 15 and 17.
He must file a motion under Section 17 to effect service of REASON #3: The third most important reason is that, when
summons by publication. The court will then issue an order. the defendant is a non-resident and being served abroad
under Section 15, the law guarantees a minimum of sixty (60)
Now in 1996, there was a case decided by the SC on the days to answer the complaint pursuant to Section 15.
extraterritorial service of summons. The case of
And here, she was only given fifteen (15) days to file the
VALMONTE vs. CA – 252 SCRA 92 [1996] answer. Therefore, there was an erroneous computation of
the period to answer.
FACTS: Here, the defendant is Lourdes Valmonte who is a
foreign resident. She is residing abroad. Her husband, Alfredo “Finally, and most importantly, because there was no order
Valmonte, who is also her attorney, has a law office in the granting such leave, Lourdes Valmonte was not given ample
Philippines. He is Atty. Valmonte – yung mga Valmonte sa time to file her Answer which, according to the rules, shall be
checkpoint cases in Constitutional law. He is an activist- not less than sixty (60) days after notice. It must be noted that
lawyer. So, his wife is residing abroad but he is here, because the period to file an Answer in an action against a resident
he is practicing in the Philippines. defendant differs from the period given in an action filed
against a nonresident defendant who is not found in the
Now, the sister of Mrs. Valmonte filed a case against her for Philippines. In the former, the period is fifteen (15) days from
partition of real property. You know that you have to implead service of summons, while in the latter, it is at least sixty (60)
all the co-owners. The summons intended for Lourdes was days from notice.”
served on her husband in the latter’s law office because
anyway, the husband is here. So those are the three main reasons cited by the SC on why there
was improper service of summons on Lourdes Valmonte under the
ISSUE: Was there a valid service of summons on Lourdes rules.
Valmonte?
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On the other hand, if the action is in rem or quasi in rem, 3. demands a relief which consists wholly or in part in
jurisdiction over the person of the defendant is not essential for excluding the defendant from any interest in any
property in the Philippines; or
giving the court jurisdiction so long as the court acquires
jurisdiction over the res. If the defendant is a non resident and he is
4. property of defendant has been attached in the
not found in the country, summons may be served extraterritorially Philippines) ....
in accordance with Sec. 15, Rule 14 of the Rules of Court.
service is extraterritorial
There are only four instances wherein a defendant who is a non-
resident and is not found in the country may be served a summons (a) with leave of court serve outside the
by extraterritorial service, to wit: Philippines by personal service; or
(1) when the action affects the personal status of the (b) with leave of court serve by publication in a
plaintiff; newspaper of general circulation in which
case a copy of the summons and order the
(2) when the action relates to, or the subject of which is court must also be sent by registered mail to
property within the Philippines, on which the defendant the last known address of defendant; or
claims a lien or an interest, actual or contingent;
(c) any other manner the court deem sufficient.
(3) when the relief demanded in such action consists, wholly
or in part, in excluding the defendant from any interest C. Defendant is a resident but temporarily out of the
in property located in the Philippines; and Philippines (Section 16) .... any action......By substituted
service or with leave of court, personal service out of the
(4) when the defendant non-resident's property has been Philippines as under extraterritorial service.
attached within the Philippines. In these instances,
service of summons may be effected by Note: In all these cases, it should be noted that defendant must be
a resident of the Philippines, otherwise, an action in personam
a. personal service out of the country, with leave of cannot be brought because jurisdiction over his person is essential
court; to make a binding decision (Belen vs. Chavez, GR No. 175334,
b. publication, also with leave of court; or March 28, 2008).
c. any other manner the court may deem sufficient.
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1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT 3.) SERVICE OF SUMMONS UPON MINORS AND
JURIDICAL PERSONALITY INCOMPETENTS
Sec. 8. Service upon entity without juridical Sec. 10. Service upon minors and
personality. When persons associated in an incompetents. When the defendant is a
entity without juridical personality are sued minor, insane or otherwise an incompetent,
under the name by which they are generally service shall be made upon him personally
or commonly known, service may be effected and on his legal guardian if he has one, or if
upon all the defendants by serving upon any none, upon his guardian ad litem whose
one of them, or upon the person in charge of appointment shall be applied for by the
the office or place of business maintained in plaintiff. In the case of a minor, service may
such name. But such service shall not bind also be made on his father or mother. (10a,
individually any person whose connection 11a)
with the entity has, upon due notice, been
severed before the action was brought. (9a) Relate this to Rule 3, Section 3 on Representatives as Parties –
trustee of a trust, guardian, administrator, etc.
Section 8 is related to Rule 3, Section 15:
Q: When you sue a minor or an insane, how is summons served?
Rule 3, Sec. 15. Entity without juridical
personality as defendant. When two or more A: You serve the summons to the father or mother in the case of
persons not organized as an entity with minor. For a legal guardian, in the case of incompetent people or
juridical personality enter into a transaction, to the minor himself.
they may be sued under the name by which
Q: The law says that “service shall be made upon him (the minor)
they are generally or commonly known.
personally” when he may not understand what it is all about? Baka
In the answer of such defendant, the names itatapon lang niya iyon.
and addresses of the persons composing said
A: Because under Rule 3, he is the real party in interest.
entity must all be revealed. (15a)
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE
Q: Since you can sue someone without juridical personality, how do
JURIDICAL ENTITY.
serve summons upon him?
Sec. 11. Service upon domestic private juridical
A: Under Section 8, by serving summons upon anyone of them,
entity. When the defendant is a corporation,
that is sufficient. Service upon any of those defendants is service
partnership or association organized under
for the entire entity already. You may also serve summons upon
the laws of the Philippines with a juridical
the person in charge of the office of the place of business. He may
personality, service may be made on the
not necessarily be the owner but in-charge of the office, he can be
president, managing partner, general
served with summons.
manager, corporate secretary, treasurer, or
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A in-house counsel. (13a)
PRISONER
What do you mean by domestic? A corporation or association
Sec. 9. Service upon prisoners. When the organized under Philippine laws.
defendant is a prisoner confined in a jail or
Now, how do you serve summons to a corporation? Actually, they
institution, service shall be effected upon him
have no physical existence, they only exist by legal friction.
by the officer having the management of
Ordinarily summons must be served to a human being, to
such jail or institution who is deemed
somebody who is supposed to be the representatives. Therefore,
deputized as a special sheriff for said
common sense will tell that in case of a corporation, you have to
purpose. (12a)
serve the summons through people who run the corporation.
Q: How do you serve summons to somebody who is a prisoner?
Q: To whom do you serve summons if it is a corporation?
A: Under Section 9, summons shall be served through the person
A: In the case of a corporation, summons is served upon its officers.
in-charge of the jail like the jail warden. The jail warden is
automatically considered as deputized to serve it to the prisoner. It
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In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and
In the fairly recent case of Paramount Insurance Corp. vs. A.C.
ATM TRUCKING vs. BUENCAMINO (124 SCRA 434) the service of
Ordonez Corporation GR 175109 August 6, 2008 the Court
summon an employee employed in a corporation does not bind the
reiterated the rule that Sec. 11 sets out an exclusive enumeration
corporation because an ordinary employee who is not an officer is
of the officers who can receive summons on behalf of the
not considered as agent.
corporation and that service of summons to someone other than
those enumerated is not valid. The Court further emphasized that
However, there are cases were the service of summons to an
the argument of substantial compliance is no longer compelling.
ordinary employee who is not an officer was valid. Among which
Declared the Court:
are:
“We have ruled that the new rule … is restricted, limited and
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397
exclusive … Had the Rules of Court Revision Committee intended to
[1985]), the summons was served on the confidential secretary of
liberalize the rule on service of summons, it could have done so in
the President and the SC said the service is valid. She is qualified as
clear and concise language. Absent a manifest intention to
agent.
liberalize the rule, strict compliance with Section 11, Rule 14 of the
1997 Rules of Civil Procedure is required.” And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466),
reiterated in the case of GOLDEN FARMS vs. SUN BAR
The rule that summons may be served on internal legal counsel,
DEVELOPMENT CORPORATION (214 SCRA 295), the summons was
although appearing for the first time in the 1997 rules, is actually
served on a mere clerk of the corporation. So, he is not even an
an old rule. It has been ruled already in some cases that service of
officer. But the clerk gave it to the President. The SC said that the
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“Section 20 now provides that the inclusion in a motion to A: Under Rule 11, Section 2, the period to file an answer is longer if
dismiss of other grounds aside from lack of jurisdiction over summons is served on a government official designated by law for
the person of the defendant shall not be deemed a voluntary that purpose, the period is 30 days. But if the foreign corporation
appearance. The emplacement of this rule clearly underscores has a designated resident agent in the Philippines and summons is
the purpose to enforce strict enforcement of the rules on served on him, the period to answer is only 15 days just like any
summons. Accordingly, the filing of a motion to dismiss, other defendant.
whether or not belatedly filed by the defendant, his
authorized agent or attorney, precisely objecting to the NORTHWEST ORIENT AIRLINES vs. CA – 241 SCRA 192 [1995]
jurisdiction of the court over the person of the defendant can
HELD: When there is a designated resident agent to receive
by no means be deemed a submission to the jurisdiction of
summons, service of summons to that person is exclusive. He
the court.”
is the only one to be served with summons in behalf of the
“There being no proper service of summons, the trial court corporation sued. So, if there is a designated agent, siya lang.
cannot take cognizance of a case for lack of jurisdiction over He is the only person authorized to receive the summons.
the person of the defendant. Any proceeding undertaken by
“If a foreign corporation has designated an agent to receive
the trial court will consequently be null and void.”
summons the designation is exclusive. Service of summons is
“WHEREFORE, the petition is hereby GRANTED. The assailed without force and gives to a court no jurisdiction unless made
Orders of the public respondent trial court are ANNULLED and upon him.”
SET ASIDE.”
BALTAZAR vs. CA – 168 SCRA 354 [1988]
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE
FACTS: The summons was to be served on the corporation at
JURIDICAL ENTITY
an address. But when the sheriff went to that address, he was
Sec. 12. Service upon foreign private juridical told by the security guard that the corporation was no longer
entity. When the defendant is a foreign holding office there. Lumipat na sa ibang lugar. Therefore, we
private juridical entity which has transacted do not know already.
business in the Philippines, service may be
So, ni-report niya, “Hindi ko makita.” Therefore, the plaintiff
made on its resident agent designated in
filed a motion in court to be allowed to serve summons by
accordance with law for that purpose, or, if
publication under Section 14 when the whereabouts of the
there be no such agent, on the government
defendant is unknown. So there was service of summons by
official designated by law to that effect, or on
publication.
any of its officers or agents within the
Philippines. (14a)
ISSUE: Was there a valid service of summons by publication?
Q: What is the difference between corporation or entity in Section
HELD: There was NONE. The deputy sheriff should have
11 and Section 12?
known what every law school student knows! – that
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HELD: NO, Section 12 is not applicable because in Section 12, D. Domestic private juridical entity (Section 11) to the
the premise is, the foreign private corporation is doing president, managing partner,, general manager,
business in the Philippines. So Section 12 does not apply. So, corporate secretary, treasurer, or in house counsel. Note
how shall we serve the summons? that service upon a person other than those mentioned
is invalid and does not bind the corporation. the
In the first place, the foreign corporation, which cannot be enumeration is exclusive.
sued, agrees to be sued. Their agreement is similar to venue
E. Defendant is a foreign private juridical entity (Section 12)
where we can agree on the venue of the case. Now, since it is .... Serve on the resident agent; or if none, on the
not doing business, it is more accurate to apply the rules on government official designted by law; or any officer or
Section 15 on extraterritorial service of summons on a non- agent of the corporation within the Philippines.
resident defendant who is not physically here.
F. Public corporation (Section 13) In case defendant is
So, summons should be served not in accordance with Section 12 the Republic of the Philippines by serving upon the
but in accordance with Section 15 on extraterritorial service. Solicitor General; In case of province, city or municipality
or like corporations, by serving on its executive head or
on such other officer or officers as the law or the court
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
may direct.
Sec. 13. Service upon public corporations.
Sec. 18. Proof of service. The proof of service
When the defendant is the Republic of the
of a summons shall be made in writing by the
Philippines, service may be effected on the
server and shall set forth the manner, place,
Solicitor General; in case of a province, city or
and date of service; shall specify any papers
municipality, or like public corporations,
which have been served with the process and
service may be effected on its executive
the name of the person who received the
head, or on such other officer or officers as
same; and shall be sworn to when made by a
the law or the court may direct. (10a)
person other than a sheriff or his deputy. (20)
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Rule 15
Q: What are the requisites of a valid motion.
MOTIONS
A: They are found from Section 2 to Section
6:
What is a motion? Define a motion.
General rule: A motion cannot pray for judgment. 1) the relief sought to be obtained;
In a motion, the party is asking the court for a favor other than 2) the ground upon which it is based; and
what is contained in the pleading. Usually, the main relief is prayed
for in the pleading, like “Judgment be rendered in favor of the 3) if required by the Rules or necessary to prove facts
plaintiff,” or, “The complaint be dismissed.” That is what you pray alleged therein, shall be accompanied by supporting
in your complaint or in your answer. affidavit and other papers.
However, there are three (3) well known EXCEPTIONS to this. A: A motion for new trial on the ground of fraud, accident, mistake
Meaning you are praying, by way of a motion, for a relief which of excusable negligence. Under Rule 37, Section 2, in order for a
normally should be prayed for in a pleading such as a motion is motion for new trial on that ground to be valid, there must Be
praying for a judgment already. The exceptions are: Affidavit Of Merits. If there is no affidavit of merits, the motion will
be denied.
1.) Motion for Judgment to the Demurrer to Evidence
(Rule 33);
And if necessary to prove facts alleged therein, then, the motion
2.) Motion for Judgment on the Pleadings (Rule 34);
must be accompanied by affidavit and other supporting papers.
and
3.) Motion for Summary Judgment (Rule 35). Example is when you are moving for the postponement of the trial
because your client is sick, the best supporting paper would be a
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Requisites of a Motion (not made in open court or in the course of A: The court may refuse to take action on a motion which does not
hearing or trial) under Sections 3 and 4: comply with the rule requiring a three-day notice to the adverse
party, “unless the court for good cause sets the hearing on shorter
1. it must be in writing (Sec. 3);
notice.” Usually these are urgent motions such as moving for
postponement because your witness got sick one day or hours
2. Hearing of Motion set by the applicant (Sec. 4);
before the trial.
3. Motion and notice of hearing must be served at least 3
days before the date of hearing. This is called the Three Sec. 5. Notice of hearing. The notice of
Day Notice Rule (Sec. 4); hearing shall be addressed to all parties
concerned, and shall specify the time and
Exceptions to the 3 day notice rule: date of the hearing which must not be later
than ten (10) days after the filing of the
1. ex parte motions;
motion. (5a)
2. urgent motions;
3. Motions agreed upon by the parties to be heard on
Notice of Hearing shall be addressed to all parties concerned. Date
shorter notice or jointly submitted by the parties; and
4. Motions for summary judgment which must be served at of hearing must not be later than 10 days from the filing of the
least 10 days before its hearing. motion (Section 5);
Section 4, says that you must furnish the adverse party a copy of
your motion at least three (3) days before date of hearing. So, you Q: Now, what happens if a motion does not contain a notice of
do not furnish him one day before the date of the hearing. The hearing?
reason there is to prevent surprise upon the adverse party and to
enable the latter to study the motion and file his opposition A: A motion that does not contain a notice of hearing is but a mere
(Remante vs. Bonto, L-19900, Feb. 28, 1966). So a motion cannot scrap of paper; it presents no question which merits the attention
be filed ex-parte, meaning, without notice of hearing and without and consideration of the Court. It is not even a motion for it does
furnishing a copy to the opponent. not comply with the rules. A motion without notice of hearing is
nothing but a piece of paper filed in court, which should be
However, a motion need not be set for hearing if it is not a litigated disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA 651
motion. Meaning, these are motions “which the court may act [1991])
upon without prejudicing the rights of the adverse party” such as a
motion for extension of time to file answer or a motion to set case
for pre-trial. So with this kind of motion, the court can immediately
grant your motion.
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The well-settled rule is that a motion which fails to comply with So, the principle there is, if you have two or more grounds you
such requirements is a useless piece of paper (Neri vs. de la Pena should only file one motion where you invoke all your grounds.
457 SCRA 438). It is pro forma presenting no question which the
court could decide (Boiser vs. Aguirre, Jr. 458 SCRA 430). If filed, Now, obviously there is an EXCEPTION because the opening clause
such motion is not entitled to judicial cognizance and does not stop of section 8 is “Subject to the provision of Section 1 of Rule 9.”
the running of the period for filing the requisite pleading (Cruz vs.
CA 388 SCRA 72). A motion which does not comply with the rules Rule 9, Section 1. Defenses and objections not
on motion is considered pro forma and thus, will be treated as one pleaded. Defenses and objections not
filed merely to delay the proceedings (Marikina Development pleaded either in a motion to dismiss or in
Corporation vs. Flojo 251 SCRA 87). the answer are deemed waived. However,
when it appears from the pleadings or the
Sec. 7. Motion day. Except for motions evidence on record that the court has no
requiring immediate action, all motions shall jurisdiction over the subject matter, that
be scheduled for hearing on Friday there is another action pending between the
afternoons, or if Friday is a non-working day, same parties for the same cause, or that the
in the afternoon of the next working day. (7a) action is barred by a prior judgment or by
statute of limitations, the court shall dismiss
Motion hearings are scheduled on Friday afternoons except those the claim. (2a)
motion which require urgent action. So if today is Friday and it’s a
holiday, sa Monday pa ang hearing. But again, some judges do not Under Rule 9, There are four (4) exceptions. Meaning, they are not
follow this. deemed waive even if you do not raise them in a motion to dismiss,
which can be even motu propio proceeded by the court.
Note that there is no motion day in the Supreme Court.
Q: What are the grounds not deemed waived even if not raised in
OMNIBUS MOTION RULE a motion to dismiss or answer. (Exceptions to the omnibus
motion rule)?
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NOW, hindi na puwede yan. Under the PRESENT RULE, when you
file a motion, the pleading to be admitted must already be included
in your motion. Pag-file mo nng motion, kasama na iyong pleading.
The pleading sought to be amended must already be included in
the motion. One-time filing ba!!
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Rule 16
However the admission extends only to material and relevant
allegations.
MOTION TO DISMISS
If for instance the plaintiff files an action for damages against the
defendant who files a motion to dismiss, the defendant in effect
Even when the allegations in the complaint are now clear enough
says that even assuming the facts to be true as alleged by the
to enable the defendant to file his responsive pleading because the
plaintiff, the latter has failed to show that he has a right to relief
adverse party has already submitted a bill of particulars, the
because his action has prescribed or because the court where the
defendant need not file his answer immediately. He may first
action was filed has no jurisdiction over the subject matter of the
explore the possibility of filing a motion to dismiss under Rule 16. If
complaint.
there is no ground for a motion to dismiss, he has to file his
answer. Omnibus motion
While the filing of a motion to dismiss is not prohibited, the remedy When a motion to dismiss is filed, all grounds available at the time
being an integral part of the Rules of Court, the current policy of the motion is filed must be invoked in the motion. This is required
the SC is not to encourage the filing of such motion but to instead under the “omnibus motion rule.” Grounds not so invoked are
file an answer to the complaint. Thus, effective August 26, 2004, deemed waived. The grounds not waived however, are lack of
within one day from receipt of the complaint, summons shall jurisdiction over the subject matter, litis pendencia, res judicata
contain a reminder to the defendant to observe restraint in filing a and prescription (Sec. 8 Rule 15; Sec. 1 Rule 9)
motion to dismiss and instead allege the grounds thereof as
defenses in the answer (A.M. No. 03-1-09-SC, July 13, 2004). The above rule applies only when a motion to dismiss is filed.
Where no motion to dismiss is filed, the grounds for a motion to
Motion to dismiss is the counterpart of motion to quash (Rule 117) dismiss may be availed of as affirmative defenses in the answer
in criminal procedure. In criminal procedure, before the (Sec. 6 Rule 16). No defense is waived because no motion to
arraignment or before entering a plea the accused may instead file dismiss was filed. There is indeed an unmistakable difference in the
what is known as motion to quash. The proceedings are quashed legal effects between filing and not filing a motion to dismiss in
on the ground that: relation to waiver of defenses.
(1) the court has no jurisdiction over the subject matter of If no motion to dismiss has been filed, any of the grounds for
the case or over the person of the accused; dismissal provided in the Rules may be pleaded as an affirmative
(2) the person who filed it has no authority to do so; defense in the answer, and in the discretion of the court, a
(3) the complaint or information charges more than one preliminary hearing may be had thereon as if a motion to dismiss
offense; had been filed. Based on the foregoing, a preliminary hearing
(4) because of double jeopardy; or undeniably is subject to the discretion of the trial court. The trial
(5) the criminal liability has already been extinguished. court’s order granting or dispensing with the need for a preliminary
hearing may not be corrected by certiorari absent any showing that
A motion to dismiss is not a responsive pleading. It is not a
the trial court had acted without jurisdiction or in excess thereof or
responsive pleading at all.
with such grave abuse of discretion as would amount to lack of
Hypothetical admissions of a motion to dismiss jurisdiction (Misamis Occidental II Cooperative, Inc. vs. David 468
SCRA 63).
A motion to dismiss hypothetically admits the truth of the factual
allegations of the complaint (Peltan Development Inc., vs. CA 270 Section 1. Grounds. Within the time for but
SCRA 82; Cuarto vs. De Luna 22 SCRA 459). The admission extends before filing the answer to the complaint or
only to such matters of fact that have been sufficiently pleaded and pleading asserting a claim, a motion to
not to mere epithets charging fraud, allegations of legal conclusions dismiss may be made on any of the following
or erroneous statements of law, inference from facts not stated, grounds:
matters of evidence or irrelevant matters (De Dios vs. Bristol
xxxxx
Laboratories, 55 SCRA 349) Only deemed hypothetically admitted
are material allegations, not conclusions. An allegation that a General rule: A court may not motu proprio dismiss a case unless
contract is an “equitable mortgage” is a conclusion and not a a motion to that effect is filed by a party thereto.
material allegation. Hence, it is not deemed admitted by the
motion to dismiss (Dalandan vs. Julio 10 SCRA 4000). Exceptions:
A motion to dismiss generally partakes the nature of a demurrer. It 1) Those cases where the court may dismiss a case motu
hypothetically admits the allegations stated in the complaint. proprio (Sec. 1, R 9);
2) Sec. 3 R 17 (Failure to prosecute); and
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a. upon notice by plaintiff; Now based on decided cases, it would seem that this is one of the
b. upon motion by plaintiff; or weakest grounds for a motion to dismiss – “the court has not
c. due to fault of plaintiff. acquired jurisdiction over the person” – for there are many
exceptions. There are many waivers. Because of the rule of waiver
3) Motion to dismiss called a demurrer to evidence after
the court may acquire jurisdiction over your person in some other
plaintiff has completed the presentation of his evidence
under Rule 33; and capacity.
4) Dismissal of an appeal. EXAMPLE: You are improperly served with summons but you file a
motion for bill of particulars or you file a motion for extension of
Q: When do you file a motion to dismiss? time to file for an answer then the court acquires jurisdiction over
your person and you cannot any more file a motion to dismiss. The
A: Within the time for but before filing the answer. So, within 15 principle is that the moment you file a motion for bill of particulars
days instead of filing an answer the law allows the defendant to file or you file a motion for extension of time, in effect you have
instead a motion to dismiss. The principle is within 15 days from already submitted to the jurisdiction of the court. If there was any
receipt of the summons and the complaint, the defendant should defect in the service of summons, it was already cured.
file an answer or in lieu of an answer he may instead file a motion
to dismiss based on the grounds enumerated in section 1. EXAMPLE: Now, suppose the summons was served on a nine-year
old boy who is presumed to be responsible. When his father
A motion to dismiss that is filed after the answer has been filed, is arrived, the boy told his father that somebody came in and left this.
considered filed out of time and the defending party is stopped So in other words the father actually got the summons. Now,
from filing the motion to dismiss (Philville vs. Javier 477 SCRA 533). suppose the father will file a motion to dismiss on the ground that
This is only a general rule. the court never acquired jurisdiction over the person because the
summons was improperly serve. Do you think it will prosper?
Note however, that a motion to dismiss may be filed even after the
filing of the answer and will not be considered filed out of time if There are cases in the SC which says even if the summons was not
the ground raised in the motion is either of the following: properly served, if actually it came to the attention of the
defendant, the defect is cured. Because if you say I will not answer
(a) Lack of jurisdiction over the subject matter;
for the summons is improper that is more of a technicality. You are
(b) Litis pendencia;
(c) Res judicata; or being technical. Actually you have received the summons. In other
(d) Prescription (Sec. 1 Rule 9). words, there are cases along that line. That is why this ground may
no longer be available to you because of those instances.
Under said rule, when any of the above grounds appears from the
pleadings or from the evidence on record, the court shall dismiss LINGER AND FISHER vs. IAC – 125 SCRA 522
the claim. The authority given to the court is, from the tenor of the
FACTS: The sheriff served the summons improperly on the
rule, not only mandatory but also subject to a motu proprio
defendant. And the defendant filed a motion to dismiss on the
dismissal. Since the ground for dismissal may appear from the
ground that the court has no jurisdiction over his person.
evidence, it is obvious that the dismissal may be made during the
trial and this means, even after the answer has been filed.
HELD: Defendant assumed that the sheriff made a mistake.
Now, a motion to dismiss is available not only for the purpose of Why should we dismiss the complaint? It is not the fault of the
dismissing the complaint but also for dismissing a counterclaim, a plaintiff. If the sheriff does not know how to do it, the fault
cross-claim, a third party complaint because the laws says “before lies on the sheriff and the sheriff is an employee of the court,
filing the answer to the complaint or pleading asserting a claim.” not an agent of the plaintiff. Why should the court blame the
A claim can be ascertained not only in a compliant but also in plaintiff? If that is what happens we will not dismiss the case.
other pleading such as counterclaims, etc. We will instead issue an alias summons and direct the sheriff
to solve it properly.
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With all these decided cases, it would seem that the objection of
matter. Or, an action for annulment of marriage is filed in the MTC.
no jurisdiction over the person of the defending party is getting
Now, I will file a motion to dismiss because the court has no
weaker and weaker because of so many exceptions such as:
jurisdiction over the subject matter.
(1) waiver;
So, we are familiar already with this. Now, let’ go to important
(2) voluntary appearance;
principles on this ground.
(3) improper service but the defendant came to know about
it so you cannot rely on the technicality and
(4) then you have the case of Linger. FIRST PRINCIPLE: Jurisdiction over the subject matter is determined
by the allegations in the complaint .
FAR CORPORATION vs. FRANCISCO – 146 SCRA 197 Q: How do we determine whether a court has a jurisdiction or not
over a particular case?
HELD: This case reiterated the ruling in LINGER where the SC A: By reading the complaint, we will know whether the subject
said again, if the sheriff did not know how to serve the matter is within the jurisdiction of the court or not. So the principle
summons, why should the plaintiff’s complaint be dismissed to remember is, jurisdiction over the subject matter of the case is
when it is not his fault. The correct procedure is for the court determined by the allegations in the complaint not by the
to issue another summons and direct that the sheriff should allegation of the defendant in his motion to dismiss or answer.
serve it properly.
EXAMPLE: A filed a complaint against B before the RTC of Davao
On the other hand, there was a conflict before in jurisprudence on City to recover an unpaid loan of P350,000. By going over the
this question: complaint, does the RTC have jurisdiction? YES. But here comes the
defendant filing a motion to dismiss under Rule 16 alleging that “it
Q: Suppose I will file a motion to dismiss. Assuming that there is a is not P350,000 but only P250,000. Therefore, the court has no
ground of lack of jurisdiction over my person and venue is jurisdiction over the subject matter.” So the court is confronted
improper. Meaning, I will cite 2, 3 or 4 grounds. Is that possible? with this situation.
LA NAVAL DRUG CORPORATION vs. CA – 236 SCRA 78 Q: What will the court do? Should the court deny the motion to
dismiss?
HELD: When you file a motion to dismiss citing lack of A: YES because jurisdiction over the subject matter is determined by
Jurisdiction over your person together with other grounds, the allegations in the complaint. They are not determined by the
there is no waiver on the defect or lack of jurisdiction. So, you allegations of the defendant in his motion to dismiss.
can file a motion to dismiss on that ground together with
other grounds. There is no more waiver. The inclusion in a SECOND PRINCIPLE: When a defendant files a motion to dismiss on
motion to dismiss of other grounds aside from lack of the ground that the court has no jurisdiction over the subject
jurisdiction over the person of the defendant shall not be matter, the defendant hypothetically admits all the allegations in
deemed a voluntary appearance. the complaint to be true. The defendant in the meantime, is not
allowed to present evidence that the court has no jurisdiction.
Obviously the ruling in NAVAL is incorporated in the Rules of Court. Everything must be decided on the face of the complaint only.
Let’s go back to Rule 14 Section 20:
But suppose it is really P250,000 only and in the course of the trial,
Sec. 20. Voluntary appearance. - The even plaintiff’s own evidence shows that the loan is only P250,000.
defendant's voluntary appearance in the If that is so, if that becomes apparent in the middle of the trial,
action shall be equivalent to service of Vannie Kolotski will now move to dismiss on the ground that the
summons. The inclusion in a motion to lack of jurisdiction has now become apparent. Anyway, you have
dismiss of other grounds aside from lack of not waived that defect. You can raise that anytime. But at the start
jurisdiction over the person of the defendant of the case, whatever the complaint says, that is assumed to be
shall not be deemed a voluntary appearance. true for the moment, if the ground is lack of jurisdiction. So, what is
(23a) the principle there? Jurisdiction over the subject matter is
determined purely by the allegations in the complaint.
Second Ground: [b] THAT THE COURT HAS NO JURISDICTION OVER
THE SUBJECT MATTER OF THE CLAIM. THIRD PRINCIPLE: Jurisdiction over the subject matter, once
acquired by the court upon the filing of the complaint, the court
That is one of the most important grounds for a motion to dismiss.
retains the jurisdiction over that case until that case is
terminated. Any subsequent development or any subsequent
EXAMPLE: An action for unlawful detainer is field in the RTC and
amendment of the law will no longer deprive the court of its
your ground is, the court has no jurisdiction over the subject
jurisdiction.
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The ONLY POSSIBLE EXCEPTION there is what the Supreme Court FACTS: The case of TIJAM was something really queer and
says, if the new statute is intended to be curative in character – to unique. From the start, the City Court of Cebu has no
cure the defect under the old law – then the rule on adherence of jurisdiction. The defendant never filed a motion to dismiss.
jurisdiction does not apply. And what is so surprising is that the court never noticed it.. So
the parties will go on trial. After trial, the court rendered
That was best exemplified by a situation years ago when there was judgment in favor of the plaintiff. The defendant was not
a controversy as to whether a claim for moral and exemplary satisfied. He appealed to the former CFI (now RTC) and on
damages filed by an employee against the employer for oppressive appeal that issue on lack of jurisdiction was never raised. Talo
act of terminating him can be granted by the Labor Arbiter. na naman iyong defendant.
Definitely, reinstatement and backwages can be granted by the So all this process took about 10 years. Talo. So much water
Labor Arbiter. The jurisprudence at that time when it was still has already passed under the bridge. Nagpalit ng abogado
unsettled was, the claim for moral damages should be settled in iyong defendant and he traced the proceeding. Actually all
the RTC, not by the Labor Arbiter. However, where these cases along, the inferior court has no jurisdiction and everything is
were still pending in the RTC, mga damages, in the meantime the void from the very beginning. But take note, it took the
law naman was changed. The Labor Arbiter now was given defendant through his lawyer 10 years or more to raise the
jurisdiction to award damages. issue. Now, of course, if we will follow the rule, it can be
raised at any stage at any time even for the first time on
So, what happen to the cases for damages now pending in the RTC? appeal on this ground that everything is void.
Should they be transferred to the Labor Arbiter? It we follow the
rule that jurisdiction once acquired continuous, the answer is, the HELD: NO, you cannot raise it anymore. Under the equitable
RTC should continue trying the case for damages and the Labor doctrine of estoppel by laches, you are already under estoppel
Arbiter continue to try the backwages and reinstatement. But that to raise that ground because the if you will follow the general
is practically splitting the case into two parts. rule and we will declare null and void everything from the City
Court to the CA, everything – a judicial work which lasted for
So obviously, the intention of the law granting the Labor Arbiter 10 years – will all be thrown in the waste basket. That is
the jurisdiction is to cure the error. So, what happened? All those practically compelling the plaintiff to undergo a second
cases filed in the RTC were ordered transferred to the Labor Arbiter calvary. Ulit na naman siya just to prove his case.
as an exception to the rule on adherence to jurisdiction.
But the ruling in SIBONGHANOY is not intended to be the rule. It is
FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter not intended to overrule the rule that lack of jurisdiction over the
may be raised: subject matter can be raised at any stage of the proceeding. The
ruling in the SIBONGHANOY is only to be applied in exceptional
1) In the answer;
situations
2) In the course of the trial;
3) After the trial;
Even the SC noted that courts were applying the SIBONGHANOY
4) After the judgment; or even
5) For the first time on appeal. ruling indiscriminately that it will take you one or two months to
raise lack of jurisdiction – wala pa nag-unpisa ang trial then one or
All right, let’s go to the basics: two months after the case was filed, ah estoppel na! Practically,
that is saying that lack of jurisdiction cannot be raised anymore.
Q: Can the issue of lack of jurisdiction over the subject matter be But the SC said NO, that is wrong. In the case of
raised in the middle of the trial?
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“This doctrine has been qualified by recent pronouncements According to the SC, when you say that the plaintiff lacks legal
which stemmed principally from the ruling in the cited case of capacity to sue, there are two (2) possible meanings. It means any
SIBONGHANOY. It is to be regretted, however, that the of the following:
holding in said case had been applied to situations which were
obviously not contemplated therein. The exceptional 1) when the plaintiff does not possess the necessary
circumstances involved in SIBONGHANOY which justified the qualifications to appear at the trial such as when the
departure from the accepted concept of non-waivability of plaintiff is not in the full exercise of his civil rights like
objection to jurisdiction has been ignored and, instead a when he is a minor, or insane; and
blanket doctrine had been repeatedly upheld that rendered
2) when the plaintiff does not have the character or
the supposed ruling in SIBONGHANOY not as the exception, representation which he claims like he claims to be a
but rather the general rule, virtually overthrowing altogether guardian when in reality he is not. (Lunsod vs. Ortega, 46
the time-honored principle that the issue of jurisdiction is not Phil. 664)
lost by waiver or by estoppel.” (Calimlim vs. Ramirez, G.R. No.
L-34362, 118 SCRA 399 [1982]). EXAMPLE: I will sue you as the guardian of a minor –
guardian ad litem. But actually, you will challenge my
So, this has already been clarified. The latest case was the 1995 being a guardian. There is no court order according to
case of you. So, I might be of age but I have no legal capacity to
sue because I do not have the representation which I
DE LEON vs. CA – 245 SCRA 166 claim I have.
Third Ground: [c] THAT VENUE IS IMPROPERLY LAID In lack of legal capacity to sue, you are referring to a disability of
the plaintiff, like he is a minor; or he is insane or incapacitated.
Here, there is no compliance with Rule 4 – the action is filed in the
place other than the proper venue under Rule 4. In lack of legal personality to sue – going back to Rule 3, when you
are appointed as agent or attorney-in-fact of somebody to manage
Q: Suppose you file a motion to dismiss on the ground of his property and to file suit in his behalf – while you have the
improper venue, but your motion to dismiss is denied. What is authority to file cases, it does not mean to say that you should sue
your remedy? in your own name because the real party in interest is the principal,
not the agent.
A: Your remedy is to resort to the special civil action of prohibition
under Rule 65. And you should resort to it immediately because if So if the agent files an action in his own name, rather than that of
you will file your answer and go to trial, in effect, you will be the principal, what you are going to say is, you are not the real
waiving the objection. The objection must be pursued diligently. party in interest. You are not challenging his age or disability but
That was the pronouncement in the case of Pangasinan you are challenging his being placed as plaintiff when actually he is
Transportation Co. v. Yatco (21 SCRA 658). only the attorney-in-fact or agent. In effect, when you raise this
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ground, actually that would fall more under paragraph [g] – that
Do you know what he said? Itong forum- shopping, how it started?
the pleading asserting the claim states no cause of action because
Actually, it is a concept in Private International Law where you shop
there is no cause of action in favor of the agent. The cause of action
for a forum – where you look for a country where you will file a
is in the principal.
case and then the court of that country will now reject it on the
ground for forum non conveniens. That is where it originates. You
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION PENDING
are shopping for a forum.
BETWEEN THE SAME PARTIES FOR THE SAME CAUSE;
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA – 252 SCRA 259,
Now, this is one of the most important grounds for a motion to
January 24, 1996
dismiss. This is popularly known as the ground of lis pendens. Now,
do not confuse this with the notice of lis pendens that we discussed
in Rule 13. That is the notice that you annotate on the title of the HELD: “Forum-shopping originated as a concept in private
property when you are filing a case for its recovery although the international law, where non-resident litigants are given the
meaning is the same because lis pendens is Latin for pending option to choose the forum or place wherein to bring their
litigation. suit for various reasons or excuses, including to secure
procedural advantages, to annoy and harass the defendant, to
So the essence is that there is a case filed against you and then avoid overcrowded dockets, or to select a more friendly
while it is pending, another case is filed against you based on the venue. To combat these less than honorable excuses, the
same cause of action. So what will you do? I have to move to principle of forum non conveniens was developed whereby a
dismiss one case. I will allege that there is already another action court, in conflicts of law cases, may refuse impositions on its
pending between the same parties for the same cause. So in effect, jurisdiction where it is not the most ‘convenient’ or available
what you are saying is the plaintiff is guilty of splitting his cause of forum and the parties are not precluded from seeking
action and this ground has also been mentioned in Rule 2, Section remedies elsewhere.”
4:
“In the Philippines, forum shopping has acquired a
Rule 2, Sec. 4. Splitting a single cause of connotation encompassing not only a choice of venues, as it
action; effect of - If two or more suits are was originally understood in conflicts of laws, but also to a
instituted on the basis of the same cause of choice of remedies.”
action, the filing of one or a judgment upon
the merits in any one is available as a ground “As to the first (CHOICE OF VENUES), the Rules of Court, for
for the dismissal of the others. (4a) example, allow a plaintiff to commence personal actions
"where the defendant or any of the defendants resides or
So the filing of one case is available as a ground for the dismissal of may be found, or where the plaintiff or any of the plaintiffs
the other. Now, such ground is stated under Rule 16 – that there is resides, at the election of the plaintiff" (Rule 4, Sec. 2 [b]).”
another action pending between the same parties for the same
cause. The other legal term for it aside from the ground of lis That is forum- shopping. lba ang rule ng venue. Where will you file
pendens is the ground of litis pendentia. It means the same thing. personal action? – where the plaintiff or any of the principal
That’s why when you read some SC cases, the SC cites either one of plaintiff resides, or, where the defendant or any of the defendants
the two terms. There is another foreign term although it is less resides. So, mamili ka! If I am the lawyer kung saan pabor, doon
used, the ground of action pendant. ako mag-file, and that is forum- shopping. But that is legitimate
forum- shopping because that is allowed by law.
LITIS PENDENTIA viz a viz FORUM-SHOPPING
“As to remedies, aggrieved parties, for example, are given a choice
of pursuing civil liabilities independently of the criminal, arising
Now, you come analyze that when the other party files two cases from the same set of facts. A passenger of a public utility vehicle
against you, at the same time – what is the correct ground for involved in a vehicular accident may sue on culpa contractual, culpa
dismissal? Litis pendentia or forum-shopping? Is there a aquiliana or culpa criminal — each remedy being available
relationship between forum- shopping and litis pendentia? When I independently of the others — although he cannot recover more
file two identical cases in two courts, am I not also forum- than once.” (First Philippine International Bank vs. CA, supra.)
shopping?
That is in effect forum- shopping. If I am the offended party, shall I
One of the most intelligent discussion on this topic was the case of prosecute the civil aspect in the criminal action or shall I file an
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259), independent civil action or reserve the right? Nasa iyo man iyan
January 24, 1996, penned for the Third Division by Justice Artemio ba! In effect, you shop for a forum. That is also forum- shopping.
Panganiban. But that is legitimate forum- shopping.
“Eventually, however, instead of actually making a choice of the Forum-shopping does not require a literal identity of parties.
forum of their actions, litigants, through the encouragement of It is sufficient that there is identity of interests represented.
their lawyers, file their actions in all available courts, or invoke all
relevant remedies simultaneously. This practice had not only When there is already adjudication on the merits in one case to be
resulted in conflicting, adjudications among different courts and more accurate, RES ADJUDICATA should be alleged, and not forum
consequent confusion inimical to an orderly administration of shopping as a defense because the decision in the previous case
justice. It had created extreme inconvenience to some of the had already become final and executory. So, when there is already
parties to the action.” a judgment in the previous case to be exact that should be res
judicata. But when there is no decision yet, that is litis pendentia
“Thus, ‘forum shopping’ had acquired a different concept – which is and forum shopping.
unethical professional legal practice. And this necessitated or had
given rise to the formulation of rules and canons discouraging or ELEMENTS OF LITIS PENDENTIA
altogether prohibiting the practice.”
“What therefore originally started both in conflicts of laws and in Now, this is one of the grounds of a motion to dismiss which is the
our domestic law as a legitimate device for solving problems has subject matter already of so many cases and so many questions in
been abused and misused to assure scheming litigants of dubious the bar. One of the fundamental questions which is asked here is:
reliefs.” What are the requisites for litis pendencia as a ground for a motion
to dismiss. Actually, there is no wrong if I will file as many cases as I
“Consequently, where a litigant or one representing the same want against you provided the causes of action are different.
interest or person sues the same party against whom another Sometimes, it is difficult to determine where there is litis pendentia
action or actions for the alleged violation of the same right and the or none. It is possible for 2 cases to arise between the same parties
enforcement of the same relief is/are still pending, the defense of or the 2 cases are interrelated. But actually they arose from
litis pendentia in one case is a bar to the others; and, a final different causes of action. So you will get confused.
judgment in one would constitute res judicata and thus would
cause the dismissal of the rest. In either case, forum shopping Sometimes when you read cases decided by the SC on litis
could be cited by the other party as a ground to ask for summary pendentia, you will have a hard time determining whether the 2
dismissal of the two or more complaints or petitions, and for the cases are only related or they are really identical. If they are only
imposition of the other sanctions, which are direct contempt of related, there is no basis for dismissal.
court, criminal prosecution, and disciplinary action against the
erring lawyer.” (First Philippine International Bank vs. CA, supra.) Q: What are the requisites of litis pendentia as a ground for a
motion to dismiss?
So, what is the difference between forum shopping and litis
pendentia? Actually, there is no difference. Mas maganda pa nga i- A: There are four (4) requisites:
dalawa mo – litis pendentia and forum shopping. Ano ang effect?
Sabihin mo, litis pendentia – one will be dismissed, the other will 1) Identity of parties between the two actions, or at least
remain alive. In forum shopping naman, parehong patay iyan. The such as represent the same interest in both actions;
court will dismiss both. I-disciplinary action pa ang abogado. There
In the 2 actions, the parties are the same – the same
is no contempt of court in litis pendentia. plaintiff, same defendant. Literally, they may not be the
same but the persons who are filing the second case are
That is now the relationship of forum shopping and litis pendentia. persons who are actually doing it on your behalf. So they
also represent the same interest.
Another case, also penned by Justice Panganiban in the same year,
1996, where he also made a statement that forum shopping and 2) Substantial Identity of rights asserted or cause of action
litis pendentia are almost identical is the case of and relief prayed for; The rights asserted are the same.
The relief prayed for in both actions are the same.
EMPLOYEES COMPENSATION COMMISSION vs. CA – 257 SCRA
3) The relief must be founded on the same facts; So same
717, June 28, 1996.
basis; same evidence.
HELD: Forum-shopping exists where the elements of litis
4) The identity in these particulars should be such that any
pendencia are present. The test therefore in determining the judgment which may be rendered on the other action
presence of forum-shopping is whether in the two (or more case) will, regardless of which party is successful, amount to
pending, there is identity of res adjudicata in the action under consideration.
(Olayvar vs. Olayvar, 98 Phil. 52; Sapul vs. Siva, 57 O.G.
a) parties, 1040, Feb. 6, 1961; Pampanga Bus Co. vs. Ocefemia, L-
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Now, the mortgagor, the plaintiff in the first case, filed a motion to TEODORO vs. MIRASOL – 99 Phil. 150
dismiss the second case on the ground of litis pendentia on his
argument that suppose I win in this case of annulment of mortgage FACTS: There was a lease contract between the lessor and the
and the mortgage contract is annulled, what are you foreclosing? lessee and they were already quarreling. According to the lessor,
There is nothing to foreclose. So the second action for foreclosure “Mr. Lessee, I would like to remind you that our contract is only
will have as basis if the mortgage contract is annulled in the first good up to April. So 3 months from now, expired na. You better
case. So there being litis pendencia, the second case should be look for a place to transfer because I’m not going to renew the
dismissed. lease contract.”
HELD: It is true that the second case will have no more leg to stand But the lessee insisted that contract will be valid until next year yet.
on if the mortgagor will win the first case, that is if you win. Eh The lessor asserted that the contract is only good up to April. They
paano kung talo ka? Suppose the first case of annulment of
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Q: What was the principle used in the case of TEODORO and 2) whether the action sought to be dismissed was filed
RAMOS in sustaining the dismissal of the first case instead of the merely to preempt the later action or to anticipate
second? its filing and lay the basis for its dismissal – that is
the TEODORO vs. MIRASOL case – the action is filed
A: The criterion which was applied by the SC was: What is the more merely as an anticipating action; and
appropriate action to remain. In the case of TEODORO, since we are
3) whether the action is the appropriate vehicle for
talking about ejectment here, the unlawful detainer case is the
litigating the issues between the parties.
more appropriate action to remain rather than the first
(declaratory relief). It is not a question of which case was filed first So that is practically again the summary of VICTRONICS
but which action should stay for the good of the parties. The same COMPUTERS case.
thing happened in the case of
PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA – 18 SCRA 407
ROA MAGSAYSAY vs. MAGSAYSAY – 98 SCRA 592
NOTE: This problem was already asked in the Bar.
HELD: In this case there was also a conflict on which case should be
dismissed and which case should remain. The trial court ordered
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Now, let’s say on January 10, Lew not knowing about the Manila HELD: YES. “Lis pendens as a ground for the dismissal of a civil
case filed an identical action against Cholo in Davao City. So hindi action refers to that situation wherein another action is pending
alam ni Lew na mayroon na palang kaso. So dalawa na. And then on between the same parties for the same cause of action. To
January 15, Lew received summons in Manila case. By January 20, constitute the defense of lis pendens, it must appear that not only
Cholo filed a motion to dismiss the Davao case on the ground of are the parties in the two actions the same but there is substantial
litis pendentia. identity in the cause of action and relief sought.”
According to Lew, there is no litis pendentia because when I filed “Further, it is required that the identity be such that any judgment
may case against Cholo, there is no pending action to talk about which may be rendered in the other would, regardless of which
because hindi ko alam. I received the summons very much later. party is successful, amount to res judicata on the case on hand. All
these requisites are present in the instant case: 1.)The parties in
ISSUE: Was there litis pendentia? Is Lew correct?
the Davao and Caloocan cases are the same; 2.) They are suing
each other for sums of money which arose from their contract of
HELD: There was litis pendentia. Lew is wrong. Why? When does an
agency; 3.) The relief prayed for is based on the same facts and
action, become pending? An action becomes pending upon the
there is identity of rights asserted; 4.) Any judgment rendered in
filing of a case in court and the payment of docket fee. The actions
one case would amount to res judicata in the other.”
does not become pending only from the time you receive the
summons. It is pending form the moment it was filed. Therefore
“In conceptualizing lis pendens, we have said that like res judicata
when it was filed on January 5, it is already pending although you
as a doctrine, litis pendentia is a sanction of public policy against
did not know about it. That is the reasoning in this case.
multiplicity of suits. The principle upon which a plea of another
action pending is sustained is that the latter action is deemed
ANDRESONS GROUP vs. CA – GR 114928; January 21, 1997
unnecessary and vexatious.”
FACTS: Willy Denate entered into an agency agreement with AG as
“AG asserts that the Davao Court had not yet acquired jurisdiction
its commission agent for the sale of wines and liquors in Davao
over the parties as the summons had not been served as of April
City, Davao provinces and North Cotabato. On November 18, 1991,
21, 1992 and it claims that pendency of a case, as contemplated by
Denate filed a civil action for collection of sum of money against AG
the law on lis pendens, presupposes a valid service of summons.”
before the RTC Davao.
“This argument is untenable. A civil action is commenced by filing a
Denate alleged that he was entitled to the amount of P882,107.95,
complaint with the court. The phraseology adopted in the Rules of
representing commissions from AG but that AG had maliciously
Court merely states that another action pending between the same
failed and refused to pay the same. On December 19, 1991, AG
parties for the same cause is a ground for motion to dismiss. As
likewise filed a complaint for collection of sum of money with
worded, the rule does not contemplate that there be a prior
damages against Denate with the RTC Kalookan City. AG alleged
pending action, since it is enough that there is a pending action.
that Denate still owed it the sum of P1,618,467.98 after deducting
Neither is it required that the party be served with summons
commissions and remittances. Denate filed a Motion to dismiss the
before lis pendens should apply. The rule of lis pendens refers to
case with the Kalookan RTC on the ground that there was another
another action. An action starts only upon the filing of a complaint
action pending between the same parties for the same cause of
in court.”
action, citing the case earlier filed with the RTC of Davao City.
“It must be emphasized that the rule on litis pendentia does not
AG filed its opposition to the Motion to Dismiss on the ground that
require that the later case should yield to the earlier. The criterion
the RTC of Davao had not acquired jurisdiction over it.
used in determining which case should be abated is which is the
RTC of Kalookan City ruled that: “the Davao case involves the same more appropriate action or which court would be in a better
parties, and involves substantial identity in the case of action and position to serve the interests of justice. Applying these criteria,
reliefs sought, as in the instant case however, jurisdiction over the and considering that both cases involve a sum of money collected
parties has already been acquired by the RTC Kaloocan, as Denate in and around Davao, the Davao Court would be in a better position
received the summons as early as Jan 8, 1992, and AG. On the to hear and try the case, as the witnesses and evidence would be
other hand, the summons in the Davao case has not yet been coming from said area.”
served as of Apr 21, 1992, the date of the hearing of the instant
“WHEREFORE, the decision of the CA is hereby AFFIRMED.”
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(1) Bar by prior judgment, and A motion to dismiss on the ground of prescription will be given due
(2) Conclusiveness of judgment (Heirs of Wenceslao
course only if the complaint shows on its face that the action has
Tabia vs. CA GR Nos. 129377 & 129399 February 22,
already prescribed.
2007).
The first concept bars the prosecution of a second action upon the Prescription and laches:
same claim, demand or cause of action.
1) Prescription is concerned with the fact of delay
while laches is concerned with the effect of delay;
The second concept states that a fact or question which was in
issue in a former suit and was there judicially passed upon and
2) Prescription is a matter of time while
determined by a court of competent jurisdiction, is conclusively laches is a matter of equity;
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When the ground for the dismissal is that the complaint states no What is the rule? When a defendant files a motion to dismiss under
cause of action, such fact can be determined only from the facts this ground, he hypothetically admits the truth of all the allegations
alleged in the complaint. raised in the complaint. And he is posing this question: “Assuming
for the sake of argument that everything contained in your
It is beside the point whether or not the allegations in the complaint or pleading is really correct, are you entitled to the relief
complaint are true, for with a motion to dismiss a complaint based prayed for?”
on lack of cause of action, the movant only hypothetically admits
the truth of the facts alleged in the complaint; that is, assuming If the answer is YES, then it states a cause of action. If the answer is
arguendo that the facts alleged are true, those allegations are NO, even then there is something wrong in the complaint. It still
insufficient for the court to render a valid judgment upon the same states no cause of action. Therefore, when the defendant disputes
in accordance with the prayer of the complaint. (Universal the truth of the allegations of the complaint, the correct move is to
Aquarius, Inc., et al., vs. Q.C. Human Resources Management file an answer and not a motion to dismiss. He cannot dispute the
Corporation, GR No. 155990, Sept. 12, 2007) allegation in the pleading because he hypothetically admits them.
Remember that under Rule 2, Section 1, every civil action must be That is why the SC said in the case of
based on a cause of action. Therefore, the four (4) elements of
cause of action must be alleged. If one element is missing, there is
no cause of action and it is now a ground for dismissal.
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HELD: “The hypothetical admission is however limited to the The RTC issued an order dismissing Kiat's complaint, acceding to all
relevant and material facts well pleaded in the complaint and the grounds set forth by Rosita in her motion to dismiss. CA set
inferences fairly deductible therefrom. The admission does not aside the dismissal and ordered the remand of the case for further
extend to conclusions or interpretations of law; nor does it cover proceedings.
allegations of fact the falsity of which is subject to judicial notice.”
HELD: There is merit in the petition. “There being no trust, express
Meaning, you allege there something which is 100% false and the or implied, established in favor of Kiat, the only transaction that
court knows it, but you filed a motion to dismiss, are you deemed can be gleaned from the allegations in the complaint is a double
to hypothetically admit something which everybody knows is false? sale, the controlling provision for which is Art. 1544 of the Civil
NO. When you file a motion to dismiss, you are deemed to admit Code. Kiat alleged that he bought the subject properties from Tan
everything there is true except matters which are 100% false and Keh in 1954 but nonetheless failed to present any document
which the court itself knows to be false, or the conclusions of the evidencing the same, while Remigio, as the other buyer, had in his
pleader because in the first place, conclusions have no place in the name TCT 53284 duly registered on Oct 13, 1958.”
pleading.
“Remigio, beyond doubt, was the buyer entitled to the subject
ROSITA TAN vs. CA – 295 SCRA 247 [Sept. 9, 1998] properties since the prevailing rule is that in the double sale of real
property, the buyer who is in possession of a Torrens title and had
FACTS: The controversy centers on 2 parcels of land, Manila the deed of sale registered must prevail. Rosita is in possession of
previously owned by one Alejandro Tan Keh and which were then TCT 117898 which evidences her ownership of land. Kiat relies
covered by TCT 35656.Fernando Tan Kiat claimed that he bought simply on the allegation that he is entitled to the properties by
the land from Tan Keh in 1954, but was unable to effect immediate virtue of a sale between him and Tan Keh who is now dead.
transfer of title in his favor in view of his foreign nationality at the Obviously, Kiat will rely on parol evidence which, under the
time of the sale. Nonetheless, as an assurance in good faith of the circumstances obtaining, cannot be allowed without violating the
sales agreement, Tan Keh turned over to Kiat the owner's duplicate "Dead Man's Statute" found in Sec. 23, Rule 130. Clearly then, from
copy of TCT 35656 and, in addition, executed a lease contract in a reading of the complaint itself, the complaint indeed does not
favor of Kiat for 40 years. spell out any cause of action.”
However, in 1958, Tan Keh sold the subject properties to Remigio “We also agree with Rosita's submission that Kiat's cause of action
Tan, his brother and father of Rosita Tan, with the understanding has prescribed. TCT 53284 in the name of Remigio was registered
that the land are to be held in trust by Remigio for the benefit of on Oct 13, 1958, while TCT 117898 in the name of Rosita, was
Kiat and that Remigio would execute the proper documents of issued on Apr 21, 1975. Kiat filed his complaint on Oct 18, 1993. CA
transfer in favor of Kiat should Kiat at anytime demand recovery of held that the 10-year prescriptive period for the reconveyance of
land. property based on an implied trust cannot apply in this case since
Kiat was in actual possession of the subject properties.”
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A: Based on the EXCEPTION in the case of In one case, in reversing the RTC’s order of dismissal, the CA held
that laches could not be a ground to dismiss a complaint since it is
SANTIAGO vs. PIONEER SAVINGS & LOAN BANK – 157 SCRA 100 not one of the grounds for the dismissal of a civil action under
[1987] Section 1 of Rule 16 of the Rules of Court. The SC categorically held
that the CA “is not entirely correct.” Under paragraph (h) of Sec. 1
FACTS: The plaintiff filed a complaint against defendant with a of Rule 16, one of the grounds for the dismissal is where a claim or
prayer for a preliminary injunction. So, it is not only a complaint but demand set forth in the plaintiff’s pleading has been paid, waived,
plaintiff applied for a provisional remedy. And under the law in abandoned, or otherwise extinguished. The Court declared:
provisional remedy, that must be heard immediately because that
is urgent, eh! And in a preliminary injunction, there must be a “The language of the rule, particularly on the relation of the words
hearing because preliminary injunction cannot be granted ex parte. “abandoned” and “otherwise extinguished” to the phrase “claim or
demand deemed set forth in the plaintiff’s pleading” is broad
So even before the answer could be filed, nagkaroon na ng hearing enough to include within its ambit the defense of bar by laches.
and the plaintiff already presented evidence on his cause of action However, when a party moves for the dismissal of the complaint
during the hearing for the issuance of the writ of preliminary based on laches, the trial court must set a hearing on the motion
injunction. Then after the hearing, here comes now the defendant where the parties shall submit not only their arguments on the
questions of law but also their evidence on the questions of fact
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1) a contract that by its terms is not to be performed within Now, under the last sentence of Article 151, “This rule shall not
one year from the making of such contract; apply to cases which may not be the subject of compromise under
the Civil Code.” This refers to Article 2035 of the New Civil Code:
2) a special promise to answer for the debt, default, or
miscarriage of another;
Art. 2035. No compromise upon the following questions
3) an agreement made in consideration of marriage, other shall be valid:
than a mutual promise to marry;
1. The civil status of persons;
4) an agreement for the sale of goods, chattels or things in 2. The validity of a marriage or a legal
action, at a price not less than five hundred pesos…; separation;
3. Any ground for legal separation;
5) an agreement for the leasing for a longer period than 4. Future support;
one year, or for the sale of real property or an interest 5. The jurisdiction of courts;
therein; 6. Future legitime.
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Q: How will the court rule on the motion to EXAMPLE: Defendant filed a motion to dismiss the case and the
court analyzed the ground. After analyzing, the court is not sure.
dismiss? A: The following: The ground seems to be valid but the court also doubts. Parang 50-
50 ba.
1.) The court will dismiss the action. (motion is
granted); Now the previous rule allows the court not to act—it will not act, it
2.) The court will deny the motion (proceed to trial); or
will not deny. The court will just postpone the resolution of the
3.) The court will order the amendment of the pleading
motion to dismiss, until the trial, because the ground is doubtful.
In resolving a motion to dismiss, the court is In the course of the trial, the court may realize whether the ground
required to give reasons for its resolution. is correct or not. When the ground becomes clearer, the court may
say, “All right, I will grant the motion”. That was allowed under the
When the court orders the amendment of the pleading, in effect previous rule.
the motion to dismiss is also denied. So, the rule is when the
ground for the dismissal can be cured by amending the complaint, NOW, that is not allowed anymore. The court really has to act on
do not dismiss but require the party to amend the complaint. That the motion: either grant it, deny it, or order the amendment.
is a polite way of denying your motion to dismiss.
Even under the previous rule, there were already instances where
Like for example, the cause of action is imperfectly stated, kulang the SC said that the courts should not postpone the resolution,
ng allegation ba. So the plaintiff would say: “Your Honor, we will especially when the ground of dismissal is lack of jurisdiction over
add one sentence para makumpleto.” Sabi ng judge: “No! no! no! the subject matter, or that the complaint states no cause of action.
We will dismiss.” No, the judge cannot do that. Curable yon eh! Why? The court only has to read the complaint and there is no
And amendment of the pleading is favored. need of presentation of evidence to rule on the motion. There
were decided cases along that line, and obviously that reasoning
predominated the committee.
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Rule 12, Sec. 5. Stay of period to file Depending upon the ground for the dismissal of the action, the
responsive pleading. - After service of the bill plaintiff may simply refile the complaint. For instance, if the ground
of particulars or of a more definite pleading, was anchored on improper venue, the plaintiff may file the action
or after notice of denial of his motion, the in the proper venue.
moving party may file his responsive pleading
with the period to which he was entitled at He may appeal from the order of dismissal where the ground relied
the time of filing his motion, which shall not upon is one which bars the refiling of the complaint like res
be less than five (5) days in any event. (1[b]a) judicata, prescription, extinguishment of the obligation or violation
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Under Section 6, after filing of such answer, the defendant can ask
GENERAL RULE: A case that has been dismissed can be re-filed.
for a preliminary hearing on his affirmative defenses as if a motion
EXCEPTIONS: When the case was dismissed on the following to dismiss has been filed. Meaning, this should be heard ahead.
grounds: And if the court grants the preliminary hearing, you can move your
affirmative defenses ahead and if you correct, the court will dismiss
the case. So, it has the same effect as if you file a motion to
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Now, you ask me why should the defendant do this? Why file an
That is the prior rule. That ruling is already OBSOLETE because of
answer and then preliminary hearing?
this new paragraph, “The dismissal of the complaint under this
section shall be without prejudice to the prosecution in the same
Because this is a matter of strategy on trial technique. If I will file a
or separate action of a counterclaim pleaded in the answer.”
motion to dismiss which is not a responsive pleading, the plaintiff
may amend the complaint, and I cannot prevent him from
amending because the amendment is still a matter of right at that
moment.
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Rule 17
confirms the dismissal, it follows that the court does not have to
DISMISSAL OF ACTIONS
approve the dismissal because it has no discretion on the matter.
Before an answer or a motion for summary judgment has been
Section 1. Dismissal upon notice by plaintiff. A served upon the plaintiff, the dismissal by the plaintiff by the filing
complaint may be dismissed by the plaintiff of a notice is a matter of right. The dismissal occurs as of the date
by filing a notice of dismissal at any time the notice is filed by the plaintiff and not the date the court issues
before service of the answer or of a motion the order confirming the dismissal.
for summary judgment. Upon such notice
Under the rules on civil procedure, there are two types of
being filed, the court shall issue an order
dismissal:
confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without
1) Dismissal with prejudice – the case can no longer be
prejudice, except that a notice operates as an re- filed;
adjudication upon the merits when filed by a 2) Dismissal without prejudice –the case can be re-filed.
plaintiff who has once dismissed in a
competent court an action based on or Q: Is the dismissal under Section 1 with or without prejudice?
including the same claim. (1a)
A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case
Q: Can a plaintiff file a complaint and later change his mind and can be re-filed.
withdraw? Meaning, can he dismiss his own complaint?
Exceptions: The dismissal will however, be with prejudice in any of
A: YES. And it is a matter of right. the following conditions:
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PP files in the RTC an action to collect P300,000.00 from DD. The Q: If the defendant has already filed an answer or a motion for
complaint was dismissed when PP immediately filed a notice of summary judgment, may the complaint still be dismissed by the
dismissal. The same claim was again filed in the MTC. Before DD plaintiff?
served either an answer or a motion for summary judgment, PP
filed a notice of dismissal. Does the two-dismissal rule apply? A: YES, but it is already upon the approval of the court and upon
such terms and conditions as the court deems proper. Meaning, the
It does not. The first court, the RTC was not a court of competent dismissal under Section 2 by the plaintiff is no longer a matter of
jurisdiction because the claim was below its jurisdictional amount. right because the defendant has already filed an answer or a
motion for summary judgment.
Q: Suppose you file a complaint against Mr. Cruz and you
immediately changed your mind and had it dismissed under Effect of dismissal upon a counterclaim already pleaded
Section 1. And then after having dismissed, you changed again
your mind and you want to re-file the action. Now, How do you If a counterclaim has been pleaded by the defendant prior to the
re-file the action? Do you file another complaint again? service upon him of the plaintiff's motion for dismissal, the
dismissal shall be limited to the complaint.
A: That was answered in the case of
Q: Suppose I file a case against you and you file an answer with
ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO – 234 counterclaim, and I filed a notice dismissing my own complaint.
SCRA 455 [1994] Can it be done? What happens to the counterclaim?
HELD: It DEPENDS on whether the order of dismissal has A: Yes it can be done but the dismissal of the complaint DOES NOT
already become final. necessarily mean the dismissal of the counterclaim whether
compulsory or permissive. So a compulsory counterclaim remains
a) If within 15 days from the time it is ordered despite the dismissal of the complaint. The dismissal shall be
dismissed, all that you have to do is to ask the court limited to the complaint.
to set aside the order of dismissal and re-vive the
case because the order of dismissal have not yet
Such dismissal shall be without prejudice to the right of the
become final.
defendant to either:
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The last sentence says, “A class suit shall not be dismissed or FACTS: Plaintiff appeared during the trial and presented his
compromised without the approval of the court.” When you file a evidence and then he rested. And then during the hearing of the
class suit, you are not only fighting for yourself – you are fighting presentation of the defendant’s evidence, plaintiff failed to appear.
for the others. So, you cannot just withdraw it on your own or else, And since he failed to appear during trial, the court dismissed the
you will cause prejudice to everybody. So, in order to prevent the case.
person who filed it from prejudicing the right of the members of
the class suit, it cannot be dismissed or compromised without the HELD: The dismissal is WRONG. Why dismiss the case when he has
approval of the court. already presented his evidence? It is tantamount to deciding the
case against the plaintiff without considering the evidence that he
Sec. 3. Dismissal due to fault of plaintiff. If, for has presented. What is the remedy then?
no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his What the court should do is to proceed with the presentation of
evidence in chief on the complaint, or to the defendant’s evidence without the plaintiff. Do not dismiss the
prosecute his action for an unreasonable case the plaintiff has already presented his evidence.
length of time, or to comply with these Rules
or any order of the court, the complaint may That is why the language in the old rule is ‘failure to prosecute’ or
be dismissed upon motion of the defendant another term is ‘non-suited’. But the rules of court now want to
or upon the court's own motion, without avoid the word ‘non-suited’ because it carries a different meaning.
prejudice to the right of the defendant to
If plaintiff fails to appear on the date of the presentation of his
prosecute his counterclaim in the same or in
evidence-in-chief, but he arrived a little bit late, or he failed to
a separate action. This dismissal shall have
appear because he failed to receive the notice setting it, that is
the effect of an adjudication upon the merits,
different because the law says, “for no justifiable cause.” If I am
unless otherwise declared by the court. (3a)
late but a few minutes only, that is not a good basis to dismiss the
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If it was the defendant who failed to appear without justifiable Q: Give the EXCEPTIONS (When may the court dismiss the
cause, the plaintiff should move that the trial shall proceed ex- complaint motu propio?).
parte. But definitely, the defendant cannot be declared in default
because he already filed an answer. A: The following:
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION 1) Section 3, Rule 17 (Plaintiff’s fault);
FOR UNREASONABLE LENGTH OF TIME.
2) When on its face, the complaint shows that the court has
EXAMPLE: Maybe every time his case is called to trial, he appears no jurisdiction over the subject matter;
but he is not ready and so he postpones. The next hearing, he
3) When there is litis pendentia; or res adjudicata; or when
postpones again. That’s one interpretation.
the action has prescribed;
Another interpretation of “failure to prosecute” the complaint is
4) Under the Summary Rules, the court is empowered to
filed, answer if filed, the case has not been set for pre-trial, the dismiss immediately without any motion.
plaintiff did not take the initiative to have the case set for pre-trial.
For more than one year, the case has not been set for pre-trial and Effect of dismissal under Sec. 3 on the counterclaim
the plaintiff is not moving.
Take note of what the law says, if the complaint is dismissed under
Or, the case cannot be tried because the defendant cannot be Section 3, it is without prejudice to the right of the defendant to
summoned. The court keeps asking the plaintiff for the correct prosecute his counterclaim in the same or separate action. Again,
address of the defendant. And for more than one year, the plaintiff the dismissal of the main action or complaint does not mean the
cannot supply the court of the correct address of the defendant. dismissal of the counterclaim. This is the same with Section 2.
The judge cannot have the case docketed in court forever.
Read Pinga vs. Heirs of Santiago GR 170354, June 30, 2006.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT
OR ANY ORDER OF THE COURT. Dismissal is adjudication upon the merits
EXAMPLE: The court says, “Plaintiff, you are hereby directed to Q: If the complaint is dismissed under Section 3, can it still be re-
amend the complaint.” Plaintiff refuses to amend. The court will filed?
dismiss the case.
A: NO, the dismissal this time shall have the effect of adjudication
Remember that case I cited where the complaint was filed in the upon the merits. Meaning, res adjudicata applies, as if the case has
name of for example, “PANINGKAMOT STORE vs. SO and SO.” The already been decided. Therefore the elements of res adjudicata
SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not should also be present. The dismissal is with prejudice unless
a person. It is only the name of the business establishment. Only otherwise declared by the court.
natural person or juridical persons may be subject of the suit.
GENERAL RULE: Dismissal due to the fault of the plaintiff is with
Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to prejudice.
amend in order to reflect the owner of the store. So the court
directs the plaintiff to amend. Ayaw mo i-amend ha? This time i- EXCEPTION: Unless the court provides otherwise or if the court has
dismiss ko for failure to comply with the court’s order. not yet acquired jurisdiction over the person of the defendant.
(Herrera vol. 1 p. 798)
Other Examples: Amend the pleading, submit a bill of particulars or
certification of non-forum shopping. EXAMPLE: When the case was called for trial, plaintiff did not
appear. Defendant moved to dismiss under Section 3. The court
Now, Section 3 says, “…may be dismissed upon motion of the dismissed the case. Can the case be re-filed? NO, the dismissal is
defendant or upon the court’s own motion (motu propio).” with prejudice. (General Rule)
Dismissal generally upon motion; exceptions Suppose the court will say, “For non-appearance of the plaintiff,
the complaint is dismissed without prejudice.” Can the case be re-
Q: As a general rule, can a court dismiss a complaint without any filed? YES. (Exception)
motion made by the defendant?
On the other hand, one of the interesting cases on this (the effect
of res adjudicata – because when we say res adjudicata, it had to
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FACTS: The RPB filed a case against the defendant for a sum of
money. Defendant cannot be summoned because his whereabouts
is now unknown. Several attempts made by the plaintiff to look for
him failed. After a while the court dismissed the complaint for
RBP’s failure to prosecute. And the order of dismissal was silent.
So, following Section 3, the dismissal is with prejudice.
In the case of RPB, the court never acquired jurisdiction over the
person of the defendant because he was never served with
summons. Therefore, such dismissal did not have the effect of res
adjudicata.
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Rule 18
court shall issue a notice of pre-trial (A.M. No. 03-1-09-SC, July 13,
PRE-TRIAL
2004).
Referral to the Philippine Mediation Center (b) The simplification of the issues;
At the start of the preliminary conference, the judge is mandated (c) The necessity or desirability of amendments to the
to refer the parties and/or their counsels to the mediation unit of pleadings;
the Philippine Mediation Center (PMC) for purposes of mediation.
(d) The possibility of obtaining stipulations or admissions
If mediation fails, the judge will schedule the continuance of the
of facts and of documents to avoid unnecessary proof;
preliminary conference. This rule applies to Metro Manila, Cebu,
Davao City and other places where Philippine Mediation Center (e) The limitation of the number of witnesses;
Units may be further organized and designated (Administrative
Circular No. 20–2002, March 24, 2002; Administrative Circular No. (f) The advisability of a preliminary reference of issues to
50-2005, April 26, 2005). a commissioner;
How is pre-trial called? (g) The propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action
should a valid ground therefore be found to exist;
Section 1. When conducted. After the last
pleading has been served and filed, it shall be (h) The advisability or necessity of suspending the
the duty of the plaintiff to promptly move ex proceedings; and
parte that the case be set for pre-trial. (5a,
R20) (i) Such other matters as may aid in the prompt
disposition of the action. (1a, R20)
In civil actions, after the last pleading has been filed (Reply or
Answer) the plaintiff is duty bound to move promptly and ex parte
that the case be set for pre-trial. (a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR
OF A SUBMISSION TO ALTERNATIVE MODES OF
The ex-parte motion to set case for pre-trial is to be made by the DISPUTE
plaintiff after the last pleading that has been served and filed (Sec. RESOLUTION
1). Specifically, the motion is to be filed within five (5) days after
Remember that the policy of the law in civil cases is settlement to
the last pleading joining the issues has been served and filed
save time and expense.
(Administrative Circular No. 3-99, January 15, 1999). If the plaintiff
fails to file said motion within the given period, the branch clerk of There was an article where it says that one of the best gauge of a
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good lawyer is not that he has many cases, but that he knows
how to settle a case because he saves his client from a lot of
trouble.
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Now, assuming that the parties cannot settle at the pre-trial stage, During the pre-trial if there is no settlement, the court will ask,
does it mean to say that the pre-trial was a failure? NO, go to [b] to “Mr. Plaintiff, how many witnesses will you present?” The plaintiff
[i] on other ways to hasten the trial. will say that he will present one hundred witnesses. So the court
will start asking, “Why so many? Will it be possible to limit the
(b) THE SIMPLIFICATION OF THE ISSUES number of witnesses from 100 to 15 or 10? Anyway, what one
witness will say will just be the same as what the other witness will
Based on the answers filed, issue will be simplified or say.”
lessened/reduced to the most important and relevant ones.
That is allowed and that is part of the pre-trial because it will be
(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE shortened if the number of witnesses will be reduced in number.
PLEADINGS;
(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF
Take note that there is already a complaint and answer and yet ISSUES TO A COMMISSIONER;
during the pre-trial, the parties can still amend their complaint or
answer. That means that amendments of pleadings are favored This refer to Rule 32 the title of which is “Trial by Commissioners.”
even at this stage. Amendment is necessary which is favored by A commissioner is a person who may be appointed by a judge to
the liberality principle, to adjudicate the case upon proper merits. assist the court in determining certain issues.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC – 21 SCRA 887 EXAMPLE: Two people dealing with each other ended up suing
each other because according to plaintiff, “You secured these
BAR PROBLEM: Suppose A sued B. After pre-trial, it was amounts from me and ito lang ang binayad mo. So, may utang ka
determined that there was a necessity for amending the pa.” But defendant said, “No, no, no! Based on my record, overpaid
complaint. It was amended. Is there a need for a new pre-trial
pa ako.” That can happen where there has be confusion already on
for the amended complaint?
the invoices and receipts. Now, if we will try this case in court it will
ANS: Where a pre-trial has already been had, the fact that an take time because you have to present to the judge every receipt,
amended complaint is filed, does not mean the need for a new pre- every invoice. And these invoices may number by hundreds. And
trial. Pre-trial is not mandatory. Exception to this is when the what is worse is that the judge is not an accountant so he will have
parties agree to conduct another pre-trial. a hard time reconciling these receipts and invoices.
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(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE Art. 2030. Every civil action or proceeding
PLEADINGS, OR SUMMARY JUDGMENT, OR OF DISMISSING THE shall be suspended:
ACTION SHOULD A VALID GROUND THEREFORE BE FOUND TO
EXIST; 1. If willingness to discuss a possible
compromise is expressed by one or
both parties; or
Q: What do you mean by judgment on the pleadings? What do you
2. If it appears that one of the parties,
mean by summary judgment? before the commencement of the
action or proceeding, offered to discuss
A: That was already mentioned under Rule 17, Section 1. But we a possible compromise but the other
will not take them up because they will be taken up when we reach party refused the offer.
Rule 34 and 35. Judgment on the pleadings or summary judgment
are remedies or procedure devised under the Rules of court for the The duration and terms of the suspension of
speedy determination of a civil case. It is one way of speedily the civil action or proceeding and similar
terminating a civil case. matters shall be governed by such provisions
of the rules of court as the Supreme Court
The court, during a pre-trial, is authorized to render a judgment on shall promulgate. Said rules of court shall
the pleadings or a summary judgment if there is a ground. In the likewise provide for the appointment and
same manner, the court may order the dismissal of the action duties of amicable compounders.
should a valid ground therefor be found to exist because it is
possible that based on the complaint, there is no ground to dismiss So a civil action may be suspended if at any time one of the parties
but in the course of pre-trial, the plaintiff may admit something offered to discuss a possible compromise because the policy of the
which turns out to be a ground for dismissal. law is to have civil cases settled between the parties amicably. Let
the parties talk among themselves to come up with the possibility
EXAMPLE: According to the plaintiff, the defendant borrowed of amicable settlement even if one of the parties refuse to accept
money from him three years ago and did not pay. But during the such an offer.
pre-trial, defendant said, “Actually, judge, hindi man yan three
years ago. That was thirty years ago!” Plaintiff answered, (i) SUCH OTHER MATTERS AS MAY AID IN THE PROMPT
“Actually, judge, totoo yan.” So judge said, “My golly, the action DISPOSITION OF THE ACTION.
has prescribed so I will order the dismissal.” These things can come
out in the pre-trial. That is very broad – any other matter which will hasten the case.
Anything under the sun can fall under this.
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PURPOSE OF A PRE-TRIAL
notified of the pre-trial and to consider that there is no longer a
need to send notice of pre-trial merely because it was his counsel
A review of Section 2 will show that the primary purpose of a pre-
who suggested the date of pre-trial (Agulto v. Tecson 476 SCRA
trial is how to end the case immediately because of amicable
395)
settlement. If the parties can settle, then there is no need to
proceed to trial. But if for valid or serious reason they cannot
ARCILLA vs. ARCILLA – 138 SCRA 560
settle, because the court can only encourage and not force a
settlement, then they shall proceed with the pre-trial to find out if FACTS: There was a pre-trial conference on July 29, where all the
we can have the case tried speedily and decided immediately by parties are notified through their lawyers pursuant to Section 3.
talking about other things like amending the pleadings, stipulation They appeared but somehow the pre-trial was terminated on July
of facts, admission of documents to avoid unnecessary proofs, 29. The court decided to reset the pre-trial on Oct. 2. The parties
limitation in the number of witnesses. So if we cannot settle, we agreed. Normally, the procedure is, when that happens, there will
can talk of other things to speedily terminate the case. Instead of be another written notice. There should be another written notice
trying the case for two years, we can probably finish in six months. sent to the lawyers and parties.
DEVELOPMENT BANK vs. CA – 169 SCRA 409 In this case, no such written notice was issued. On Oct. 2, the
defendant did not appear. With that, he was declared to have lost
NOTE: This case penned by Justice Narvasa, is practically all about
his rights to present his side. He was considered in default. He
pre-trial. It is actually the bible on pre-trial. And this is what
questioned the order on the ground that he did not receive any
exactly Justice Narvasa said:
notice on the Oct. 2 pre-trial conference. Therefore, all subsequent
proceedings, including the judgment rendered against the
HELD: “Everyone knows that a pre-trial in civil actions is
defendant were void. Is he correct?
mandatory, and has been so since January 1, 1964 (effectivity of
the Revised Rules of Court). Yet to this day its place in the scheme
HELD: “At first blush, petitioner’s aforesaid contention appears
of things is not fully appreciated, and it receives but perfunctory
very tenable, for indeed it is settled that a declaration of default, in
treatment in many courts [Meaning, it is only complied with for the
the absence of a notice of pre-trial constitutes denial of due
sake of compliance.] Some courts consider it a mere technicality,
process. But a deeper examination of the pleadings and the record
serving no useful purpose save perhaps, occasionally to furnish
of the case would show that petitioner was present during the pre
ground for non-suiting the plaintiff, or declaring a defendant in
trial conference on July 29, 1975 when the lower court re-set the
default, or, wistfully, to bring about a compromise. The pre-trial
pre-trial to October 2, 1975. On the said date, however, although
device is not thus put to full use. Hence it has failed in the main to
notified, both petitioner and his counsel did not appear, hence, the
accomplish the chief objective for it: the simplification,
declaration of default.”
abbreviation and expedition of the trial, if not indeed its
dispensation. This is a great pity, because the objective is So when the lower court reset the pre-trial on Oct. 2, the
attainable, and with not much difficulty, if the device were more defendant although ratified VERBALLY earlier, he failed to appear
intelligently and extensively handled.” that is why he was penalized under Section 5. When the court
reset the pre-trial, he agreed. He already knew. Notification need
The Supreme Court noted the inability of trial judges to properly
not be too technical. Despite the lack of a written notice, the
apply and appreciate the value of Rule 18.
defendant was penalized in the ARCILLA case.
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But the PRESENT RULE is: Notice to lawyer is notice to party. Note: The mere presentation of such written authroity is not
sufficient, but must be complemented by a showing of valid cause
Q: Is it possible for a party who will not appear at a pre-trial but
for the non-appearance of the party himsel.
his appearance is not necessary?
Q: If it is a corporation, what is that authority?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a
representative shall appear in his behalf duly authorized in writing A: It is a board resolution because only the board of directors has
to enter into an amicable settlement, to submit to alternative the authority to bind the corporation.
modes of dispute resolution, etc.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL
Meaning, you can delegate somebody who has a written authority.
Sometimes it is the lawyer who is given the Power of Attorney Sec. 5. Effect of failure to appear. The failure
authorizing him to enter into an amicable settlement. Otherwise, of the plaintiff to appear when so required
you will see in the next section what is the effect if you fail to pursuant to the next preceding section shall
appear in a pre-trial. be cause for dismissal of the action. The
dismissal shall be with prejudice, unless
Q: Suppose one of the parties in the case is a CORPORATION. A otherwise ordered by the court. A similar
corporation cannot appear because it has no physical existence. failure on the part of the defendant shall be
Who is authorized to appear in a pre-trial in order to enter into an cause to allow the plaintiff to present his
amicable settlement? Are the managers or vice-president, evidence ex parte and the court to render
authorized to appear in a pre-trial in behalf of the bank which is a judgment on the basis thereof. (2a, R20)
party to the case?
Q: What happens if it is the plaintiff who failed to appear in the
A: NO! Even the president or the chairman of the board has no pre-trial?
power.
If the PLAINTIFF fails to appear, his case will be dismissed for not
Q: Who can bind a Corporation? appearing. And as a rule, the dismissal is with prejudice except
when the court orders otherwise. It has the same effect as Rule 17,
A: Only the Board of Directors has the authority to bind a
Section 3: Failure to appear during the trial for the presentation of
corporation.
his evidence-in-chief. So, if the plaintiff fails to appear during the
Q: If there will be a pre-trial of a case involving one of the banks in trial when it is his turn to present his evidence, under Rule 17, his
Manila but the case is in Davao, am I saying that everytime there is case shall be dismissed and generally the dismissal is with
a pre-trial all the members of the Board will fly to Davao to attend prejudice, or an adjudication upon the merits. (Res Adjudicata
the pre-trial and pass a resolution inside the courtroom? applies).
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The old rule was that the plaintiff will be declared non- suited.
Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed
NOW, it shall be a cause for dismissal of the action.
to present his evidence ex parte. Now, what is the REMEDY of the
defendant? Because if you look at Rule 9 on default, the proper
Q: Is there any difference between non-suited and dismissal of
motion for the defendant in default is to file a motion to lift the
action?
order of default on the ground of F.A.M.E. and that he has a
A: There is suppose to be a difference based on the case of meritorious defense. Is that also the remedy for the defendant who
failed to appear in the pre-trial?
BA FINANCE CORP. vs. COURT OF APPEALS – 224 SCRA 163
[OBSOLETE!] A: NO, that is the case of
It does not anymore apply because now, you can have the case Under Rule 18, there is no use to say that you have a meritorious
dismissed but your counterclaim is still alive. So, the ruling in BA because you have already filed an answer. The defense is already
FINANCE CORP. is now OBSOLETE. there. Unlike in defaulted defendant, the court has no idea what is
your answer kaya nga you must convince the court that you have a
What is the remedy of the plaintiff in case of dismissal for his meritorious defense.
failure to appear?
So a simple MOTION FOR RECONSIDERATION is sufficient.
Since the dismissal is with prejudice or an adjudication upon the
merits of the case, the remedy of the plaintiff is to appeal from the Appeal not available
order of dismissal. An order dismissing an action with prejudice is
appealable. Under the rules, it is only when the dismissal is without The order of the court allowing the plaintiff to present evidence ex-
prejudice that appeal cannot be availed of (Sec. 1[g] R 41). Since parte does not dispose of the case with finality. The order is
appeal is available, certiorari is not the remedy because the therefore, merely interlocutory hence, not appealable. Under Sec.
application of a petition for certiorari under Rule 65 of the Rules is 1© of Rule 41, no appeal may be taken from an interlocutory
conditioned upon the absence of appeal or any plain, speedy and order. The defendant who feels aggrieved by the order may move
adequate remedy (Sec. 1 R 65). for the reconsideration of the order and if the denial is tainted with
grave abuse of discretion, he may file a petition for certiorari.
Effect of failure of the defendant to appear
Q: Assuming that the plaintiff is already presenting evidence, and
Q: What happens if it is the defendant who failed to appear in the the defendant filed a motion for reconsideration. The court
pre-trial? reconsidered and recalled the plaintiff’s ex-parte presentation of
evidence. Do they have to go back to pre-trial.
A: If it is the DEFENDANT who failed to appear, the law says, it shall
be a cause to allow the plaintiff to present his evidence ex-parte A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409)
and for the court to render judgment on the basis thereof.
EXCEPTION: YOUNG vs. CA, 204 SCRA 584
You will notice that if it is the defendant who failed to appear
under the old law, he will be considered as in default. NOW, the General Rule: DEVELOPMENT BANK vs. CA – 169 SCRA 409 [1989]
word ‘default’ is avoided. The non-appearance of defendant during
the pre-trial is not a ground to declare him in default. Instead the
rule says, “it shall be a cause to allow the plaintiff to present his HELD: When a pre-trial is terminated, you do not go back to it.
The court shall let the plaintiff continue and just let the
evidence ex parte and the court to render judgment on the basis
defendant cross-examine the plaintiff’s witnesses. As a
thereof.” That is the same effect as the old rule. general rule a second pre-trial cannot be granted, the remedy
instead is to go to trial.
Q: Why is the new rules avoiding the word ‘default’?
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If all efforts to settle fail, the trail judge shall endeavor to achieve
A pre-trial conference although it is less formal than a trial, that’s
the other purposes of a pre-trial like, among others, obtaining why in most cases, pre-trial is not done in open court but inside the
admissions or stipulations of fact. To obtain admissions, the judge
chamber of the judge where the atmosphere is more relaxed
shall ask the parties to submit whatever depositions have been because you are going to talk about settlement, eh. However, do
taken under R 23 and the answers to written interrogatories under
not believe that that is just a decoration. That is an official
R 25 and the answers to request for admission by the adverse party proceeding. Everything there is recorded. According to section 7,
under R 26. He may also require the production of documents or
after a pre-trial conference is terminated, the court will issue what
things requested by a party under R 27 and the results of the is known as pre-trial order. That is now expressly required by the
physical and mental examination under R 28 (ibid).
rules.
The authority to compromise a litigation is not mandatorily This order of the court is issued upon the termination of the pre-
required to be in writing. The vital thing is that the authority was trial. Under A.M. No. 03-109-SC dated July 13, 2004, the pre-trial
made expressly. The authority to compromise if not in writing may order shall be issued within ten (10) days after the termination of
be established by evidence. the pre-trial. This order recites in detail the following:
Compromise agreements entered into without authority are not (a) A statement of the nature of the case;
void but unenforceable and may be ratified (Lim Pin vs Liao Tan, GR (b) The matters taken up in the conference;
No. L-47740, July 20, 1982) (c) the action taken thereon;
(d) the amendments allowed to the pleadings; and
The court shall ask the parties to agree on the specific dates for (e) the agreements or admissions made by the parties as to any
continuous trial, adhere to the case flow chart determined by the of the matters considered (Sec. 7) including testimonial and
court and use the time frame for each stage in setting the trial documentary evidence. These admissions embodied in the
pre-trial order are binding upon the parties and conclusive
dates. Adherence to the One Day Examination of Witness Rule shall
upon them (Heirs of Conahap v. Regana 458 SCRA 741).
be required where the witness shall be fully examined in one day (f) the issues involved, factual and legal;
only, subject to the court’s discretion during the trial on whether or (g) number of witnesses; and
not to extend the examination for justifiable reasons. Where no (h) the dates of trial.
settlement has been effected, the court shall follow the Most
Important Witness Rule, where the court shall determine the most Another important point to remember about the pre-trial order is
important witnesses and limit the number of such witnesses and stated in the rule thus: “Should the action proceed to trial, the
require the parties and/or counsels to submit to the branch clerk of order shall explicitly define and limit the issues to be tried. The
court the names, addresses and contact numbers of the witnesses contents of the order shall control the subsequent course of the
to be summoned by subpoena. Note however, that the court may action, unless modified before trial to prevent manifest injustice.”
also refer the case to a trial by commissioner under R 32 (ibid).
The other exceptions are:
Questions are to be asked by the judge
1. issues impliedly included in the issues stated or inferable
therefrom by necessary implication (Velasco vs.
During the pre-trial, the judge shall be the one to ask questions on
Apostol, GR No. 44588, May 9, 1989) and
issues raised by the parties and all questions or comments by 2. amendment to conform to evidence under Rule 10 Sec.
counsel or parties must be directed to the judge to avoid hostilities 5)
between the parties (ibid).
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That is why the case of DBP vs. CA, supra, where the Court through
1. The pre-trial in a civil case is set when the plaintiff moves
Justice Narvasa, emphasized the importance of a pre-trial. The ex-parte to set the case for pre-trial (Sec. 1 R 18).
Court noted that if there is a pre-trial order because the judge
followed Rule 18 religiously, during the trial the judge will not have The PT in a criminal case is ordered by the court and no
a hard time in determining what is the issue to be resolved. And motion to set case for pre-trial is required from either
babasahin lang niya ay ang pre-trial order. Everything is to be party (Sec. R 118);
based there. Without the pre-trial order, you will still have to look
at the pleadings of both parties. The pre-trial order is a very 2. The motion to set case for PT in a civil case is made after
important piece of document. the last pleading has been served and filed
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Outline
Pre- Trial
A. If no Settlement is reached
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KATARUNGANG PAMBARANGAY
RTC and MTC judges. Subject: Guidelines on the Katarungang
Pambarangay conciliation Procedure to prevent circumvention on
the Revised Katarungang Pambarangay Law.
For now, we will leave the rules on civil procedure. We will go to
another law which is also connected with the study on civil We will summarize the law and discuss some important features.
procedure. This is the Barangay Conciliation Law. It is appropriate Under the law, you cannot file a case against somebody without
to discuss what the law is all about because under Rule 18 on pre- attempting to settle matters before the barangay level.
trial, you will notice it has emphasized that the primary purpose of
a pre-trial is the possibility of amicable settlement. That is usually SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION
encouraged. No case may reach the trial stage without passing LAW:
through the Pre-trial Rule. We have to exhaust all avenues and
settlement. The law applies only when you are suing somebody who resides in
the same city or municipality where you reside. Or in the event of
There is a law known as the BARANGAY CONCILIATION LAW which different municipalities, they are adjacent. So when two towns are
mandate that before an action can be filed by an individual near each other, you are suing somebody there, the law will apply.
complainant against another individual defendant, both of them Generally, when you (from Davao City) sue somebody from General
are residing in the same city or municipality, there should be a prior Santos City, the law is inapplicable because it is a different city.
attempt to conciliate in the barangay level – under the rules, the
barangay of the defendant. And if the action if filed without The law will not apply if one of the parties in the dispute is a
observing that procedure, the action is dismissible. juridical person – i.e. corporation. It only applies to suits between
natural persons.
Suppose a case will be filed in court, according to the SC, the
plaintiff must allege in a complaint that before filing the case he Under the law, it is the barangay where the defendant resides
exerted or complied with the Baranagay Law. It is a condition which is the venue for conciliation. If the dispute arose in a
precedent. Normally, after you exhaust in the barangay level but is workplace or in school, the venue is the barangay where the
not successful, the Barangay Chairman will issue a certification to workplace or the school is located.
file an action. That should be stated in the complaint.
Q: If I’m from Sasa and you are from Toril, but we are residing in
According to the SC in the case of VDA. DE BORROMEO vs. PUGOY the same city, which barangay is the proper venue?
(126 SCRA 217), the failure of a complaint to allege compliance
with the requirement of the barangay law is fatal. He must make an A: Under the law, it is the barangay where the defendant resides,
allegation that before filing his complaint, he complied with the unless the dispute arose in a workplace or in school.
barangay law. Otherwise, his complaint will be ordered dismissed.
If the dispute refers to REAL property, it is where the property is
If the action is filed without observing that procedure, the action is situated. If the dispute refers to Real Property (e.g. land), and I’m
dismissible. But as clarified by the SC in many cases, among them from Matina, and you are from Sasa, but the case involves a land in
are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA Toril, then the correct venue is the place where the land is situated
289) the defect is NOT JURISDICTIONAL. You do not say the court – i.e. the barangay in Toril.
has no jurisdiction.
When you say, both the parties reside in the same city or
The ground for dismissal is more on PREMATURITY OF THE municipality, what do you mean by RESIDENCE? The same
ACTION. You can cite the new ground now as “the condition interpretation as laid down by the SC in
precedent required by law has not been observed.” Actually, it will
GARCES vs. CA – 162 SCRA 504
also affect the cause of action- Based on decided cases, there must
be an allegation in the complaint that before filing a case, there has
FACTS: Garces lives in Cavite but works in Malate. He rented an
been an attempt to undergo a conciliation in the barangay level. apartment in Malate and stays there on weekends.
Now, this law used to be the Katarungang Pambarangay Law, PD HELD: For purposes of the Barangay Law, Garces is a resident of
1508. However, it was superseded on January 1, 1992 by RA 7160, Malate. The word ‘RESIDES’ refers to actual or physical residence,
otherwise known as the Local Government Code Of 1991 (LGC). not domicile.
The Barangay Conciliation requirement is now embodied in RA
7160. The barangay requirement is found in Sections 399-422 and In the case of
also Section 515. It is around 25 sections of the law.
BEJER vs. CA – 169 SCRA 566
To help you, the SC in 1993 issued Administrative Circular No. 14-
93 where the SC tried to condense the important requirements of FACTS: Andre lives in Laguna but has a house in Manila where
the law – who are covered and who are not. It is addressed to all his children live.
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This is because “the primary purpose of the law is to provide FACTS: What happened here is exactly similar to what happened to
the conciliation mechanism, as an alternative to litigations in the case of RAMOS. When the barangay captain could not effect a
dispute settlement, to members of the corresponding settlement, he issued certificate to file action. That was
barangays who are actually residing therein. Residence alone, questioned. It was not referred to the Lupon. Therefore, it was
without membership, in said barangays would not be an premature, citing Section 410-d of the LGC.
accurate and reliable criterion, considering that such
residence may be actual but be merely temporary, transient HELD: The SC cited a new section in the LGC which is Section 412
or categorized into other permutations as in the case of a which seems to give the barangay captain the authority to issue a
house guest or a sojourner on a visit of a day or two.” certificate without necessarily referring anymore to the Lupon.
“On the other hand, mere membership in a barangay, without “While no pangkat was constituted, it is not denied that the parties
actual residence therein, should not suffice since absentee met at the office of the barangay chairman for possible settlement.
membership would not subserve the avowed purpose of the The efforts of the barangay chairman, however, proved futile as no
law for lack of the common bond and sense of belonging agreement was reached. Although no pangkat was formed, we
generally fostered in members of an identified aggroupment.” believe that there was substantial compliance with the law. It is
noteworthy that under Section 412 of the Local Government Code,
Q: Suppose the defendant will not show up everytime he is called. the confrontation before the lupon chairman OR the pangkat is
sufficient compliance with the pre-condition for filing the case in
A: That is now a ground for the barangay captain to issue a
court.”
certificate to file an action. The defendant cannot complain later
that there is non-compliance of the barangay law. The defendant “This is true notwithstanding the mandate of Section 410(b) of the
cannot use his own default to profit it. That was the ruling in SAN same law that the barangay chairman shall constitute a pangkat if
MIGUEL VILLAGE SCHOOL vs. PUNDOGAR (173 SCRA 704). he fails in his mediation efforts. Section 410(b) should be construed
together with Section 412. On this score, it is significant that the
Take note that the barangay cannot decide. It can only convince barangay chairman or punong barangay is himself the chairman of
the party to settle. A barangay court has no power to make the lupon under the Local Government Code.”
decisions. But if you agree to something and in case you failed to
comply with your agreement, that can be enforced by the Anyway, if we look to the pangkat under the LGC, the chairman of
barangay. But actually, the decision came from you, and not from the lupon is also the barangay captain. So, either one or the other
the barangay court. will do. So, the case of DIU has effectively set aside the ruling in
RAMOS.
There are other interesting cases under the Barangay Law. In the
1989 case of CANDIDO vs. MACAPAGAL – 221 SCRA 328 [1993]
RAMOS vs. CA – 174 SCRA 690 FACTS: Here, plaintiff Eltor files a case against defendants Jenny,
Gemma, and Jayce. Eltor and Jenny reside in Davao City. So they
(Eltor and Jenny) are covered by the law. But Gemma and Jayce
FACTS: This case originated in barangay Lanang, Davao City.
reside in General City. So there is no problem with Gemma and
The parties failed to agree before the barangay captain. He
Jayce because there is no need to effect conciliation. But how
tried to convince them to settle, but they refused to settle.
about Jenny? Should the case be dismissed against Jenny if there
With that, the barangay captain issued a certificate to file an
was no prior barangay conciliation between Jenny and Eltor?
action. So the case was filed in the RTC. The defendant
questioned the procedure. HELD: NO. The fact that Eltor and Jenny reside in the same
municipality does not justify compulsory conciliation WHERE the
HELD: The procedure is wrong. The case cannot be filed.
other defendants reside in different municipalities or cities.
Under the Barangay Law which is now incorporated in 410-d
of the Local Government Code, the correct procedure for this So, it would seem na pag nahaluan na ng iba, you are not also
is, if the barangay captain cannot effect settlement, he should covered anymore. That seems to be the implication. That seems to
throw the case to the Pangkat, the Lupon. If the barangay jive with another ruling of the SC on the issue of “members of the
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same family” because under the law, if the plaintiff and defendant
NOTE: Only natural persons can undergo barangay conciliation.
are members of the same family, they cannot also file a case
against each other without conciliation. But if there is a stranger 5. Disputes involving parties who actually reside in
included, the requirement will not apply. barangays of different cities or municipalities, except
where such barangay units adjoin each other and the
July 15, 1993
parties thereto agree to submit their differences to
amicable settlement by an appropriate Lupon;
ADMINISTRATIVE CIRCULAR NO. 14-93
6. Offenses for which the law prescribes a maximum
Subject : Guidelines on the Katarungang Pambarangay penalty of imprisonment exceeding one (1) year or a
conciliation procedure to prevent circumvention of the Revised fine over five thousand pesos (P5,000.00);
Katarungang Pambarangay Law (Sections 399-422, chapter VII, 7. Offenses where there is no private offended party;
Title I, Book III, R.A. 7160, otherwise known as the Local 8. Disputes where urgent legal action is necessary to
Government Code of 1991). prevent injustice from being committed or further
continued, specifically the following:
To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts NOTE: “Urgently.” A good example in civil action is where the
action is coupled with a provisional remedy such as
The Revised Katarungang Pambarangay Law under R.A. 7160, preliminary injunction, attachment, replevin or support. Or,
otherwise known as the Local Government Code of 1991, actions which may be barred by the statute of limitations.
effective on January 1, 1992, and which repealed P.D. 1508,
introduced substantial changes not only in the authority granted a.) Criminal cases where accused is under police
to the Lupon Tagapamayapa but also in the procedure to be custody or detention (See Sec. 412 (b)(1), Revised
observed in the settlement of disputes within the authority of the Katarungang Pambarangay Law);
Lupon. b.) Petitions for habeas corpus by a person illegally
deprived of his rightful custody over another or a
In order that the laudable purpose of the law may not subverted person illegally deprived of his liberty or one
and its effectiveness undermined by indiscriminate, improper acting in his behalf;
and/or premature issuance of certifications to file actions in court c.) Actions coupled with provisional remedies such as
by the Lupon or Pangkat Secretaries, attested by the preliminary injunction, attachment, delivery of
Lupon/Pangkat Chairmen, respectively, the following guidelines personal property and support during the
are hereby issued for the information of trial court judges in cases pendency of the action; and
brought before them coming from the Barangays: d.) Actions which may be barred by the Statute of
Limitations.
I. All disputes are subject to Barangay conciliation pursuant to the 9. Any class of disputes which the President may
Revised Katarungang Pambarangay Law (formerly P.D. 1508, determine in the interest of justice or upon the
repealed and now replaced by Secs. 399-422, Chapter VII, Title I, recommendation of the Secretary of Justice;
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known 10. Where the dispute arises from the Comprehensive
as the Local Government Code of 1991), and prior recourse Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657);
thereto is a pre-condition before filing a complaint in court or any 11. Labor disputes or controversies arising from employer-
government offices, EXCEPT in the following disputes: employee relations (Montoya vs. Escayo, et al., 171
SCRA 442; Art. 226, Labor Code, as amended, which
1. Where one party is the government, or any subdivision grants original and exclusive jurisdiction over
or instrumentality thereof; conciliation and mediation of disputes, grievances or
2. Where one party is a public officer or employee, and problems to certain offices of the Department of Labor
the dispute relates to the performance of his official and Employment);
functions;
3. Where the dispute involves real properties located in
different cities and municipalities, unless the parties NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the
thereto agree to submit their difference to amicable conciliation there is in the Department of Labor.
settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnerships 12. Actions to annul judgment upon a compromise, which
or juridical entities, since only individuals shall be may be filed directly in court (See Sanchez vs. Tupaz,
parties to Barangay conciliation proceedings either as 158 SCRA 459).
complainants or respondents (Sec. 1, Rule VI,
Katarungang Pambarangay Rules); Under the provisions of R.A. 7160 on Katarungang Pambarangay
conciliation, as implemented by the Katarungang Pambarangay
Rules and Regulations promulgated by the Secretary of Justice,
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Rule 19
Q: What if Rucel does not file a third party complaint
against Rayda? What can Rayda do to be able to join the
INTERVENTION
case?
Q: Define intervention. A: Rayda can, with leave of court, INTERVENE under Rule
19. The initiative should come from her.
A: An INTERVENTION is proceeding in a suit or action in which a
third person, not a party to the case, is permitted by the court to So an intervention is related to a third-party complaint. It is a
make himself a party to the case. (33 C.J.S. 447) process by which a stranger or a third party is included in a case,
but with the difference that in a third-party complaint, it is the
Intervention is a legal proceeding by which a person who is not a party who brought you in. While in intervention, the initiative
party to the action is permitted by the court to become a party by comes from the third person and he is known as the intervenor.
intervening in a pending action after meeting the conditions and And the process of entering is called intervention. And take note
requirements set by the Rules of Court. This third person who that a person cannot simply intervene for the sake of intervening.
intervened is one who is not originally impleaded in the action There must be a legal ground for intervention which can be found
(First Philippine Holdings Corporation v. Sandiganbayan 253 SCRA in Section 1:
30)
Section 1. Who may intervene. A person who has a
It is a remedy by which a third party, not originally impleaded in the legal interest in the matter in litigation, or in the
proceedings, becomes a litigant therein to enable him to protect or success of either of the parties, or an interest
preserve a right or interest which may be affected by such against both, or is so situated as to be adversely
proceeding (Office of the Ombudsman v. Samaniego GR 175573, affected by a distribution or other disposition of
Sept. 11, 2008). property in the custody of the court or of an
officer thereof may, with leave of court, be
Intervention is never an independent proceeding but is ancillary allowed to intervene in the action. The court shall
and supplemental to an existing litigation. Its purpose is to enable a consider whether or not the intervention will
stranger to an action to become a party to protect his interest unduly delay or prejudice the adjudication of the
(Santiago Land Development Corporation v. CA 267 SCRA 79). rights of the original parties, and whether or not
the intervenor's rights may be fully protected in a
An intervention cannot alter the nature of the action and the issues separate proceeding. (2[a], [b]a, R12)
already joined (Castro v. David 100 Phil. 454).
Q: What are the grounds for intervention?
Intervention in an action is neither compulsory nor mandatory
but only optional and permissive (Mabayo Farms Inc. v. CA GR A: The following are the GROUNDS for intervention:
140058 August 1, 2002)Hence, the court has full measure of
discretion in permitting or disallowing the same (Yau v. Manila 1) The intervenor has a legal interest on the matter under
Banking Corporation GR 126731 July 11, 2002). litigation;
2) The intervenor has a legal interest in the success of either
This discretion however, must be exercised judiciously and only of the parties;
3) The intervenor has a legal interest against both; or
after consideration of all the circumstances obtaining in the case.
4) The Intervenor is so situated as to be adversely affected
Thus, where the substantial interest of the movant in the subject by a distribution or other disposition of property in the
matter is undisputed, a denial of a motion to intervene is an custody of the court or of an officer thereof.
injustice (Mago v. CA GR No. 115624 Feb. 25, 1999).
EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and Intervention is never an independent proceeding but is ancillary
Rayda signed a promissory note in favor of Leo. and supplemental to an existing litigation. Hence, the final
dismissal of the principal action results in the denial of the pending
Q: Leo sues Rucel and Rayda. What pleading should motion for intervention.
Rucel file to protect herself?
Exception:
A: Rucel should file a CROSS-CLAIM against her co-party
Rayda. The intervenor in a pending case is entitled to be heard like any
other party. A claim in intervention that seeks affirmative relief
Q: Leo sues only Rucel. What is the remedy of Rucel to prevents a plaintiff from taking a voluntary dismissal of the main
protect herself? action. Where a complaint in intervention was filed before
plaintiff's action had been expressly dismissed, the intervenor's
A: Rucel should file a THIRD-PARTY COMPLAINT against
complaint was not subject to dismissal on the ground that no
Rayda.
action was pending, since dismissal of plaintiff's action did not
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The following requisites must be complied with before a non-party That the intervention must not unduly delay or prejudice the
may intervene in a pending action: adjudication of the rights of the original parties and that the
intevenor’s rights may not be fully protected in a separate
(a) There must be a motion for intervention filed before proceeding (Mabayo Farms Inc., v. CA GR 140058 August 1, 2002).
rendition of judgment by the trial court. A motion is
necessary because leave of court is required before a And when you file a motion to intervene, the pleading-in-
person may be allowed to intervene (Section 1); intervention that you want to file should already be included. Now,
under the old procedure, first, you file a motion to intervene. After
(b) The movant must show in his motion that he has a (1)
filing your motion and your motion is granted, then you file your
legal interest in
pleading in intervention. So, motion first before pleading. That was
a) matter in litigation, the old rule.
b) the success of either of the parties in the action, or
c) against both parties, or NOW, the copy of the pleading and intervention shall be attached
d) That the movant is so situated as to be adversely to the motion and served on the original parties. That is also in
affected by a distribution or other disposition of consonance with Rule 15 Section 9 on motions in general.
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Remedies from denial of intervention: HELD: When the intervention is granted and the main action is
withdrawn or dismissed, it would be unfair to dismiss the
1) appeal, or intervention. So the intervention proceeds notwithstanding the
2) mandamus, if there is grave abuse of discretion
withdrawal of the main action.
3) certiorari, if there is improper granting of intervention.
Q: Now, suppose there is an amendment of a complaint-in- “The simple fact that the trial court properly dismissed plaintiffs
intervention. What is the period to answer? action does not require dismissal of the action of the intervenor. An
intervenor has the right to claim the benefit of the original suit and
A: Let us go back to Rule 11, Section 3: to prosecute it to judgment. The right cannot be defeated by
dismissal of the suit by the plaintiff. Where a complaint in
intervention was filed before plaintiff’s action had been expressly
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The clerk of court has a calendar of cases – cases for pre-trial, trial
cases, which were postponed. When will be the continuation of
the trial? May scheduling yan eh. Of course, the law says,
preference shall be given to certain type of cases like habeas
corpus. It is very important because that involves the freedom of
an individual.
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Rule 21
b) the court of the place where the deposition is
to be taken;
SUBPOENA
c) the officer or body authorized by law to do so
in connection with investigations
conducted by said officer or body; or
Section 1. Subpoena and subpoena duces d) any Justice of the Supreme Court or of the
tecum. Subpoena is a process directed to a Court of Appeals in any case or
person requiring him to attend and to testify investigation pending within the
Philippines.
at the hearing or the trial of an action, or at
any investigation conducted by competent
authority, or for the taking of his deposition. When application for a subpoena to a prisoner
It may also require him to bring with him any is made, the judge or officer shall examine and
books, documents, or other things under his study carefully such application to determine
control, in which case it is called a subpoena whether the same is made for a valid purpose.
duces tecum. (1a, R23)
No prisoner sentenced to death, reclusion
Rule 21 applies to both civil and criminal cases. perpetua or life imprisonment and who is
confined in any penal institution shall be
Q: What are the types of subpoena under the
brought outside the said penal institution for
appearance or attendance in any court unless
law? A: The following are the types of subpoena:
authorized by the Supreme Court. (2a, R23)
1) Subpoena Ad Testificandum; and
2) Subpoena Duces Tecum Q: Who are authorized to issue subpoena?
Now, the first one is commonly known as subpoena for short. So, A: The following:
when you say that refers to the first one.
1. The court before whom the witness is required to attend –
Q: Define Subpoena Ad Testificandum. the most common is the court where the court is pending;
A: SUBPOENA AD TESTIFICANDUM is a process directed to a person 2. The place where the deposition is to be taken – we will
discuss that when we reach Rule 23;
requiring him to attend and to testify at the hearing or trial of an
action, or at any investigation conducted by competent authority, 3. The officer or body authorized by law to do so in
or for the taking of his deposition. So you are required to appear connection with investigations conducted by said officer or
there and testify in court. body – Now, even administrative bodies or quasi-judicial
officers are authorized to issue subpoena like the Labor
Q: Define Subpoena Duces Tecum. Arbiter in connection with investigation conducted by said
officer or body;
A: SUBPOENA DUCES TECUM is a process directed to a person
where it requires him to bring with him any books, documents or 4. Any Justice of the Supreme Court or of the Court of
Appeals in any case or investigation pending within the
other things under his control. So, in other words we are more
Philippines – So, practically any justice can issue a
interested in his documents, which are in his custody. Whereas in subpoena to attend a particular case although it is not
ad testificandum, we are more interested in his oral testimony. before the SC. They are empowered to issue a subpoena.
Now, take note that a subpoena is a process which requires a Q: Can you subpoena a PRISONER to appear in court?
witness to testify not only during the hearing or the trial of his case
but also any investigation conducted by “competent authority” like A: YES, but the law says that the judge should be very careful to
quasi-judicial bodies such as the Labor Arbiter or the Senate Blue find out whether it is issued for a valid purpose because there is a
Ribbon Committee. Now, under Section 1, you may wonder what risk. If a prisoner is going to be brought out in jail because he has
do you mean by subpoena “for the taking of his deposition”? That’s to testify in a case, that might be an occasion for him to escape.
because that will clearer when we reach Rule 23. So we will just So, the court should be very careful about that. The court should
reserve talking deposition when we reach Rule 23. have to find out whether it is necessary.
Sec. 2. By whom issued. The subpoena may be And take note, “No person sentenced to death, reclusion perpetua,
issued by: or life imprisonment and who is confined in a penal institution shall
be brought outside the said penal institution for appearance or
a) the court before whom the witness is attendance in any court unless authorized by the Supreme Court.”
required to attend; This is something new.
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GROUNDS TO QUASH SUBPOENA DUCES TECUM Of course, the law does not say how much. Sa gobyerno nga
papirma ka lang diyan ng isang pirma bayad ka na ng service fee.
To quash there must be motion filed.
How much more in the private sector, where you are requiring a
Q: What are the grounds for quashing a subpoena duces tecum? company to look for a document? He is the one to look and then
somebody will go to court. He will not be reporting for job and yet
A: The following are the grounds: you have not even offered anything to the company. We
experienced this many times subpoena duces tecum, and then the
1) If the subpoena duces tecum is unreasonable and manager of the bank will say, “do we have to comply with these?”
oppressive; Well, you do not want to comply. Puwede man.
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When you received the subpoena duces tecum, may bayad ba? Did
issued by or on behalf of the Republic of the
the person offer any amount for the trouble in looking for these
Philippines or an officer or agency thereof,
documents and in going to court? “Wala.” Okay, we will move to
the tender need not be made. The service
quash. In other words, sometimes companies and banks just
must be made so as to allow the witness a
waived this. Sige lang, bayaan mo na. Maliit na bagay lang iyan.
reasonable time for preparation and travel to
But it is a ground for quashing a subpoena.
the place of attendance. If the subpoena is
duces tecum, the reasonable cost of
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
producing the books, documents or things
Q: How do you quash a subpoena ad testificandum? demanded shall also be tendered. (6a, R23)
A: The court may quash a subpoena ad testificandum on the The first sentence says, “Service of the subpoena shall be made in
ground that the witness is not bound thereby. the same manner as personal or substituted service of summons.”
That is a new provision. So, the mode of service of summons,
Q: When is a witness not bound by a subpoena? personal or substituted is also the manner of serving subpoena. So
there is now a substituted service of subpoena. You can leave it to
A: The best answer is Section 10 of this rule – if your residence is the wife.
more than 100 kilometers from the place of trial. So, you cannot
subpoena someone from Cebu to come to Davao because that is 1. The original shall be exhibited and a copy thereof be
more than 100 kms. But suppose you are willing to pay for his delivered to the person on whom it is served;
2. tendering to him the fees for one day's attendance or
transportation? Never mind, even if he is willing to pay the
kilometrage allowed by the Rules; except that, when a
transportation. Pag ayaw niya, wala kang magagawa because it is subpoena is issued by or on behalf of the Republic of the
more than 100 kms. Philippines or an officer or agency thereof, the tender
need not be made;
In either case, the subpoena may be quashed for failure to tender 3. the service must be made so as to allow the witness a
the witness fees and kilometrage allowed by the Rules. reasonable time for preparation and travel to the place
of attendance; and
In either case, whether subpoena duces tecum or ad testificandum, 4. if the subpoena is duces mecum, the reasonable cost of
the last sentence says, “You must also tender the witness fees and producing the books, documents, or things demanded
kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I shall also be tendered.
think that’s Rule 141, ‘yun bang pamasahe. There is a computation
Under the old rule, it says there, the subpoena shall be served
there. How much you have to pay the witness for his
personally to the witness. There is no such thing as substituted
transportation and witness fees. That is different from the
service of subpoena because in most cases, when you subpoena
reasonable cost and reproduction in the first paragraph. So, these
somebody, you go to the house, the witness is not there but the
are the grounds for questioning a subpoena.
wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo
ito.” That is substituted service of subpoena. You must serve it
Sec. 5. Subpoena for depositions. Proof of
personally to the witness. There is no such thing as substituted
service of a notice to take a deposition, as
service of subpoena under the prior rule.
provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization for
But NOW, the rule has changed because Section 6 is very clear: “It
the issuance of subpoenas for the persons
shall be made in the same manner as personal or substituted
named in said notice by the clerk of the court
service of summons.” Alright.
of the place in which the deposition is to be
taken. The clerk shall not, however, issue a And take note that You exhibit it to the witness. Then bayaran mo
subpoena duces tecum to any such person ‘yong kanyang pamasahe. You must serve the subpoena with a
without an order of the court. (5a, R23) reasonable time to me to allow him to travel. It’s very unbecoming
that the witness be serve a subpoena today and he is suppose to
Now, let’s us skip Section 5 for the meantime because that is
testify tomorrow. Suppose he has other commitments, bigyan mo
deposition.
siya ng time. And of course, as we discussed earlier, the reasonable
cost of producing the books, documents or things demanded shall
Sec. 6. Service. Service of a subpoena shall be
also be rendered.
made in the same manner as personal or
substituted service of summons. The original
Sec. 7. Personal appearance in court. A person
shall be exhibited and a copy thereof
present in court before a judicial officer may
delivered to the person on whom it is served,
be required to testify as if he were in
tendering to him the fees for one day’s
attendance upon a subpoena issued by such
attendance and the kilometrage allowed by
court or officer. (10, R23)
these Rules, except that, when a subpoena is
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Q: How do you compel a witness to attend? Meaning, a witness 1. the witness resides more than 100 kilometers from his
was subpoena and he did not show up. What are the residence to the place where he is to testify by the ordinary
consequences of defying a subpoena? course of travel (Viatory right).
A: The consequences are found in Sections 8 and 9. Note: This refers only to civil and not to criminal cases
(Ganorga vs. Quitain GR No. 891, July 21, 1977)
Sec. 8. Compelling attendance. In case of
failure of a witness to attend, the court or 2. Permission of the court in which the detention prisoner's
judge issuing the subpoena, upon proof of case is pending was not obtained.
the service thereof and of the failure of the
Although, this 100-km distance does not apply if it is a criminal case
witness, may issue a warrant to the sheriff of
where the accused would like to seek the compulsory process
the province, or his deputy, to arrest the
issued to secure the attendance of witnesses in his behalf because
witness and bring him before the court or
that is a superior right.
officer where his attendance is required, and
the cost of such warrant and seizure of such
That is how the SC interpreted it in the case of PEOPLE vs.
witness shall be paid by the witness if the
MONTEJO (21 SCRA 722 [1965]), reiterated in GENORGA vs.
court issuing it shall determine that his
QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation
failure to answer the subpoena was willful
applies only to civil cases, but not to criminal cases, especially if the
and without just excuse. (11, R23)
person to be subpoenaed is a defense witness because of the
constitutional right of the accused which is a right which cannot be
Sec. 9. Contempt. Failure by any person
curtailed by the Rules of Court.
without adequate cause to obey a subpoena
served upon him shall be deemed a contempt
SUMMONS vs. SUBPOENA
of the court from which the subpoena is
issued. If the subpoena was not issued by a Q: Distinguish SUBPOENA from SUMMONS.
court, the disobedience thereto shall be
punished in accordance with the applicable A: The following are the distinctions:
law or Rule. (12a, R23)
1) SUBPOENA is directed to a witness; whereas
SUMMONS is directed to a defendant in a civil case;
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Rule 22
For example: A motion to dismiss is filed on the 7th day (instead of
COMPUTATION OF TIME
filing an answer). Then after several weeks, the court denied the
motion to dismiss and he received the order of denial.
Section 1. How to compute time. In computing
Q: So how many days more to go?
any period of time prescribed or allowed by
these Rules, or by order of the court, or by
A: Meron pa siyang eight (8) days to go. But the minimum
any applicable statute, the day of the act or
guaranteed is five (5) days under Rule 12 and 16.
event from which the designated period of
time begins to run is to be excluded and the Now, what is the meaning of the last sentence “The day of the act
date of performance included. If the last day that cause the interruption shall be excluded in the computation of
of the period, as thus computed, falls on a the period.” Let’s try to illustrate that:
Saturday, a Sunday, or a legal holiday in the
place where the court sits, the time shall not FACTS:
run until the next working day. (n) January 31 – defendant is served with summons
This is what is known as “EXCLUDE THE FIRST AND INCLUDE THE February 8 – defendant files a motion to dismiss
LAST DAY” rule. That is how it has always been done even before
this new rule. However, it was not expressed, there is nothing in February 15 – defendant receives order denying motion
the previous rules mentioning that rule but that was really the rule to dismiss
followed.
Q: What is the deadline for defendant to file his answer?
So, if you received the summons today, for example and you have
15 days to answer, you start counting 1(one) tomorrow, not today A: The 15-day period started to run on January 31. From January
because the day of the act or event from which the designated 31 to February 8, he consumed 8 days. From February 8 to 15, not
period of time begins to run is to be excluded. counted because interrupted man by motion to dismiss. Then, on
February 15, he received the order denying his motion to dismiss.
Q: Now what happens if the last day to answer falls on a Saturday,
Sunday or a legal holiday? So the remaining balance of the 15-day period starts to run again.
And 15 minus 8 is equal to 7. Therefore, February 15 + 7 = February
A: The last day is automatically the next working day. 22. That is how you arrive at your (WRONG) answer.
So at least, the new rules now embody the rule of computation of Now, I’m sure if you ask majority of lawyers and judges with that
time. kind of problem, they will give the same answer. But the answer is
WRONG. Why?
Sec. 2. Effect of interruption. Should an act be
done which effectively interrupts the running Q: How many days did he consume from January 31 to February 8?
of the period, the allowable period after such
interruption shall start to run on the day after A: Hindi naman 8 days eh. 7 days lang because the filing of the
notice of the cessation of the cause thereof. motion to dismiss has interrupted.
The day of the act that caused the So when you file the motion to dismiss on February 8, interrupted
interruption shall be excluded in the na. So February 8 is not counted. So you consumed 7 days only.
computation of the period. (n) Yaaaannnn…….
EXAMPLE: The defendant received the summons and the complaint Therefore, if he consumed 7 days, he has 8 days pa from February
on a certain day. He has 15 days to file his answer. An example of 15 to file. So the deadline is February 23. Yaaaannnn! Because the
an act in between which effectively interrupts the running of the law says: “The day of the act that caused the interruption shall be
15-day period is when the defendant files a motion to dismiss excluded in the computation of the period.” The act that caused
instead of filing an answer, or a motion for a bill of particulars. In the interruption is the filing of the motion to dismiss and it was
which case, the running of the 15-day period stops. And since it is filed on February 8. So, February 8 is already excluded in the
stopped, you cannot declare the defendant in default. computation of the period.
Q: Now, when will it start to run again? Take note of that, that is a very important point because it may
mean the answer is filed on time or out of time. Kahit sa appeal,
A: It will start to run again when the defendant receives a court applicable din ito. That’s why that provision may sound very
order denying his motion to dismiss. innocent but it is a very important provision.
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Rule 23
issues and facts before civil trials and thus prevent the said trials to
DEPOSITIONS PENDING ACTION
be carried on in the dark. It is intended to make certain that all
issues necessary to the disposition of a case are properly raised.
A civil case is not a case of technicalities. The rules do not want Thus, to obviate the element of surprise, parties are expected to
surprises in civil cases. You lay your cards on the table. You do not disclose at a pre-trial conference all issues of law and fact and that
keep your opponent searching in the dark and that principle is they intend to raise at the trial, except such as may involve
manifested in so many rules. privileged or impeaching matters (Tinio v. Manzano 307 SCRA 460;
Mercader v. DBP 332 SCRA 82).
Example: when a defendant resorts to a specific denial, he is
obliged not only to deny the allegations in the complaint but also Note: Modes of discovery are intended to be cumulative and not
the facts that are denied. It is not fair to state that my version is alternative nor mutually exclusive.
false, without stating your version. And if you do not make specific
Discovery is not mandatory but failure to avail carries sanctions in
denial, there is a general denial, an implied admission.
Rules 25 and 26.
You cannot also deliberately confuse the defendant by making
BAR QUESTION: How do you distinguish Bill of Particulars from
ambiguous ultimate facts in the complaint to confuse him. He has
Modes of Discovery?
the right to clarify the allegation by motion for bill of particulars.
A: Bill of Particulars is Rule 12, when you compel the party to clarify
There is also the rule that objections or defenses not pleaded in the
vague statements of ultimate facts, but it is not an instrument to
motion to dismiss or in an answer are generally waived. So, if you
compel the other party to reveal evidentiary facts. The Modes of
do not invoke the defense because you want to surprise the
Discovery are intended to compel the other party to reveal his
plaintiff, you will be the one who will be surprised because the
evidence and evidentiary facts.
courts will not allow you. There is no such thing as surprise defense
because under Rule 9, defenses not raised are deemed waived.
Duty of the court in relation to the modes of discovery
These provisions of the rules indicate the principle: LAY YOUR
CARDS ON THE TABLE. The modes of discovery are considered by the SC as vital
components of case management in pre-trial courts. Hence, aside
BUT there is still an element of surprise whether you like it or not
from preparing the summons within one (1) day from the receipt of
because I’m obliged to state my cause of action or defense but I’m
the complaint, the court is required to issue an order requiring the
not obliged to state the facts supporting that defense because the
parties to avail of interrogatories to parties under Rule 25 and
rules even say, evidentiary matters should not be alleged in the
request for admission by adverse party under Rule 26 or at their
pleading but is only proved in the trial.
discretion make use of depositions under Rule 23 or other
measures under Rules 27 and 28 within five (5) days from the filing
A motion for bill of particulars is not a vehicle to fish for evidentiary
of the answer. A copy of this order shall be served upon the
facts. So, in that sense there is still an element of surprise – you do
defendant together with the summons. A copy of the order shall
not know my evidence until the trial or pre-trial.
also be served upon the plaintiff (A.M. No. 03-1-09-SC, July 13,
Q: But if you want to avoid any surprise, is there a way of knowing 2004).
then?
There are actually five (5) Modes of Discovery:
A: YES. The correct remedy is to apply the modes of discovery.
1. DEPOSITIONS – (a) pending action (Rule 23) and (b) before
action or pending appeal (Rule 24);
Meaning of discovery
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);
In general, a discovery is a device employed by a party to obtain
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND
information about relevant matters on the case from the adverse THINGS (Rule 27); and
party in preparation for the trial. (Riano 2007, p. 310) 5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule
28)
As contemplated in the Rules, the device may be used by all the
parties to the case. First Mode: Rule 23: DEPOSITION PENDING ACTION
Purpose of discovery This mode is the most popular among the five. Deposition has two
(2) types – deposition pending action (Rule 23) and depositions
The modes of discovery are designed to serve as an additional before action or pending appeal (Rule 24). But actually Rule 24 is
device aside from a pre-trial, to narrow and clarify the basic issues not new because that is Rule 134 (Perpetuation of Testimony).
between the parties, to ascertain the facts relative to the issues and
to enable the parties to obtain the fullest possible knowledge of the EXAMPLE: You are my opponent and I know you have 2 witnesses,
A and B. Now, of course, if A and B will testify, how will they
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testify, that I do not know. But I want to know exactly what they
deposition there is cross--examination, there is a confrontation as if
will say during the trial, including you.
he is already testifying in court.
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The court found the contention untenable and ruled: Q: Suppose I would like to take the deposition of Ms. A before a
notary public whose office is located along San Pedro Street. How
“We find petitioners’ contention to be untenable. Ex can I force Ms. A to go to the office of that notary public? Can I
abundanti cautela means “out of abundant caution” or force her?
“to be on the safe side”. An answer ex abundanti cautela
does not make their answers less an answer. A cursory A: If Ms. A is in court, the court can force you by subpoena. But I
look at the answers filed by petitioners shows that they can also compel Ms. A to attend this questioning for the purpose of
contain their respective defenses. An answer is a deposition. Section 1 says, “the attendance of witnesses may be
pleading in which a defending party sets forth his compelled by the use of a subpoena as provided in Rule 21.”
defenses and the failure to file one within the time
allowed therefore may cause a defending party to be Rule 21, Section 1. Subpoena and subpoena
declared in default. Thus, petitioners, knowing fully well duces tecum. Subpoena is a process directed
the effect of the non-filing of an answer, filed their to a person requiring him to attend and to
answers despite the pendency of their appeal with the testify at the hearing or the trial of an action,
Court of Appeals on the denial of their motion to or at any investigation conducted by
dismiss.” (Rosete v. Lim GR No. 136051, June 8, 2006) competent authority, or for the taking of his
deposition. It may also require him to bring
Q: Whose deposition can you take? with him any books, documents, or other
things under his control, in which case it is
A: The law says, you can take the testimony of any person whether called a subpoena duces tecum. (1a, R23)
a party or not at the instance of any party.
PROBLEM: Your case is in Davao but your witness is in Cebu. You
EXAMPLE: I will file a case against Mr. A. Can I take the depositions asked your witness to come here in Davao to help you and you are
of his witnesses? Yes, including Mr. A’s deposition. I can also take even willing to shoulder her transportation, but she refuses.
the deposition of my own witnesses, even my own deposition. At
least, before I die, nakuha na yung testimony ko. So I can take the Q: Can you ask the court in Davao to issue a subpoena compelling
deposition of anybody in the world. That’s why the law says, “the such witness to come here and testify even if the distance is
testimony of any person whether a party or not may be taken at the more than 100 kilometers?
instance of any party.” And of course, Mr. A can also do what I was
allowed to do. A: NO, because of Section 10 of Rule 21. The remedy is you go to
Cebu and get a deposition officer and take her deposition.
Q: When you take deposition of this person, what do you call him?
Q: How can I compel her to go to the office of the notary public in
A: The accurate term is that, he is called ‘DEPONENT.’ Some Cebu for the purpose of the deposition?
people call him witness.
A: You can get a subpoena from the Cebu court and that is allowed
Q: What are the modes of deposition taking? under Rule 21, Section 2 [b] and under Rule 21, Section 5:
A: Under the law, there are two (2) recognized modes: Rule 21, Sec. 2. By whom issued. The
subpoena may be issued by:
1) Deposition upon oral examination; and
2) Deposition upon written interrogatories xxxxx
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xxxxx
Meaning, deposition taking is even allowed as part of the execution
where the trial is already terminated. This is called with another
Sec. 5. Subpoena for depositions. Proof of
name in Rule 39 on execution, satisfaction or effects of judgments.
service of a notice to take a deposition, as
(c.f. Rule 39, Sections 36, 37 and 38)
provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization for
What can be the subject matter of deposition taking? Section 2:
the issuance of subpoenas for the persons
named in said notice by the clerk of the court Sec. 2. Scope of examination. Unless
of the place in which the deposition is to be otherwise ordered by the court as provided
taken. The clerk shall not, however, issue a by section 16 or 18 of this Rule, the deponent
subpoena duces tecum to any such person may be examined regarding any matter, not
without an order of the court. (5a, R23) privileged, which is relevant to the subject of
the pending action, whether relating to the
In other words, I will send the notice to my opponent, “I am going
claim or defense of any other party, including
to take the deposition of my witness in Cebu.” And based on that
the existence, description, nature, custody,
notice, I will go to Cebu and ask the clerk of court of the RTC of
condition, and location of any books,
Cebu to issue a subpoena based on the notice to take deposition on
documents, or other tangible things and the
the Davao case. And under the Rules, the Cebu RTC has to issue a
identity and location of persons having
subpoena even if the case is not pending in that (Cebu) court
knowledge of relevant facts. (2, R24)
because this is only deposition. Kaya nga under Rule 21, Section 2
[b], a subpoena may be issued by the court of the place where the Q: When you take the deposition of a deponent what can you
deposition is to be taken. ask? What matters may be inquired into?
There was an instance before, a Manila lawyer who wanted to take A: The law says, the deponent may be examined regarding any
the deposition of somebody in Davao. Then he applied for a matter whether related to the claim or defense of a party.
subpoena to require the deponent to appear before a notary public
here. At least, tama siya doon. Ang mistake niya, he applied for a Example: Suppose if there is a case between me and somebody
subpoena in the Manila court where the case is pending and the and I suspect Pedro knows something about the facts but I am not
judge there, maybe he did not read Rule 21, issued a subpoena sure, so I will take his deposition. I will start asking questions to
addressed to the person in Davao to appear before the notary Pedro wherein practically I’m groping in the dark. I just start asking
public in Davao and the witness did not appear. So the lawyer questions left and right hoping that, I may stumble into something
realized na mali siya. So he had to do it all over again in Davao, not about the case.
in Manila. The subpoena has no more effect beyond 100
kilometers. It should be filed not where the case is pending but at Q: Is that allowed? Pataka lang ba ang style of asking questions.
the court of the place where the deposition is to be taken. In other
words, the error was corrected, but can you imagine the waste of A: YES, it is allowed. Precisely, the mode of discovery is a fishing
time and effort. expedition in the hope that you will discover something in the
course of a questioning. If I already know a fact, there is nothing to
Generally, depositions are taken at the start of the case before the discover. It is very broad that I may discover something in the
trial. But in the case of course of questioning. You can ask the deponent any matter
related to the claim or defense but there are limitations.
DASMARIÑAS GARMENTS, INC. vs. REYES – 225 SCRA 622 [1993]
LIMITATIONS IN DEPOSITION TAKING
ISSUE: Whether or not deposition taking is only allowed before the
action comes to trial. Can you still resort to deposition under Rule Q: What are the limitations or prohibitions in deposition taking?
23 when the trial is already ongoing or it is only at the pre-trial?
A: The following are the limitations in Deposition Taking:
HELD: “Depositions may be taken at any time after the institution
of any action, whenever necessary or convenient. There is no rule 1.) The matter inquired into is not privileged either under
the rules on evidence or special law;
that limits deposition-taking only to the period of pre-trial or
2.) The matter inquired into is relevant to the subject of the
before it; no prohibition against the taking of depositions after pre- pending action;
trial. Indeed, the law authorizes the taking of depositions of 3.) The court may issue orders to protect the parties and its
witnesses before or after an appeal is taken from the judgment of a deponents under Sections 16 or 18.
Regional Trial Court to perpetuate their testimony for use in the
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FIRST LIMITATION: That the matter inquired into is not privileged. USE OF DEPOSITIONS
There are things which you cannot compel a person to reveal in Sec. 4. Use of depositions. At the trial or upon
court. the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so
EXAMPLE: You cannot compel the wife to reveal in court what her
far as admissible under the rules of evidence,
husband told her in confidence during their marriage. That is
may be used against any party who was
known as the marital privileged communication rule (Rule 130,
present or represented at the taking of the
Section 24 [a]).
deposition or who had due notice thereof, in
accordance with any one of the following
Other privileged communications: Lawyer-Client communication
provisions:
rule (Rule 130, Section 24 [b]); Physician-Patient communication
rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule
xxxxx
(Rule 130, Section 24 [d]). Or, business trade secrets such as the
formula of your product. Where the witness is available to testify and the situation is not
one of those excepted under Section 4, his deposition is
So, if you cannot ask that in a trial, you cannot also ask that in a
inadmissible in evidence and he should be made to testify.
deposition taking.
Q: In what proceedings may a deposition be used?
SECOND LIMITATION: The matter inquired into is relevant to the
pending action. A: The following:
While deposition taking authorizes a fishing expedition, you are not 1) At the trial;
allowed however, to go beyond the topic. 2) Upon a hearing of a motion; or
3) Upon a hearing of interlocutory proceeding (e.g.
EXAMPLE: You will ask the witness about an incident which issuance of a writ of preliminary injunction or
happened and she was supposed to be there. “Where were you on attachment)
this date?” “I was there.” “Who was with you?” “I was with my
boyfriend.” “When did he become your boyfriend?” or “How often Q: Against whom may a deposition be used?
do you date each other?” or “What’s his favorite color? Malaki ba
A: Against the following:
ang tiyan niya?” My golly! Those questions are irrelevant. Anong
pakialam niyan sa topic? Walang connection ba!
1) against any party who was present; or
2) against a party who was represented at the taking of the
THIRD LIMITATION: The court may issue orders to protect the deposition; or
parties and its deponents under Sections 16 or 18 of this 3) against a party who did not appear or represented but
Rule. was duly notified of the scheduled deposition taking.
While it is true that leave of court is not necessary anymore, you So, the procedure for deposition taking is first, to notify the other
have to remember that it is related to a pending case and the court party of the date, place and time of the deposition taking of a
has control over the case. That is why, while leave of court is not person. The other party is free to go there and participate. So if a
necessary, any party who is aggrieved can go to court and person appeared and participated, he is bound by the deposition. If
complain. And the court is authorized to issue orders to protect the he fails to appear but sent a representative, the same effect – the
parties and its deponents under Sections 16 or 18 of this Rule. person is bound. Suppose a person received the notice and never
bothered to go or participate, he is still bound because the law
Scope of examination in deposition says, for as long as you are notified, you are bound.
1. matter which is relevant to the subject of the pending So whether you will come or not, you are bound by the deposition
action; taking. In this case, you might as well show up.
2. not privileged; and
3. not restricted by a protective order (Secs. 16 and 18) Summary of use:
Q: In what proceedings can a deposition be used?
1) Deponent is any person - - - can be used by any party to
contradict or impeach the testimony of said deponent;
A: It can be used later during the trial of the case, or in supporting 2) deponent is a party or anyone who at the time of the
or opposing a motion. A good example is the remedy of summary deposition was an officer, director or managing agent of a
judgment under Rule 35. Under this Rule, a party can file a motion public or private corporation, partnership, or association
for summary judgment to demonstrate that the party has no cause which is a party - - - can be used by any party for any
of action. In that sense, I will support my motions with affidavit, purpose;
depositions or documents.
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Now, paragraph [c] allows the use of the deposition of a WITNESS (d) If only part of a deposition is offered in
for any purpose. evidence by a party, the adverse party may
require him to introduce all of it which is
DEATH relevant to the part introduced, and any
party may introduce any other parts.
Q: I will take the deposition of Juan who is my witness. During
the trial, my next witness is Juan. Do I have to present Juan or ILLUSTRATION: Suppose I will take the deposition of Juan dela
only his testimony in the deposition as evidence? Cruz. The first part is in my favor but when he was cross-examined
by the other party, he clarified his answers and turned out that his
A: I have to present my witness Juan because under paragraph [a], original answers were not really in my favor.
the deposition is only good for impeachment purposes but not a
replacement for his oral testimony. So there are two parts of the deposition: PART ONE, in the general
questions, the answers seem to be in my favor; PART TWO, when
Q: Suppose, when I’m about to present Juan during the trial, a the questions are specific, it turned out that it was not in my favor.
day before that he died. So, I have no more witness. Can I now So if I am the lawyer what I will offer is the part one as my evidence
present his testimony in the deposition as evidence? because it is in favor of my client. The other party will present the
other part.
A: YES. Under the law, his deposition will take the place of his oral
testimony because he is dead. However, if he is alive, apply In evidence, the party is not obliged to offer in evidence documents
paragraph [a] – you cannot substitute his deposition to his oral which are against his cause. It is now the job of the other lawyer to
testimony. offer the other part thereof (c.f. Section 17, Rule 132). So if this is
so, the picture created will only be half of the whole picture.
Now, it is true that when you take the deposition of your own
witness, you are supplying the other party a means to impeach the Q: Is this unethical as it is suppressing the truth?
testimony of your witness. But if you look at paragraph [c], it is also
important to take the deposition of your witnesses. The purpose is A: No, I am not suppressing the truth. Lawyers are not allowed to
just in case your witness will die before he can testify in court. At lie. Nowhere in the Legal Ethics is it being espoused that lawyers
least, kung nakuha mo na ang deposition niya earlier, masuwerte are told to lie. In fact, a lawyer must be honest and true for the
ka. administration of justice. It is the lawyer of the other side who has
the absolute right to complete the picture by offering the other
half. I am not under obligation to help the other side. A lawyer has
no obligation to present everything. He is only under the
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A: YES. The substitution of parties does not affect the right to use Sec. 8. Effect of using depositions. The
depositions previously taken. introduction in evidence of the deposition or
any part thereof for any purpose other than
Q: Jolina files a case against Maya and depositions were taken. that of contradicting or impeaching the
Later, the case is dismissed without prejudice. Jolina re-filed the deponent makes the deponent the witness of
case. Is it necessary for depositions to be taken all over again? the party introducing the deposition, but this
shall not apply to the use by an adverse party
A: NO NEED. The depositions taken in the dismissed case will still of a deposition as described in paragraph (b)
apply to the new case. There is no need of repeating the whole of section 4 of this Rule. (8, R24)
process.
Sec. 9. Rebutting deposition. At the trial or
Sec. 6. Objections to admissibility. Subject to hearing, any party may rebut any relevant
the provisions of section 29 of this Rule, evidence contained in a deposition whether
objection may be made at the trial or hearing introduced by him or by any other party. (9,
to receiving in evidence any deposition or R24)
part thereof for any reason which would
require the exclusion of the evidence if the It is just like a witness in court. If a witness says something in court,
witness were then present and testifying. (6, you can always prove that that is not true. If it is a deposition, the
R24) same thing – you can always rebut the truth of what he said in his
deposition.
Q: Can you object to the evidence which is being offered during the
deposition taking? BEFORE WHOM DEPOSITIONS ARE TAKEN
A: YES, however the deposition officer cannot rule but the If the deposition is to be taken WITHIN THE PHILIPPINES, who are
objection is recorded. It is the judge who will rule on the objection authorized to act as deposition officer? Section 10:
later during the trial.
Sec. 10. Persons before whom depositions may
be taken within the Philippines. Within the
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2) NOTARY PUBLIC. A notary public is authorized by law to Sec. 12. Commission or letters rogatory. A
administer oath. Take note that not all lawyers are commission or letters rogatory shall be issued
notary public. To be a notary public, you have to apply only when necessary or convenient, on
for commission in the court of the place where you are application and notice, and on such terms
practicing. If you are a notary public for Davao City, you
and with such direction as are just and
cannot be a notary public in any other place. And usually,
a commission for notary public is only good for 2 years. appropriate. Officers may be designated in
After 2 years, you have to re-apply. notices or commissions either by name or
3) PERSON REFERRED TO IN SECTION 14: descriptive title and letters rogatory may be
addressed to the appropriate judicial
Sec. 14. Stipulations regarding taking of authority in the foreign country. (12a, R24)
depositions. If the parties so stipulate in writing,
depositions may be taken before any person By COMMISSION, somebody other than Philippine consul… like in
authorized to administer oaths, at any time or Taiwan, we have Philippine Trade Department in Taiwan because
place, in accordance with these Rules, and when of our trade relations. The court will issue a commission to the
so taken may be used like other depositions. (24a, head of the trade mission there to act as deposition officer. Or any
R24) other person appointed by the judge by court order.
So, the parties may stipulate in writing that the A COMMISSION may be defined as an instrument issued by a court
deposition officer may not be a judge or a notary public. of justice, or other competent tribunal, to authorize a person to
It can be other person who is authorized to administer take depositions, or do any other act by authority of such court or
oath such as prosecutors, clerk of court who is a lawyer,
tribunal.
labor arbiters, etc. Anyway, they are also authorized to
administer oaths.
So, suppose I would like to take the deposition of somebody who is
If the deposition is to be taken ABROAD, who are authorized to act staying in Afghanistan where we have no consulate but I know of a
as deposition officer? Section 11: Filipino lawyer who resides there. I will request the court that this
Filipino lawyer abroad be authorized to take the deposition of a
Sec. 11. Persons before whom depositions may person there. If the court agrees, it will issue what is known as a
be taken in foreign countries. In a foreign commission.
state or country, depositions may be taken
(a) on notice before a secretary of embassy or But suppose none at all, the court will send letters rogatory
legation, consul general, consul, vice-consul, addressed to the court of a foreign country.
or consular agent of the Republic of the
Q: Define letters rogatory.
Philippines; (b) before such person or officer
as may be appointed by commission or under
A: LETTERS ROGATORY is an instrument whereby the foreign court
letters rogatory; or (c) the person referred to
is informed of the pendency of the case and the name of the
in section 14 hereof. (11a, R24)
foreign witnesses, and is requested to cause their depositions to
The amendment here again is the persons referred to under be taken in due course of law, for the furtherance of justice, with
Section 14. an offer on the party of the court making the request, to do the
like for the other, in a similar case. (Ballentine’s Law Dict., 2nd Ed.,
So, a secretary of the Philippine embassy or consulate abroad is p. 744)
authorized to act as deposition officer, as well as the consul
general, vice-consul, although on a SC circular, if the judge will It is an instrument sent in the name and by the authority of a judge
authorize the taking of deposition abroad, because this time leave or court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a case pending before the former, a
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the latter is resorted to if the execution of the You are disqualified to act as deposition officer if you are related to
commission is refused in the foreign country; any of the parties or the lawyer. You get somebody who is not
related.
4) Leave of court is not necessary for commission but
Sec. 15. Deposition upon oral examination;
necessary for letters. notice; time and place. A party desiring to
take the deposition of any person upon oral
The SC defined again commission and letters rogatory and
examination shall give reasonable notice in
distinguished one from the other in the case of
writing to every other party to the action.
DASMARIÑAS GARMENTS, INC. vs. REYES - 225 SCRA 622 [1993] The notice shall state the time and place for
taking the deposition and the name and
ISSUE #1: Distinguish commission from letters rogatory. address of each person to be examined, if
known, and if the name is not known, a
HELD: “A COMMISSION may be defined as an instrument issued by general description sufficient to identify him
a court of justice, or other competent tribunal, to authorize a or the particular class or group to which he
person to take depositions, or do any other act by authority of such belongs. On motion of any party upon whom
court or tribunal.” the notice is served, the court may for cause
shown enlarge or shorten the time. (15, R24)
“LETTERS ROGATORY, on the other hand, may be defined as an
instrument sent in the name and by the authority of a judge or There are 2 types of deposition taking:
court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a cause pending before the former, a (1) deposition upon oral examination and
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So, the deposition officer cannot make a ruling on the objection. It Any party can ask for a copy of the deposition upon payment of
is only the judge of the court where the case is pending who will reasonable charges therefor.
make the ruling on it.
Sec. 23. Failure to attend of party giving notice. If the
Take note: answers to depositions not objected to cannot be party giving the notice of the taking of a deposition fails
objected to in court during the trial, UNLESS the objection is based to attend and proceed therewith and another attends
on a new ground which only come up after the deposition. in person or by counsel pursuant to the notice, the
court may order the party giving the notice to pay such
Sec. 19. Submission to witness; changes; signing. When other party the amount of the reasonable expenses
the testimony is fully transcribed, the deposition shall
incurred by him and his counsel in so attending,
be submitted to the witness for examination and shall including reasonable attorney’s fees. (23a, R24)
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So, if you will notice, majority of all the errors are waived if
objection thereto is not promptly made.
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Rule 24
even if there is as yet no case, I will just file a petition under Rule
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
24. If I can prove really that the testimony would be relevant or
important the court will issue an order allowing me to take
TWO TYPES OF DEPOSITION TAKING: deposition in advance.
1) Deposition Pending Action (Rule 23) and Section 1. Depositions before action; petition.
2) Deposition Before Action or Pending Appeal (Rule 24) A person who desires to perpetuate his own
testimony or that of another person
In Rule 23, you take a testimony or deposition of people in relation regarding any matter that may be cognizable
to a pending case. There is already a pending case in court, so in any court of the Philippines, may file a
everything is based on a pending action. verified petition in the court of the place of
the residence of any expected adverse party.
The next rule (Rule 24) is deposition before a case is filed. That is (1a, R134)
why it is called Depositions Before Action. Actually, the concept of
depositions before action is not really new. This is also found in the A petition may be filed by any person:
Rules prior to 1997 but was found in another rule. It was called
Perpetuation of Testimony (Rule 134 of the old Rules of Court). 1) who wants to perpetuate his own testimony; or
What the new rules did was simply to transfer Rule 134 to Rule 24. 2) who wants to perpetuate the testimony of another
person.
A deposition before action and a deposition pending appeal are
referred to as perpetuation of testimony or perpetua rei It may be availed only in civil cases and not in criminal cases.
memoriam because their objective is to perpetuate the testimony
Q: Where will you file it?
of a witness for future use.
A: In the court of the place of the residence of any expected adverse
Depositions under this Rule are also taken conditionally to be used
party because there is still no case. So you have to file an
at the trial only in case the deponent is not available.
independent petition under Rule 24
Depositions under this Rule do not prove the existence of any right
Sec. 2. Contents of petition. The petition shall be
or facts of the facts which they relate, as it can be controverted at
entitled in the name of the petitioner and shall show:
the trial in the same manner as though no perpetuation of
(a) that the petitioner expects to be a party to an action
testimony was ever had.
in a court of the Philippines but is presently unable to
However, in the absence of any objection to its taking, and even if bring it or cause it to be brought; (b) the subject matter
the deponent did not testify at the hearing, the perpetuated of the expected action and his interest therein; (c) the
testimony constitutes prima facie proof of facts referred to in the facts which he desires to establish by the proposed
deposition. testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he
For example, the petitioner has a cause of action which has not yet expects will be adverse parties and their addresses so
accrued. In such a case, inasmuch as he cannot bring the action far as known; and (e) the names and addresses of the
until the cause of action accrues, he may perpetuate his testimony persons to be examined and the substance of the
or that of another person (Feria, 2001 p. 534) testimony which he expects to elicit from each, and
shall ask for an order authorizing the petitioner to take
EXAMPLE: Suppose there is a case which I would like to file against the depositions of the persons to be examined named
B. But for the moment I cannot file it yet. I intend to file a case in the petition for the purpose of perpetuating their
against him. So there is an expected case between us in the future testimony. (S2, R134)
only there are certain things that I still have to do. But if I file a
case against B, I have some witnesses who are all ready like A and The petition shall be verified and shall be filed in the place of
C. But the trouble is, I learned lately that A will die soon. He has residence of any expected adverse party. It shall contain the
cancer and C will have to leave for abroad, never to come back. matters set forth in Sec. 2 of Rule 24.
Definitely, if I will file the case, there are no more witnesses
Sec. 3. Notice and service. The petitioner shall serve a notice
available.
upon each person named in the petition as an expected
Q: Is there a way of taking testimony or deposition in advance even adverse party, together with a copy of the petition, stating
before wala pang kaso? that the petitioner will apply to the court, at a time and place
named therein, for the order described in the petition. At
A: YES, by applying Rule 24. I will file a petition before the court least twenty (20) days before the date of the hearing, the
known as Petition to Perpetuate the Testimony of A and C. Well, court shall cause notice thereof to be served on the parties
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Rule 25
Q2: What year did you introduce them?
Now, under Rule 25, you are obliged to answer me also in writing.
Q: Going back to Rule 23, what are the modes of deposition taking? Then you sign your answer and you swear to the truth of it. So I
will ask you directing a question – How will you prove this? Who
A: The following: are your witnesses? I will compel you to reveal the evidentiary
facts. And that process is called written interrogatories to parties.
1) Deposition upon oral examination; and
Di para na ring deposition?
2) Deposition upon written interrogatories.
I can also ask the same questions through deposition taking under
Purpose of written interrogatories:
Rule 23. Why do I have to resort to Rule 25? The trouble is under
To elicit facts from any adverse party (answers may also be used as Rule 23, I need a deposition officer and I will have to course
admissions of the adverse party). everything to him. In Rule 25, there is no need of a deposition
officer. I will ask you a question and you will answer me. Both are
Written interrogatories and the answers thereto must both be filed done directly. So, less expensive.
and served. Hence, the answers may constitute as judicial
admissions (Sec. 4, R 129) But take note, under Rule 25, you can only ask questions to your
opponent. You cannot ask questions to a stranger. Unlike in Rule
Rule 25 should not be confused with Rule 23, Section 25 – or 23, you can take the deposition of any person whether a party or
Deposition Upon Written Interrogatories. not. In Rule 25, the questioning is direct. Plaintiff questions the
defendant, defendant questions the plaintiff. So, these are the
In written interrogatories under Rule 23, questions are already differences between deposition upon written interrogatories and
prepared beforehand and they are going to be submitted to a interrogatories to parties.
deposition officer who will propound the questions to the
deponent and record the answers under oath. Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from
DEPOSITION UPON WRITTEN INTERROGATORIES (Rule 23).
EXAMPLE is, if you want to take the deposition of somebody
abroad through a deposition officer abroad. Of course, it would be A: The following are the distinctions:
very expensive to go there and conduct an oral examination. So,
the best thing is to resort to deposition upon written 1) (Procedure) Under Rule 23 on Depositions upon
interrogatories under Rule 23. written interrogatories, the deposition is taken before a
deposition officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no
That is not the same as interrogatories to parties under this rule.
deposition officer;
We are going to distinguish one from the other later.
2) (Procedure) Under Rule 23 on Depositions upon
Interrogatories mean written questions. EXAMPLE: I file a case written interrogatories, questions are prepared
against Frudo. Frudo filed an answer and of course, he has his beforehand. They are submitted to the deposition officer
affirmative defenses which are statements of ultimate facts. Alang who will ask the deponent the questions and he will
details, no evidentiary facts. But I am interested to find out what record the answers.; whereas
are these evidentiary facts I will write a letter addressed to Frudo Under Rule 25 on Interrogatories to Parties, the
questioning is direct. Plaintiff questions defendant,
under Rule 25 and direct him to answer the following
defendant questions the plaintiff. There is no third
interrogatories:
person who will intervene; and
According to your answer, you already paid, please answer the 3) (Deponent) Under Rule 23 on Depositions upon
following questions: written interrogatories, the deposition of any person
may be taken, whether he is a party or not, may be
Q1: When did you pay? taken; whereas
Rule 25 on Interrogatories to Parties applies to parties
Q2: Place? only. You can send interrogatories only to parties. You
cannot ask question to a stranger.
Q3: Who was present when you paid?
4) (Scope) Under deposition upon written
Or interrogatories (Sec. 25 R 23), there is direct, cross, re-
Q1: Mr. Frudo, you have been in continuous possession of this direct, re-cross examination but
piece of land for 30 years, would you kindly narrate the under this rule there is only one set of interrogatories.
improvements that you introduced in the property?
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The interrogatories shall be answered fully in writing and shall be Use of the answers to interrogatories
signed and sworn to by the person making them.
Q: Suppose there are already answers to the interrogatories given
Answers cannot be made by an agent or attorney; answers not by your opponent, how do you use those answers?
made by the parties are nullities (Herrera vol. 2 p. 44)
A: They have the same uses under Rule 23 Section 4 – you can use
A judgment by default may be rendered against a party who fails to it for impeachment, or any other purpose like to prove an
answer written interrogatories. admission already made by the adverse party.
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xxxxxx
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Rule 26
A:
ADMISSION BY ADVERSE PARTY 1) The genuineness of any material and relevant document
Rule 26 is also known as REQUEST FOR ADMISSION. Admission by described in and exhibited with the request and/or of
adverse party or request for admission is similar to interrogatories. 2) the truth of any material and relevant matter of fact set
You send questions to your opponent and he’s bound to answer in forth in the request orin the request; or
3) a matter of fact not related to any documents may be
writing within 15 days under oath but the framing of the questions
presented to the other party for admission or denial.
are different.
Q: When do you apply this mode of discovery?
In a request for admission, you are requiring the opposing party to
admit the truth or authenticity of certain documents. For example: A: “At anytime after issues have been joined.” Meaning, there is
“Do you admit the genuineness of the documents marked as Annex already an answer.
A?” We are talking here of DOCUMENTS which are NOT
ACTIONABLE because if the document is actionable then it has to Q: Is LEAVE OF COURT required under Rule 26?
be pleaded properly.
A: It is totally UNNECESSARY but a request for admission under
In other words, if I have 20 documents, to find out whether you will Rule 26 can only be started according to Section 1, “At any time
admit them or not, I will send you a copy and ask, “Do you admit after issues have been joined.” So it presupposes that there is
the genuineness of this? Do you admit the truth?” already an answer. Unlike in interrogatories, you can do it even
before an answer is served provided there is leave of court. This is
So, the main difference between Rule 26 and Rule 25 is in the the second difference between Rule 25 and Rule 26.
framing of the question. If the question is framed in such a way
that the premise is laid down and I ask you whether or not you Request for admission and actionable document
admit, then the question is proper under Rule 26. BUT if the
question if framed in such a way that it is not answerable by yes or The former is proper when the genuineness of an evidentiary
no, then apply Rule 25. document is sought to be admitted. If not denied under oath, its
genuineness is deemed impliedly admitted. Essentially it is a mode
Example: Suppose my question is like this – “who was with you?” of discovery; while the latter must be attached to the complaint or
That is proper under Rule 25. Pero sabi ko, “A and B were with you, copied therein. Its genuineness and due execution is deemed
admitted?” That is Rule 26. Kaya nga the way the questions were impliedly admitted unless specifically denied under oath, by the
framed determines wohat kind of mode of discover are you going adverse party.
to apply.
Sec. 2. Implied admission. Each of the matters
Section 1. Request for admission. At any time of which an admission is requested shall be
after issues have been joined, a party may file deemed admitted unless, within a period
and serve upon any other party a written designated in the request, which shall not be
request for the admission by the latter of the less than fifteen (15) days after service
genuineness of any material and relevant thereof, or within such further time as the
document described in and exhibited with court may allow on motion, the party to
the request or of the truth of any material whom the request is directed files and serves
and relevant matter of fact set forth in the upon the party requesting the admission a
request. Copies of the documents shall be sworn statement either denying specifically
delivered with the request unless copies have the matters of which an admission is
already been furnished. (1a) requested or setting forth in detail the
reasons why he cannot truthfully either
Purpose of written request for admission: admit or deny those matters.
To expedite trial and relieve the parties of the costs of proving facts Objections to any request for admission shall
which will not be disputed on trial and the truth of which can be be submitted to the court by the party
ascertained by reasonable inquiry. requested within the period for and prior to
the filing of his sworn statement as
When request may be made: contemplated in the preceding paragraph
and his compliance therewith shall be
At any time after the issues have been joined (after the
deferred until such objections are resolved,
responsive pleading has been served).
which resolution shall be made as early as
Q: So, what will you request the other party to admit? practicable.(2a)
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BAR QUESTION: Suppose, I will file a case against you and I will “A request for admission is not intended to merely reproduce or
attach to my complaint a Promissory Note – actionable document. reiterate the allegations of the requesting party’s pleading but
In your answer, you deny the genuineness and due execution of the should set forth relevant evidentiary matters of fact, or documents
Promissory Note. Meaning, as a defense you allege that your described in and exhibited with the request, whose purpose is to
signature is forged. There was a proper denial because it was establish said party’s cause of action or defense. Unless it serves
under oath. that purpose, it is pointless, useless, and a mere redundancy.”
After a week, I will now send to you a request for admission under If we have to answer the same question under the ruling in PO, it
rule 26, where I attach the same promissory note, and I will ask would seem that the defendant is correct. Why do I have to deny,
you, “Do you admit the genuineness and due execution of this if I have already denied it? So, there is no implied admission.
promissory note?” Now, when you receive the request, you ignore
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An example of the section: Let’s assume that there is a fact which I Let’s go to some interesting cases on request for admission.
want to prove and I know that you know but I do not know whether
you’ll admit it or not. Under the rules, I have to send you a request REBONERIA vs. CA – 216 SCRA 627 [1992]
for admission to confirm it.
FACTS: A request for admission was sent by a party (Plaintiff) to the
Suppose I do not send you a request because anyway there are lawyer of the defendant (because anyway, under Rule 13, the
very few lawyers who do that. So, I did not send a request and then general rule is that everything should be coursed through the
during the trial, I will just try to prove it. Then the adverse party
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lawyer) So, the request was sent to the lawyer. Since there was no
response, can there be an implied admission?
But the case of REBONIA should not be confused with the case of
FACTS : A request for admission was sent to a party. The party told
his lawyer to answer the request. So, it was the lawyer who
answered the request for admission under oath.
HELD: YES, because under the Rules, a client can always act
through the lawyer and he is bound by the actuations of his lawyer.
This is practically the rule on Agency. If we will say that the lawyer
has no authority even if ordered by the client, then we are altering
the Rules on Agency and also the rule that the lawyer can always
act in behalf of his client.
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Rule 27
EXAMPLE: Harry Potter sued Voldemortz. The case involves
accounting. Voldemortz is in possession of several invoices and
receipts which he would present in trial. Harry wants to get hold of
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
and inspect all these documents. Since these are not actionable
documents, Voldemortz is not required to show or include them in
SEC. 1. Motion for Production or inspection; the pleadings. No need to plead. So, Harry want to see these
order – Upon motion of any party showing books, photographs, accounts, objects which Harry know
good cause therefore, the court in which an Voldemortz will present during the trial. If Harry will ask
action is pending may (a) Order any party to Voldemortz to show these things, I don't think Voldemortz will
produce and permit the inspection and accommodate Harry.
copying or photographing by or on behalf of
Q: In the above example, what is the remedy of Harry?
the moving party, of any designated
documents, papers, books, accounts, letters, A: Harry will apply Rule 27 by filing a motion in court stating that
photographs, objects or intangible things, not Voldemortz is in the possession of such documents and Harry
privileged which constitute or contain would like to see, inspect or have them copied, provided they are
evidence material to any matter involved in relevant and not privileged. And the court will issue an order
the action and which are in his possession, directing Voldemortz on a specified time on place to bring them for
custody or control; or (b) Order any party to purposes of inspection, survey, copying, photocopying, etc.
permit entry upon designated land or other Voldemortz have no choice but to show Harry all these objects.
property in his possession for control for the
purpose of inspecting, measuring, surveying EXAMPLE: Harry sued Voldemortz for recovery of ownership of
or photographing the property or any land. Voldemortz in possession and such is in a position to enable
designated relevant object or operation to properly describe the land and all its improvements. Harry would
thereon. The order shall specify the time, like to see the property to inspect and survey the same.
place and manner of making the inspection
and taking copies and photographs, and may Q: What is Harry’s remedy?
prescribe such terms and conditions as are
just (1a) A: File a motion in court to permit him (Harry) to enter the land for
purposes of inspecting, measuring, surveying or photographing the
This Rule applies only to a pending action and the things or property. And the court will issue an order specifying the time,
documents subject of the motion must be only those within the place and the manner of inspection. Now, Harry will have an
possession, control, or custody of a party. access to the documents, things, land, etc. which are under
Voldemortz’s control or possession.
Production of documents affords more opportunity for discovery
than a subpoena duces mecum as will be shown later when the two Q: Give the requisites of production or inspection of
are distinguished. documents or things (Rule 27)?
However, the rule is not intended for use as a dragnet or any A: The following are the requisites:
fishing expedition.
1) A motion (leave of court) must be filed by a party
The documents to be produced: showing good cause therefor;
2) Notice of the motion must be given to all other parties;
1) should not be privileged; 3) The motion must sufficiently describe the document or
2) should constitute or contain evidence material to any thing sought to be produced or inspected;
matter involved in the action, and which are in his (the 4) The document or thing sought to be produced or
party ordered's possession, custody, or control). inspected must constitute or contain evidence material
to the pending action;
In a petition for the production of papers and documents they must 5) The document or thing sought to be produced or
be sufficiently described and identified. Otherwise, the petition inspected must not be privileged; and
6) The document or thing sought to be produced or
cannot prosper.
inspected must be in the possession of the adverse party
or, at least, under his control. (Section 1, Rule 27; Lime
This mode of discovery does not authorize the opposing party or Corp. vs. Moran, 59 Phil. 175; Alvero vs. Dizon, 76 Phil.
the clerk or other functionaries of the court to distrain the articles 637)
or deprive the person who produced the same of their possession,
even temporarily (Tamda vs. Aldaya, L-13423, Nov. 23, 1959) NOTE: Rule 27 is not the same as Rule 21 on subpoena duces
tecum. Therefore, the next question is:
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3.) The order under Rule 27 is issued only upon motion with
notice to the adverse party, whereas
A subpoena duces tecum under Rule 21 may be issued
upon an ex-parte application.
Case:
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Rule 28
physical or medical examination by a doctor to test
whether the allegation is true or not;
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
c) annulment of contract on the ground of insanity at the
time of execution (lack of consent);
This is the fifth and last mode of discovery d) Physical disability due to quasi-delicts (e.g. vehicular
accident). If I am the defendant and I believe that you
This mode of discovery is available in an action in which the mental are merely exaggerating the extent of your injury so that
or physical condition of a party is in controversy. your claim for damages will be higher, and diskumpiyado
ako sa doctor mo, I will ask the court to issue an order
So in order to even things, I will have to request you to submit to a for you to undergo physical examination by another
neutral doctor or psychiatrist for a physical or mental examination. doctor, so that we will know whether your claim is really
So the court will issue an order. For example, damage suit in valid or not.
damage cases, the plaintiff may be exaggerating his injuries.
e) the mental condition of a party is in controversy in
proceedings for guardianship over an imbecile or insane
The only way to confirm it is to have another doctor examine him
person, while the physical condition of a party is
to find out whether his injury is really genuine or sinadya may be generally involved in physical injuries cases.
for the purpose of securing a bigger amount of damages.
Remember the joke which we mentioned in Evidence about the Since the results of the examination are intended to be made
plaintiff who met an accident na na-dislocate yung shoulder, so public, the same are not covered by the physician-patient privilege
permanent ang injury. So when he testified in court, he was asked (Sec. 24b, R 130).
to raise his arm – higher, higher please! No more – the injury is
permanent. Q: Give the requisites of physical and mental examination of
persons under Rule 28:
Sabi ng court, “So that was after the accident. What about before
the injury? How high can you raise your arm?” A, ganito o! So there A: The following are the requisites:
is no more need for a physical examination because he has already
demonstrated it (he was just exaggerating his injury). 1) The physical or mental condition must be a subject of
controversy of the action;
2) A motion showing good cause must be filed; and
SEC. 1. When Examination may be ordered – In
3) Notice of the motion must be given to the party to be
an action in which the mental or physical examined and to all other parties;
condition of a party is in controversy, the 4) the motion shall specify the time, place, manner,
court in which the action is pending may in its conditions, and scope of the examination and the person
discretion order him to submit a physical or or persons by whom it is made.
mental examination by a physician (1)
Sec. 3. Report of findings. - If requested by the
SEC. 2. Order for examination – The order for party examined, the party causing the
examination may be made only upon motion examination to be made shall deliver to him a
for good cause shown and upon notice to the copy of a detailed written report of the
party to be examined and to all other parties, examining physician setting out his findings
and shall specify the time, place, manner, and conclusions. After such request and
conditions, and scope of the examination and delivery, the party causing the examination
the person or persons by whom it is to be to be made shall be entitled upon request to
made. (2) receive from the party examined a like report
of any examination, previously or thereafter
Rule 28 applies in all actions where the mental or physical made, of the same mental or physical
condition of a party is in question or controversy. condition. If the party examined refuses to
deliver such report, the court on motion and
EXAMPLES: notice may make an order requiring delivery
on such terms as are just, and if a physician
a) Declaration of nullity of marriage on the ground fails or refuses to make such a report the
psychological incapacity. Under the Family Code,
court may exclude his testimony if offered at
however, the state of psychological incapacity must not
have been existing only now for the first time. It must the trial. (3a)
have existed at the time of the marriage;
Sec. 4. Waiver of privilege. - By requesting and
b) annulment of marriage on the ground of impotency. The obtaining a report of the examination so
court can issue an order to subject the party to undergo ordered or by taking the deposition of the
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The doctor cannot be compelled to relay what the patient told her.
So if the doctor refuses to deliver such report, then under Section
3, he cannot testify. He cannot give evidence.
1.) Depositions
– pending action, no answer filed yet REQUIRED
– pending action, answer filed already NOT REQUIRED
– before action or pending appeal REQUIRED
2.) Interrogatories
– no answer filed yet REQUIRED
– answer filed already NOT REQUIRED
3.) Request for admission NOT REQUIRED
4.) Production or Inspection of Documents or REQUIRED
Things
5.) Physical and Mental Examination of Persons REQUIRED
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Rule 29
an order to compel an answer. The same
procedure may be availed of when a party or
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
a witness refuses to answer any interrogatory
Rule 29 forms part of the study of the modes of discovery. The submitted under Rules 23 or 25.
policy on modes of discovery is that it is allowed and encouraged
to determine, at an earlier time, essential issues and to promote If the application is granted, the court shall
settlement or expeditious trial.
require the refusing party or deponent to
answer the question or interrogatory and if it
REPUBLIC vs. SANDIGANBAYAN – 204 SCRA 212
also finds that the refusal to answer was
HELD: “It appears to the Court that among far too many lawyers without substantial justification, it may
(and not a few judges), there is, if not a regrettable unfamiliarity require the refusing party or deponent or the
and even outright ignorance about the nature, purposes and counsel advising the refusal, or both of them,
operation of the modes of discovery, at least a strong yet to pay the proponent the amount of the
unreasoned and unreasonable disinclination to resort to them— reasonable expenses incurred in obtaining
which is a great pity for the intelligent and adequate use of the the order, including attorney's fees.
deposition-discovery mechanism, coupled with pre-trial procedure,
If the application is denied and the court
could, as the experience of other jurisdictions convincingly
finds that it was filed without substantial
demonstrates, effectively shorten the period of litigation and speed
justification, the court may require the
up adjudication.”
proponent or the counsel advising the filing
“Evidentiary matters may be inquired into and learned by the of the application, or both of them, to pay to
parties before the trial. The desideratum is that civil trials should the refusing party or deponent the amount of
not be carried on in the dark. The Rules of Court make this ideal the reasonable expenses incurred in opposing
possible through the deposition-discovery mechanism set forth. the application, including attorney's fees. (1a)
The experience in other jurisdictions has been that ample discovery
SEC. 2. Contempt of court. - If a party or other
before trial, under proper regulation, accomplished one of the
witness refuses to be sworn or refuses to
most necessary ends of modern procedure: it not only eliminates
answer any question after being directed to
unessential issues from trials thereby shortening them
do so by the court of the place in which the
considerably, but also requires parties to play the game with the
deposition is being taken, the refusal may be
cards on the table so that the possibility of fair settlement before
considered a contempt of that court. (2a)
trial is measurably increased.”
SEC. 3. Other consequences. - If any party or
“The various modes or instruments of discovery are meant to serve
an officer or managing agent of a party
(1) as a device, along with the pre-trial hearing under Rule 18, to
refuses to obey an order made under section
narrow and clarify the basic issues between the parties, and (2) as a
1 of this Rule requiring him to answer
device for ascertaining the facts relative to those issues.”
designated questions, or an order under Rule
“Hence, the deposition-discovery rules are to be accorded a broad 27 to produce any document or other thing
and liberal treatment. No longer can the time-honored cry of for inspection, copying, or photographing or
‘fishing expedition’ serve to preclude a party from inquiring into to permit it to be done, or to permit entry
the facts underlying his opponent’s case. Mutual knowledge of all upon land or other property, or an order
the relevant facts gathered by both parties is essential to proper made under Rule 28 requiring him to submit
litigation. To that end, either party may compel the other to to a physical or mental examination, the
disgorge whatever facts he has ill his possession. The deposition- court may make such orders in regard to the
discovery procedure simply advances the stage at which the refusal as are just, and among others the
disclosure can be compelled from the time of trial to the period following:
preceding it, thus reducing the possibility, of surprise.”
(a) An order that the matters
SEC. 1. Refusal to answer. - If a party or regarding which the questions were asked, or
other deponent refuses to answer any the character or description of the thing or
question upon oral examination, the land, or the contents of the paper, or the
examination may be completed on other physical or mental condition of the party, or
matters or adjourned as the proponent of the any other designated facts shall be taken to
question may prefer. The proponent may be established for the purposes of the action
thereafter apply to the proper court of the in accordance with the claim of the party
place where the deposition is being taken, for obtaining the order;
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Section 4 pertains to Rule 26 on request for admission. If X was “The matter of how, and when, the above sanctions should be
able to prove something that Y refused to admit, Y can be held applied is one that primarily rests on the sound discretion of the
liable for expenses and attorney's fees for refusing to admit court where the case is pending, having always in mind the
something which turned out to be true. If it is something true, you paramount and overriding interest of justice. For while the modes
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Rule 30
a) Where the pleadings of the parties tender no issue at all,
a judgment on the pleadings may be directed by the
TRIAL court (Rule 34).
b) Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
Section 1. Notice of trial. Upon entry of a case court may render a summary judgment (Rule 35);
c) Where the parties have entered into a compromise
in the trial calendar, the clerk shall notify the
agreement either during the pre-trial or while the trial is
parties of the date of its trial in such manner
in progress (Rule 18; Art. 2028 NCC);
as shall ensure his receipt of that notice at d) Where the complaint has been dismissed with prejudice
least five (5) days before such date. (2a, R22) (Sec. 5 R 16; Sec. 3 R 17; Sec. 5, last par. R 7);
e) Where the case falls under the operation of the Rules on
Of course, after the Pre-trial, the next step now is trial. And it is the Summary Procedure; and
duty of the clerk of court to send notices to the parties about the f) Where the parties agree in writing, upon the facts
date of the trial in such manner as shall insure his receipt of that involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
notice at least five (5) days before such date. But actually in real
introduction of evidence. If, however, there is no
practice, it will even take more than a month to give you ample
agreement as to all the facts in the case, trial may be
time to prepare for it. held only as to the disputed facts (Sec. 6 R 30).
g) when there is a judgment on confession.
Now, it is mandatory that the notice should reach the party or its
lawyer at least five (5) days before such date. Sec. 2. Adjournments and postponements. A
court may adjourn a trial from day to day,
Q: Define trial. and to any stated time, as the expeditious
and convenient transaction of business may
A: TRIAL is an examination before a competent tribunal of the facts
require, but shall have no power to adjourn a
or law put in issue in a case, for the purpose of determining such
trial for a longer period than one month for
issue. (Ballentine’s Law Dict., 2nd Ed., p. 1299)
each adjournment, nor more than three
months in all, except when authorized in
It is the judicial process of investigating and determining the legal
writing by the Court Administrator, Supreme
controversies, starting with the production of evidence by the
Court. (3a, R22)
plaintiff and ending with his closing arguments (Acosta v. People 5
SCRA 774).
“A court may adjourn a trial from day to day” means that if the
trial is not finished on the scheduled date, that will be postponed
In a trial, there is always an issue where we cannot agree.
on another day. That is how trials are being conducted. It is by
Therefore, the purpose of a trial is for the court to resolve that
staggered basis. That is what you call adjournment. But everything
issue.
is recorded anyway. If you look at the transcript of stenographic
Trial and Hearing notes, it would seem that the trial is continuous because
everything unfolds there. But actually, these occurred on different
The terms “trial” and “hearing” are sometimes interchangeably dates.
used. There is however, a marked difference between these terms.
Trial refers to the stage of presentation of evidence and other Now, Section 2 also provides that no party shall be allowed a
processes; it is the period for the presentation of evidence by both postponement of more than one (1) month per postponement and
parties.A hearing is a broader term. It is not confined to the trial not more than three (3) postponements in all.
and presentation of the evidence because it actually embraces
As a GENERAL RULE: Not more than one (1) month for each
several stages in the litigation. It includes the pre-trial and the
adjournment BUT only for a maximum of three (3) months in all or
determination of granting or denying a motion (Trocio v. Labayo 53
not beyond 90 days except when authorized in writing by the court
SCRA 97). Hearing does not necessarily imply presentation of
administrator of the Supreme Court.
evidence in open court but the parties are afforded the opportunity
to be heard.
And that jives with the SC Circular 3-90 which contains a mandatory
continuous trial for 90 days. In other words, the case must
General rule: when an issue exists, trial is necessary. Decisions
terminate in 90 days.
should not be made without trial.
The ONLY EXCEPTION is when authorized in writing by the court
When trial is not necessary
administrator. Meaning, the judge can go to the court
A civil case may be adjudicated upon without the need for a trial in administrator to allow the court to go beyond the period allowed
any of the following cases: by law.
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Generally, there are two main reasons why parties ask for So, I admit that, although I reserve my right to its admissibility.
postponement. One is, Then in such case, you have no more reason for postponement
because in the first place, there is no need to present your witness
(1) absence of evidence like when the witness is not
because the other party already admitted what will be the
available or the document is not available, or
substance of his testimony.
(2) somebody is sick – either the party or counsel is sick.
Sec. 4. Requisites of motion to postpone trial
Requisites:
for illness of party or counsel. A motion to
postpone a trial on the ground of illness of a
1) A motion for postponement stating the ground relied
upon must be filed; and party or counsel may be granted if it appears
2) the motion must be supported by an affidavit showing: upon affidavit or sworn certification that the
a. the materiality and relevancy of such evidence; and presence of such party or counsel at the trial
b. that due diligence has been used to procure it. is indispensable and that the character of his
illness is such as to render his non-
If the adverse party admits the facts to be given in evidence, the attendance excusable. (5a, R22)
trial will not be postponed even if he objects or reserves the right
to object to their admissibility (Feria, Civil Procedure Annotated Requisites:
Vol. 1, p. 565)
1) A motion for postponement stating the ground relied
Note: This section does not apply to criminal cases as the rule on upon must be filed; and
postponements in criminal cases is governed by Sec. 2 R 119. 2) the motion must be supported by an affidavit or sworn
certification showing:
Now, of course the requirements of the Rules are really strict a. the presence of such party or counsel at the trial is
although courts and lawyers are very liberal on this. First of all, if indispensable; and
b. that the character of his illness is such as to render
you want to postpone a trial on the ground of absence of evidence,
his non-attendance excusable.
there must be a verified affidavit. The affidavit must show the
materiality or relevancy of the evidence which is not available and Postponements are addressed to the sound discretion of the court.
that due diligence was used to procure it. In other words, you tried In the absence of grave abuse of discretion, it cannot be controlled
your best to secure it earlier. by mandamus (Olsen vs. Fressel & Co., GR No. 12955, Nov. 8,
1917).
Now, what is the meaning of the second sentence: “If the adverse
party admits the facts to be given in evidence, even if he objects or The same thing for illness (2nd ground). Kung may sakit, there must
reserves the right to their admissibility, the trial shall not be be affidavit or sworn statement. So you must have a sworn medical
postponed”? certificate and that the presence of such party or counsel is
indispensable and the character of his witness is such as to render
EXAMPLE: his non-attendance excusable.
LAWYER: “We are asking for postponement because our witness is Now, of course the SC has already stated in some cases that when
not present. He is not available and his testimony will be very the sickness is sudden and unexpected such as caused by an
material.” accident, you cannot require on the spot a medical certificate.
Meaning, how can I produce something if he got sick only an hour
ADVERSE PARTY: “Alright, what is going to be his testimony? What
ago? So, the court should take that into consideration. They cannot
will he testify about in court?
object to the requirement of medical certificate.
LAWYER: “Well, this is his testimony …. he will prove this or he will
prove that….”
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(b) The defendant shall then adduce evidence The pre-trial order shall limit the issues and shall control the
in support of his defense, counterclaim, subsequent course of the action. We already emphasized that the
cross-claim and third-party complaint; pre-trial order prevails over the pleadings. The pre-trial order has
the effect of superseding the complaint and the answer. Whatever
(c) The third-party defendant, if any, shall issues are stated in the pre-trial order shall be the issues to be tried
adduce evidence of his defense, during the hearing on the case.
counterclaim, cross-claim and fourth-party
complaint; Now going back to Rule 30, that is now emphasized. The trial shall
be limited to the issues stated in the pre-trial order. So, the pre-
(d) The fourth-party, and so forth, if any, shall trial order will be a very important document to determine what
adduce evidence of the material facts are the issues to be tried.
pleaded by them;
Q: How will the trial proceed? In what order?
(e) The parties against whom any
counterclaim or cross-claim has been A: Section 5, paragraphs [a] to [g], including the last paragraph of
pleaded, shall adduce evidence in support of Section 5.
their defense, in the order to be prescribed
by the court; Q: What is the reason for the rule prescribing an order of trial?
(f) The parties may then respectively adduce A: The reason is for orderly procedure, which must be followed if
rebutting evidence only, unless the court, for injurious surprises and annoying delays in the administration of
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2.) Defendant presents evidence in chief or main evidence Therefore, in the hearing for a motion to dismiss, the
to prove his defense – negative or affirmative defense; defendant is now converting his defense into a ground for a
(paragraph [b]), motion to dismiss. In which case, the affirmative defense will
be heard ahead of the main action. So, that is allowed under
3.) Plaintiff will present what we call REBUTTAL EVIDENCE to
Rule 16.
rebut defendant’s main evidence. (paragraph [f])
4.) Defendant is given the chance to present rebuttal So, there is nothing basically wrong with an affirmative
evidence to rebut the rebuttal of evidence of the defense being heard ahead of the plaintiff, especially when
plaintiff. In legal parlance, we call that SUR-REBUTTAL the plaintiff has nothing to prove anymore.
evidence; (paragraph [f])
Well, of course that is more apparent in criminal procedure. In
5.) ARGUMENTS. Normally, it is what we call the filing of the order of trial in criminal procedure, the court may even
MEMORANDUM (written arguments) – the parties will direct the accused to present evidence ahead of the
submit their respective memoranda, unless the case will
prosecution when the accused is already admitting the facts
be submitted for decision without arguments or
memorandum. (paragraph [g]) constituting the crime but only invokes a defense such as self-
defense – when you are accused of homicide and your
So, normally, that is the basic pattern of the order of trial. Now, defense is that you acted in self-defense. So, wala ng i-prove
plaintiff presents evidence ahead, after him defendant presents ang prosecution. Automatically, you are admitting that you
evidence to prove his defense. killed the victim. The burden now is shifted to you to justify
the killing. That’s what they call “TRIAL IN REVERSE.”
Now, in the case of
So, in criminal cases where the law authorizes a reversed trial
YU vs. MAPAYO – 44 SCRA 163 where the accused is directed to present evidence ahead of
the prosecution, there is no reason why the same procedure
FACTS: The plaintiff filed a complaint against the defendant to cannot also apply in civil cases. That is the essence of the
collect a loan which, according to the plaintiff, the defendant has MAPAYO ruling. So, more or less, that is the deviation from
not paid. The defendant filed an answer admitting the loan but ang the normal order of trial.
kanyang affirmative defense is, the obligation is paid.
Section 5 [f]: The parties may then
During the trial, the plaintiff said that he is no longer going to respectively adduce rebutting evidence only,
present any evidence to prove his cause of action because anyway, unless the court, for good reasons and in the
the defendant has admitted the obligation; and since the furtherance of justice, permits them to
defendant is the one invoking payment, it is, therefore, his burden adduce evidence upon their original case;
to prove payment.
Paragraph 5 (f) is actually presentation of rebuttal evidence.
The trial court agreed with the plaintiff, “Yes. Alright defendant,
you present evidence that the obligation is paid. Anyway, you are Q: What is the difference between the evidence mentioned in
admitting that you borrowed money.” paragraph [f] and the evidence mentioned in paragraphs [a] and
[b]?
Now, according to the defendant, the procedure is improper the
order of the trial being altered, “Why will the defendant prove his A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN CHIEF
defenses ahead. The plaintiff is supposed to present evidence bago to prove your main cause of action or your defense. In paragraph
ako. Bakit uunahin ako?” That is the objection of the defendant. [f], the evidence is not evidence in chief but REBUTTAL EVIDENCE
to dispute the side of the other party.
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1) present oral arguments or; Q: Why is an agreed statement of facts sufficient basis for a
2) submit memoranda. judgment?
Note: Subject to Section 2 of Rule 31 and unless the court for
special reasons, otherwise directs, the trial shall be limited to the A: The reason is that an agreed statement of facts is conclusive on
issues stated in the pre-trial order. the parties, as well as on the court. Neither of the parties may
withdraw from the agreement, nor may the court ignore the same.
Sec. 6. Agreed statement of facts. The parties
(McGuire vs. Manufactures Life Ins. Co., 87 Phil. 370)
to any action may agree, in writing, upon the
facts involved in the litigation, and submit Q: Now suppose they can agree on some facts but they cannot
the case for judgment on the facts agreed agree on others.
upon, without the introduction of evidence.
A: There is no problem. You can have a partial stipulation of facts
If the parties agree only on some of the facts and then we can try the rest with respect to the other disputed
in issue, the trial shall be held as to the facts.
disputed facts in such order as the court shall
prescribe. (2a, R30) That is why the second paragraph says, “If the parties agree only on
some of the facts in issue, the trial shall be held as to the disputed
Alright, why do the parties present evidence 1, 2, 3, 4. What is the facts in such order as the court shall prescribe.” At least, it would
purpose there? To prove facts. Normally, we cannot agree on the still be faster because the disputed facts are now limited. Rather
facts. I say something and you will say that is not true and this is than proving ten (10) issues of facts, it will be reduced to 3 or 4.
what happened. So, normally, cases arise because of the issue of So, the trial would still be faster.
what happened.
Note: If no evidence is presented and the case is submitted for
Q: Now, is there a possibility that the court will decide whether decision on an agreement of the parties, the court should render
there is trial or no more evidence? judgment in accordance with said agreement. The court cannot
impose upon the parties a judgment different from their
A: YES! If the parties agree in writing upon the facts involved in the
compromise agreement.
litigation and they will submit the agreed facts or the case for
decision. That is what we call JUDGEMENT ON AGREED STATEMENT However, the compromise agreement must not be contrary to law,
OF FACTS or the more popular term: JUDGEMENT BASED ON morals, good customs, public order and public policy (Philippine
STIPULATION OF FACTS. Bank of Communications vs. Echiverri, GR No. L-41795, Aug. 29,
1980)
EXAMPLE: The plaintiff and the defendant agree on all the facts.
“These are the facts,” sabi ng plaintiff. Then sabi ng defendant, Stipulation of facts (SOF) are not permitted in actions for
“Yes, I agree those are the facts.” Now if we agree on the facts, annulment of marriage and for legal separation.
there is nothing more to prove. And what we are now quarreling is
who should win based on the facts agreed upon. So, ano ngayon SOF in civil and criminal cases
ang kaso? That is purely a legal question. There is nothing to prove
because everything is admitted. They disagree only on the 1) SOF in civil cases may be signed by the counsel alone
conclusion. who has a special power of attorney while in criminal
cases it should be signed by both the counsel and the
So, with that, par. 1, 2, 3, 4 all these steps are useless. There is accused;
2) In civil cases the SOF may be made orally or in writing
nothing to prove. In which case, we will go immediately to step no.
while in criminal cases it must always be in writing.
5. So, if the parties agree in writing upon the facts involved in the
litigation and they will submit the agreed facts for decision, that is The court is not bound to find out what happened when the parties
JUDGEMENT BASED ON STIPULATION OF FACTS which is already agreed on what happened.
encouraged by the law. This is one of the purposes of Pre-Trial
(Rule 18, Section 2 [d]) where the parties are encouraged to EXAMPLE: The parties will stipulate, “This case involves a piece of
stipulate on facts, because really, it would save a lot of time. land with an area of 50 hectares, planted with coconut trees of
about 5,000.” So, parties agreed and then the court says, “No, I do
The best example of agreed facts would be examination problems. not believe you. It might be more than 59 hectares.” NO. When
The facts are already given – this is what happened. You cannot the parties agree, sundin mo yan because they themselves agree
change that anymore. And you will be asked, “DECIDE: Is A correct on the facts. You only determine the facts if they cannot agree.
or is B correct.” So in other words, you simply apply the law. You
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1. If willingness to discuss a possible ISSUE: Was the court correct in dismissing the case when the
compromise is expressed by one or both parties cannot settle?
parties; or
HELD: The dismissal is WRONG. “Since there is nothing in the Rules
2. If it appears that one of the parties, before that imposes the sanction of dismissal for failing to submit a
the commencement of the action or compromise agreement, then it is obvious that the dismissal of the
proceeding, offered to discuss a possible complaint on the basis thereof amounts no less to a gross
compromise but the other party refused the procedural infirmity. While a compromise is encouraged, very
offer. strongly in fact, failure to consummate one does not warrant any
procedural sanction, much less an authority to jettison a civil
The duration and terms of the suspension of complaint. What the court should have done was to continue the
the civil action or proceeding and similar action.”
matters shall be governed by such provisions
of the rules of court as the Supreme Court In other words, why should you dismiss the complaint when the
shall promulgate. Said rules of court shall parties cannot settle? By that, technically, natalo ang plaintiff. Kung
likewise provide for the appointment and hindi magkaareglo, then go on with the trial. You have no authority
duties of amicable compounders. (n) to dismiss the case simply because the parties cannot settle.
According to Article 2030 of the civil code, if at anytime while the However, there are certain matters which cannot be the subject of
case is going on, one of the parties would like to discuss a POSSIBLE compromise. Practically, compromise is allowed on anything under
AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the the sun, except certain matters such as those mentioned in Article
suspension of proceedings. Why? The court of the law favors 2035.
compromises or amicable settlements in civil cases.
Q: What are the matters that cannot be the subject of
compromise?
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The Rules now expressly allows the court to delegate the reception
of evidence to the clerk of court who must be a member of the bar.
Thereby confirming the doctrine in GOTINGCO vs. CFI OF NEGROS
OCCIDENTAL and junking forever the ruling in LIM TANHU vs.
REMOLETE because in the case of REMOLETE, it was ruled that the
judge cannot delegate the reception of evidence to the clerk of
court. Now, puwede na.
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Rule 31
respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether
CONSOLIDATION OR SEVERANCE
jointly, severally, or in the alternative, may, except
as otherwise provided in these rules, join as
SECTION 1. Consolidation. - When actions plaintiffs or be joined as defendants in one
involving a common question of law or fact complaint, where any question of law or fact
are pending before the court, it may order a common to all such plaintiffs or to all such
joint hearing or trial of any or all the matters defendants may arise in the action; but the court
in issue in the actions; it may order all the may make such orders as may be just to prevent
actions consolidated; and it may make such any plaintiff or defendant from being embarrassed
orders concerning proceedings therein as or put to expense in connection with any
may tend to avoid unnecessary costs or proceedings in which he may have no interest.
delay. (1)
The phrase answers the questions:
Consolidation involves several actions having a common question
of law or fact which may be jointly tried. Q: When may 2 or more parties be joined together in one
complaint, either as co-plaintiffs or co-defendants?
Severance contemplates a single action having a number of claims,
counterclaims, cross claims, 3rd party complaints or issues which A: There must be a common question of fact or law involved in
may be separately tried. their causes of action.
General rule: Consolidation is discretionary upon the court. Q: When may actions be consolidated?
Exceptions: Consolidation becomes a matter of duty when the A: One of the requisites is: when the actions involve a common
cases are: question of law or fact.
1) pending before the same judge; or In other words, there must be a connection somewhere between
2) filed with different branches of the same RTC and one of the rule on Consolidation of actions in Rule 31, with the rule on
such cases has not been partially tried. Permissive Joinder of Parties in Rule 3.
Purpose: To avoid multiplicity of suits, guard against oppression or When we were in Rule 3, an EXAMPLE was given: Suppose 30
abuse, prevent delay, clear congested dockets, simplify the work of people were riding on a bus which met an accident and all the
the trial court and save unnecessary costs and expenses. plaintiffs were injured. After the incident, the 30 of them decided
to file claims for damages against the bus company. They hired the
Q: When is consolidation of actions proper? same lawyer.
A: Consolidation is proper: Q: Can the lawyer file 30 complaints for each plaintiffs?
3) if filed with different courts, an authorization from the A: YES, that is permissive joinder of parties which is encouraged to
Supreme Court is necessary. expedite litigation, to avoid multiplicity of suits, to economize the
procedure or avoid repetition of evidence. There are the
First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME OR A justification for permissive joinder of parties in Rule 3 Section 6 but
COMMON QUESTION OF LAW OR FACT they can only join one complaint if they have the same lawyer.
Did you notice that phrase – “two or more actions involve the same Q: But suppose the 30 passengers were injured and after their
or a common question of law or fact”? That phrase seemed to be discharge from the hospital the 30 of them hired separate
familiar. ”Common question of law or fact,” where did we meet lawyers.?
that requirement before? That is in joinder of causes of action –
two or more causes of action can be joined in one pleading if they A: There can be no joinder of parties. You cannot join the parties in
involve a common question of fact or law. Rule 3, Section 6: one complaint because each plaintiff is represented by a different
lawyer.
SEC. 6 Permissive joinder of parties – All persons in
whom or against whom any right to relief in
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In this case, there should be 30 complaints filed let’s say, in the RTC
2) by consolidation proper or by consolidating the existing
of Davao City, and they are raffled to different branches or judges. cases - It is a joint trial with joint decision, the cases
The defendant might feel that he would rather have the 30 cases retaining their original docket numbers; and
tried together. Defendant says, “This is difficult. Imagine 30 cases
sa 30 salas? Iba-ibang courts. My witnesses would have to testify 3) by test-case method - by hearing only the principal case
30 times because there are 30 separate complaints.” and suspending the hearing on the other cases until
judgment has been rendered in the principal case. The
cases retain their original docket numbers.
Q: Can the 30 cases be joined together para isang judge na lang?
Consolidation of cases on appeal and assigned to different divisions
A: YES. The lawyer for the bus company can file a motion under
of the SC and the CA is also authorized.
Rule 31, Section 1 to consolidate the actions. Meaning, the 30
cases should be raffled and assigned to only one judge, there being The consolidation of civil and criminal cases is allowed. This is now
a common question of law or fact. This is to economize the sanctioned under Section 2(a), R 111 of the Rules of Criminal
procedure if the evidence will be presented only once. Thus, every Procedure (Canos vs. Pealta, GR No. L-38352, Aug. 19, 1982)
time when the case is called, the 30 cases would be tried together.
Para ka na ring nag-permissive joinder of parties. CONSOLIDATION under RULE 31
vs.
The purpose of consolidation is to achieve the same effect of CONSOLIDATION OF CRIMINAL ACTIONS under RULE 119
permissive joinder of parties under Rule 3, Section 6. You end in
having only one case, kaya lang 30 complaints are to be tried
together. That is why there is a connection between consolidation Now, there is also a provision in the rules on Criminal Procedure on
and permissive joinder of parties. consolidation of criminal actions under Rule 119, Section 14:
Second Requisite: THE SAID ACTIONS ARE PENDING BEFORE THE SEC. 14. Consolidation of trials of related
SAME COURT offenses. - Charges for offenses founded on
the same facts, or forming part of a series of
offenses of similar character may be tried
Q: In the example above, suppose one passenger filed his case in jointly at the court's discretion. (Rule 119)
Davao City, another passenger filed his case in Tagum because he
resides there, and another files his case in Mati, can there be Q: Distinguish Consolidation of civil actions from Consolidation of
consolidation of their cases? criminal actions.
A: NONE. You cannot consolidate because they are pending in A: The following are the distinctions:
different courts in different provinces. The law says it must be in
the same court. 1) In civil cases, one or more causes of action may be
embodied in one complaint because when there is
Take note that cases are consolidated because it will expedite their permissive joinder, there is automatic consolidation also;
whereas
termination, thereby economizing on the procedure. Cases are
consolidated not only when the cases are before the trial court.
In criminal cases, only one offense can be the subject of
There are many times when cases are consolidated or joined
one complaint or information. consolidation of criminal
together even when they are already on appeal, provided, there is
actions is exclusively for joint trial;
a common question of law or fact.
Q: Can you file one complaint or information embodying
If we look at the SCRA, sometimes the decision involves 2 or 3
two or more crimes?
cases. The caption sometimes has 3 or more cases, but there’s only
1 decision. And these cases are coming from different parts of the A: NO. You cannot. That is what you call duplicitous
country. Why are these cases joined before the SC? Because there complaint or information. There is no such thing as
is a common question of fact or law or legal issue. So, even in the joinder of crimes. Therefore, the so-called consolidation
SC, cases are consolidated and decided together for the first time. of criminal actions is not actually filing one information
Ang tawag dyan is COMPANION CASES because the same issues are but it is only for the purpose of joint trial.
being raised in the petitions.
2) In civil cases, the opposite of consolidation is
Three (3) ways of consolidating cases: severance under Section 2; whereas
1) by recasting the cases already instituted - reshaping of the In criminal cases, the opposite of consolidation is
cases by amending the pleading and dismissing some cases separate trial. In reality, there is actually no
and retaining only one case. There must be joinder of consolidation of criminal cases. There is only joint trial of
causes of action and of parties;
criminal cases.
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Under the rules on Criminal Procedure the accused may reserve the
When Judge Peralta noticed that the 2 actions arose out of the
right to file the civil action separately when the criminal action is
same incident – and the accused in the criminal case is also the
filed, the civil action is deemed instituted unless the offended party
defendant in the civil case, and the offended party in the criminal
will make a reservation to file it separately. Or, when the civil
case is the plaintiff in the civil case, he ordered the consolidation of
action was instituted ahead, the subsequent filing of the criminal
the 2 cases under Rule 31, Section 1, to be tried together.
case will mean there is no more civil action there. And Section 2 of
Rule 111, suppose the offended party made a reservation to Dr. Caños objected to the consolidation because according to his
institute a civil action and a criminal case is filed, he cannot file the lawyer, consolidation of cases under Rule 31, Section 1 applies only
civil action – that’s the rule. He must wait for the outcome of the when there are 2 or more civil cases to be considered.
criminal case. The criminal case enjoys priority.
ISSUE #1: Was the consolidation proper?
Q: What happens if na-una na-file yung civil action?
HELD: The order of consolidation is correct. Rule 31, Section 1
A: According to Section 2, Rule 111 from the moment the criminal allows the consolidation of a criminal and civil case because of the
case is filed, the trial of the civil case is suspended to wait for the fact that there is a common question of fact or law between them
outcome of the criminal case. and that they are pending before the same court. As a matter of
fact, before the same judge.
Q: Is this prejudicial to the offended party? What is the remedy of
the offended party? ISSUE #2: How do you reconcile these cases because the degree of
proof in the criminal case is not the same in the civil case?
A: There is a way out according to Section 2, Rule 111. The first
thing for him to do is to file a petition to consolidate the trial of the HELD: The consolidation was proper under Rule 31 because there is
criminal and civil case for them to be tried together and the a common question of fact and law. They can be consolidated but
evidence already presented in the civil case is deemed for purposes of decision, the court will now apply two (2) different
automatically reproduced in the criminal case. This is what you call criteria: Proof beyond reasonable doubt in the criminal case and
the consolidation of the civil and criminal action under Section 2, preponderance of evidence in the civil case. So there is no
Rule 111: incompatibility.
“…Nevertheless, before judgment on the merits SEC. 2. Separate trials. - The court, in
rendered in the civil action, the same may, upon furtherance of convenience or to avoid
motion of the offended party, be consolidated with the prejudice, may order a separate trial of any
criminal action in the court trying the criminal action…” claim, cross-claim, counterclaim, or third-
(Section 2, Rule 111) party complaint, or of any separate issue or
of any number of claims, cross-claims,
Q: Is this consolidation mandatory? counterclaims, third-party complaints or
issues. (2a)
A: NO. It is permissive. Actually, the offended party is the one to
initiate this because if not, then he has to wait for the criminal case Section 2 is the exact opposite of Section 1. In Section 1, there are
to be terminated before he can file the civil case. 2 or more cases which shall be joined together for joint trial. In
section 2, there is one case with several claims, i.e. counterclaims,
Q: Can you move to consolidate in one court the criminal and the
cross-claims and third-party complaints. The rule states that they
civil case when actually the degree of proof required in one case is
should be tried together, one after the other, and then one
different from the degree of proof required in another case?
decision.
A: That was answered in the affirmative in the case of
So for example, you ask the judge for a separate schedule for your
CAÑOS vs. PERALTA – 115 SCRA 843 3rd-party claim. Then there will be a separate schedule for the 3rd–
party complaint rather than following the order of trial under Rule
FACTS: This case originated in Digos, Davao del Sur, involving the 30. Under the order of trial, I have to wait for my turn to prove my
late Dr. Rodolfo Caños, who owned the Caños Hospital there. The 3rd-party claim. If we follow Rule 30 (order of trial) before it
respondent here was former CFI Judge Elvino Peralta. There was reaches the 3rd-party complaint, matagal masyado.
an incident which led to the filing of a criminal case by A against B.
A reserved the right to file a separate civil action under the rules on But under Section 2, the court may grant a separate trial for your
criminal procedure. A filed a separate civil case, but arising out of 3rd-party claim or permissive counterclaim especially when there is
the same incident. Both of the cases were assigned to Judge no connection between my permissive counterclaim with the main
Peralta. action.
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Rule 32
The fact that the case involves accounting and the judge is not an
accountant (it is different if the judge is a CPA/lawyer, hindi
TRIAL BY COMMISSIONER
mahirap), the judge then should appoint an accountant to assist
him. That accountant is known as the commissioner. That will
Trial by commissioner applies when there is something to be tried
certainly shorten the time and expedite the resolution of the case.
which requires some technical expertise, like accounting, which the
court feels it does not possess, and it will be a waste of time if
The judge can then attend to other cases while the parties are
everything will be tried in court. So, the court will refer it to a
presenting all their invoices and receipts before the
commissioner, “You hear that and then you submit a report. Submit
accountant/commissioner.
you report, you finding and your recommendation.” And that
person is known as a commissioner.
Example #2:
Commissioner is a person to whom a case pending in court is
Prof. X and Magneto are owners of adjoining properties. Magneto
referred, for him to take testimony, hear the parties and report
put up a fence. Prof. X sued Magneto for forcible entry on the
thereon to the court, and upon whose report, if confirmed,
ground that Magneto encroached on Prof. X’s ground, and praying
judgment is rendered (2 Martin, p. 142)
for the recovery of, say, 200 meters. Magneto contends that he
built the fence on the boundary line.
SEC. 1. Reference by consent – By written
consent of both parties, the court may order
The judge will look at the title of the land: “point degree
any or all of the issues in a case to be referred
9, etc..” – only surveyor or a geodetic engineer
to a commissioner to be agreed upon by the
understands that! In this case, the court may appoint a
parties or to be appointed by the court. As
geodetic engineer, order the submission of the titles of
used in these Rules, the word
the lands to him, he will go to the area, sukat-sukatin
“commissioner” includes a referee, an
niya, and he will draw a sketch and then based on the
auditor and an examiner.
sketch, he will determine whether or not there is an
encroachment. The appointed surveyor or geodetic
Reference to a commissioner may be had by the written consent of
engineer is called a commissioner.
both parties.
This is what you call trial by commissioner. And take note that
General rule: Trial by commissioner depends largely upon the
under Section 1, trial by commissioner is possible by mutual
discretion of the court; but the following are instances when such
agreement of the parties. The parties must agree. Either you can
appointment is mandatory:
agree on who is the CPA, who is the engineer, or you can ask the
court to appoint somebody
1) Expropriation (R 67);
2) Partition (R 69);
Q: Suppose the parties cannot agree, or one party files a motion
3) Settlement of Estate of a Deceased Person in case of
asking for the appointment of a commissioner. Is the court still
contested claims; and
empowered to apply Rule 32?
4) Submission of accounting by executors or administrators.
A: YES, under section 2:
Note: An irregularity in the appointment of a commissioner must be
seasonably raised in the trial court where the defect could still be
SEC. 2. – Reference ordered on motion – When the
remedied. It can be waived by consent of the partes or implied.
parties do not consent, the court may, upon the
application of either or of its own motion, direct a
This was mentioned when we were talking about pre-trial. This is
reference to a commissioner in the following
one of the purpose of a pre-trial. That is Rule 18, Section 2 [f]: “(f)
cases:
The advisability of a preliminary reference of issues to a
a.) When the trial of an issue of fact requires the
commissioner; ” This provision is actually referring to Rule 32.
examination of a long account on either side, in
which case the commissioner may be directed to
Example #1:
hear and report upon the whole issue or any
specific question involved therein;
Prof. X and Magneto had continuous transactions. After a long
while, their records do not anymore reconcile. Prof. X filed a case
b.) When the taking of an account is necessary for
against Magneto on the ground that Magneto has not yet paid an
the information of the court before judgment, or
obligation which is already due. Based on Magneto’s records,
for carrying a judgment or order into effect;
bayad na lahat. Wala na syang utang. This is a question of
accounting.
c.) When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any
The court will have to determine whose records are correct and
stage of a case, or for carrying a judgment or order
accurate – invoices, receipts, etc… must be presented, which might
into effect.
be hundreds or thousands in volume. This will consume a lot of
time of the court.
Section 1 is reference by consent and Section 2 is reference
ordered on motion. Paragraphs (a), (b) and (c) are the good
grounds for a motion to appoint a commissioner.
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In (b) and (c), notice that a commissioner may be appointed for Requisites of the order of reference;
carrying a judgment or order into effect. Thus, a commissioner,
can be appointed not only to help the court render a decision, but 1) it must state the purpose;
also help the court enforce a decision – even if tapos na ang case. 2) it must be in writing; and
Because sometimes, problems arise on how to implement a 3) it may specify or limit the power of the commissioner.
decision of the court.
Powers of Commissioner:
Example: There was a case of boundary dispute. Prof. X built his
house near the boundary of his property. According to his 1) exercise power to regulate the proceedings before him;
neighbor, Magneto, a portion of the house of Prof. X encroached 2) do all acts and take all measures necessary or proper for
on his land. About 25 sq. m. lang. Prof. X lost. The court says to the efficient performance of his duties;
Prof. X: “You are directed to return the 25 sq. m. which you 3) swear witnesses;
occupied.” The sheriff will go there to return the 25 sq. m. Which 4) issue subpoenas and subpoenas duces tecum;
part of the house will the sheriff demolish? The sheriff returns to 5) unless otherwise provided in the order of reference, rule
the court because he cannot understand and he does not know upon the admissibility of evidence.
how to implement the decision. So, the court solves that by
appointing a surveyor as a commissioner to find out where that 25 Note: Requirement of hearing cannot be dispensed with as this is
sq. m. will be taken from the portion of the house. the essence of due process.
Q: Give other examples of trial by commissioner. So a commissioner is parang judge rin. In effect he is an assistant
judge. Biro mo, he can issue subpoenas, swear witnesses, and
A: The following: unless otherwise provided in the order of reference, may rule
upon the admissibility of evidence, of course, subject to the final
1.) Special Civil Action of Expropriation under Rule 67 – approval of the court.
when the court has to determine just compensation.
Under Rule 67, it is mandatory for the court to appoint a Compare that with Rule 30 when there is an ex-parte reception of
commissioner in order to determine as to how much the evidence where the clerk of court is delegated to receive evidence.
value of the property; But the clerk of court cannot rule on the admissibility of evidence.
2.) Special Civil Action of Partition under Rule 69. When the To my mind, for example, in cases involving accounting, the best
heirs cannot agree on how to partition a property under commissioner would be a CPA-lawyer because he knows about the
co-ownership, the court may appoint a commissioner to law on evidence and accounting. Kung boundary conflicts naman,
study and submit its report. the best. commissioner would be a geodetic engineer-lawyer.
However, you rarely find that combination.
So take note that trial by commissioner is allowed not only for the
purpose of the court rendering the judgment but also for the SEC. 4. Oath of commissioner. - Before
purpose of carrying a judgment or order into effect. entering upon his duties the commissioner
shall be sworn to a faithful and honest
SEC. 3. Order of reference; powers of the performance thereof. (14, R33)
commissioner. - When a reference is made,
the clerk shall forthwith furnish the SEC. 5. Proceedings before commissioner. -
commissioner with a copy of the order of Upon receipt of the order of reference and
reference. The order may specify or limit the unless otherwise provided therein, the
powers of the commissioner, and may direct commissioner shall forthwith set a time and
him to report only upon particular issues, or place for the first meeting of the parties or
to do or perform particular acts, or to receive their counsel to be held within ten (10) days
and report evidence only, and may fix the after the date of the order of reference and
date for beginning and closing the hearings shall notify the parties or their counsel. (5a,
and for the filing of his report. Subject to the R33)
specifications and limitations stated in the
order,the commissioner has and shall SEC. 6. Failure of parties to appear before
exercise the power to regulate the commissioner. - If a party fails to appear at
proceedings in every hearing before him and the time and place appointed, the
to do all acts and take all measures necessary commissioner may proceed ex parte or, in his
or proper for the efficient performance of his discretion, adjourn the proceedings to a
duties under the order. He may issue future day, giving notice to the absent party
subpoenas and subpoenas duces tecum, or his counsel of the adjournment. (6a, R33)
swear witnesses, and unless otherwise
provided in the order of reference, he may Where the order was merely to examine the accounts
rule upon the admissibility of evidence. The involved in the counterclaim without any direction to
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Rule 33
evidence and submits the case for judgment
on the basis of the evidence for the
DEMURRER TO EVIDENCE
prosecution. (15a)
Q: Define demurrer to evidence.
The motion for leave of court to file demurrer
to evidence shall specifically state its grounds
A: Demurrer to evidence is a motion to dismiss filed by the
and shall be filed within a non-extendible
defendant after the plaintiff had rested his case, on the ground of
period of five (5) days after the prosecution
insufficiency of evidence. (Ballentine’s Law Dict., 2nd Ed., p. 358)
rests its case. The prosecution may oppose
the motion within a non-extendible period of
Nature: There is only a one-sided trial, i.e., it is only the plaintiff
five (5) days from its receipt.
who has presented evidence.
If leave of court is granted, the accused shall
Purpose: To discourage prolonged litigation.
file the demurrer to evidence within a non-
extendible period of ten (10) days from
Q: What is the difference between the “no cause of action” under
notice. The prosecution may oppose the
Rule 16 and the “no cause of action” under Rule 33?
demurrer to evidence within a similar period
from its receipt.
A: Under Rule 16, the ground of no cause of action is based on the
complaint, while under Rule 33, the ground of no cause of action is
The order denying the motion for leave of
based on the plaintiff’s evidence.
court to file demurrer to evidence or the
demurrer itself shall not be reviewable by
NOTE: If the complaint states cause of action, the defendant
appeal or by certiorari before judgment. (n)
cannot file a motion to dismiss under Section 1[g], Rule 16 because
he hypothetically admits the allegations in the complaint. So they
It is now emphasized in Section 23, Rule 119 that a demurrer may
have to go to trial. Now, if during the trial, the plaintiff failed to
be filed with or without leave of court. If you file demurrer with or
prove his cause of action (meaning, there is really no cause of
without leave and it is granted, then you have no problem because
action), it is now proper for the defendant to file a motion to
the accused will be acquitted.
dismiss on the ground of insufficiency of evidence under Rule 33,
and not under Rule 16 because in the first place, the plaintiff’s
The problem is, if your demurrer is denied. Meaning, the court says
complaint states cause of action.
that there is sufficient evidence to prove at least the guilt of the
accused. If the demurrer was filed with prior leave of court and it is
SEC. 1. Demurrer to evidence. - After the
subsequently denied, the accused is allowed to present evidence to
plaintiff has completed the presentation of
prove his defense.
his evidence, the defendant may move for
dismissal on the ground that upon the facts
But if he filed the demurrer without prior leave of court and the
and the law the plaintiff has shown no right
demurrer is denied, then you are already convicted because the
to relief. If his motion is denied, he shall
accused has forfeited his right to present evidence. It is practically
have the right to present evidence. If the
equivalent to a waiver of his right to present evidence. So
motion is granted but on appeal the order of
conviction automatically follows.
dismissal is reversed he shall be deemed to
have waived the right to present evidence.
NOTE: Under the new rules on Criminal Procedure, when the
(1a, R35)
accused will file a leave of court to file a demurrer, he must
specifically state the grounds. (c.f. Rule 119, Section 23, third
Now, there is a similar rule in criminal procedure under Rule 119,
paragraph)
Section 23 – demurrer to evidence in criminal cases. Rule 33 is
demurrer to evidence in civil cases.
Alright, that is in criminal cases. There is a similar rule in civil cases,
Rule 33.
DEMURRER TO EVIDENCE IN CRIMINAL CASES
DEMURRER TO EVIDENCE IN CIVIL CASES
SEC. 23. Demurrer to evidence. – After the
prosecution rests its case, the court may Q: Under the Rule on Trial, who presents evidence first?
dismiss the action on the ground of
insufficiency of evidence (1) on its own A: It is the plaintiff. The plaintiff presents evidence to prove his
initiative after giving the prosecution the cause of action. He must prove his case or his claim by
opportunity to be heard or (2) upon demurrer preponderance of evidence.
to evidence filed by the accused with or
without leave of court. Q: Suppose after the plaintiff has rested, the plaintiff has not
proven his cause of action?
If the court denies the demurrer to evidence
filed with leave of court, the accused may To borrow the language of the law, after the plaintiff has
adduce evidence in his defense. When the completed the presentation of his claim, the defendant may move
demurrer to evidence is filed without leave of for dismissal on the ground that upon the facts and the law, the
court, the accused waives the right to present
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In CRIMINAL cases, if the demurrer is granted, there is Note: The requirement under the Rule would apply if the demurrer
no more appeal by the prosecution because the accused is granted, for in this event, there would in fact be adjudication
has already been acquitted. Otherwise, there will be a upon the merits of the case, leaving nothing more to be done
case of double jeopardy; (Nepomuceno v. COMELEC, GR No. L-60601, Dec. 29, 1983).
In both cases, the motion is raised only after the prosecution or the
plaintiff has presented his case and the ground is based on
insufficiency of evidence.
Take note that under Rule 9 of the Old Rules of Court, defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. Among the exceptions (lack of
jurisdiction, res adjudicata, etc.) is “when there is no cause of
action.” Meaning, the ground of no cause of action cannot be
waived. The same can be raised at any stage during the trial or
even on appeal.
Now, such ground is not anymore found under the New Rules.
What does it mean? Do you mean to tell me that such ground is
waivable now? NO. The ground of no cause of action is now
incorporated under Rule 33, such that during the trial when there is
really no cause of action, your remedy is to file a demurrer to
evidence under Rule 33. So there is no need to refer to Rule 9
anymore.
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Rule 34
3) Allegations of damages in the complaint.
JUDGMENT ON THE PLEADINGS
Illustration:
SEC. 1. Judgment on the pleadings.- Where an
PROBLEM: Plaintiff files a complaint. Defendant files an answer.
answer fails to tender an issue, or otherwise
The answer contains what you call defenses – negative, affirmative
admits the material allegations of the
defenses. Now, after the defendant files the answer, his issues are
adverse party's pleading, the court may, on
joined. Next step is pre-trial. If the case is not terminated in pre-
motion of that party, direct judgment on such
trial, next step is trial. That’s the procedure.
pleading. However, in actions for declaration
of nullity or annulment of marriage or for
But suppose I will file a complaint against you and you file your
legal separation, the material facts alleged in
answer where you admitted everything that I said in my complaint.
the complaint shall always be proved. (1a,
All the allegations in the complaint are admitted and no defense
R19)
was interposed by the defendant. So, meaning, the defendant filed
an answer which contains no defense at all. Everything is admitted.
Judgment on the pleadings is an expeditious way of terminating a
Should the case go to trial? Should the plaintiff prove his cause of
civil action. There is no more trial and judgment will be rendered
action? What is there to prove when you admitted everything? So,
based on what the plaintiff says in his pleadings.
there is no more trial because everything is admitted by the
defendant.
Judgment on the pleadings is a judgment rendered by the court if
the answer fails to tender an issue, or otherwise admits the
Q: In the above case, what should the plaintiff do?
material allegations of the adverse party's pleading.
A: The plaintiff will now apply Rule 34. He will file a motion in court
It is rendered without a trial, or even without a pre-trial.
which is known as Judgment on the Pleadings. He will ask the court
to render judgment based on what the complaint says and what
Nature of judgment on the pleadings
the answer says. No more evidence. Eto ang sabi ng complaint,
“Oh! You borrowed money, and you did not pay.” Sabi ng answer,
1) The concept of a judgment on the pleadings will not
“admit! admit! admit!” Oh, ano pa? What is there to be tried?
apply when no answer is filed. It will come into operation
You admitted everything, so the court will now decide! You can
when an answer is served and filed but the same fails to
render a decision based on what the complaint says and what the
tender an issue or admits the material allegations of the
answer says and the court will immediately render judgment for
adverse party’s pleading (Sec. 1)
the plaintiff. So wala ng trial.
2) An answer fails to tender an issue when the material
Rule 34 is one of the procedures or remedies under the Rules of
allegations of the other party are admitted or not
Court for the prompt expeditious resolutions of civil actions – one
specifically denied by the pleader. Under the rules,
of the fastest ways of resolving a civil dispute because plaintiff files
material allegations of the complaint are deemed
the complaint, defendant files his answer, plaintiff asks for
admitted (sec. 11 R 8).
judgment and the case is decided. No more pre-trial, no more trial.
Why? There is nothing to try kasi wala ka mang depensa.
3) When there is no answer, the proper remedy for the
Everything that I say in my complaint you admit.
plaintiff is to file a motion to declare defendant in
default.
Grounds for Judgment on the pleadings
A motion is required
Q: Under Rule 34, what are the grounds for Judgment on the
Pleadings?
A judgment on the pleadings must be on motion of the claimant.
However, if at the pre-trial the court finds that a judgment on the
A: The following are the grounds:
pleadings is proper, it may render such judgment motu proprio
(sec. 2g R 18)
1) When an answer fails to tender an issue; or
2) When an answer otherwise admits all the material
One who prays for judgment on the pleadings without offering
allegations of the adverse party’s pleading.
proof of his own allegations and without giving the opposing party
any opportunity to introduce evidence must be understood to
Q: When does an answer fail to tender an issue?
admit all the material and relevant allegations of the opposing
party and to rest his motion for judgment on those allegations
A: An answer fails to tender an issue:
taken together with such of his own as are admitted in the
pleadings (Falcasantos vs. How Suy Cheng GR No. l-4229, May 29,
1) when it neither admits nor denies the allegations in the
1952)
complaint;
Allegations not deemed admitted by filing a motion for judgment
It neither admits nor denies. So, you cannot do that.
on the pleadings:
Either you admit or you deny the allegations in the
complaint. You cannot say, “Defendant does not admit,
1) Irrelevant allegations;
he does not also deny the allegation.” Meaning you are
2) Immaterial allegations; and
trying to be evasive. That is not allowed.
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SEC. 2. Nature and purpose. - The pre-trial A motion to dismiss is filed by a defendant to a complaint,
is mandatory. The court shall consider: counterclaim, cross claim or third-party complaint; while a the
latter is filed by the claiming party if the answer fails to tender an
xxx issue or admits the material allegations in the claim.
g) The propriety of rendering judgment on Note: If the complaint states no cause of action, a motion to
the pleadings, or summary judgment, or of dismiss should be filed and not a motion for judgment on the
dismissing the action should a valid ground pleadings.
therefor be found to exist.
xxx A judgment on the pleadings is one that is considered ex parte
because upon particular facts thus presented, the plaintiff is
In other words, during the pre-trial, the defendant there and based entitled to judgment or motu proprio under Rule 18 2g (Dino v.
on his pleadings, meron siyang defense. But during the pre-trial, he Valencia GR No. L-43886 July 19, 1989)
makes now an admission, “Actually, your honor, wala akong
depensa ba. I have no defense.” Court: “Ah, wala ka ba? Okay.
Judgment on the pleadings!” – tapos!
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Rule 35
2) What triggers a summary judgment is the absence of a
genuine factual issue. It is not proper where there are
SUMMARY JUDGMENTS
factual issues to be resolved by the presentation of
evidence. Even if there is a complicated question of law if
Rule 35 is another important rule – Summary judgments. The rule
there is no issue as to the facts, a summary judgment is
on summary judgments and judgment on the pleadings are similar
not barred (Velasco v. CA 329 SCRA 392; Garcia vs. CA 336
no? They are related to each other. I would say they are brothers.
SCRA 475).
Rule 34 and Rule 35, magkapatid ‘yan silang dalawa because they
have a common denominator. Rule 35 is also a speedy procedure
3) In an action for foreclosure of mortgage for example, the
for the early resolution or decision in a civil case. The same
material issues are the existence of the debt and its
concept but with a difference. In Rule 34 on judgment on the
demandability. When the defendant admits the existence
pleadings, the answer filed by defendant has put up no defense at
of the debt and raises an issue as to the demandability of
all. No defense has been raised or the answer admits all the
the debt or the interest rate involved because of an
material allegations in adverse party’s pleadings. In Rule 35, the
alleged contemporaneous agreement between the
answer filed by defendant puts up a defense but the defense is not
parties, the issue tendered is sham, fictitious, or patently
a genuine defense. Meaning, it is invoked only for the purpose of
unsubstantial. A summary judgment would be proper
delay and the defense is not actually seriously being interposed.
because there is no genuine issue (Sps. Agbada vs. Inter-
Urban Developers Inc., supra)
Q: Define summary judgment procedure.
Where only the genuineness and due execution of the
A: Summary judgment procedure is a method for promptly
promissory note are the matters deemed admitted for the
disposing of actions in which there is no genuine issue as to any
failure of the defendant to deny the same under oath, a
material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960)
summary judgment is not proper.
Summary judgment is a judgment rendered by a court without trial
In an action for a sum of money, where the debt and the
if it is clear that there exists no genuine issue or controversy as to
fact of its non-payment is admitted and the only issue
any material @fact, except as to the amount of damages.
raised is the rate of interest and the damages payable,
there is no genuine issue and a summary judgment may
For summary judgment to be proper, two (2) requisites must
be rendered upon proper motion.
concur, to wit:
4) The Court, in Asian Development and Construction
1) there must be no genuine issue on any material fact,
Corporation vs. PCIB, GR No. 153827, April 25, 2006,
except for the amount of damages; and
reiterated the principles governing summary judgment as
2) the moving party must be entitled to a judgment as a
follows:
matter of law.
“…Under the Rules, summary judgment is appropriate
When on their face, the pleadings tender a genuine issue, summary
when there is no genuine issues of fact which call for
judgment is not proper. An issue is genuine if it requires the
the presentation of evidence in a full-blown trial. Even
presentation of evidence as distinguished from a sham, fictitious,
if on their face the pleadings appear to raise issues,
contrived or false claim. (Ontimare vs. Elep GR No. 159224, January
when the affidavits, depositions and admissions show
20, 2006)
that such issues are not genuine, then summary
judgment as prescribed by the Rules must ensue as a
Even if the answer does tender an issue, and therefore a judgment
matter of law. The determinative factor, therefore, in a
on the pleadings is not proper, a summary judgment may still be
motion for summary judgment is the presence or
rendered if the issues renderer are not genuine, set-up in bad faith
absence of a genuine issue as to any material fact.”
and patently insubstantial (Vergara vs. Suelto GR No. L-74766, Dec.
21, 1987)
Meaning of genuine issue
Nature of Summary Judgment
A “genuine issue” is an issue of fact which requires the
presentation of evidence as distinguished from a sham,
1) A summary judgment, also called accelerated judgment, is
fictitious, contrived or false claim. When the facts as
proper where, upon a motion filed after the issues had
pleaded appear uncontested or undisputed, then there is
been joined and on the basis of the pleadings and papers
no real or genuine issue or question as to the facts, and
filed, the court finds that there is no genuine issue as to
summary judgment is called for. The party who moves
any material fact except as to the amount of damages (Ley
for summary judgment has the burden of demonstrating
Construction and Development Corporation vs. Union
clearly the absence of any genuine issue of fact, or that
Bank GR No. 133801’ June 27, 2000; Spouses Agbada vs.
the issue posed in the complaint is patently
Inter-Urban developers Inc., GR No. 1445029, September
unsubstantial so as not to constitute a genuine issue for
19, 2000; Raboca vs. Velez 341 SCERA 543). Under the
trial. Trial courts have limited authority to render
Rules, when there is no genuine issue as to any material
summary judgments and may do so only when there is
fact, other than for instance, the amount of damages, and
clearly no genuine issue as to any material fact. When
the moving party is entitled to a judgment as a matter of
the facts as pleaded by the parties are disputed or
law, a summary judgment may be rendered.
contested, proceedings for summary judgment cannot
take the place of trial.
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Rule 36
3) signature of the judge (Herrera, p. 145)
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
It is vital to keep in mind that in the process of rendering a
judgment or in resolving controversies, courts can only consider
facts and issues pleaded by the parties. Courts, as well as
There are three (3) important stages in a civil action.
magistrates presiding over them are not omniscient. They can only
act on the facts and issues presented before them in appropriate
Q: What are these three (3) stages?
pleadings. They may not even substitute their own personal
knowledge for evidence. Nor may they take notice of matters
A: The following:
except those expressly provided as subjects of mandatory judicial
notice (Social Justice Society vs. Atienza GR No. 156052, February
1) First stage: Issue Formulation Stage
13, 2008).
It is the stage in which we are trying to find out what are
Q: What are the requisites of a valid judgment?
the issues we are quarreling about. This is done by filing
a complaint, answer to know the defenses, counterclaim,
A: There are the requisites for a valid judgment:
answer to counterclaim, third party complaint. This is
the stage of formulation of issues.
1) the court rendering judgment must have jurisdiction over
the subject matter;
After the last pleading is filed, we go to pre-trial where
we will discuss the simplification of issues, advisability of
2) the court rendering judgment must have jurisdiction over
amending the pleadings, etc. Therefore, during pre-trial
the person of the defendant, and in case the defendant is
we are still formulating issues to be tackled. When the
a non-resident, the court rendering judgment must have
pre-trial is terminated and there is no settlement, we
jurisdiction over the res;
proceed to stage 2:
3) the court rendering judgment must have jurisdiction over
2) Second stage: Stage of Proof (Rule 30 on Trial)
the issues, that is, the judgment shall decide only the
issues raised by the parties in their pleadings;
We are now on trial where the parties will now offer
their evidence. It is called the stage of proof. Plaintiff
4) the court rendering judgment must be a validly
presents evidence to prove his claim. Defendant
constituted court and the judge thereof, a judge de jure
presents evidence to prove his defense. Parties present
or de facto; Thus, the court has not been abolished; the
rebutting evidence. So this is the stage where the
judge has been appointed and has not retired nor
parties will prove their respective contentions.
separated from service. That is why there is a rule even
in criminal cases that if the judgment is promulgated
After the case has been tried and everything has been
after the judge has already retired, the judgment is void.
argued under Rule 30, the last stage is….
There must be another promulgation.
3) Third stage: Judgment Stage (Rule 36)
EXAMPLE: Judge tries a case, prepares the decision and
signs it. Before the decision is promulgated, the judge
This is the stage where the court will now decide and
died or retired. In this case, any promulgation to be
render judgment.
made cannot be valid. The next judge must be the one to
promulgate it – write the decision again and sign it. What
Q: Define Judgment.
is important is the judge who rendered.
A: Judgment is the final consideration and determination by a court
ABC DAVAO AUTO SUPPLY vs. CA – 284 SCRA 218 [January 16,
of the rights of the parties as those rights presently exists, upon
1998]
matters submitted to it in an action or proceeding. (Gotamco vs.
Chan Seng, 46 Phil. 542)
FACTS: The case was tried by a judge (Agton) who was temporarily
assigned to Mati. He wrote the decision and had it released but by
A judgment is the final ruling by the court of competent jurisdiction
that time, he was already back in Mati. The losing party contended
regarding the rights or other matters submitted to it in an action or
that the judgment was not valid.
proceeding (Macahilig vs. Heirs of Gracia M. Magalit 344 SCRA
838).
HELD: The judgment is VALID because when the new judge denied
the motion for reconsideration, he effectively adopted in toto the
Parts of a judgment:
decision of the Mati judge. And besides, the Mati judge was still a
judge when he rendered his decision.
1) The opinion of the court - contains the findings of facts
and conclusions of law;
“The subsequent motion for reconsideration of Judge Agton's
decision was acted upon by Judge Marasigan himself and his denial
2) the disposition of the case - the final and actual
of the said motion indicates that he subscribed with and adopted in
disposition of the rights litigated (the dispositive part);
toto Judge Agton's decision. Any incipient defect was cured.
and
Branches of the trial court are not distinct and separate tribunals
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from each other. Jurisdiction does not attach to the judge but to
next day. Do you count the period of appeal from that date when
the court.”
he heard the decision?
1) the judgment must be rendered after lawful hearing,
ANSWER: NO. You still have to wait for the written decision.
meaning that due process must be observed. (Busacay vs.
Presumably, what is dictated by the judge will be transcribed.
Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs. Juan, L-
From the time you receive it is the reckoning period for appeal,
13764, Jan. 30, 1960; Rojas vs. Villanueva, 57 O.G. 7339,
notwithstanding the hearing of such decision in open court. That is
Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-18176, Oct. 26,
not yet the formal decision because under the law, there is no such
1966)
thing as oral decision. The judgment must be in writing.
There must be a trial where both sides are given the
Officially the decision is known to you on the date you received the
chance to be heard. In case of a defaulted defendant,
written judgment. Not the date when he dictated it in your
due process was observed because he was given the
presence. There are judges before who could do that. Even now
opportunity to defend himself. But he did not file an
those judges in Manila who became justices today do practice such
answer. The essence of due process is the fact that you
type of judgment. At present, judges no longer possess such skill.
are given the opportunity to be heard.
They are given 90 days to decide the issue and yet at times, they
could not do so within the period mandated by law. How much
2) The evidence must have been considered by the tribunal in
more on the spot decision?
deciding the case (Acosta vs. Comelec 293 SCRA 578)
Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY
3) The judgment must be in writing, personally and directly
PREPARED BY THE JUDGE
prepared by the judge; a verbal judgment is, in
contemplation of law, not in esse, therefore, ineffective
It is presumed that the judgment will be made by the judge
(Corpus vs. Sandiganbayan 442 SCRA 294).
himself. Although sometimes it happens otherwise. The judge
should not delegate the writing to other people. There must be no
4) The judgment must state clearly the facts and the law on
ghost writer.
which it is based, signed by the judge and filed with the
clerk of court (Sec. 1 R 36; Sec. 14, Art. II, Constitution;
Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY
Report on the Judicial Audit Conducted in the MTC of
THE FACTS AND THE LAW ON WHICH IT IS BASED
Tambulig, 472 SCRA 419). This requirement refers to
decisions and final orders on the merits, not to those
The most important – the decision should state clearly and
resolving incidental matters (Pablo-Gualberto vs. Gualberto
distinctly, the facts and the law on which it is based. Meaning, there
V 461 SCRA 450).
must be a justification for the dispositive portion. The judge must
argue why the party won or lost.
Sec. 1. Rendition of judgments and final
orders. - A judgment or final order
Normally in the facts, either the facts presented by plaintiff are
determining the merits of the case shall be in
right and the facts presented by the defendant are wrong or vice-
writing personally and directly prepared by
versa. If you think the facts as presented by the plaintiff are correct
the judge, stating clearly and distinctly the
or not, you have to state why do you believe that it is correct or
facts and the law on which it is based, signed
not, and also with the evidence of the defendant. The same thing
by him, and filed with the clerk of the court.
with legal questions because the plaintiff or the defendant relies on
(1a)
the provisions of the laws or decided cases.
Q: What are the FORMAL requisites of a valid judgment?
You have to state why the position of the defendant is wrong, why
is the law that he cited not applicable. You have to state your facts
A: There are four (4) formal requisites:
and conclusions of law.
1) The judgment shall be in writing;
In the SCRA, the Supreme Court will discuss both sides, “According
2) It shall be personally and directly prepared by the judge;
to the plaintiff like this…According to the defendant like this…..and
3) It shall state clearly and distinctly the facts and the law
so forth.” Then the decision will start by saying, “While the
on which it is based; and
petitioner is correct…” or, “While the defendant is correct…”
4) It shall be signed by the judge and filed with the clerk of
court.
It is called the discussion of the facts and the law on which the
decision is based. It is a requirement in the Constitution, Article
First formal requisite: THE JUDGMENT SHALL BE IN WRITING
VIII, Section 14:
There is no such thing as an oral judgment
Sec. 14. No decision shall be rendered by
any court without expressing therein clearly
BAR QUESTION: After the parties presented their evidence, the
and distinctly the facts and the law on which
judge asked the lawyers, “Are you going to argue?” The parties
it is based. xxx (Article. VIII, 1987
said, “No more, Your honor. We are waiving our right to argue.”
Constitution)
So the judge dictated the decision to the clerk of court. The
judgment was against the defendant. The defendant appealed
If a judge will render a decision like this: “This is a civil action to
collect an unpaid loan. According to the plaintiff: He borrowed
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money for the sum of P80,000.00 payable on this date and despite
This is what is called the Memorandum Decision. The concept of
demands, he did not pay. According to the defendant in his answer:
memorandum decision which is found in Section 40, BP 129 is now
the obligation is fully paid. ISSUE: Whether the loan has been paid
in Rule 51, Section 5 of the 1997 Rules, to wit:
or not yet paid. Plaintiff, to prove his cause of action presented the
following witnesses and evidence. On the other hand, the
Sec. 5. Form of decision.- Every decision or
defendant, to prove his defense presented the following evidence.
final resolution of the court in appealed cases
WHEREFORE, the court renders judgment dismissing the
shall clearly and distinctly state the findings
complaint.”
of fact and the conclusions of law on which it
is based, which may be contained in the
Such decision has no discussion on the findings of facts and the
decision or final resolution itself, or adopted
law. There is no basis of the dismissal of the complaint. MY
from those set forth in the decision, order, or
GOLLY! What kind of decision is that? There is no discussion on
resolution appealed from. (Sec. 40, BP Blg.
why is the evidence of the plaintiff believable and why is the
129) (n)
position of the defendant like that. So there is no discussion of the
facts and the law on which it is based. That is a decision which
So the appellate court is now authorized to simply copy or refer the
violates the Constitution and Rule 36.
true findings of fact and conclusions at the trial court if it is
affirming the latter’s decision. This is what we call memorandum
Another Illustration:
decision. The SC said that it is only allowed in simple cases, not in
complicated ones.
In an action for sum of money, plaintiff is unpaid. Defendant claims
the loan has been paid. The following is the evidence of the
Q: Does the law require a particular style of writing a decision?
plaintiff and the following is the evidence of the defendant. Then
the court now says: “After the meticulous study and analysis of the
A: NO, style is based on every individual, so long as the facts and
evidence offered by both sides, the court is of the opinion that
the law are distinctively stated. That is the minimum requirement.
plaintiff’s evidence is more logical, acceptable, probable and worthy
The law does not care how you do it because the manner of
of credit. THEREFORE, judgment is hereby rendered ordering the
presenting the facts and the law and the discussion is a matter of
defendant to pay the loan.”
style. Every person has his own style, and whether it is good or bad
does not matter as long as you comply with the law.
Q: Is this decision correct?
As a matter of fact, there are many instances where the SC
A: NO. It still violates the law. There are no findings of facts or
commented on the writing styles of judges. The most vehement
conclusions of the law. Therefore, when the court said, “plaintiff’s
critics on sloppy style of decision writing is retired Justice Isagani
evidence is more logical, acceptable, probable and worthy of credit”
Cruz, because he is a very effective writer. He is intolerant of poorly
those are conclusions. They are not findings of facts. Meaning you
written decisions. Kaya from time to time although not necessary,
have to argue – why is it logical, why is it acceptable, why is it
he will criticize poorly written decisions. He makes sub-comments.
probable, why is it worthy of credit. You must state it and rebut
Like in the cases of
the other side.
NICOS INDUSTRIAL CORP. vs. CA - 206 SCRA 127 [1992]
If that is how decisions are prepared, you just recite what the
plaintiff said or what the defendant said, and you will conclude,
HELD: “Kilometric decisions without much substance must be
“Therefore, find the plaintiff is logical…”, then every nincompoop
avoided, to be sure, but the other extreme, where substance is also
person is qualified to be a judge – everybody can write a decision.
lost in the wish to be brief, is no less unacceptable either.” Too long
is bad, too short is bad either. “The ideal decision is that which,
It is just like asking questions in the examinations. You will not
with welcome economy of words, arrives at the factual findings,
answer that “A is correct because his argument is correct
reaches the legal conclusions, renders its ruling and, having done
(period!).” You have to state why he is correct. That is also the
so, ends.” This means, brief but comprehensive.
case in the decision. You must support your answer with details.
PEOPLE vs. GONZALES – 215 SCRA 592
Now, every decision of every court must state the facts and the law
on which it is based. It must be in every court, no exceptions,
HELD: “Every judge has his own writing style, some tedious, some
whether SC or an MTC. The Constitutional provision on this
terse, some pedestrian, some elegant, depending upon his training
requirement applies to all courts from the highest to the lowest.
and outlook. Each is acceptable as long as the factual and legal
bases are clearly and distinctly stated therein.”
However, the Judiciary Law allows the appellate court to make a
Memorandum Decision. If you are the appellate court (CA), you
PEOPLE vs. AMONDINA – 220 SCRA 6
either affirm or reverse the decision of the lower court. If the CA
will reverse the findings of the RTC, definitely the CA has to justify
HELD: “The decision of the trial court is exceedingly long, without
why the findings of the RTC is wrong.
any effort to trim the fat and keep it lean. Judges are not
stenographers transcribing the testimony of the witnesses word for
But suppose the CA will affirm, so there is nothing wrong with the
word. Judges must know how to synthesize, to summarize, to
judgment of the RTC. Now, in order to shorten the period for
simplify. Their failure to do so is one of the main reasons for the
waiting for the decision and in order to hasten it, Section 40 of BP
delay in the administration of justice. It also explains the despair of
129 allows the appellate court to simply quote verbatim the
the public over the foot-dragging of many courts and their inability
findings and conclusion of the trial court and adopt it as its own.
to get to the point and to get there fast.”
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1) The court renders a decision If you lose a case, what are your options? I can either appeal
2) After receipt of notice, the losing party has the following within the time provided by the Rules. Or, within the same period, I
options: will file a motion for a new trial or a motion for reconsideration. In
any case, the finality of the judgment will be stopped.
a) Accept the decision without further contest in
which case the judgment becomes final fater Q: Suppose the prescribed period has lapsed, there is no appeal, no
period to appeal has lapsed; or motion for new trial or reconsideration, what happens to the
b) Contest the judgment in which case he can: judgment?
1. File an appeal within 15/30 days from notice A: The judgment now becomes final and executory.
of judgment; or
2. file a motion for reconsideration or a motion According to Section 2, once the judgment has become final, it shall
for new trial within the period to appeal be entered by the clerk of court in the Book of Entries of
reckoned from notice of judgment. Judgments. If you go to the office of the RTC, you will find an
official book which contains a chronological arrangement of cases,
If he filed a motion for recon or motion for new trial, two based on the date of filing. Malaking libro yan.
possibilities can happen:
Now, the second sentence is new and its effects are also significant,
1) If granted, the court can modify the decision or allow “…the date of the finality of judgment or final order shall be
new trial; deemed to be the date of its entry.” The rule is, when does a
judgment become final? After the lapse of the period to appeal
2) If denied, the losing party may appeal within a fresh and no appeal is filed.
period of 15 days from notice of denial (Neypes vs. CA)
EXAMPLE: Today, March 4, the lawyer for the defendant received a
The power to amend a judgment is inherent to the court before copy of the judgment. The last day to appeal is March 19. Suppose
judgment becomes final and executory. there is no appeal, then March 20 is the date of finality. On March
20 or immediately thereafter, the clerk of court should know the
General rule: After judgment has become final and executory the judgment became final on March 20. Suppose the clerk of court
court cannot amend the same. placed it in the book on March 30. So, the date of finality is March
20 but the date of entry is March 30.
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The normal procedure is you try the case, tapusin mo lahat, then
you render one judgment disposing of the complaint, counterclaim,
cross-claim and third-party complaint. Yet, separate judgments is
also permissive under Section 5. If there are separate trials for all
these (counterclaim, cross-claim, etc), it is also possible that there
would be separate trials.
Distinctions:
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Rule 37
We have not yet discussed the law on appeal but the general rule is
just like in criminal cases. If you lose, you have 15 days to file an
NEW TRIAL OR RECONSIDERATION
appeal. If there is no appeal within 15 days, the judgment will
become final and executory.
The counterpart of Rule 37 in criminal procedure is Rule 121. In
criminal procedure, there is also the remedy of new trial and
Q: What is the effect when judgment becomes final and executory?
reconsideration.
A: Under Rule 36, the court loses jurisdiction over the case. The
Section 1. Grounds of and period for filing
decision cannot be changed anymore. But as long as judgment is
motion for new trial or reconsideration. Within
not yet final, the court can change the decision.
the period for taking an appeal, the aggrieved
party may move the trial court to set aside
Q: What is the effect of filing a motion for new trial or
the judgment or final order and grant a new
reconsideration on the period to appeal?
trial for one or more of the following causes
materially affecting the substantial rights of
A: The period to appeal is suspended. Period to appeal is
said party:
suspended except if your motion for new trial or reconsideration is
pro-forma under Sections 2 and 5.
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
NEW TRIAL
not have guarded against and by reason of
which such aggrieved party has probably
The motion is filed within the period to appeal (Sec. 1). No motion
been impaired in his rights; or
for extension of time to file a motion for new trial shall be allowed
(Sec. 2, R 40; Sec. 3, R 41).
(b) Newly discovered evidence, which he
could not, with reasonable diligence, have
The period to appeal is within 15 days after notice to the appellant
discovered and produced at the trial, and
of the judgment or final order appealed from (Sec. 2 R 40; Sec. 3, R
which if presented would probably alter the
41; Sec. 2 R 45). Where a record on appeal is required, the
result.
appellant shall file a notice of appeal and a record on appeal within
Within the same period, the aggrieved party
30 days from notice of the judgment or final order (Sec. 3 R 41). A
may also move for reconsideration upon the
record on appeal shall be required only (a) in special proceedings,
grounds that the damages awarded are
and (b) other cases of multiple or separate appeals (Sec. 3 R 40).
excessive, that the evidence is insufficient to
justify the decision or final order, or that the
A motion for new trial is prohibited in cases covered by the Rule on
decision or final order is contrary to law.(1a)
Summary Procedure (Sec. 19[c], Revised Rule on Summary
Procedure). It is also prohibited under the Rule of Procedure for
Q: When may an aggrieved party file a motion for new trial or a
Small Claims Cases (Sec. 14©, A.M. No. 08-8-7-SC).
motion for reconsideration?
Q: What are the grounds for a motion for new trial in civil cases?
A: Within the period for taking an appeal. Meaning, before the
judgment becomes final and executory.
A: Under Section 1, there are two (2) GROUNDS:
The remedies against a judgment may refer to those remedies
1) Fraud, Accident, Mistake, Excusable negligence (FAME);
before a judgment becomes final and executor and those remedies
2) Newly Discovered Evidence (NDE)
after the same becomes executor.
FIRST GROUND: Fraud, Accident, Mistake, Excusable
1) Before a judgment becomes final and executor, the
negligence (FAME)
aggrieved or losing party may avail of the following
remedies:
Let us relate this to Rule 9, Section 3 [b] on Default. The ground to
lift or set aside the order of default is also FAME – that he failed to
a.) Motion for Reconsideration;
answer because of FAME. So, there is a connection between Rule 9
b.) Motion for New Trial; and
and the first ground of a motion for new trial. But this is not
c.) Appeal.
applicable only to a defaulted defendant.
A judgment becomes final and executory upon the
Q: How do you determine when to use Rule 9 or Rule 37 when one
expiration of the period to appeal therefrom and no
is declared in default?
appeal has been perfected (Sec. 1 Rule 39).
A: Use Rule 9, Section 3 [b] after notice of the order of default but
2) After the judgment becomes executory, the losing party
before judgment;
may avail of the following:
Use Rule 37 if there is already a judgment but not yet final and
a.) Petition for Relief from Judgment;
executory. Rule 37 is the remedy in case the defendant who is
b.) Action to Annul a Judgment;
declared in default failed to avail of Rule 9, Section 3 [b].
c.) Certiorari; and
d.) Collateral Attack of Judgment.
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MISTAKE
him from the effects of his failure to present countervailing
evidence. The Court does not consider as gross negligence the
What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa bisaya
counsel’s resort to dilatory schemes, such as (1) the filing of at least
pa, ‘nasayop.’
three motions to extend the filing of petitioner’s answer; (2) his
nonappearance during the scheduled pre-trials; and (3) the failure
EXAMPLE: Defendant received summons and complaint. The
to file petitioner’s pre-trial brief, even after the filing of several
defendant, instead of seeking assistance of a lawyer, went to the
motions to extend the date of filing (Uy vs. First Metro).
plaintiff and asked for settlement. They kept on talking about the
settlement but in the meantime, the period to file answer is also
EXCUSABLE NEGLIGENCE – Obviously, inexcusable negligence is not
running. Fifteen days had passed by they buy did not settle yet.
a ground for new trial. But sometimes, it is difficult to determine
Plaintiff moved to declare defendant in default. The court issued
whether the negligence is excusable or inexcusable. That is also
judgment on default. Defendant said, “Layman man ako. Anong
very difficult because there is negligence whether you like it or not.
malay ko diyan sa ‘default-default’ na yan.” The lawyer said, “Sana
answer muna before you settle with the plaintiff.” So the lawyer
When is negligence excusable and when is it inexcusable? Our only
filed a motion for new trial on the ground of MISTAKE. The court
guide here is decided cases because there are many cases where
granted it. (Salazar vs. Salazar, 8 Phil. 183)
the SC said that, it is excusable so we will grant a new trial. Or
sometimes naman, wala, that is not excusable so no new trial. So,
GENERAL RULE: A client is bound by the mistakes of his lawyer and
we can go on the pattern and find out what type of negligence
he cannot file a motion for new trial on the ground of mistake of his
warranted a new trial and what type does not warrant a new trial.
lawyer. In the case of
INEXCUSABLE NEGLIGENCE; Examples:
BELLO vs. LABONG – L-10788, April 30, 1959
EXAMPLE1: If a defendant lost a case because his lawyer failed to
HELD: “The mistake of an attorney is not generally a ground for
file an answer. And the excuse of the lawyer was, “I forgot about
new trial. The mistake or lack of foresight or preparation on the
the deadline. Nalimutan ko. I did not keep tract of the deadline to
part of the attorney cannot be admitted as reason for new trial in
file an answer.” And the SC said, “No dice. That is not excusable on
civil cases, otherwise there would never be an end to a suit so long
the part of the lawyer.”
as a new counsel could be employed who could allege and show
that the prior counsel had not been sufficiently diligent, or
EXAMPLE #2: Your case was dismissed because you failed to
experienced, or learned.”
appear in court. Here comes now your lawyer asking for new trial
on the ground of excusable negligence, “I failed to appear in court
What the SC is trying to say is this: Suppose we will grant a new
because I again forgot about that schedule” or “because I failed to
trial for the party on the ground of mistake of his first lawyer, and
wake-up because the night before, I and my friends went to a
after the new trial, the party still lost. So such party will now hire a
(Wigmore) party and I went home drunk.” Do you think the SC will
third lawyer who will say, “Do you know why you lost? That is
honor that? Is that excusable? Of course not!
because of the mistake of your second lawyer so we will file a
motion for new trial.” So the third lawyer will allege mistake of the
EXAMPLE #3: In many cases, the reason is, “I failed to appear in
second lawyer and then we will grant again a new trial and then he
court because my secretary in my law office failed to inform me
loses again. Then he gets a fourth lawyer and the fourth lawyer will
about that notice. Hindi niya nalagay ‘yung notice that I have to
allege the ground of mistake of the third lawyer.
appear in court today.” SC said, “You are bound by the mistake of
your secretary and the client is also bound by that mistake of the
So, there will never be an end to a case. So the general rule to
lawyer. In the first place, why did you hire that kind of secretary?”
remember is, a client is bound by the mistakes of his lawyer and he
cannot file a motion for new trial on the ground of mistake of his
EXAMPLE #4: In some cases, “Well, you see your honor, I failed to
lawyer. So that is not the type of mistake contemplated by Rule
appear in court because my secretary did not calendar it.” O, bakit
37.
niya hindi inilagay? “Well, she’s just a newly hired secretary, she
does not know yet the importance of these things. First time niya.”
The only EXCEPTION is based on equity decision like the case of
The SC said, “Hung hang! Pasensiya ka! Why did you not orient her
before hiring her.”
PEOPLE vs. MANZANILLA – 43 Phil. 167
So all these things hindi lumusot. All these things failed to convince
HELD: “A new trial is sometimes granted where the
the SC that the negligence of the party of the lawyer if excusable.
INCOMPETENCY or NEGLIGENCE of the party’s counsel in the
conduct of the case IS SO GREAT that party’s rights are prejudiced
EXCUSABLE NEGLIGENCE; Examples:
and he is prevented from presenting his cause of action or
defense.”
EXAMPLE #1: The answer has to be filed the following day. The
lawyer told the secretary, “I’m leaving tonight. I’ll come back one
EXCUSABLE NEGLIGENCE
week later. You better file tomorrow the answer because tomorrow
is the deadline.” Then he left but the secretary failed to file it
Gross negligence of counsel not a ground for new trial
because she also got sick. Ayan. Nagkapatong-patong na ang
malas. Excusable iyan.
Petitioner’s argument that his counsel’s negligence was so gross
that he was deprived of due process fails to impress. Gross
EXAMPLE #2: “I failed to appear in court because I had to come
negligence is not one of the grounds for a motion for a new trial.
from Manila and the plane was delayed or the flight was cancelled.
We cannot declare his counsel’s negligence as gross as to liberate
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But if the flight proceeded on time I would have been in Davao City
A: NDE is evidence which was discovered after trial, or cannot be
by 7:00 A.M. and I would have been in court at 8:30 A.M.”
discovered during trial given the exercise of reasonable diligence,
Sometimes that happens eh where the flight is cancelled or
and if admitted, such evidence would probably alter the result of
delayed. Ano ngayon yan? Sabihin, you should have taken the
the case. There is a fighting chance ba! So, you could not have
flight the night before para sigurado. “Eh, the night before fully
discovered the evidence even with exercise of due diligence.
booked na! Anong magagawa ko?” Ayan.
This is also one of the grounds for new trial in criminal cases. You
So in other words, these things, you could also consider it as what?
lost a case maybe because you do not have enough evidence to
Parang accident din no? Magkahawig eh! In other words you
prove your cause of action. Kulang ba! Kulang ka ng ebidensiya
should use your common sense. Whether the negligence is
kaya natalo ka. Then after you lost the case, you came across an
forgivable or not.
important evidence, maybe a witness or a document and you
learned about it for the first time. Ang sayang ‘no? If I was able to
And to borrow the language of the SC, “The standard of care
present this evidence baka panalo ako.
required of a party is that which an ordinarily prudent man bestows
on his important business.” (Fernandez vs. Tan Tiong Tick, L-15877,
EXAMPLE: You are a defendant being sued because of non-
April 28, 1961)
payment of an account. Ang depensa mo, bayad na. Pero saan ang
resibo? “Basta binayaran ko siya, ok naman. Sabi nga niya wala na
So, for EXAMPLE: You are a businessman and you have an
raw akong utang.” Now, so it’s your word against his word and the
appointment with somebody who will give you a deal of P50
court did not believe you. Then eto naman ang sabi ni X, “Natalo
million. And you are scheduled to see him on this date and on this
ka? Bayad naman yan ba.” Kung ganun, bakit alam mo? X:
time. Can you afford to forget that transaction? I think there is
“Nandoon man ako ba. I was there watching when you paid him.”
something wrong with you if you forgot it. You do not know what is
Meaning, kung nagtestify ka (X) noon, baka daug ako because my
important and what is not important. (Ang importante is yung
defense would have been corroborated by you. Yaaann!
mahalaga! Di ba?)
Q: What are the REQUISITES for NDE (Berry Rule)?
There are things which you forget and somehow in forgetting it you
cannot be blamed because it’s not really important. But there are
A: The following:
things which you cannot afford to forget.
1) That the evidence was discovered after trial;
EXAMPLE: Your classmate tells you, “This coming Saturday you go
2) That it could not have been discovered during trial even
to the house.” “Why? Is there a (Wigmore) party there?” “Wala
with exercise of reasonable diligence; and
man. I’m just inviting you to come ha?” And by Monday, “I was
3) The evidence is of such weight that if admitted, such
waiting for you, you did not show up!” “Tama ‘no? Sorry nalimutan
evidence would probably alter the result; and
ko.” Now, is forgetting your appointment with your classmate two
4) it must be material and not merely collateral, cumulative
days before forgivable or not? I think forgivable iyan. Anyway,
or corroborative.
istorya-istorya man lang. Para bang, “O, sige, di sa susunod na
Sabado na lang.” Meaning, madaling ma-erase sa mind mo yang
These standards, also known as the "Berry" rule, trace their origin
mga ganyang klaseng appointment ba!
to the 1851 case of Berry vs. State of Georgia.
EXAMPLE: But suppose on Saturday morning you are supposed to
Newly discovered evidence need not be newly created evidence. It
go to church for your wedding, hindi ka nakasipot. And then you
may and does commonly refer to evidence already in existence
tell your bride or the groom, “Pasensiya ka na ha? Kasal pala natin,
prior or during trial but which could not have been secured and
nakalimutan ko eh. (Sana t-in-ext mo ako. Wala kang load ‘no?
presented during the trial despite reasonable diligence on the part
hahaha!)” I think he or she will kill you for that kind of reasoning.
of the litigant. (Tumang vs. CA GR No. 82346-47, April 17, 1989).
EXAMPLE: If a lawyer says, “I forgot that this is the day I should file
THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL;
an answer for my client.” Or, “I forgot to appear in court on the day
of his trial.” Is the court’s schedule or the schedule of a lawyer
Newly discovered evidence vs. Forgotten evidence
something important for him or not? I think you know the answer
‘no?
In the former, the evidence was not available to a party during the
trial, and was discovered only after the trial while in forgotten
Ayan! Kaya iyan ang guide. That is the meaning of excusable
evidence, the evidence was already available to a party and was
negligence.
not able to present it through inadvertence or negligence of
counsel. The latter is not a ground for new trial.
NEWLY DISCOVERED EVIDENCE
EXAMPLE: There was a case where a party, through his lawyer filed
Section 1(b). Newly discovered evidence,
a motion for new trial based on this document. Bakit hindi mo pre-
which he could not, with reasonable
ni-sent sa trial? “I misplaced it in my drawer. Nalimutan ko na
diligence, have discovered and produced at
meron pala akong resibo. So, let’s have a new trial because I will
the trial, and which if presented would
now introduce a ground for new trial.” Obviously, it was discovered
probably alter the result.
after trial. It was in your possession for so long. And according to
the SC, that is not a newly discovered evidence. (That is
Q: What is Newly Discovered Evidence (NDE)?
katangahan!) That is forgotten evidence which is not a ground for
new trial.
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A: You appeal from the judgment. You cannot appeal from the
order denying your new motion for new trial. That is related to
Rule 41, Section 1 [a]:
xxxxxx
Well, of course, the filing of this motion will stop the running of the
15-day period, unless your motion for new trial is pro-forma.
Generally, the law does not allow an appeal from the order denying
your motion for new trial. You appeal from the decision, not from
the order denying your motion. This provision will come out again
when we reach the rule on appeal.
1.) Decision/Judgment;
2.) Motion for New Trial or Reconsideration (Rule 37);
3.) If denied, court makes a order denying your motion for new
trial or reconsideration;
4.) Appeal based on the decision/judgment and not based on
the order denying your motion.
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Rule 38
Grounds:
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
1) when judgment or final order is entered into or any
other proceeding is thereafter taken against the
Section 1. Petition for relief from judgment,
petitioner through FAME;
order, or other proceedings. When a judgment
or final order is entered, or any other
The "other proceeding" includes an order or writ of
proceeding is thereafter taken against a party
execution, or an order dismissing an appeal (Medran vs.
in any court through fraud, accident, mistake,
CA 83 Phil. 164)
or excusable negligence, he may file a
petition in such court and in the same case
2) When petitioner has been prevented from taking an
praying that the judgment, order or
appeal by FAME.
proceeding be set aside. (2a)
A petition for relief has been held to be applicable to all
This is not applicable to the Supreme Court because it is not a trier
kinds of special proceedings, such as land registration,
of facts
intestate settlement, and guardianship proceedings
(Regalado, Remedial Law Compendium, Vol. 1, 9th ed. p.
After the judgment becomes final and executory, the losing party
432)
may avail of the following:
Nature of the petition
a) Petition for Relief from Judgment;
b) Action to Annul a Judgment;
It is a legal remedy whereby a party seeks to set aside a judgment
c) Certiorari; and
rendered against him by a court whenever he was unjustly
d) Collateral attack of a judgment.
deprived of a hearing or was prevented from taking an appeal
because of fraud, accident, mistake or excusable neglect (Quelnan
The term final when used to describe a judgment may be used in
vs. VHF Philippines GR 138500, Sept. 16, 2005)
two senses
A petition for relief from judgment is an equitable remedy that is
In the first, it refers to a judgment that disposes of a case in a
allowed only in exceptional cases when there is no other available
manner that leaves nothing more to be done by the court in
or adequate remedy. When a party has another remedy available
respect thereto. In this sense, a final judgment is distinguished
to him, which may be either a motion for new trial or appeal from
from an interlocutory order which does not finally terminate or
an adverse decision of the trial court, and he was not prevented by
dispose of the case (Rudecon Management Corporation vs.
fraud, accident, mistake or excusable negligence from filing such
Singson, 454 SCRA 612). Here the remedies are a Motion for
motion or taking such appeal, he cannot avail himself of this
Reconsideration, motion for New Trial and appeal.
petition (Trust International Paper Corporation vs. Pelaez GR
164871, August 26, 2006). Also, a party who has filed motion for
In another sense the word “final” may refer to a judgment that is
new trial but which was denied, cannot file a petition for relief.
no longer appealable and is already capable of being executed
These two remedies are said to be exclusive of each other. The
because the period for appeal has lapsed without a party having
remedy is to appeal from the judgment (Sec. 9 R 38, Francisco vs.
perfected an appeal of it there has been an appeal, it has already
Puno 108 SCRA 427).
been resolved by a highest possible tribunal (PCGG vs.
Sandiganbayaan 455 SCRA526). In this sense, the judgment is
Q: What are the different remedies available to a defaulted
commonly referred to as one that is “final and executory.”
defendant granted by the rules?
Rule 38 is known as the remedy of petition for relief from judgment
A: The following:
or final order. The grounds cited here are actually the same as the
grounds for new trial – FAME. We are meeting FAME for the third
Upon service of the order of default but before judgment
time. It seems to be a ground that keeps on going back. First in
upon default is rendered under Rule 9 you can file a
Default, then New Trial, and now a ground for petition for Relief
motion to set aside the order of default on the ground
from Judgment.
that his failure to file answer was because of FAME;
This is not an independent action but a continuation of the old case.
If there is already a default judgment, the correct
It is filed with the same court which decided it.
procedure is to file a motion for new trial under Rule 37
on the ground of FAME within the period to appeal,
Under the present Rules, petitions for relief from a judgment, final
meaning, before judgment becomes final and executory;
order or other proceedings should be filed in and resolved by the
court in the same case from which the petition arose. Thus,
If the judgment is already final and executory, the remedy
petition for relief from a judgment, final order or proceeding
is to file a petition for relief from judgment under Rule 38
involved in a case tried by a municipal court shall be filed in and
on the ground of FAME.
decided by the same court in the same case, or in the Regional Trial
Court if the case was decided by it (Redena vs. CA GR No. 146611,
So if you are a passenger ,who is a defaulted defendant, and you
February 6, 2007).
want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip,
Rule 38 is last trip.
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Motion for New Trial (R 37) vs. Petition for Relief (R 38)
fraud, accident, mistake, or excusable
negligence, has been prevented from taking
1. MNT is available before the judgment becomes final and
an appeal, he may file a petition in such court
executory while the
and in the same case praying that the appeal
PR is available after the judgment becomes final and
be given due course. (1a)
executory;
In most cases, or 95% of petition for relief, a party files a petition
2. MNT applies to judgments and final orders only while
for relief from the judgment rendered against him. Actually that is
PR applies also to other proceedings;
not true. The remedy of petition for relief is not only limited to
judgments but the law says “orders, or other proceedings.” That is
3. The grounds for MNT are FAME and newly discovered
very broad.
evidence while
PR is grounded on FAME;
EXAMPLE: I lost the case and I filed an appeal and the appeal was
beyond 15 days. So, there will be an order denying my appeal
4. MNT is filed within the time to appeal while
because my appeal should be within 15 days.
PR should be filed within 60 days from knowledge of the
judgment and within 6 months from entry of judgment;
Q: And suppose such order prevented me from taking an appeal
because of FAME, can I file a petition for relief?
5. If MNT is denied, the order of denial is not appealable,
hence the remedy is appeal from judgment, while
A: Yes, not from the judgment but from the order denying my
if PR is denied, the order denying a petition for relief is
appeal on the ground of FAME. And the court will grant me relief
also not appealable but the appropriate remedy is the
by allowing me to appeal. So there, I am not questioning the
appropriate civil action under R 65;
judgment but I am only questioning the order not allowing me to
appeal.
6. MNT is a legal remedy while
PR is an equitable remedy;
But as I said, in most cases, petition for relief are based on Section
1 rather than Section 2. Bihira yung petition for relief from the
7. A motion for new trial need not be verified while
order denying the appeal.
PR must be.
Is there a deadline in filing a petition for relief from judgment? YES.
A party who has filed a timely motion for new trial and/or
Section 3:
reconsideration cannot file a petition for relief after his motion has
been denied. These remedies are exclusive of each other. It is only
Sec. 3. Time for filing petition; contents and
in appropriate cases where a party aggrieved by the judgment has
verification. A petition provided for in either
not been able to file a motion for new trial and/or reconsideration
of the preceding sections of this Rule must be
that a petition for relief can be filed. (Francisco vs. Puno GR No. L-
verified, filed within sixty (60) days after the
55694, October 23, 1981).
petitioner learns of the judgment, final order,
or other proceeding to be set aside, and not
Petition is available only to the parties
more than six (6) months after such judgment
or final order was entered, or such
A petition for relief from judgment together with a motion for new
proceeding was taken; and must be
trial and a motion for reconsideration are remedies available only
accompanied with affidavits showing the
to parties in the proceedings where the assailed judgment is
fraud, accident, mistake, or excusable
rendered. In fact, it has been held that a person who was never a
negligence relied upon, and the facts
party to the case, or even summoned to appear therein, cannot
constituting the petitioner's good and
avail of a petition for relief from judgment (Alaban vs. CA 470 SCRA
substantial cause of action or defense, as the
697).
case may be. (3)
Petition is available to proceedings after the judgment
Q: When you file a petition for relief from judgment, or final order,
what are the formal requirements?
A petition for relief is available not only against a judgment or final
order. Under Sec. 1 of Rule 38, it is also available when “any other
A: The formal requirements are:
proceeding is thereafter, taken against the petitioner in any court
through fraud, accident, mistake, or excusable negligence”. Thus, it
a) The petition must be verified;
was held that a petition for relief is also applicable to a proceeding
b) The petition for relief must be accompanied with
taken after the entry of judgment or final order such as an order of
affidavits showing the FAME relied upon;
execution (Cayetano vs. Ceguerra, 13 SCRA 73).
c) the affidavit of merit must also show the facts
constituting the petitioner’s good and substantial cause
Can you file a petition for relief not from a judgment but from an
of action or defense as the case may be.
order? Section 2:
Affidavit of merit is one which recites the nature and character of
Sec. 2. Petition for relief from denial of appeal.
FAME on which the motion is based.
When a judgment or final order is rendered
by any court in a case, and a party thereto, by
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and we will try the case all over again. In a petition for relief, the
order of Municipal Trial Courts should be filed with the Regional
court has no power to change its decision because it has already
Trial Court.
become final and executory. But its power under Rule 38 is to set it
aside as if it was never rendered and conduct a new trial as if a
The procedural change in Rule 38 is in line with Rule 5, prescribing
motion for new trial has been filed. So please do not confuse Rule
uniform procedure for Municipal and Regional Trial Courts and
38 with the remedy of appeal.
designation of Municipal/Metropolitan Trial Courts as courts of
record.
Sec. 7. Procedure where the denial of an
appeal is set aside. Where the denial of an
Third, the procedure in the CA and the Supreme Court are
appeal is set aside, the lower court shall be
governed by separate provisions of the Rules of Court. It may, from
required to give due course to the appeal and
time to time, be supplemented by additional rules promulgated by
to elevate the record of the appealed case as
the Supreme Court through resolutions or circulars. As it stands,
if a timely and proper appeal had been made.
neither the Rules of Court nor the Revised Internal Rules of the CA
(7a)
allows the remedy of petition for relief in the CA.xxx”
This is a continuation of Section 2 – what can be questioned in Rule
Earlier, in Mesina vs. Meer 383 SCRA 625, the Court ruled that a
38 is not only a judgment but also an order, such as an order
petition for relief from judgment is not an available remedy in the
denying an appeal.
CA and the SC.
Q: Can I file a petition for relief from the denial of an appeal?
Remedies if Rule 38 is no longer available
A: YES.
1) Petition for Annulment of Judgment under R 47; and
2) A direct or collateral attack if judgment is void ab initio
Q: And if my petition for relief from the order denying the appeal is
for lack of jurisdiction.
granted, what will happen?
Note: Under AM No. 08-8-7 SC, otherwise known as the Rule of
A: According to Section 7, the court will now grant the appeal and
Procedure for Small Claims Cases, a Motion for New Trial or
allow the appeal to proceed as if it was filed on time. Meaning, the
Reocnsideration (R 37), and a Peition for Relief from Judgment (R
judgment will not be set aside but I will be given the right to appeal
38) are prohibited pleadings.
if the failure to file an appeal as due to FAME.
Both remedies, likewise, are prohibited pleading under the Rule on
No petition for relief in the Supreme Court
Summary Procedure.
Second, while Rule 38 uses the phrase “any court,” it refers only to
the Munici[pal/Metropolitan and Regional Trial Courts.
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Rule 39
A: EXECUTION is the remedy provided by law for the enforcement
of a judgment. (21 Am. Jur. 18) It is the fruit and the end of the suit
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
and is very aptly called the life of the law (PAL vs. Court of Appeals,
181 SCRA 557).
Rule 39 is on the subject of Execution, Satisfaction and Effect of
Judgments. This is the longest rule in the study of Civil Procedure.
It would be useless if there is judgment but you cannot enforce the
Take note that there are 48 Sections. Let us first review the
same.
fundamentals.
Q: Who will enforce the judgment?
Q: When the judgment becomes final and executory, what are the
effects?
A: The very same court which rendered the judgment.
A: The finality of a judgment produces three (3) effects, to wit:
Execution shall be applied for in the court of origin. If an appeal has
been duly perfected and finally resolved, the execution may be
1) The prevailing party is entitled to have the judgment
applied for also in the court of origin on motion of the judgment
executed as a matter of right and the issuance of the
obligee. (Sec. 1) In filing a motion for execution of an appealed
corresponding writ of execution becomes a ministerial
judgment, there is no need to wait for the records of the case to be
duty of the court (Rule 39);
remanded to the court of origin. All that is required is for the
appeal to have been duly perfected and finally resolved before
2) The court rendering the judgment loses jurisdiction over
execution may be applied for (Borgonia vs. Decano 317 SCRA 660).
the case so that it can no longer correct the judgment in
This is because when the judgment obligee files a motion for
substance, except to make corrections of clerical errors
execution in the court of origin, all he has to do is to attach the
and omissions plainly due to inadvertence or negligence.
certified true copies of (a) the judgment of the appellate court, and
(Locsin vs. Paredes, 63 Phil. 87; Manaois vs. Natividad, L-
(b) the entry of said judgment (Sec. 1) even if the records have not
13927, Feb. 28, 1960; Maramba vs. Lozano, L-21533,
as yet been remanded to the court of origin. This procedure
June 29, 1967)
prevents needless delays in the execution of the judgment.
If after the judgment is rendered, you file a motion for
If for whatever reason, the execution cannot be had with dispatch
reconsideration or new trial, there is a possibility for the
in the court of origin, the new rules likewise afford the judgment
court to change its mind and its judgment. But once the
obligee a remedy. He may file a motion with the appellate court to
judgment has become final, the court has no more
direct the court of origin, in the interest of justice, to issue the writ
power to change its judgment substantially. The error
of execution (Sec.1).
will also become final, you can no longer change
anything substantial.
Writ of execujudicial a judicial writ issued to an officer authorizing
him to execute the judgment of the court.
EXCEPTION: There is one type of judgment which can be
changed substantially even long after it became final as
Q: How is execution generally done?
an exception to this rule. In the study of Persons,
Judgment for Support. The judgment for support, which
A: It is generally done by filing a motion for execution by the pre-
can be modified at any time because the obligation to
vailing party and the court will then issue an order of execution,
give support depends not only on the resources of the
which will be followed with a writ of execution, and the sheriff will
obligor, but also on the ever-changing needs of the
enforce the judgment.
obligee. (Malabana vs. Abeto, 74 Phil. 13)
In Lou vs. Siapno 335 SCRA 181, it was ruled that even in judgments
EXAMPLE: The father refuses to support his minor child.
which are immediately executory, “there must be a motion to that
After trial, the court orders the father to support the
effect and a hearing called for the purpose.” Also, “under Supreme
child at P1,000 per month. Four years later, the father is
Court Circular No. 24-94, a motion for the issuance of a writ of
already well-off and the child is already in nursery or
execution must contain a notice to the adverse party” (Pallada vs.
kindergarten. So the child tells his lawyer that the
RTC of Kalibo, Aklan Br. 1 304 SCRA 440).
amount for support must be increased from P1,000 to
P5,000. The father says, “the court said P1,000 and if
A motion for the issuance of a writ of execution shall contain a
you change that to P5,000, that would be substantial.”
notice to the adverse party. A motion which does not contain a
The father is wrong. The amount for support can be
notice of hearing, of the time and place for the hearing of the
changed anytime. In the same manner. The amount can
motion, as required by Secs. 4 and 5 of Rule 15 of the Rules of
also be lowered, as when the father loses his job.
Court, is a worthless piece of paper which the clerk has no right to
receive and which the court has no authority to act upon (Pallada
3) Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May
vs. RTC of Kalibo Aklaan, Br. 1, supra).
15, 1962)
Because of the present phraseology of Sec. 1, rulings like those
The same cause of action between the same parties can
made in De Mesa vs. CA 231 SCRA 773 to the effect that where
never be the subject matter of another litigation in the
execution is a matter of right, the judgment debtor need not be
future. Any subsequent case is barred by prior judgment.
given an advanced notice of the application for execution nor be
afforded a prior hearing thereon, must necessarily be deemed
Q: Define execution.
abandoned.
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So, we file a motion in court after the judgment has become final
2) it cannot vary the intent of the judgment it seeks to
and executory.
enforce.
Q: How can the court issue the order when it has already lost
CLASSES OF EXECUTION
jurisdiction over the case because from what we have learned here
is that, one of the effects of the finality of judgment is that the
Q: What are the classes of execution under the law?
court loses jurisdiction over the case. And when the court loses
jurisdiction, it can no longer act on the case. So, how can it still
A: The following:
issue orders in that case when actually, once the judgment
becomes final and executory, the trial court loses jurisdiction over
I. As to their nature:
the case and it can no longer act in that case?
1) COMPULSORY execution – known as Execution as a
A: What is meant by that statement is that, the court can no longer
Matter of Right (Section 1)
change the judgment. That is why new trial and reconsideration is
2) DISCRETIONARY execution – known as Execution
not anymore available in this stage. The judgment is beyond the
Pending Appeal (Section 2)
power of the court to change or alter.
II. As to how it is enforced (Section 6):
BUT definitely the court can act on that case for the purpose of
enforcing its judgment because it is absurd to claim that a trial
1) EXECUTION BY MOTION
court has the power to try and hear a case but once the judgment
2) EXECUTION BY INDEPENDENT ACTION
has already become final, it has no more power to enforce it. If you
will really describe jurisdiction in its complete aspect, we can say
COMPULSORY EXECUTION
jurisdiction is “the power of the court to act on the case, to try, to
(Execution as a matter of right)
decide and to enforce its judgment.” That would be more
complete. Because enforcement is part of the court's jurisdiction.
EXECUTION AS A MATTER OF RIGHT;
FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL
Q: Against whom shall the execution issue?
Section 1. Execution upon judgments or final
A: Generally, execution can issue only against a (losing) party to the
orders. – Execution shall issue as a matter of
case and not against one who is a complete stranger because
right, on motion, upon a judgment or order
majority of judgments are in personam. They are only enforceable
that disposes of the action or proceeding
against the parties themselves or their successors-in-interest –
upon the expiration of the period to appeal
people who derive their rights from him. And a judgement can
therefrom if no appeal has been duly
never be enforced against a complete stranger who never had his
perfected.
day in court. (Cruzcosa vs. Concepcion, 101 Phil. 146; Castañeda vs.
De Leon, 55 O.G. 625, Jan. 26, 1959; Bacolod vs. Enriquez, 55 O.G.
If the appeal has been duly perfected and
10545, Dec. 21, 1959)
finally resolved, the execution may forthwith
be applied for in the court of origin, on
Q: What portion in the decision is normally the subject of
motion of the judgment obligee, submitting
execution?
therewith certified true copies of the
judgment or judgments or final order or
A: It is the dispositive portion – the “WHEREFORE…” – that is going
orders sought to be enforced and of the entry
to be enforced. (Robles vs. Timario, 58 O.G. 1507, Feb. 19, 1962).
thereof, with notice to the adverse party.
Writ of execution must conform with judgment
The appellate court may, on motion in the
same case, when the interest of justice so
The writ of execution must conform to the dispositive portion of
requires, direct the court of origin to issue
the decision to be executed and the execution is void if it is in
the writ of examination.
excess of and beyond the original judgment or award for it is a
settled general principle that a writ of execution must conform
Q: What are the conditions for compulsory execution?
strictly to every essential particulars of the judgment promulgated
(Ex-Bataan Veterans Security Agency, Inc. vs. N:LRC 250 SCRA 418;
A: The following are the conditions:
Equatorial Realty Development Inc. vs. Mayfair Theatre Inc. 332
SCRA 139; Banquerigo vs. CA GR 164633 August 7, 2006).
1) FIRST CONDITION: If a judgment has disposed already of the
action or proceeding then it can be executed ;
Thus, if the judgment does not provide for the payment of interest,
the writ of execution cannot modify the judgment by requiring the
2) SECOND CONDITION: The period to appeal has expired and no
judgment obligor to pay interest. That part of the writ imposing
appeal has been filed/taken from the judgment.
interest is void (Solidbank Corp. vs. CA 379 SCRA 159).
Under the first condition, if a judgment has disposed already of the
Essential requisites of a writ of execution
action or proceeding then it can be executed because if the
judgment or order has not yet disposed of the action or
1) It must conform strictly to the decision or judgment
proceeding, that is called an interlocutory judgment or order.
which gives it life; and
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It was held that if the writ of execution was issued and the levy
date of its entry and thereafter by action also before it is barred by
made within five years from the entry of the judgment, the auction
the statute of limitations (Sec. 6).
sale may be made even after the five-year period. The sale of the
property and the application of the proceeds are merely the means
Revived judgment a new judgment
to carry out the writ of execution and a levy already validly made.
Accordingly, the levy is the essential act by which the property is
A revived judgment is deemed a new judgment separate and
set apart for the satisfaction of the judgment (Gov’t. vs Echaus 71
distinct from the original judgment. It is not a continuation of the
Phil. 318; Quiambao vs. Manila Motor Co., 3 SCRA 444). The sale
original judgment. The action to revive the judgment is a new
must however, be made within ten years during which the
action and results in a new judgment constituting a new cause of
judgment can be enforced (Ansaldo vs. Fidelity & Surety Company,
action with a new period of limitation. Hence, the ten (10) year
84 Phil. 547; Jalandoni vs. PNB 108 SCRA 102).
period to revive the revived judgment shall commence to run from
the date of the finality of the revived judgment and not from the
Q: What is a dormant judgment?
date of finality of the old, original judgment (PNB vs. Bondoc 14
SCRA 770).
A: A DORMANT judgment is one that was not executed within 5
years.
While this ruling was abandoned in PNB vs. Deloso 23 SCRA 266
and Luzon Surety Co. Inc. vs. IAC GR 72645 June 30, 1987, which
Revival of Judgment
held that the ten-year period should run from the finality of the
original judgment and not from the finality of the revived
Q: So, how can that (dormant) judgment be awaken?
judgment, the ruling in Bondoc was resurrected in the present
provision of Section 6 which declares in its last sentence that “The
A: The procedure is to file another civil action. A civil action for
revived judgment may also be enforced by motion within five (5)
revival of judgment. That is what you call EXECUTION BY
years from the date of its entry and thereafter by action before it is
INDEPENDENT ACTION which must be filed before it is barred by
barred by the statute of limitations.”
the statute of limitations. The second sentence states, “after the
lapse of such time (which is 5 years) and before it is barred by the
The SC had long ago ruled that after the lapse of five (5) years, the
statute of limitations, a judgment may be enforced by action.”
judgment “is reduced to a mere right of action in favor of the
person whom it favors which must be enforced, as are all ordinary
Q: When will it be barred by the statute of limitations ?
actions, by the institution of a complaint in the regular form”
(Compana General de Tobacos vs. Martinez and Nolan 29 Phil. 515;
A: According to Article 1144 of the New Civil Code, the judgment
Aldeguer vs. Gemelo 68 Phil. 421).
may be enforced only within ten (10) years.
If the prevailing party fails to have the decision enforced by a
The ten-year period commences to run from the finality of the
motion after the lapse of five years from the date of entry of the
judgment which is the period within which the judgment can be
judgment, the said judgment is reduced to a right of action which
enforced (Art. 1152 in relation to Art. 1144[3], Civil Code). Because
must be enforced by the institution of the complaint in a regular
under the Rules, the date of the finality of the judgment or final
court within ten years from the time the judgment became final
order shall be deemed to be the date of entry (Sec. 2 R 36) the
(Bausa vs. Heirs of Juan Dino GR 167281 August 28, 2008).
period shall run also from the date of entry of the judgment.
Action for Revival not to reopen any issue affecting the merits of
An action for revival of judgment presupposes that the same can
the judgment
no longer be enforced by mere motion. This means that from the
date of the finality of the judgment no motion was filed for the
An action for revival of judgment is not intended to reopen any
execution of said judgment, thus, the need for its enforcement by
issue affecting the merits of the judgment debtor’s case nor the
action.
propriety or the correctness of the first judgment. It is a new and
independent action wherein the cause of action is the decision
The action for revival of judgment is no more than a procedural
itself and not the merits of the action upon which the judgment
means of securing the execution of a previous judgment which has
sought to be enforced is rendered (Juco vs. Heirs of Tomas Siy
become dormant after the passage of five years without it being
Chung Fu GR 150233 February 16, 2005; Saligumba vs. Palanog,
executed upon motion of the prevailing party (Saligumba vs.
supra). It is an “original action, not a mere incident of the primitive
Palanog GR 143365 December 4, 2008).
suit or a mere auxiliary or supplemental remedy” (Aldeguer vs.
Gemelo 68 Phil. 421).
The action to revive a judgment must be filed within ten years from
the date the judgment becomes final because an action to enforce
The purpose of the new action is not to reexamine and retry issues
a judgment prescribes in ten years from the finality of the
already decided and the cause of action of this new action is the
judgment (Art. 1144[3] in relation to Art. 1152, Civil Code of the
judgment to be revived and no identity of causes of action can be
Philippines). Since the date of the finality of the judgment or final
said to exist between the first and the second actions (Caina vs. CA
order shall be deemed to be the date of the entry (Sec. 2 R 36), the
GR 114393 Dec. 14 1994). GThe consideration of any issue affecting
prescriptive period shall run from the date of entry of the
matters that could have been raised in the previous case must be
judgment.
deemed as definitely foreclosed (Phil. Reconstruction Corp. Inc. Vs.
Aparente 45 SCRA 217). It is not meant to retry the case all over
When a judgment is revived under Section 6, such revived
again (Enriquez vs. CA 372 SCRA 372).
judgment may also be enforced by motion within 5 years from the
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Riano’s comment:
When the five-year period to execute by motion may be
interrupted
If the action to revive a judgment (or an action upon a judgment is
according to Aldeguer vs. Gemelo a new cause of action and not a
In many instances, the delays in the execution of the judgment
continuation of the old, it should not, in this sense, be dependent
were through causes clearly attributable to the judgment debtor as
upon the previous action for its jurisdictional requirements and
when he employs legal maneuvers to block the enforcement of the
does not necessarily have to be filed in the same court which
judgment. Delays attributable to the defendant have the effect of
rendered the judgment.
suspending the running of the prescriptive period for the
enforcement of the judgment (Potenciano vs. Mariano 93 SCRA
It is submitted that the new action, i.e.., to revive the judgment
463; Camacho vs. CA 287 SCRA 611; Republic vs. CA 260 SCRA 344).
would necessarily raise the fundamental issues of whether or not
the plaintiff has a right to have the judgment revived and to have a
There are instances where the Court allowed execution by motion
new right of enforcement from its revival, issues that by nature are
even after the lapse of five years upon meritorious grounds. These
incapable of pecuniary estimation. Inevitably, a litigant may find
exceptions have one common denominator, and that is, the delay
himself in a situation where he files the action in the RTC to revive
is caused or occasioned by actions of the judgment debtor and/or
a judgment rendered by a MTC.
is incurred for his benefit or advantage. It has been held that in
computing the time limit for enforcing a final judgment, the general
It is submitted that it is in this light that the 1957 case of
rule is that the time when the execution is stayed, either by
Torrefranca et al., vs. Albiso 102 Phil. 732 should be re-examined.
agreement of the parties for a definite time, by injunction, or by
the taking of an appeal or writ of error, shall not be included. Thus,
The facts had their origins in an action to revive a judgment filed in
the time during which execution is stayed should be excluded, and
the same court which, more than five years ago, rendered a
the said time will be extended by any delay occasioned by the
judgment in an action for forcible entry against the defendant. The
debtor as when the writ of execution cannot be enforced within
defendant opposed the action but the justice of the court declared
the five-year period because the debtor filed petitions in the CA
the judgment revived. The subsequent appeal to the CFI was
and in the SC challenging the trial court’s judgment as well as the
dismissed and plaintiff went to the SC on a question of law –
writ of execution. Such petitions suspended or interrupted the
whether or not a justice of the peace has the authority to revive its
further enforcement of the writ (Yau vs. Silverio GR 158848;
own judgment.
Macapagal vs. Gako GR 171994, February 4, 2008).
The SC ruled that the Judiciary Act of 1948 gave justice of peace
The period may also be interrupted by the agreement of the parties
courts jurisdiction over actions of forcible entry and unlawful
to suspend the enforcement of the judgment (Torralba vs. de los
detainer “and also empowers them … to issue all processes
Angeles 96 SCRA 69; Macias vs. Lim 431 SCRA 20).
necessary to enforce their judgments and orders. Needless to say,
the revival of a judgment is a necessary step in its enforcement…”
When 5 and 10 year periods do not apply
The rationale of Torrefranca in sustaining the power of the court to
The periods do not apply to
revive its own judgment is clearly predicated on the jurisdiction of
a) special proceedings, such as land registration and
the trial court over the case of forcible entry. The ruling obviously
cadastral cases, wherein the right to ask for a writ of
assumes that the revived judgment is a continuation of the old
possession does not prescribe (Rodil vs. Benedicto 95
judgment and viewed the revival of the judgment as merely
SCRA 137;
incidental to or ancillary to the execution of the original judgment.
b) judgments for support which do not become dormant
This rationale does not fall squarely with the more recent
and which can always be executed by motion despite
pronouncements of the Court that an action to revive a judgment is
lapse of the five-year period because the obligation is a
a new cause of action and not a mere continuation of the original
continuing one and the court never loses jurisdiction to
action.
enforce the same (Canonizado vs. Benitez 127 SCRA
610).
Venue of revival of judgment action
Therefore, since the judgment will be enforced by motion for five
In Infante vs. Aran Builders Inc. GR 156596, August 24, 2007, the
(5) years, then after the fifth year, it will be enforced by
Court xplained thus:
independent action. So, I will start the civil action for revival of
judgment between or after the 5th year but before the 10th year.
“… the proper venue depends on the determination of whether the
So, that is what we have to remember.
present action for revival of judgment is a real action or a personal
action … if the action for revival of judgment affects title to or
Q: Do you mean to tell me that I have to file the case all over again,
possession of real property, or interest therein, then it is a real
practically repeating what happened 5 years ago?
action that must be filed with the court of the place where the real
property is located. If such action does not fall under the category
A: NO, because the judgment in the independent action is a
of real actions, it is then a personal action that may be filed with
judgment reviving the first judgment.
the court of the place where the plaintiff or defendant resides…”
For example, more than 5 years ago I sued you to collect on a
promissory note and you alleged payment, and you lost and the
court said that you are liable to me. On the seventh year when I
revived that judgment, my rights are no longer based or derived on
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the promissory note but on such judgment. But you can still invoke
And of course, because of those 2 conflicting cases, the court
other defenses such as lack of jurisdiction, fraud. But you cannot
resolved those issues in the case of LUZON SURETY CO. vs. IAC (151
question the correctness of the original judgment because that is
SCRA 652) where the SC said, the later doctrine of VELOSO prevails.
already res adjudicata. You are entitled to put up any defense that
So, with that ruling, the 10-year period applies only from the date
you have against me provided that you cannot question the
of the original judgment, but you cannot say that once it is revived,
correctness of the original judgment. That is the rule.
you have another 10 years.
Q: Discuss briefly the nature of the action for enforcement of a
But now, you look at the new law: “The revived judgment may also
dormant judgment.
be enforced by motion within five (5) years from the date of its
entry and thereafter by action before it is barred by the statute of
A: The action for enforcement of a dormant judgment is an
limitations.” Ano yan? That is a revival of the BONDOC ruling!
ordinary civil action the object of which is two-fold, namely,
Binalik yung original ruling which is, the revived judgment is good
for another 10 years.
a) to revive the dormant judgment, and
b) to execute the judgment reviving it, if it grants the
So, I repeat, the last sentence has resurrected the ruling in the case
plaintiff any relief.
of PNB vs. BONDOC and superseded again LUZON vs. IAC. You are
entitled to another 10 years from the date of the revived judgment.
Hence, the rights of the judgment-creditor depend upon the
second judgment. Being an ordinary civil action, it is subject to all
ILLUSTRATION:
defenses, objections and counterclaims which the judgment-debtor
may have except that no inquiry can be made as to the merits of
Example: First judgment became final in 1990. You can enforce
the first judgment. Therefore, defenses that do not go to the merits
that until 2000 by motion (1990-1995) or by independent action
of the first judgment, such as lack of jurisdiction, collusion, fraud,
(1995 – 2000). Suppose in 2000, you were able to secure a second
or prescription, may be set up by the judgment-debtor. (Cia. Gral.
judgment reviving the first judgment, under the new rules, there is
De Tabacos vs. Martinez, 17 Phil. 160; Salvante vs. Ubi Cruz, 88 Phil.
another ten years. The first judgment by motion. The next 5 years
236) [Taken from Remedial Law Reviewer by Nuevas]
is by independent action. So, to illustrate:
Q: Give the exception to the rule on dormant judgment.
A: The only exception is the judgment for support which does not
become dormant, nor does it prescribe. You can execute it anytime
even beyond the 5-year period and any unpaid installment may be 5yrs by 5yrs by 5yrs by 5yrs by
executed by motion. (Florendo vs. Organo, 90 Phil. 483) So, even if motion Independent motion Independent
Action Action
the judgment is more than 5 years old, the defendant defaulted on
the seventh year, you just file a motion to collect that judgment.
Q: Suppose the judgment was executed and the property of the 10 yrs 10yrs
defendant was levied on the 4th year, and the next stage is the Art 1144, Civil Code last sentence of Sec 6
auction sale.
ARCENAS vs. CA – 299 SCRA 733 (December 4, 1998)
A: The SC said the auction sale must also be WITHIN 10 years. So,
even if the property was levied, the auction sale must be within 10 HELD: “The purpose of the action for revival of a judgment is not to
years. Not only the levy of the property must be done within 10 modify the original judgment subject of the action but is merely to
years but also the including the auction sale, otherwise, any give a creditor a new right of enforcement from the date of
auction sale done beyond 10 years in null and void. revival.”
Now, look at the last sentence in Section 6: “The revived judgment “The rule seeks to protect judgment creditors from wily and
may also be enforced by motion within five (5) years from the date unscrupulous debtors who, in order to evade attachment or
of its entry and thereafter by action before it is barred by the execution, cunningly conceal their assets and wait until the statute
statute of limitations.” of limitation sets in.”
For example, I have here a judgment nine (9) years ago. I want to Sec. 7. Execution in case of death of party. - In
enforce it by action to revive judgment. You mean to tell me that case of the death of a party, execution may
the revived judgment is good for another ten (10) years? Another 5 issue or be enforced in the following manner:
years for motion to a right of action and then I can still revive it
within 10 years? (a) In case of the death of the
judgment obligee, upon the application of his
Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), the executor or administrator, or successor in
SC said that the period applies all over again from the finality of the interest;
revived judgment. So, you have another ten (10) years. However, (b) In case of the death of the
this principle is abandoned in the later case of PNB vs. VELOSO (32 judgment obligor, against his executor or
SCRA 266), the SC said that the original period is only computed administrator or successor in interest, if the
from the date of the original judgment. judgment be for the recovery of real or
personal property, or the enforcement of a
lien thereon;
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Q: For instance, you lost in a case where you are liable for P200T.
Or, you file a case against PAL. They lost. You levy on the airbus.
You have no other property left except that house where you live.
PAL alleged exemption because it is a tool or implement. My golly!
Can the sheriff levy the house to answer such obligations?
Lahat ng properties, “tools or implements!”? Di pwede yan! That is
not what the law contemplates.
A: NO. The judgment obligor’s family home and the land
necessarily used in connection therewith is exempt. That is a
Now, what is interesting in the PENTAGON case is that the SC says
guarantee that no matter how many obligations you have, there is
that firearms can be levied, they can be sold at public auction. SC:
no way for you to be thrown to the street – to be a homeless
“However, for security reasons, and to prevent the possibility that
person. Your house cannot be levied; but in the Family Code,
the firearms to be sold at the execution sale may fall into the hands
there’s a limit, if your house is a mansion worth millions, that is not
of lawless and subversive elements, the sale at public auction
exempt. Please review your Family Code on this matter.
should be with the prior clearance and under supervision of the
PNP.” Otherwise, the persons who might bid are kidnappers, NPA,
(b) Ordinary tools and implements personally used
Abu Sayyaff, (Kuratong Baleleng, MILF, MNLF, Lost Command, Kulto
by him in his trade, employment, or livelihood;
Pinish, Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there must
be a prior clearance on the sale of the firearms during the auction
This is self-explanatory. If you are a carpenter, you earn your living
sale.
by being a carpenter. What are the ordinary tools that you must
have? Saw, hammer, etc. By public policy and by legal provision,
(c) Three horses, or three cows, or
the tools and implements used by a carpenter in his trade,
three carabaos, or other beasts of burden,
employment, or livelihood cannot be levied by the sheriff.
such as the judgment obligor may select
necessarily used by him in his ordinary
Under the prior law, there was no word “ordinary” and
occupation;
“personally”. The old law says, “tools and implements used by him”.
In the new rules, the words “ordinary” and “personally” are added.
For example, you are a farmer. You plow your land by a carabao.
What is the reason behind this? This provision is in accordance with
You cannot levy the carabao. OR, if you are a cochero, you have a
what the SC ruled in the 1990 case of
horse for your caretela. You cannot levy the horse. [ang horse shit,
pwede! Pero yung horse mismo, di pwede!] And under the prior
PENTAGON SECURITY vs. JIMENEZ – 192 SCRA 492
rules, only 2 horses, 2 cows or carabaos are exempt. The new rules
make it three (3).
FACTS: The Pentagon Security and Investigation Agency (PSIA) is a
security agency owned by somebody who is engaged in security
(d) His necessary clothing and articles
services. Because of a money judgment against the agency in a
for ordinary personal use, excluding jewelry;
labor case, the sheriff levied all the firearms of the agency. PSIA
claimed that the firearms are exempt from execution under
You cannot levy on the debtor’s wardrobe. These are articles for
paragraph [b] since they are tools and implements used by the
ordinary personal use. This article excludes jewelry. Alahas, pwede
agency in its trade, employment or livelihood because how can a
i-levy. All other things for basic needs are exempt, like personal
security agency operate without firearms.
comb, toothbrush, etc.
ISSUE: Is the argument of PSIA correct?
(e) Household furniture and utensils
necessary for housekeeping, and used for
HELD: NO. The firearms owned by PSIA are not covered by the
that purpose by the judgment obligor and his
exemption.
family, such as the judgment obligor may
select, of a value not exceeding one hundred
“The term ‘tools and implements’ refers to instruments of
thousand pesos;
husbandry or manual labor needed by an artisan craftsman or
laborer to obtain his living. Here, PSIA is a business enterprise. It
Household furniture like dining table, dining chair, sala set, utensils
does not use the firearms personally, but they are used by its
necessary for housekeeping and used for the purpose by the
employees. Not being a natural person, petitioner cannot claim
obligor and his family like plates, forks, spoons. How can you eat
that the firearms are necessary for its livelihood.”
without those utensils. BUT there’s a limit that the value does not
exceed P100,000. If the value exceeds, it can be levied.
“It would appear that the exemption contemplated by the
provision involved is personal, available only to a natural person,
There was a sheriff who asked me (Dean I). According to him, he
such as a dentist’s dental chair and electric fan. If properties used
was enforcing a money judgment. The sheriff went to the house of
in business are exempt from execution, there can hardly be an
the debtor. He took the stereo, TV set, refrigerator. Defendant said,
instance when a judgment claim can be enforced against the
“Hindi pwede dahil hindi pa umabot ng P100,000.” Sabi ko, you
business entity.”
look at the law: You cannot levy those furnitures if not exceeding
P100,000. In my (Dean’s) view, covered yan. But utensils not
Meaning, if the exemption is extended to a juridical person like a
necessarily for living are not covered by the exemption. They are
corporation, then practically all the properties needed by the
luxury, not necessary. These TV, sala set, refrigerator can be levied
business could be considered as tools and implements. For
because they are not necessary for living as contrasted to kutsara,
EXAMPLE, you will sue a carrier like Bachelor Bus and you won.
plato, etc. (Dean however refused to answer the sheriff whether
Then you will levy on the bus. Bachelor will claims exemption
the properties in question can be levied. Tanungin mo ang abogado
because that is a tool or implement.
mo!)
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The same thing with FAMILY HOME. For example, you will build a
So, the sheriff says based on the RETURN, “Wala pang property ang
family home and then, hindi mo binayaran ang materials, labor and
defendant.” Now, he just keeps on holding the writ. And maybe
there was judgment against you. The creditor and the owner can
after one or two years, meron na’ng property ang defendant, he
levy on the house. He cannot claim exemption because the debt
can now enforce the writ. But definitely, there is no need for the
arose out of that same family home.
defendant to go back to the court to ask for another alias writ of
execution because the writ can still be enforced – for as long as the
Another example: You borrowed money from the bank. You
judgment may be enforced by motion.
mortgaged your house. Later on, you cannot pay the loan. The
bank foreclosed the mortgage. You cannot argue that your house
Although every 30 days, the sheriff has to make a periodic report
cannot be levied. Kaya nga may utang ka because of your house.
with the court. I do not know if the sheriffs here follow this
Since you mortgaged it, that is not covered by the exemption.
procedure. But definitely, a writ is good for 5 years and in every 30
days, the sheriff has to make a report.
Q: What is the REASON behind this exemption?
NOTICE OF SALE
A: The reason for this exemption is PUBLIC POLICY. And common
sense no? – the debtor should pay but this should not deprive him
Sec. 15. Notice of sale of property on
of a means to earn his living. You can levy on his property but not
execution. - Before the sale of property on
to the extent of depriving him of his provisions for support, means
execution, notice thereof must be given as
of livelihood by throwing him on to the street, homeless, penniless,
follows:
despondent, dejected, mournful, melancholy, forlorn…
(a) In case of perishable property, by
LIFETIME OF WRIT OF EXECUTION – FIVE (5) YEARS
posting written notice of the time and place
of the sale in three (3) public places,
Sec. 14. Return of writ of execution. - The
preferably in conspicuous areas of the
writ of execution shall be returnable to the
municipal or city hall, post office and public
court issuing it immediately after the
market in the municipality or city where the
judgment has been satisfied in part or in
sale is to take place, for such time as may be
full. If the judgment cannot be satisfied in
reasonable, considering the character and
full within thirty (30) days after his receipt
condition of the property;
of the writ, the officer shall report to the
court and state the reason therefor. Such
(b) In case of other personal property,
writ shall continue in effect during the
by posting a similar notice in the three (3)
period within which the judgment may be
public places above-mentioned for not less
enforced by motion. The officer shall make a
that five (5) days;
report to the court every thirty (30) days on
the proceedings taken thereon until the
(c) In case of real property, by posting
judgment is satisfied in full, or its effectivity
for twenty (20) days in the three (3) public
expires. The returns or periodic reports shall
places above-mentioned a similar notice
set forth the whole of the proceedings
particularly describing the property and
taken, and shall be filed with the court and
stating where the property is to be sold, and
copies thereof promptly furnished the
if the assessed value of the property exceeds
parties. (11a)
fifty thousand (P50,000.00) pesos, by
publishing a copy of the notice once a week
Under the OLD RULE, the lifetime of a writ of execution is only 60
for two (2) consecutive weeks in one
days. After that, expired na yung writ. The sheriff has to use the
newspaper selected by raffle, whether in
writ to levy on the property of the defendant within 60 days. If the
English, Filipino, or any major regional
defendant has no property at present, and the writ has already
language published, edited and circulated or,
expired, and assuming that there will be some properties found in
in the absence thereof, having general
the future, the procedure under the old rules is, the plaintiff has to
circulation in the province or city;
file a motion for an ALIAS WRIT of execution, because once it is
issued, it is again good for another 60 days.
(d) In all case, written notice of the
sale shall be given to the judgment obligor, at
Under the PRESENT RULE, the 60-day period is already obsolete.
least three (3) days before the sale, except as
The effectivity now of a writ of execution is, for as long as the
provided in paragraph (a) hereof where
judgment may be enforced by motion. And under Section 6, a
notice shall be given at any time before the
judgment may be enforced by motion within five (5) years. So in
sale, in the same manner as personal service
effect, the writ of execution is valid for FIVE (5) years. The lifetime
of pleadings and other papers as provided by
now has been extended from 60 days to 5 years.
section 6 of Rule 13.
Of course, as much as possible, the writ must be enforced within 30
The notice shall specify the place, date and
days and after that, the sheriff will tell the court about what
exact time of the sale which should not be
happened after 30 days.
earlier than nine o'clock in the morning and
not later than two o'clock in the afternoon.
The place of the sale may be agreed upon by
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property
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not belonging to the judgment debtor. The court does not and
actual damages, to be recovered by motion in
cannot pass upon the question of title to the property, with any
the same action. (19a)
character of finality. It can treat of the matter only insofar as may
be necessary to decide if the sheriff has acted correctly or not.”
Notices in the auction sale should be posted in three public places.
For example, you go to the hall of justice. You can see there a
So, the court that renders the judgment cannot decide on the issue
bulletin board, maraming nakalagay, half man niyan mga notice of
of ownership to a third person. So your remedy is to file another
public aution ba. Now, do not go there and kunin ang mga papel
case. But in the case of DISCAYA, the court which renders the
doon. Baka multahan ka. You are not supposed to remove or
judgment can determine whether the sheriff has acted wrongly or
deface them.
correctly. And if it is wrong it can order the property erroneously
levied to be released without need of filing a separate action.
Sec. 18. No sale if judgment and costs paid. -
At any time before the sale of property on
Q: So how do you reconcile the two doctrines?
execution, the judgment obligor may prevent
the sale by paying the amount required by
A: If it is obvious that the sheriff committed a mistake – 100%
the execution and the costs that have been
mistake, i.e. he levied property belonging to a third person who is
incurred therein. (20a)
not a defendant – to require a third person to go to court and file
another case will be tedious. Why can he not seek relief from the
Q: Can the debtor stop the auction sale? Is there a way for the
same court? Anyway if it is very obvious that the sheriff acted
debtor to prevent the sale of his property?
wrongly, that is only incidental.
A: YES, if the obligor pay the amount required by the execution and
But when the issue is whether the property is owned by the
the costs – bayaran mo lahat ang utang mo, ‘di wala na. That’s
defendant or the third person, and the issue is controversial – who
what the law says. For example, the bank is foreclosing your
is the rightful owner – that cannot be decided summarily by the
mortgage and sell the property at public auction. To stop the bank
court which rendered decision. It should be threshed out in an
from proceeding with the sale, you go to the bank and pay all your
independent separate civil action. So that will be the consideration.
obligations. So, wala ng auction sale. But you have to pay all.
“Kalahati lang ang bayaran ko.” Ah, hindi puydi yan.
The SC summarized all these remedies in the 1995 case of:
Sec. 19. How property sold on execution; who
EVANGELISTA vs. PENSERGA – 242 SCRA 702
may direct manner and order of sale. All sales
of property under execution must be made at
HELD: The remedies of a third person whose property was seized
public auction, to the highest bidder, to start
by the sheriff to answer for the obligation of a judgment obligor are
at the exact time fixed in the notice. After
the following:
sufficient property has been sold to satisfy
the execution, no more shall be sold and any
1) Invoke the supervisory power of the court which
excess property or proceeds of the sale shall
authorized such execution (Sy vs. Discaya);
be promptly delivered to the judgment
obligor or his authorized representative,
2) Terceria - third party claim (Rule 39, Section 16);
unless otherwise directed by the judgment or
and
order of the court. When the sale is of real
property, consisting of several known lots,
3) Any proper action to vindicate his claim to the
they must be sold separately; or, when a
property, meaning a separate civil action. (second
portion of such real property is claimed by a
paragraph, Section 16, Rule 39)
third person, he may require it to be sold
separately. When the sale is of personal
So these are the three remedies of a third person whose property
property capable of manual delivery, it must
was seized by a sheriff to answer for the obligation of another
be sold within view of those attending the
person.
same and in such parcels as are likely to bring
the highest price. The judgment obligor, if
Sec. 17. Penalty for selling without notice, or
present at the sale, may direct the order in
removing or defacing notice. - An officer
which property, real or personal, shall be
selling without the notice prescribed by
sold, when such property consists of several
section 15 of this Rule shall be liable to pay
known lots or parcels which can be sold to
punitive damages in the amount of five
advantage separately. Neither the officer
thousand (P5,000.00) pesos to any person
conducting the execution sale, nor his
injured thereby, in addition to his actual
deputies, can become a purchaser, nor be
damages, both to be recovered by motion in
interested directly or indirectly in any
the same action; and a person willfully
purchase at such sale. (21a)
removing or defacing the notice posted, if
done before the sale, or before the
Execution sale shall be done at public auction. The public is invited
satisfaction of the judgment if it be satisfied
to bid kaya may public notice. There are even publication for real
before the sale, shall be liable to pay five
property “TO THE HIGHEST BIDDER.” How does it happen?
thousand (P5,000.00) pesos to any person
Normally, ang unang magbi-bid diyan is iyong creditor. And
injured by reason thereof, in addition to his
normally, his bid will be equal to the judgment in his favor. For
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A: GENERAL RULE: NO, you cannot attack the auction sale on the
If the property sold at public auction is a subject of a third party
presumption that every fair sale is final. There is a presumption of
claim under Section 16, the certificate of sale to the property is
regular performance of duty by the sheriff.
issued subject to the outcome of the third party claim by a
stranger.
EXCEPTION: When an execution sale may be set aside:
Sec. 27. Who may redeem real property so
1) When it is shown from the nature of the irregularity or sold. Real property sold as provided in the
from intrinsic facts injury resulted therefrom. (Navarro last preceding section, or any part thereof
vs. Navarro, 76 Phil. 122) Meaning, there were serious sold separately, may be redeemed in the
irregularities committed by the officer in conducting the manner hereinafter provided, by the
sale like no publication, no notice, no prior levy, etc.; following persons:
2) When the price obtained at the execution sale is (a) The judgment obligor, or his successor in
shockingly inadequate and it is shown that a better price interest in the whole or any part of the
can be obtained at a resale. (Barrozo vs. Macadaeg, 83 property;
Phil. 378) Meaning, the highest bid is shockingly
inadequate. (b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
EXAMPLE: I owed you for P100,000 – P100,000 ang property sold, or on some part thereof,
judgment! And what is levied is a brand new Mercedes subsequent to the lien under which the
Benz. So sobra na yon na pambayad sa utang. But the property was sold. Such redeeming creditor is
highest bid is P30,000. Just imagine the highest bid is termed a redemptioner. (29a)
30,000, tapos meron pang deficiency judgment for
P70,000 – of course, there is something wrong here. So, That is an important section.
that is an exception, no! That is, when the price obtained
at the execution sale is SHOCKINGLY INADEQUATE to the Q: Who are entitled to redeem real property?
senses and it is shown that a better price can be
obtained. A: There are two (2):
‘Shocking to the senses’ means hindi naman yung the 1) The judgment obligor or his successor-in-interest; and
difference is very slight. 2) A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, subsequent
EXCEPTION TO THE EXCEPTION: The rule that you can question the to the lien under which the property was sold. He is
validity of the auction sale if the price obtained is shockingly know as the REDEMPTIONER.
inadequate applies ONLY when the property sold is PERSONAL
property. The exception does not apply when the property sold is JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST
real property because if the property sold is a personal property,
there is no right of redemption. But if the property sold is real Judgment obligor is clear – the defendant who lost the case – the
property, you cannot complain because, anyway, you have one defendant whose property was levied. Or, his successor-in-interest.
year to pay and the redemption price is lower. So, you are not For EXAMPLE: During the one year period to redeem, the judgment
really prejudiced. So why are you complaining? That’s what the SC debtor died. So it could be his heirs, his children, his spouse who
said in the case of could exercise the right to redeem because they step into his
shoes. Also, successor-in-interest would also refer to a person to
RAMOS vs. PABLO – 146 SCRA 5 [1986] whom the obligor assigned or transferred his right to redeem.
HELD: “A reading of plaintiffs' (petitioners') complaint shows that Q: Can the defendant sell, aside from transferring, his right to
inadequacy of price was raised as one of the issues. Assuming that another person?
the price was shockingly low, the same cannot vitiate the auction
sale for redemption would be comparatively easier.” A: YES, because the right to redeem is property by itself. My right
to redeem is also property such as an interest to the real property
That is because the property sold in RAMOS is real property. Pero which can be the subject matter of a sale.
kung personal property, I think it is really unfair. You lose the
property forever with a very small amount. EXAMPLE: “Alright, may property ako worth P5 million. Na-sheriff
for P2 million. Wala na, hindi ko na kaya. Ibenta ko sa iyo for P3
Sec. 26. Certificate of sale where property million. Give me P1 million cash at ikaw na ang mag redeem sa
claimed by third person. When a property sold purchaser.” Ginansiya ka pa rin di ba? P5 million gud iyon. So I can
by virtue of a writ of execution has been sell, and once I sell the right to redeem to you, you are classified as
claimed by a third person, the certificate of successor-in-interest for the judgment obligor.
sale to be issued by the sheriff pursuant to
sections 23, 24 and 25 of this Rule shall make REDEMPTIONER
express mention of the existence of such
third-party claim. (28a) Q: Define redemptioner.
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So, what is the solution? “The other heirs are, therefore, given a
ILLUSTRATION: Brown Sugar is a judgment obligor. She has four
six-month period to join as co-redemptioners in the redemption
creditors (A, B, C, and D) and all of them obtained judgment against
made by the petitioner before the motion to transfer titles to the
her and all of them levied on the same property. Brown Sugar is
latter’s name may be granted.”
given one year from the registration of the sale to redeem it from
A. Now, suppose SUGAR cannot redeem, B will be the one to
So meaning, if the other heirs are given 6 months, hindi nyo
redeem because the first redemptioner and the judgment obligor
mabayaran, pwede na yan, kasi pera man niya ang ginamit.
have one year to redeem from the date of registration. That is what
Section 28 says “the judgment obligor, or redemptioner.” Now, C is
Sec. 28. Time and manner of, and amounts
given 60 days to redeem. After that, wala ng right. Suppose C was
payable on, successive redemptions; notice to
able to redeem, D has another 60 days to redeem from C.
be given and filed. The judgment obligor, or
redemptioner, may redeem the property
Q: So what is the period of redemption?
from the purchaser, at any time within one
(1) year from the date of the registration of
A: There are two periods of redemption: The judgment obligor and
the certificate of sale, by paying the
first redemptioner are given ONE YEAR from the date of
purchaser the amount of his purchase, with
registration of the certificate of sale to redeem and after that all
one per centum per month interest thereon
subsequent redemptioners are given 60 days.
in addition, up to the time of redemption,
together with the amount of any assessments
So the second redemptioner can redeem it within 60 days. So,
or taxes which the purchaser may have paid
within 60 days, the 3rd redemptioner can redeem it. Pasa yan, in
thereon after purchase, and interest on such
order that the redemptioner can protect their lien over the
last named amount at the same rate; and if
property. So, the redemption period is ONE YEAR and 60 DAYS
the purchaser be also a creditor having a
respectively.
prior lien to that of the redemptioner, other
than the judgment under which such
Q: Now, suppose Brown Sugar or B would like to redeem the
purchase was made, the amount of such
property from A. How much will the property be redeemed?
other lien, with interest.
A: Under Section 28, the purchase or the bid price for the property
Property so redeemed may again be
PLUS one percent per month interest, and reimbursement for taxes
redeemed within sixty (60) days after the last
of the property with interest also. But definitely, the redemption
redemption upon payment of the sum paid
price = the bid price + 1% interest month. So, if you will redeem
on the last redemption, with two per centum
after one year, the bid price and 12% of the bid price.
thereon in addition, and the amount of any
assessments or taxes which the last
ILLUSTRATION: So kung P1 million ang bid price plus + P120,000
redemptioner may have paid thereon after
(1%/month) = P1.12 million
redemption by him, with interest on such
last-named amount, and in addition, the
Now there are two interesting cases here which I want you to
amount of any liens held by said last
remember. The conflicting ruling in PNB vs. CA (140 SCRA 360) and
redemptioner prior to his own, with interest.
the case of SY vs. CA (172 SCRA 125). The two cases involved a
The property may be again, and as often as a
foreclosure of mortgage not execution but the Rules of Court
redemptioner is so disposed, redeemed from
applies. Under the extra-judicial foreclosure of mortgage Act 3135,
any previous redemptioner within sixty (60)
the provision of the Rules of Court are also applicable to
days after the last redemption, on paying the
redemption in a foreclosure sale. So the provision in Section 28 also
sum paid on the last previous redemption,
applies to the redemption during an extrajudicial foreclosure of
with two per centum thereon in addition, and
property.
the amounts of any assessments or taxes
which the last previous redemptioner paid
PNB vs. CA – 140 SCRA 360 [1985]
after the redemption thereon, with interest
thereon, and the amount of any liens held by
FACTS: Suppose I will borrow money from the bank and stipulate
the last redemptioner prior to his own, with
an interest at 24% per annum. During the auction sale, it was sold
interest.
to the bank. Within one year, you approach me, gusto mo na i-
redeem. Magkano ang bid price—P2M plus interest of 2% per
Written notice of any redemption must be
month for the next seven or eight months. Sabihin ng debtor, “No,
given to the officer who made the sale and a
1% lang. Di ba nakalagay sa law 1% lang.” Pero ang usapan natin is
duplicate filed with the registry of deeds of
3% monthly.
the place, and if any assessments or taxes are
paid by the redemptioner or if he has or
ISSUE: So which prevails - the 1% per month under the Rules of
acquires any lien other than that upon which
Court or the 2% per month as stipulated in the promissory note?
the redemption was made, notice thereof
must in like manner be given to the officer
HELD: The 1% of the Rules of Court prevails. Why? The rights of the
and filed with the registry of deeds; if such
debtor or creditor, the bank for example, under the promissory
notice be not filed, the property may be
note, or even under the mortgage law, is only good up to the
redeemed without paying such assessments,
auction sale. From the moment the auction sale is finished and
taxes, or liens. (30a)
there was already a bid, we are now talking of the one year period
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has to wait for the one-year period to expire before he can take
for redemption has expired, the last
over. Therefore, X continues to occupy the property. He continues
redemptioner is entitled to the conveyance
to use it the same manner it was previously used. Use it in the
and possession; but in all cases the judgment
ordinary course of husbandry, to make the necessary repairs to
obligor shall have the entire period of one (1)
buildings thereon while he occupies the property.
year from the date of the registration of the
sale to redeem the property. The deed shall
Q: Suppose 8 months has passed. Sabi ni X, “Mukhang wala na
be executed by the officer making the sale or
akong pag-asa. Hindi ko na ito mababayaran. Sige, wasakin ko na
by his successor in office, and in the latter
lang ang property. Sirain ko na lang. I will make a waste of the land.
case shall have the same validity as though
I will cut all the coconut trees. I will destroy all the improvements.
the officer making the sale had continued in
Para pag-take-over mo, wala na. Bwahahaha!” What is the remedy
office and executed it.
of A?
Upon the expiration of the right of
A: He can ask the court to issue a writ of injunction according to
redemption, the purchaser or redemptioner
Section 31 – an injunction to restrain the commission of waste on
shall be substituted to and acquire all the
the property. So, you can also stop him by injunction.
rights, title, interest and claim of the
judgment obligor to the property as of the
Sec. 32. Rents, earnings and income of
time of the levy. The possession of the
property pending redemption. The purchaser
property shall be given to the purchaser or
or a redemptioner shall not be entitled to
last redemptioner by the same officer unless
receive the rents, earnings and income of the
a third party is actually holding the property
property sold on execution, or the value of
adversely to the judgment obligor. (35a)
the use and occupation thereof when such
property is in the possession of a tenant. All
If the period to redeem expires, no more right of redemption. What
rents, earnings and income derived from the
will happen? The sheriff now will now execute in favor of the
property pending redemption shall belong to
highest bidder or purchaser what is known as the final deed of sale
the judgment obligor until the expiration of
or DEED OF CONVEYANCE. Remember that there are two
his period of redemption. (34a)
documents here which the sheriff executes in case of real property.
Section 32 is the continuation of Section 31.
Q: What are they (two documents which the sheriff executes in
case of real property)?
Q: My property was sold on execution in your favor. But my
property earns income. May mga tenants diyan na nagbabayad ng
A: The following:
renta. During the one-year period, who will get the rentals? The
purchaser or the debtor?
1) CERTIFICATE OF SALE. After the auction sale, he will
execute in your favor the certificate of sale under Section
A: The DEBTOR. He continues to receive all the earnings. For
25, by the time you register that, you start counting the
defensive purposes, he is still the owner. Do not say that, “Ako ang
one year.
highest bidder, akin ang income!” (Gunggong!) You wait for the
one-year redemption period to expire to get the income.
2) DEED OF CONVEYANCE. If after one year there is no
redemption, a deed of conveyance is executed. (Section
Under the OLD rules, the 1964 Rules, during the one-year period to
33)
redeem, the debtor/defendant continues to get the income of the
property but when the creditor may opt: “Your Honor, akin ang
Q: Which of the two documents transfers the ownership to the
income ha?” That’s allowed by the old law. But everything is
purchaser?
deductible also form the redemption price. NGAYON wala na yan.
100% the debtor is the one enjoying the income over the property.
A: Only the DEED OF CONVEYANCE transfers title to the property.
That is a major amendment introduced by the 1997 Rules.
The certificate of sale one year ago does not transfer the
Q: Now, what happens if after the lapse of one year there is no
ownership of the land to the purchaser. It is only a memorial that
redemption? What is the next step?
you are the highest bidder, that you paid so much and that you are
the purchaser but there is no transfer of ownership. Only the final
A: That is Section 33:
deed of sale in Section 33 conveys title to property. So do not
confuse the sheriff’s certificate of sale under Section 25 with the
Sec. 33. Deed and possession to be given at
final deed of sale under Section 33. Although in an extra-judicial
expiration of redemption period; by whom
foreclosure, there is no need of deed of sale. Only affidavit of
executed or given. If no redemption be made
consolidation is needed under the mortgage law.
within one (1) year from the date of the
registration of the certificate of sale, the
Q: How can the sheriff give it to you? Suppose the debtor refuse to
purchaser is entitled to a conveyance and
vacate, is there a need to file another action of unlawful detainer
possession of the property; or, if so
or forcible entry?
redeemed whenever sixty (60) days have
elapsed and no other redemption has been
A: There is no more need of filing another action to eject the
made, and notice thereof given, and the time
former owner. The procedure is, the purchaser can ask the court to
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res adjudicata, the first action has already been decided and the
order of dismissal was silent then the dismissal has the effect of an
decision has already become final.
adjudication on the merits.
First Requisite: JUDGMENT OF ORDER INVOKED MUST BE FINAL
HELD: Since We are talking of res adjudicata, let us correlate it with
the elements of res adjudicata under Rule 39.
When it says ‘final’, the previous judgment has been final and
executory (Hubahib vs. Insular Drug, 64 Phil. 119) Meaning, it can
One of the elements of res adjudicata is: When the case is
no longer be changed. This is because there is such a thing as final
terminated, the court has jurisdiction over the case both as to the
and appealable. A final and executory judgment is already beyond
person and the subject matter;
the power of the court to alter while a final and appealable
judgment is still subject to modification by the appellate court.
In the case of RPB, the court never acquired jurisdiction over the
(Macapinlac vs. CA, 86 Phil. 359)
person of the defendant because he was never served with
summons. Therefore, such dismissal did not have the effect of res
So where there is a judgment now that you received, and before it
adjudicata. The second element of res judicata is missing.
becomes executory, you filed another case, it is not res judicata. It
is litis pendentia because the first case is still pending.
Third Requisite: THE JUDGMENT OR ORDER MUST BE UPON THE
MERITS
EXAMPLE: Jessa files a case against Charles. Charles lost and then
appealed. While his appeal is pending, Jessa filed the same case
What do we mean by this? A judgment on the merits for the
against Charles. Charles filed a motion to dismiss the second case.
purpose of res judicata is one finally settling the issues raised in the
The ground for the motion to dismiss should be Litis Pendentia
pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144). Normally, it
because while there is already a decision, the same is not yet final
is after trial when there is presentation of evidence.
and executory. It is still on appeal. In such case, it is improper to
invoke the principle of res adjudicata because the first element is
Therefore, when a complaint is dismissed for lack of jurisdiction or
missing.
improper venue, even if said dismissal becomes final, the plaintiff
can re-file the case because the dismissal upon improper venue or
Q: Now, when did the first judgment become final? Is it before the
lack of jurisdiction is not upon the merits. It never dealt with the
second case is filed? Or is it after the second case filed?
correctness or validity of the cause of action. There should be trial,
generally.
A: Either one. It could have been final before the filing of the
second action or after, provided when the defendant invoked it,
So, GENERALLY, a dismissal without a trial is not an adjudication
the first judgment is already final. (Galiancia vs. CA, 173 SCRA 42)
upon the merits EXCEPT in Rule 17, Section 3 where the case was
dismissed for failure of the plaintiff to appear during the
Second Requisite: THE COURT RENDERING THE SAME MUST HAVE
presentation of his evidence in chief, or to prosecute his action for
JURISDICTION OVER THE SUBJECT MATTER AND OF THE PARTIES
an unreasonable, period of time, or failed to comply with the rules
or order of the court. There is no trial there but according to Rule
Meaning, the first judgment is valid because if the court never
17, Section 3, the dismissal shall have the effect of an adjudication
acquired jurisdiction over the subject matter and the parties and
upon the merits. This is the exception even if there was no trial in
rendered judgment, the judgment is void and cannot be invoked as
the first case.
res judicata. (Banco Español-Filipino vs. Palanca, 37 Phil. 921)
Fourth Requisite: THERE MUST BE, BETWEEN THE TWO CASES,
Q: May a voidable judgment be invoked as res adjudicata?
IDENTITY OF PARTIES, IDENTITY OF SUBJECT MATTER, AND
IDENTITY OF CAUSE OF ACTION
A: YES because such kind of judgment is binding upon the parties
until annulled. (Reyes vs. Barretto-Datu, 94 Phil. 446)
I. IDENTITY OF PARTIES
Now, the classic example of the second element is the case which I
Q: When there is identity of parties for the purpose of res judicata?
mentioned to you when we were in Rule 17 – the case of
A: There is identity of parties for the purpose of res judicata:
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA – 166 SCRA 39
[1988] 1) When the parties in the second action are the same as the
parties in the first action; or
FACTS: The RPB filed a case against the defendant for a sum of
money. Defendant cannot be summoned because his whereabouts
2) When the parties in the second action are successors-in-
is now unknown. Several attempts made by the plaintiff to look for
interest of the parties in the first action, such as heirs or
him failed. After a while the court dismissed the complaint for
purchasers who acquired title after the commencement of
RBP’s failure to prosecute. And the order of dismissal was silent.
the first action.
So, following Section 3 of Rule 17, the dismissal is with prejudice –
“it shall have the effect of an adjudication upon the merits, unless
EXAMPLE: The example I gave you, the quarrel between
the order provides otherwise.”
parents, then the children did the same. That is the same
parties. The children are the successors-in-interest of the
Then later on, the plaintiff (RPB) discovered the whereabouts of original parties, although literally they are not the same
the defendant. The RPB re-filed the compliant. Defendant moved parties.
to dismiss because when the first complaint was dismissed and the
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Of course, for purposes of the bar exams, that kind of answer will
Then later B1 died. After that, B2 said to X, “Isauli mo na sa akin
suffice but mas maganda if there is illustration: Kung bar by prior
ang mga properties ko.” X said, “What are you talking about? I
judgment – the first judgment is res adjudicata to the second or
already bought it from you, akin na ito!” B2 filed a case against X.
matters that have been adjudged and matters that could have been
The defense of X is res adjudicata.
adjudged in relation thereto.
HELD: There is NO res adjudicata. In the first place, one of the
EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim.
elements of res adjudicata is identity of parties. Of course, both of
I filed a case against you for recovery of land. Meron ka pa lang
them are also parties of the first case but they were not adverse to
claim sa akin for reimbursement for necessary expenses. It must be
each other. They were co-defendants in the first case.
set-up in the main action otherwise it is barred forever. But you did
not set it up and then afterwards, you file a case against me for
Res adjudicata is only applicable between adverse parties in the
reimbursement for necessary expenses, I will move to dismiss. Your
former suit and not between parties. Co-parties for the judgment
claim is already barred because you should have raised it as a
therein ordinarily settle claims as to their relative rights and
compulsory counterclaim in the first action. The barring of the
liabilities as co-plaintiffs or co-defendants per se.
counterclaim is considered as the application of res adjudicata by
applying the concept of bar by a former judgment.
But the second reason is, the cause of action is completely different
and therefore the judgment in the first case is conclusive only
EXAMPLE of Conclusiveness of Judgment: The debtor borrows
insofar as the right of B1 is concerned. It cannot be conclusive as
from the creditor P3 million payable in 3 installments without any
to the rights of B2 and X because it is a separate cause of action.
acceleration clause. When the first installment fell due the creditor
sue the debtor and the debtor raised the defense of forgery, “That
Another was the 1993 case of
the promissory note is forged and as an alternative defense
assuming that the promissory note is valid, the first installment was
VDA FISH BROKER vs. NLRC – 228 SCRA 681 [1993]
already extinguished by payment.” After trial, the court decided
against the defendant. Tapos na. Now, the second installment fell
FACTS: A complaint filed by an employee for non-payment of
due. It is another cause of action. Now, here comes the plaintiff
service incentive leave, COLA, 13th month pay, holiday pay, is
filing the case to collect the second installment.
dismissed based on the finding that no employer-employee
relationship existed between the complainant and the respondent.
Q: Can the debtor raise again, in the second case, the defense of
The ruling became final.
FORGERY of the promissory note?
Subsequently, the same complainants filed another case against
A: NO. Tapos na yan. We have already decided that the promissory
the same respondent for reinstatement due to illegal dismissal.
note was genuine and that there was no forgery. This is the same
(How can you file for reinstatement na wala man kayong ER-EE
promissory note that we are talking about. So, in other words, the
relationship in the first case???)
issue of forgery is already adjudged in the first case and therefore
res adjudicata in the second installment.
ISSUE: Is the finding of no ER-EE relationship in the first case res
adjudicata to the second case for illegal termination?
Q: Can the debtor raise the defense of PAYMENT, that the second
installment is already paid or is it also barred?
HELD: YES. “The issue of employer-employee relationship is crucial
in the determination of the rights of the parties in both cases. Res
A: YES, because in the first case what was resolved was whether
adjudicata applies even when the cause of action is not similar
the first installment is paid. The judgment is already conclusive on
under the concept of conclusiveness of judgment. The ruling in the
matters directly adjudged but not to matters which have not been
first case that there is no Employer-Employee relationship between
adjudged. The issue on whether the second or third installment
the parties is conclusive in subsequent cases although the cause of
have already been paid was never adjudged in the first case. That is
action is not the same.”
the application. Take note that there is no identity of cause of
action.
“If were we to ignore the principle of res judicata, an absurd
situation would arise where the same administrative agency would
Another example of Conclusiveness of Judgment was the ruling in
have diametrically opposed conclusions based on apparently
the case
similar circumstances.” This is what will happen - for the second
case, there is ER-EE relationship. It is the same agency which said
CARANDANG vs. VENTURANZA – 133 SCRA 344 [1984]
there is none in the first case. Conflict!
FACTS: This involves a conflict between two brothers, B1 and B2.
OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH
There is already bad blood between them because according to B1,
RES JUDICATA:
B2 appropriated all the properties of their parents. So there was
A.) LAW OF THE CASE
this threat from B1 to sue B2 to recover his share.
B.) STARE DECISIS
So B2 consulted his friend X. X suggested that B2 enters into a
Another question that can be asked here is, how to explain and
simulated sale with X. B2 sold his property to X. As expected, B1
distinguish 3 concepts which appear to be similar. These 3 concepts
filed a case against both of them to annul or rescind the action.
are all anchored on the same thing: there is a final judgement. The
Unfortunately, B1 has never proved that the sale was simulated.
concept of res adjudicata, law of the case and stare decisis. That
The case was dismissed.
was also asked in the bar.
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Q: Is A correct?
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APPEALS
fraud, mistake or duress, or any other ground vitiating
consent;
Rule 40
5) An order of execution;
6) A judgment or final order for or against one or more of
APPEAL FROM MUNICIPAL TRIAL COURTS
several parties or in separate claims, counterclaims, cross
TO THE REGIONAL TRIAL COURTS
claims, and third party complaints, while the main case is
pending, unless the court allows an appeal therefrom; and
APPEAL – The law on appeal starts from Rule 40 to Rule 56. Usually
7) An order dismissing an action without prejudice.
the appeal is from the trial court to the next higher court. Under
the judiciary law, appeals from the MTC should be to the RTC which
Remedy in case the judgment or final order is not appealable
is governed by Rule 40. And when the case is tried by the RTC and
you want to appeal, normally, the appeal should be to the CA
In those instances where the judgment or final order is not
under Rule 41.
appealable, the aggrieved party may file the appropriate special
civil action under Rule 65 (Sec. 1 R 41). However, as of December
General principles on appeal
27, 2007, an aggrieved party may no longer assail an order denying
a motion for new trial or a motion for reconsideration by way of
1) The right to appeal is not part of due process but a mere
Rule 65 as per A.M. No. 07-7-12-SC, such ground having been
statutory privilege that has to be exercised only in the
removed from the enumeration in Sec. 1 of Rule 41. The proper
manner and in accordance with the provisions of law.(Stolt-
remedy is to appeal from the judgment (Sec. 9 R 37).
Nielsen vs. NLRC GR No. 147623, December 13, 2005)
Issues that may be raised on appeal
2) The right to appeal is not a constitutional right or a natural
right (Canton vs. City of Cebu GR No. 152898, February 12,
It is already well-settled in this jurisdiction that a party may not
2007).
change his theory of the case on appeal. Such rule has been
expressly adopted in Rule 44, Section 15 of the 1997 Rules of Civil
3) The general rule is that the remedy to obtain reversal or
Procedure, which provides –
modification of judgment on the merits is appeal. This is
true even if the errors, ascribed to the court rendering the
Sec. 15. Questions that may be raised on appeal-
judgment, is its lack of jurisdiction over the subject matter,
or the exercise of power in excess thereof, or grave ABUSE
Whether or not the appellant has filed a motion for new trial in the
OF DISCRETION IN THE FINDINGS OF FACTS OR OF LAW SET
court below, he may include in his assignment of errors any
OUT IN THE DECISION (Association of Integrated Security
question of law or fact that has been raised in the court below and
Force of Bislig-ALU vs. CA GR No. 140150 August 22, 2005).
which is within the issues framed by the parties.
4) A subsequent case similarly held that a party is not
Also, defenses not pleaded in the answer may not be raised for the
ALLOWED TO QUESTION THE DECISION ON THE MERITS
first time on appeal. A party cannot, on appeal, change
AND ALSO INVOKE THE EXTRAORDINARY REMEDY OF
fundamentally the nature of the issue in the case. When a party
CERTIORARI UNDER Rule 65 and an ordinary appeal under
deliberately adopts a certain theory and the case is decided upon
Rule 41 cannot be allowed since one remedy would
that theory in the court below, he will not be permitted to change
necessarily cancel out the other (Manacap vs. Equitable-PCI
the same on appeal, because to permit him to do so would be
Bank, 468 SCRA 256).
unfair to the adverse party. Accordingly, “courts of justice have no
jurisdiction or power to decide a question not in issue.” Thus, a
5) An appeal may be taken only from judgments or final
judgment that goes beyond the issues and purports to adjudicate
orders that completely disposes of the case (Sec. 1 R 41).
something on which the court did not hear the parties, is not only
An interlocutory order is not appealable until after the
irregular but also extrajudicial and invalid. The rule rests on the
finality of the judgment on the merits.
fundamental tenets of fair play (Com. of Internal Revenue vs.
Migrant Pagbilao Corp. GR 159593, October 12, 2006).
Judgments or orders that are not appealable
Issues that the appellate court decides on appeal
As found in the enumeration in Sec. 1 Rule 41, they are as follows:
A reading of the terms of Sec. 8 of Rule 51 discloses a basic
(An order denying a motion for new trial or a motion for
appellate rule with respect to unassigned errors: The appellate
reconsideration; This is no longer part of the enumeration as of
court shall consider no error unless stated in the assignment of
Dec. 27, 2007 per A.M. No. 07-7-12-SC)
errors.
1) An order denying a petition for relief or any similar motion
Accordingly, a question that was never raised in the courts below
seeking relief from judgment;
cannot be allowed to be raised for the first time on appeal without
2) An interlocutory order;
offending basic rules of fair play, justice and due process (Bank of
3) An order disallowing or dismissing an appeal (Heirs of
Commerce vs. Serrano 451 SCRA 484).
Gaudiano vs. Benemerito GR No. 174247, February 21,
2007);
For an appellate court to consider a legal question, it should have
4) An order denying a motion to set aside a judgment by
been raised in the court below (Philippine National Oil Company vs.
consent, confession or compromise on the ground of
CA 457 SCRA 32). It would be unfair to the adverse party who
would have no opportunity to present evidence in contra to the
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new theory, which it could have done had it been aware of it at the
matter and determine whether or not there is sufficient
time of the hearing before the trial court. It is true that this rule
justification for the award of damages (Sps. Romulo and
admits of exceptions as in cases of lack of jurisdiction, where the
Sps. Layug, GR 151217, September 8, 2006).
lower court committed plain error, where there are jurisprudential
developments affecting the issues, or when the issues raised
It has also been held that the CA for instance, is imbued with
present a matter of public policy (Baluyot vs. Poblete GR 1444435
sufficient authority and discretion to review matters, not otherwise
February 6, 2007; Pineda vs. Heirs of Eliseo Guevara, GR 143188,
assigned as errors on appeal, if it finds that the consideration is
February 14, 2007).
necessary in arriving at a complete and just resolution of the case
or to serve the interests of justice or to avoid dispensing piecemeal
As a rule no question will be entertained on appeal unless it has
justice (Asian Terminals Inc. vs. NLRC 541 SCRA 105 [2007]).
been raised in the court below. Points of law, theories, issues and
arguments not brought to the attention of the lower court
Appeals in criminal cases
ordinarily will not be considered by a reviewing court because they
cannot be raised for the first time at that late stage. Basic
In a criminal case, an appellate court appears to enjoy wide latitude
considerations of due process underlie this rule. It would be unfair
in deciding an appealed case. Thus:
to the adverse party who would have no opportunity to present
evidence in contra to the new theory, which it would have done
“In criminal cases, it is axiomatic that where an accused appeals the
had it been aware of it at the time of the hearing before the trial
decision against him, he throws open the whole case for review
court. To permit petitioner at this stage to change his theory would
and it then becomes the duty of the SC to correct any error as may
thus be unfair to respondent, and offend the basic rules of fair play,
be found in the appealed judgment, whether it was made the
justice and due process (Canada vs. All Commodities Marketing
subject of assignment of errors or not.” (Dico vs. CA GR 141669
Corp. GR 146141, October 17, 2008).
February 28, 2005; Ferrer vs. People GR 143487 February 22, 2006;
Abedes vs. CA 536 SCRA 268 [2007]).
When errors not raised on appeal may be considered
An appeal in a criminal case opens the entire case for review. The
Court can correct errors unassigned in the appeal (People vs. de la
The rule that the appellate court shall not consider errors not
Torre GR 176637 October 6, 2008).
raised in the assignment of errors is not an absolute one. Sec. 8 of R
51 precludes its absolute application allowing as it does certain
Payment of docket fee
errors which even if not assigned may be ruled upon by the
appellate court. Hence, the court may consider an error not raised
The Court has consistently held that payment of docket fee within
on appeal provided the same falls within any of the following
the prescribed period is mandatory for the perfection of an appeal.
Categories:
Without such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action and the decision
(a) It is an error that affects the jurisdiction over the subject
sought to be appealed from becomes final and executory (Regalado
matter;
vs. Go GR 167988 February 6, 2007).
(b) It is an error that affects the validity of the judgment
appealed from;
Payment of docket fees and other legal fees within the prescribed
(c) It is an error which affects the proceedings;
period is both mandatory and jurisdictional, noncompliance
(d) It is an error closely related to or dependent on an
without which is fatal to an appeal. The full amount of the
assigned error and properly argued in the brief (Heirs of
appellate court docket and other lawful fees must be paid to the
Marcelino Doronio vs. Heirs of Fortunato Doronio, 5341
clerk of court which rendered the judgment or final order appealed
SCRA 479 [2008]).
from. Without the payment of docket fees the appeal is not
(e) It is a plain clerical error.
perfected and the appellate court does not acquire jurisdiction to
entertain the appeal, thereby rendering the decision sought to be
The fact that the plaintiff’s brief did not raise the lack of
appealed final and executory. Nonpayment of the appellate court
jurisdiction at the trial court should not prevent the
docket and other lawful fees within the reglementary period is a
Court of Appeals from taking up the issue of lack of
ground for the dismissal of an appeal (Cu-Unjieng vs. CA 479 SCRA
jurisdiction (Calimlim vs. Ramirez 118 SCRA 399; Dy vs.
594 January 24, 2006).
NLRC 145 SCRA 211)
Note however that in the exercise of its impartial jurisdiction, the
Jurisprudence likewise provides some exceptions to the rule
Court allows a liberal construction of the rules on the manner and
periods for perfecting appeals in order to serve the demands of
a) Declared the SC: “The Supreme Court is clothed with
substantial justice.
ample authority to review matters, even if they are not
assigned as errors on appeal, if it finds that their
The established rule is that the payment in full of the docket fees
consideration is necessary in arriving at a just decision of
within the prescribed period is mandatory. Nevertheless, this rule
the case. (Dumo vs. Espinas GR 141962, January 25,
must be qualified to wit:
2006; Comilang vs. Burcena, GR No. 146853, February
13, 2006; Boston Bank vs. Manalo GR 158149 February 9,
First, the failure to pay appellate docket fee within the
2006).
reglementary period allows only discretionary dismissal, not
automatic dismissal of the appeal;
b) In one case, although petitioners did not raise as issue
the appellate court’s reversal of the award of damages in
Second, such power should be used in the exercise of the Court’s
their favor, the Court has the discretion to pass upon this
sound discretion “in accordance with the tenets of justice and fair
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Notice of Appeal
made. It does not automatically result in the dismissal of the appeal
unless it affects the jurisdiction. The dismissal being discretionary
Defendant hereby serves notice that
on the part of the appellate court, such dismissal should be
he is appealing to the RTC from the
exercised wisely.
judgment rendered by the MTC
dated March 5, 1998 copy of which
This ruling is still applicable. Although Section 5 prescribes that
was received by him on March 15,
within the period to take appeal you must pay the docket fee. If
1998.
you do not pay it, it may not cause ipso facto the dismissal of your
appeal. But the clerk of court may refuse to transmit the record to
So it is very simple to make. And you must indicate exactly not only
the RTC until you pay. So docket fee is not a requirement to perfect
the date of the decision but also the date when you received it
an appeal although it is an obligation also.
because the period to appeal does not run from the date of the
decision but from the time you received it. That is why the rule
Sec. 6. Duty of the clerk of court. Within
says, you “must state the material dates showing the timeliness of
fifteen (15) days from the perfection of the
the appeal.” (Record on appeal is discussed in Rule 41, Section 6.)
appeal, the clerk of court or the branch clerk
of court of the lower court shall transmit the
Of course, the adverse party should be furnished with a copy of the
original record or the record on appeal,
notice of appeal.
together with the transcripts and exhibits,
which he shall certify as complete, to the
Sec. 4. Perfection of appeal; effect thereof.
proper Regional Trial Court. A copy of his
The perfection of the appeal and the effect
letter of transmittal of the records to the
thereof shall be governed by the provisions
appellate court shall be furnished the parties.
of section 9, Rule 41.
(n)
Q: When is the appeal deemed perfected?
What is the requirement to perfect an appeal? It is notice of appeal
only or record on appeal also for special proceedings.
A: See discussion under Section 9, Rule 41. From the moment the
appeal is deemed perfected, the MTC loses jurisdiction over the
Section 5 of this rule now states that when the party takes an
case. And by fiction of law, jurisdiction is automatically transferred
appeal, it is the obligation of the appellant to pay the appellate
to the RTC.
docket fee which is imposed by Rule 141 so that the clerk of the
MTC will elevate the appeal to the MTC.
Sec. 5. Appellate court docket and other lawful
fees. Within the period for taking an appeal,
Sec. 7. Procedure in the Regional Trial Court.
the appellant shall pay to the clerk of the
(a) upon receipt of the complete record or
court which rendered the judgment or final
the record on appeal, the clerk of court of the
order appealed from the full amount of the
Regional Trial Court shall notify the parties of
appellate court docket and other lawful fees.
such fact.
Proof of payment thereof shall be
transmitted to the appellate court together
(b) Within fifteen (15) days from such notice,
with the original record or the record on
it shall be the duty of the appellant to submit
appeal, as the case may be. (n)
a memorandum which shall briefly discuss
the errors imputed to the lower court, a copy
Within the period to appeal (normally within 15 days), the
of which shall be furnished by him to the
appellant must pay the docket fee. So that when the records are
adverse party. Within fifteen (15) days from
transmitted, bayad na. Even before this rule came out, the
receipt of the appellant’s memorandum, the
payment of appellate docket fee is really required. The rule is the
appellee may file his memorandum. Failure
same.
of the appellant to file a memorandum shall
be a ground for dismissal of the appeal.
Q: Suppose I will file my Notice of Appeal within 15 days but I will
not pay the docket fee, should my appeal be dismissed? Is it an
(c) Upon the filing of the memorandum of the
additional requirement for appeal?
appellee, or the expiration of the period to
do so, the case shall be considered submitted
A: In the case of
for decision. The Regional Trial Court shall
decide the case on the basis of the entire
SANTOS vs. CA – 253 SCRA 632 [1996]
record of the proceedings had in the court of
origin and such memoranda as are filed. (n)
ISSUE: Will the failure to pay appellate fee automatically cause the
dismissal of the appeal in the MTC to the RTC?
What happens if the case reaches the RTC? Section 7 answers it.
The clerk of court shall notify the parties. What is important here is
HELD: The payment of appellate fee is found in Section 8 of Rule
paragraph [b], a radical provision:
141. But the SC observed that the only requirement is Notice of
Appeal. There is no mention of appellate fee. The payment of
(b) Within fifteen (15) days from such notice,
appellate fee is not a requisite to the perfection of an appeal
it shall be the duty of the appellant to submit
although Rule 141 does not specify when said payment shall be
a memorandum which shall briefly discuss
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The case was dismissed by the MTC without trial on the merits.
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Rule 41
[2] The judgment is final in the sense that it is not merely
interlocutory and this is for the purpose of applying the law
APPEAL FROM THE REGIONAL TRIAL COURTS
on appeal under Rule 41. In other words, a final order or
judgment (for purposes of appeal) is one which is not merely
Majority of the important rules are found here in Rule 41.
interlocutory in the sense that it completely disposes of the
case or a particular matter therein where there is nothing
Section 1. Subject of appeal. An appeal may
more for the court to do after its rendition. (Bairan vs. Tan Sui
be taken from a judgment or final order that
Lay, L-19460, Dec. 28, 1966)
completely disposes of the case, or of a
particular matter therein when declared by
Q: What is the definition of a final judgment or for purpose of
these Rules to be appealable.
appeal?
No appeal may be taken from:
A: A judgment or order is final if it disposes of the pending action
so that nothing more can be done in the trial court with respect to
(a) An order denying a motion for new trial or
its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb. 26, 1962;
reconsideration;
Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
(b) An order denying a petition for relief or
Q: On the other hand, what is an interlocutory judgment or
any similar motion seeking relief from
order?
judgment;
A: An interlocutory order is something which does not completely
(c) An interlocutory order;
dispose of the action and there is still something for the court to do
after its rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs.
(d) An order disallowing or dismissing an
Fabrica, 80 Phil. 762) Actually, the law does not prohibit a party
appeal;
from appealing an interlocutory judgment or order, only you
cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)
(e) An order denying a motion to set aside a
judgment by consent, confession or
Q: What is the test for determining whether a judgment or order
compromise on the ground of fraud, mistake
is final or interlocutory?
or duress, or any other ground vitiating
consent;
A: The test for the determination of whether a judgment or order is
final or interlocutory is this: Does it leave something to be done in
(f) An order of execution;
the trial court with respect to the merits of the case? If it does, it is
interlocutory, hence, you cannot appeal yet; if it does not, it is final
(g) A judgment or final order for or against
and therefore you can appeal. (Reyes vs. De Leon, L-3720, June 24,
one or more of several parties or in separate
1952)
claims, counterclaims, cross-claims and third-
party complaints, while the main case is
So you must know the meanings of the word ‘final’ in civil
pending, unless the court allows an appeal
procedure to avoid confusion. A good example is Section 20 of Rule
therefrom; and
3 where the word ‘final’ was first mentioned:
(h) An order dismissing an action without
Rule 3, Sec. 20. Action on contractual money
prejudice.
claims. - When the action is for recovery of
money arising from contract, express or
In all the above instances where the
implied, and the defendant dies before entry
judgment or final order is not appealable, the
of final judgment in the court in which the
aggrieved party may file an appropriate
action was pending at the time of such death,
special civil action under Rule 65. (n)
it shall not be dismissed but shall instead be
allowed to continue until entry of final
Q: What orders or judgment are subject to appeal ?
judgment. A favorable judgment obtained by
the plaintiff therein shall be enforced in the
A: Only FINAL judgments or orders can be appealed as
manner especially provided in these Rules for
distinguished from interlocutory judgments or orders (paragraph
prosecuting claims against the estate of a
[c])which are not appealable.
deceased person. (21a)
NOTE: If appeal is available, certiorari under Rule 65 cannot be
The word final here in Section 20 refers to the second meaning that
available!!
the judgment is final in the sense that it is not merely interlocutory
FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2)
BAR QUESTION: Plaintiff vs. Defendant. Defendant files a motion
possible meanings in Civil Procedure:
to dismiss under Rule 16. The court granted the motion and
consequently ordered the dismissal of the complaint of the
[1] The judgment is final in the sense that it is already
plaintiff. Can the plaintiff appeal from the order dismissing his
executory and that happens if there is no appeal. And that is
complaint?
for purposes of applying Rule 39 on execution.
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A: We will apply the test: Is there anything more for the court to do
been resolved, if the latter issues are distinct and separate from
after issuing the order of dismissal? Wala na! [Awanen!] Ano pa ba
the others.”
ang gagawin eh na-dismiss na nga eh! Therefore, the order of
dismissal is a final order – it has completely disposed of the case –
REPUBLIC vs. TACLOBAN CITY ICE PLANT – 258 SCRA 145 [1996]
hence, the plaintiff can appeal.
HELD: “A court order is final in character if it puts an end to the
PROBLEM: Let’s modify the problem: Plaintiff vs. Defendant.
particular matter resolved or settles definitely the matter therein
Defendant files a motion to dismiss under Rule 16. The court
disposed of, such that no further questions can come before the
denied the motion to dismiss. Can the defendant appeal from the
court except the execution of the order. Such an order or judgment
order of the court denying his motion to dismiss?
may validly refer to the entire controversy or to some definite and
separate branch thereof.”
A: Again, we will apply the test: Is there anything more for the court
to do after denying the motion to dismiss of the defendant? Yes
So the opening paragraph of Section 1 is in accordance with the
because after the court denies such motion, the defendant will
DAY and TACLOBAN cases. In other words, either the whole case is
now file his answer, then there will be pre-trial, trial, judgment.
disposed of or a particular matter therein has been disposed of.
Meaning, after denying the motion to dismiss, may trabaho pa ako.
Therefore, the order denying the motion to dismiss is interlocutory,
Q: If I cannot appeal because Section 1 of Rule 41 prohibits an
hence the defendant cannot appeal.
appeal, is there a way of hastening the issue before the appellate
court in order to avoid the waste of time and effort and money of
Q: So how do you appeal from an interlocutory order?
entering into a trial which is null and void because of lack of
jurisdiction?
A: The procedure if there is an order which is against you but it is
not appealable, you have to wait. The case is to be tried and then
A: The answer is the last paragraph of Section 1:
you have to wait for the final judgment to be rendered and if you
are dissatisfied with the judgment, that is the time you appeal from
In all the above instances where the
the said judgment together with the interlocutory orders issued in
judgment or final order is not appealable, the
the course of the proceeding. (Mapua vs. Suburban Theaters, Inc.,
aggrieved party may file an appropriate
81 Phil. 311) So there should only be one appeal form that case.
special civil action under Rule 65. (n)
That’s why, as a general rule, the law on Civil Procedure prohibits
more that one appeal in one civil action.
So if appeal is not available, the correct remedy is an appropriate
special civil action under Rule 65. There are three civil actions
The reasons why interlocutory orders are not appealable are to
there: Certiorari, Prohibition, Mandamus.
avoid multiple appeals in one civil case since the order is
interlocutory and the court still continues to try the case in the
The present Rule 41 tells us exactly what orders cannot be
course of the proceeding, the court will realize its error and the
appealed:
court may change its order so it will be given an opportunity to
corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil. 147)
(a) An order denying a motion for new
trial or reconsideration;
Take note of the new rule saying that a judgment or order is final if
it disposes of the case or of a PARTICULAR MATTER. So, it is not
So when a motion for new trial or reconsideration is denied, there
necessarily the whole case.
is no appeal from that order. Your remedy is you appeal from the
judgment, not from the order denying your motion for new trial or
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A against
reconsideration. That is found on Rule 37, Section 9:
B, X filed a motion to intervene and it was denied. Can X appeal the
denial? Now, it would seem that the order is interlocutory because
Section 9. Remedy against order denying a
the court, after denying the motion to intervene, still has
motion for new trial or reconsideration.- An
something to do since the case between A and B will continue. But
order denying a motion for new trial or
according to the SC, YES, X can appeal because the order denying
reconsideration is not appealable, the
the motion to intervene is final.
remedy being an appeal from the judgment
or final order.
But is it not true that the court has something to do after denying
such motion? Yes but what the SC is trying saying is that, as far as
So the correct remedy is in Rule 37 – you appeal from the
X’s right is concerned, the court has nothing to do anymore.
judgment, not from the order denying the motion for new trial
Marami pa akong trabaho dito (case between A and B), pero kay X
or reconsideration.
wala na. That is why the order denying the motion to intervene is a
final order and is appealable. Kaya nga the test that there is
(b) An order denying a petition for relief or
nothing more for the court to do is very confusing. In other words,
any similar motion seeking relief from
you divide the case into parts.
judgment;
DAY vs. RTC OF ZAMBOANGA CITY – 191 SCRA 640
Paragraph [b] has changed some decided cases in the past. Before,
an order granting a petition for relief is interlocutory but an order
HELD: “An order which decides an issue or issues in a complaint is
denying a petition for relief is final. NOW, wala na yan! Whether it
final and appealable, although the other issue or issues have not
is an order granting or denying a petition for relief, you cannot
appeal.
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So what is remedy for such order? Go with special civil action under
judgement of compromise on the ground of fraud, mistake or
Rule 65 as provided in the last paragraph of Section 1.
duress or any other ground. Motion denied!
Give an example of an order denying a motion other than a petition
Q: Can you appeal?
for relief: motion for new trial. So it is not appealable.
A: NO. (paragraph [e])
Suppose I am declared in default, can I appeal from a DEFAULT
JUDGMENT ? The 1964 rules says, yes. You notice that such
Q: So what is my remedy?
provision is lost. There is no more direct provision on that. But still,
it is appealable. The provision in the old rules is not necessary.
A: You file a separate case for annulment for such judgment (Rule
There is nothing in paragraphs [a] to [h] prohibiting an appeal from
47). In the case of
a default judgment. So it falls under the general rule.
DOMINGO vs. CA – 255 SCRA 189 [1996]
Q: How about the order to LIFT the order of default? Suppose you
file a motion to set aside the judgment of default and motion is
HELD: The correct remedy is for the party to file an action for
denied, can you appeal?
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law.
A: NO, because the law says, an order denying any similar motion
seeking relief from judgment cannot be appealed. As a matter of
“A compromise may however be disturbed and set aside for vices
fact, the 1995 case of MANILA ELECTRIC COMPANY vs. CAMPANA
of consent or forgery. Hence, where an aggrieved party alleges
FOOD PRODUCTS (246 SCRA 77), there is no such remedy as a
mistake, fraud, violence, intimidation, undue influence, or falsity in
motion to set aside an order of default but there is no provision in
the execution of the compromise embodied in a judgment, an
the rules to set aside a judgment of default. The correct remedy is
action to annul it should be brought before the Court of Appeals, in
to appeal from the judgment of default not to set aside. And that is
accordance with Section 9(2) of Batas Pambansa Bilang 129, which
clear. The default judgment is appealable.
gives that court (CA) exclusive original jurisdiction over actions for
annulment of judgments of regional trial courts.”
(d) An order disallowing or dismissing an appeal;
(f) An order of execution;
So, if an appeal is dismissed, you cannot appeal from the order
dismissing it. What is the remedy? The 1964 rules provides for the
So you cannot appeal from an order of execution because if we will
remedy of mandamus. That is a direct provision because if the
allow the losing party to appeal from an order of execution, then
appeal is on time , the duty of the court to grant due course to the
there will be no end to litigation. Kaya nga execution, eh – it means
appeal is ministerial. There is no more such provision in the present
tapos na ang kaso. That case is finished, decided, final.
rules because it is already provided in the last paragraph.
But suppose the order of execution contains portions which are not
Another possible remedy where an appeal is allowed aside from
found in the judgment, meaning, the order of execution is changing
the mandamus is if I lost my right to appeal because of fraud,
the judgment which should not be done, then obviously, the
mistake accident and inexcusable negligence, the other possible
correct remedy is certiorari under Rule 65 because of grave abuse
remedy is a petition for relief from judgment denying my appeal
of discretion.
and that is found in Rule 38, Section 2:
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So when I had a talk with Justice Panganiban last year during the
EXAMPLE: You filed an action for recovery of money amounting to celebration of the 100 years of SC here in Davao, I opened this
P1 million. Obviously the jurisdiction is in the RTC. Now, natalo ka issue to him. Sabi ko, “Mali man yung ruling nyo ba. Under the
and you want to go to the CA. What is your mode of appeal? judiciary law, it is 48-hours!” Two months after the conversation,
Ordinary Appeal because the case was decided by the RTC pursuant Section 3 was amended. [ehem!]
to its original jurisdiction.
Alright, the period to appeal shall be interrupted by timely motion
EXAMPLE: In paragraph B, the case is recovery of sum of money for new trial or motion for new consideration provided that the
amounting to P50,000. Saan i-file yan? MTC man yan ba. Now, you motion for new trial is not a pro forma motion (Rule 37, Section 2).
lose, where will you appeal and what is the mode of appeal? RTC
by Ordinary appeal. Suppose, talo ka pa rin sa RTC and you want to LABITAD vs. CA – 246 SCRA 434 [1995]
go to CA. This time, the mode of appeal is not by ordinary appeal
but by petition for review because the case now being appealed FACTS: You receive a judgment on January 31. You filed a motion
has been decided by the RTC pursuant to its appellate jurisdiction. for reconsideration on February 10. So, interrupted and then on
February 20, you receive the order denying the motion for
(c) Appeal by certiorari - In all cases where reconsideration. When is the last day to appeal?
only questions of law are raised or involved,
the appeal shall be to the Supreme Court by HELD: The last day is February 26. The filing of a motion for new
petition for review on certiorari in trial or reconsideration is not counted in the 15-day period. Upon
accordance with Rule 45. the filing in February 10, it is already interrupted. So, you did not
consume 10 days. You consumed only 9 days.
This goes back to the jurisdiction of the SC. The SC has exclusive,
appellate jurisdiction in certain cases — constitutionality of a law, “The period to appeal is suspended if a motion for reconsideration
treaty is in issue, jurisdiction of the court is in issue, and when only or one for a new trial is filed, which, if denied, continues to run
questions of law are being raised. upon receipt of the order denying the same as if no interruption
has occurred. The time during which a motion for reconsideration
So the case is in the RTC and you lost. You would like to appeal on or one for new trial has been pending shall be counted from the
pure question of law. Now, do not go to the CA for it has no date the motion is duly filed to the date when the movant is duly
jurisdiction. You by-pass CA and go directly to the SC on appeal by notified of the denial thereof.”
certiorari in accordance with Rule 45.
“The period during which the motion is pending with the trial court
NOTE: Only in exercise of its original jurisdiction. includes the day the same is filed because the motion shall have
been already placed under the court's consideration during the
What is the period to appeal? Section 3: remaining hours of the day. The very date the motion for
reconsideration has been filed should be excluded from the appeal
Sec. 3. Period of ordinary appeal. The appeal period.”
shall be taken within fifteen (15) days from
notice of the judgment or final order So how do you reconcile this pronouncement with the rule that the
appealed from. Where a record on appeal is first day is excluded and the last day is included? The answer is
required, the appellant shall file a notice of found in Rule 22, Section 2:
appeal and a record on appeal within thirty
(30) days from notice of the judgment or final Rule 22, Sec. 2. Effect of interruption.- Should an
order. However, an appeal in habeas corpus act be done which effectively interrupts the
cases shall be taken within forty-eight (48) running of the period, the allowable period after
hours from notice of the judgment or final such interruption shall start to run on the day after
order appealed from. notice of the cessation of the cause thereof.
The period of appeal shall be interrupted by a The day of the act that caused the interruption
timely motion for new trial or shall be excluded in the computation of the
reconsideration. No motion for extension of period. (n)
time to file a motion for new trial or
reconsideration shall be allowed.
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The 15-day period only applies when the order is final. But when We will ask the same question under Section 4 Rule 41. BUT this
the order is interlocutory, you can file it anytime because there is time, you are appealing from the RTC to the CA and this contains an
no definite period for the court to change it. For as long as the identical provision that when you are appealing from the RTC to
court has jurisdiction over the case, it has the power to change that the CA, you already pay there with the clerk of court of the RTC the
wrong order. docket fee. Bayaran mo na, siya na ang bahalang mag-forward.
Here’s the problem:
“The period subject to interruption by a motion for reconsideration
is the period to appeal. An interlocutory order is not appealable if Q: You failed to pay the docket fee within 15 days. So, when the
there is accordingly no period to suspend or interrupt.” case was transmitted to the CA, hindi kasali yung fee no. Now, can
your appeal be dismissed on the ground of failure to pay the docket
Sec. 4. Appellate court docket and other lawful fee or not in accordance with the ruling in SANTOS (by analogy,
fees. Within the period for taking an appeal, although in this case, the appeal is from the MTC to the RTC. Pero
the appellant shall pay to the clerk of the the same, hindi ka rin magbayad ng docket fee.) Is the ruling in
court which rendered the judgment or final SANTOS also applicable to Rule 41 ?
order appealed from, the full amount of the
appellate court docket and other lawful fees. A: NO, the ruling in SANTOS is not applicable. Your appeal will be
Proof of payment of said fees shall be dismissed.
transmitted to the appellate court together
with the original record or the record on Q: What provision of the Rules authorizes such dismissal? Is there
appeal. (n) any direct provision of the Rules of Court which authorizes the
dismissal of the appeal by non-payment of the appeal docket fee?
Under the law, within the period for taking an appeal, the appellant
shall only pay to the clerk of court of the RTC which rendered the A: YES. Rule 50 Section 1 [c];
judgment or final order the full amount of the appellate court
docket fee and all other lawful fees and the proof of payment shall RULE 50, Section 1 – An appeal may be
be transmitted to the CA together with the original record on dismissed by the Court of Appeals, on its own
appeal. motion or on that of the appellee. on the
following grounds:
Q: How does this amend the Old law ? xxxx
(c) Failure of the appellant to pay the docket
A: Under the OLD Law, when you appeal from the RTC to the CA , and other lawful fees as provided in Section 4
you just file a notice of appeal. You do not pay anything, you do not of Rule 41 ;
pay the appellate docket fee. So the records will be transmitted xxxx
upon order of the clerk of court.
I believe that it is dismissible because of that. So, to my mind, the
Pagdating sa CA, later on, the clerk of court there will communicate SANTOS vs. CA ruling which governs Rule 40 and which for me is
to the appellant na the records are there already, magbayad ka ng valid, is NOT APPLICABLE to Rule 41 because there is a direct
docket fee within so many days. So, mamaya mo na bayaran, provision in Rule 50 that an appeal can be dismissed for non-
hintayin mo munang mapunta doon at hintayin mo ang notisya. payment of appeal docket fee. That is the difference between
these two situations.
NOW, you do not wait. Pag - file mo ng notice of appeal, you PAY
IMMEDIATELY. When you appeal, bayaran mo na ang CA docket fee NOTICE OF APPEAL
sa RTC clerk and then pag-transmit, sabay na! That is the change.
Now, let us go back to Section 5 of Rule 41;
If we will notice, the counterpart is Section 5 Rule 40 – yung appeal
from the MTC to the RTC: Sec. 5. Notice of appeal. The notice of appeal
shall indicate the parties to the appeal,
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Par. 3. On March 5, 1998, the court rendered ISSUE #1: Can A appeal already from the decision rendered against
judgment – (kopyahin mo na naman.)” him or must he wait for the decision to be rendered against the
other landowners?
How long? Gaano kakapal yan? Depende. For example, the case
lasted for more than two years. So practically, the record on appeal HELD: YES, A can now appeal because the order was already final
may amount to hundreds of pages. That is why the period to against A. There is something more for the court to do but only
appeal is increased from 15 to 30 if the law requires a record on with respect to the other defendants. But as far as A is concerned,
appeal because of the possibility that you may not be able to there is nothing more for the court to do.
complete everything within 15 days. Sometimes the 30-day period
can be extended. So when the judgment is already rendered against the other
landowners, they can now also appeal. So there could be two or
Q: Do you have to include there every motion, every order of the more final judgments and two or more appeals.
case?
ISSUE #2: Suppose the case was tried against all of them (sabay ba)
A: No, the law says you reproduce in chronological order copies of and there was one decision against them—so sabay-sabay sila mag-
only such pleadings, motions, petitions, and all interlocutory orders appeal. Is record on appeal required?
as are related to the appealed judgment or final order for the
proper understanding of the issues involved. This is to allow the HELD: NO, only notice of appeal because there is only one decision.
appellate court to review the order appealed from.
Q: Why is it that in ordinary civil cases, normally a record on
But there are some motions na hindi na kailangan. For example, appeal is not required?
the case will be set for trial next week. Sabi ng defendant, “Motion
to postpone, I am not ready because I am suffering from diarrhea.” A: Ordinarily, when the case is over and you say that you are
So the trial was postponed. Kailangan pa bang ilagay ang motion na appealing, the entire record of the case will be elevated to the CA.
yan? That is not necessary to understand the issue. Piliin mo lang But in the case of BIÑAN, there is judgment against landowner A
ang importante. and he wants to appeal, the record cannot be brought to the CA
because the case will still be tried with respect to landowners B, C
Now, bakit kailangan ‘yang record on appeal? Bakit sa ordinary and D. So for the CA to know what happened, a record on appeal is
appeal, hindi man kailangan? Because in Ordinary Civil Actions, needed.
when the appeal is perfected, the clerk of court of the RTC
transmits the entire record to the CA. So andoon na lahat yan. But ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. CA – 258 SCRA
in special proceedings or in civil cases where multiple appeals are 186 [1996]
allowed, when an order or judgment is rendered, the case
continues pa. So, the records are not yet elevated. So, how can the HELD: Multiple appeals are allowed in:
CA understand what happened without the records? That is called
the record on appeal. 1) Special proceedings;
2) Actions for recovery of property with accounting;
Q: Give an example of a civil action where multiple appeals are 3) Actions for partition of property with accounting;
allowed. 4) Special civil actions of eminent domain
(expropriation);
A: Section 4 of Rule 36, where several judgments will be rendered 5) Special civil actions for foreclosure of mortgage.
in one case:
“The rationale behind allowing more than one
RULE 36, Sec. 4. Several judgments - In an appeal in the same case is to enable the rest of the
action against several defendants, the court case to proceed in the event that a separate and
may, when several judgment is proper, distinct case is resolved by the court and held to be
render judgment against one or more of final.”
them, leaving the action to proceed against
the others. (4) The enumeration cited in ROMAN CATHOLIC CASE is taken from the
ruling of the SC in the cases of MIRANDA vs. CA (71 SCRA 295) and
And to be more specific, that rule was applied by the SC in the case DE GUZMAN vs. CA (74 SCRA 222). In these cases, when you file
of only a notice of appeal without the record on appeal, it will not
suffice. So it will be dismissed.
MUNICIPALITY OF BIÑAN vs. GARCIA – 180 SCRA 576
Q: What if the party filed a record on appeal without a notice of
appeal? Should the appeal be dismissed?
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(The following discussions under Section 6 was taken from the 4th RULE 69, Sec. 2. Order for partition, and
year review transcription) Now, let us try to tie this up with what partition by agreement thereunder. - If after
may be appealed and what may not be appealed, let’s go back to the trial the court finds that the plaintiff has
section 1 [g] of Rule 41: the right thereto, it shall order the partition
of the real estate among all parties in
Section 1. Subject of appeal. - An appeal may be interest. Thereupon the parties may, if they
taken from a judgment or final order that are able to agree, make the partition among
completely disposes of the case, or of a particular themselves by proper instruments of
matter therein when declared by these Rules to be conveyance, and the court shall confirm the
appealable. partition so agreed upon by all the parties,
and such partition, together with the order of
No appeal may be taken from: the court confirming the same, shall be
xxxxx recorded in the registry of deeds of the place
(g) A judgment or final order for or against one or in which the property is situated. (2a)
more of several parties or in separate claims,
counterclaims, cross-claims and third-party A final order decreeing partition and
complaints, while the main case is pending, unless accounting may be appealed by any party
the court allows an appeal therefrom. aggrieved thereby. (n)
xxxxx
A final order decreeing partition is appealable. But the case will go
Take note that as a GENERAL RULE: a judgment for or against one on because if the first order is that there is a co-ownership, then
or more of several parties or in separate claims, counterclaims, there should be a partition. Ang sunod is how to partition. As a
cross-claims, etc., while the main case is pending, cannot be matter of fact, the court may even hire commissioners as to how to
appealed because that will result to multiple appeals, unless the partition but in the meantime, the order to partition is already
court allows an appeal therefrom, in which case, multiple appeals appealable although it did not completely disposed of the civil
would now be possible. action.
Q: Cite examples of civil actions where, by direct provision of the Sec. 7. Approval of record on appeal. Upon the
Rules, the law mentions that the judgment is already final and filing of the record on appeal for approval
appealable despite the fact that the case still goes on with respect and if no objection is filed by the appellee
to the other issues. within five (5) days from receipt of a copy
thereof, the trial court may approve it as
A: The case of MUNICIPALITY OF BIÑAN vs. GARCIA which is now presented or upon its own motion or at the
expressly provided for in Rule 67, Section 4, (on Expropriation): instance of the appellee, may direct its
amendment by the inclusion of any omitted
Sec. 2. Entry of plaintiff upon depositing value matters which are deemed essential to the
with authorized government depositary — determination of the issue of law or fact
Upon the filing of the complaint or at any involved in the appeal. If the trial court
time thereafter and after due notice to the orders the amendment of the record, the
defendant, the plaintiff shall have the right to appellant, within the time limited in the
take or enter upon the possession of the real order, or such extension thereof as may be
property involved if he deposits with the granted, or if no time is fixed by the order
authorized government depositary an within ten (10) days from receipt thereof,
amount equivalent to the assessed value of shall redraft the record by including therein,
the property for purposes of taxation to be in their proper chronological sequence, such
held by such bank subject to the orders of the additional matters as the court may have
court. Such deposit shall be in money, unless directed him to incorporate, and shall
in lieu thereof the court authorizes the thereupon submit the redrafted record for
deposit of a certificate of deposit of a approval, upon notice to the appellee, in like
government bank of the Republic of the manner as the original draft. (7a)
Philippines payable on demand to the
authorized government depositary. x x x x x x - It boils down to the trial court – file notice of appeal
and pay docket fees.
Did you notice that an Order of Expropriation MAY BE APPEALED?
When there is an order of expropriation - the court says, “Alright, What you have to remember here is that in appeals, where a
the property is declared expropriated.” Tapos na ba ang case? NOT record on appeal is required, the law requires an approval. The
YET because there is still a Part 2 which the determination of just record on appeal has to be approved by the court. In ordinary cases
compensation. So, technically, it does not yet really dispose of the where you only file a notice of appeal, approval is not required. A
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A: Well, it’s not the appeal that is being questioned but whether
there is a ground for execution pending appeal. Ang jurisprudence
niyan magulo eh: NO, the trial court cannot do that. Only the CA
can determine whether the appeal is dilatory. But there are cases
where the SC said YES because that can be a good reason.
Pero dito (Rule 41), iba ang tanong. The court is not being asked to
grant an execution pending appeal but being asked to dismiss an
appeal. Ah, ito talaga hindi pwede. NEVER, because of Section 13,
Rule 41 – there is only one ground, filed out of time. Yaaan!
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Rule 42
petition for review, you file your petition directly with the CA. Do
not file it with the RTC.
PETITION FOR REVIEW
Not only that. Of course, you have to pay the docket and lawful
FROM THE REGIONAL TRIAL COURTS
fees plus P500 for costs. And you must furnish the RTC and the
TO THE COURT OF APPEALS
adverse party with a copy of the petition. That is a new
requirement.
Q: What are the modes of appeal from RTC to the CA?
Q: Where to file docket fee?
A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW
(Rule 42).
A: CA pa rin.
Rule 41 refers to an ordinary appeal from the RTC to the CA – yung
Q: What is the period to file a petition for review ?
notice of appeal. Here, the RTC rendered a decision pursuant to its
ORIGINAL JURISDICTION.
A: The period to file a petition for review is 15 days from receipt of
the RTC judgment or from the order denying the motion for
‘Eto namang Rule 42 (Petition for review) is the mode of appeal
reconsideration.
from the RTC to the CA in cases decided by the RTC pursuant to its
APPELLATE JURISDICTION. So, the case here actually originated in
Q: What is the difference in period to file between Rule 41 and
the MTC, then it was appealed to the RTC under Rule 40. And now,
Rule 42 ?
from the RTC, you want to go to the CA. Hence, the mode of appeal
is not (Rule 41) Notice of Appeal but RULE 42 – Petition for Review.
A: In Rule 41, if your motion for reconsideration is denied, you can
still appeal within the remaining balance of the 15-day period. In
For the first time, there is now a rule governing petitions for review
Rule 42, the 15-day period starts all over again because the law
from the RTC to the CA. Prior to July 1, 1997, there was none.
says “or of the denial.” So, another fresh 15 days. This because it is
Although there were guidelines then – in jurisprudence, decided
more difficult to prepare a petition for review. This is more time-
cases and SC circulars.
consuming than a simple notice of appeal. We’ll go to examples:
Section 1. How appeal taken; time for filing. A
PROBLEM: The case was decided by the MTC, appealed to the RTC.
party desiring to appeal from a decision of
And then in the RTC, you lost again. You receive a copy of the
the Regional Trial Court rendered in the
decision on March 31. On April 10, you file a motion for
exercise of its appellate jurisdiction may file a
reconsideration. And then on April 20, you receive the order
verified petition for review with the Court of
denying the MFR.
Appeals, paying at the same time to the clerk
of said court the corresponding docket and
Q: How many days more are left for you to file your petition for
other lawful fees, depositing the amount of
review?
P500.00 for costs, and furnishing the Regional
Trial Court and the adverse party with a copy
A: Kung sabihin mo 6 days from April 20 or April 26, that’s FALSE!
of the petition. The petition shall be filed and
The answer is 15 days all over again. Look at the law: “The petition
served within fifteen (15) days from notice of
shall be filed and served within fifteen (15) days from notice of the
the decision sought to be reviewed or of the
decision sought to be reviewed or of the denial of petitioner’s
denial of petitioner’s motion for new trial or
motion for new trial or reconsideration.” Meaning, you count
reconsideration filed in due time after
another 15 days from the denial. Umpisa na naman!
judgment. Upon proper motion and the
payment of the full amount of the docket and
So the filing a motion for new trial or reconsideration in Rule 42
other lawful fees and the deposit for costs
does not only interrupt the running of the period but it commences
before the expiration of the reglementary
to run all over again. Unlike in Rule 41, in ordinary appeal, where
period, the Court of Appeals may grant an
the filing of the motion for reconsideration or new trial merely
additional period of fifteen (15) days only
interrupts the running of the period to appeal. And it commences
within which to file the petition for review.
to run again from the time you are notified that your motion is
No further extension shall be granted except
denied. See the difference?
for the most compelling reason and in no
case to exceed fifteen (15) days. (n)
Actually, if you are not serious in your study of appeal, you will not
see these distinctions. You will just assume that the principles
Under Section 1, a petition for review under Rule 42 must be
under Rule 41 and Rule 42 are the same.
VERIFIED.
Q: Under Section 1, is the 15-day period to file petition for review
Q: Where will you file your petition for review?
extendible?
A: You file it directly with the CA. Do not file it with the trial court.
A: Under Rule 41, the 15-day period to file notice of appeal is not
extendible – no exceptions. But in Rule 42, the 15-day period to file
In Rule 41, where the appeal is deemed perfected by simply filing a
petition for review is EXTENDIBLE according to the last sentence of
notice of appeal, you file your notice of appeal with the RTC. Do
Section 1, provided you pay your docket and other lawful fees, the
not file it with the CA. But in Rule 42, where the appeal is by
CA will grant additional 15 days within which to file a petition for
review.
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Q: Where will you file your motion for extension of time to file
action or proceeding, he must state the
petition for review?
status of the same; and if he should
A: You file your motion for extension to the CA. The CA itself will
thereafter learn that a similar action or
grant the extension.
proceeding has been filed or is pending
before the Supreme Court, the Court of
Q: How many more days can the CA grant?
Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to
A: The CA may grant another 15 days and no further extension can
promptly inform the aforesaid courts and
be granted except for the most compelling reasons. So, original
other tribunal or agency thereof within five
extension is 15 days, and a possible extension of 15 days = total 30
(5) days therefrom. (n)
days.
Take note of Section 2. Do not implead the lower court or the judge
These are technical points. And how many appealed cases have
because nasanay na tayo na pati ‘yung judge naging defendant or
been dismissed simply because these finer provisions were not
respondent na. We only do that in Certiorari under Rule 65 in
been observed by lawyers? I would say 60% of all appeals are
Special Civil Actions, but not on appeal. This is the influence of
dismissed. Even in Davao, majority of petitions are dismissed
Justice Feria because he has penned many cases which has
because nakulangan ng piso sa docket fee, karami. I presume
included the judge as defendant or respondent. So, he said that in
throughout the country, the pattern is the same because the rules
the case of MWSS vs. CA [Aug. 25, 1986], hence we can see his
on appeal are very technical and very strict. That’s why there are
influence, siningit talaga niya iyan sa kaso na yon.
lawyers in Manila, even in Davao, who do not want to handle
appealed cases. They only handle cases in the trial court. Pag-akyat
Now, as to the form [last paragraph], there has to be a Certification
na, nasa CA na, petition for certiorari, pasa na sa iba.
of Non-Forum Shopping, failure to comply with such would mean
the dismissal of the case.
But there are also who have mastered the rules on appeal. For the
purpose of specialization, trial phase and appeal phase. For
ORTIZ vs. COURT OF APPEALS – 299 SCRA 708 [1998]
purposes of the bar, you have to know all the fields in laws. Once
you pass the bar, diyan na kayo mag-isip kung ano ang pipiliin
FACTS: The certification was not signed by the Ortizes but by their
ninyo—civil, criminal, labor, etc. But for purposes of the bar, you
lawyer who has personal knowledge of the fact and contended that
cannot say dito lang ako mag-aral sa Labor, wag na sa Civil Law.
it should be accepted as substantial compliance with the rules.
Pwede ba yan? You cannot do that. Kaya nga sabi nila, the people
who know more about the law are those who have just taken the
HELD: The certification was not proper. Strict observance of the
bar.
rule is required. In this case, no explanation was given.
Sec. 2. Form and contents. The petition shall
“Regrettably, We find that substantial compliance will not suffice in
be filed in seven (7) legible copies, with the
a matter involving strict compliance. The attestation contained in
original copy intended for the court being
the certification on non-forum shopping requires personal
indicated as such by the petitioner, and shall
knowledge by the party who executed the same. To merit the
(a) state the full names of the parties to the
Court’s consideration, Ortizes here must show reasonable cause for
case, without impleading the lower courts or
failure to personally sign the certification. The Ortizes must
judges thereof either as petitioners or
convince the court that the outright dismissal of the petition would
respondents; (b) indicate the specific material
defeat the administration of justice. However, the Ortizes did not
dates showing that it was filed on time; (c)
give any explanation to warrant their exemption from the strict
set forth concisely a statement of the matters
application of the rule. Utter disregard of the rules cannot justly be
involved, the issues raised, the specification
rationalized by harking on the policy of liberal construction.”
of errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and
Q: Under paragraph [c], what issues can you raise in the petition
the reasons or arguments relied upon for the
for review?
allowance of the appeal; (d) be accompanied
by clearly legible duplicate originals or true
A: Errors of fact, errors of law, or both – mixed errors of fact or law.
copies of the judgments or final orders of
both lower courts, certified correct by the
Somebody asked this QUESTION: hindi ba kapag error of law dapat
clerk of court of the Regional Trial Court, the
sa SC yan? Hindi na dadaan sa CA? How do you reconcile this with
requisite number of plain copies thereof and
the Constitution? Actually, when the law says decisions of the RTC
of the pleadings and other material portions
appealable directly to the SC, it was decided pursuant to its original
of the record as would support the
jurisdiction. But if it is decided pursuant to its appellate jurisdiction,
allegations of the petition.
the appeal should be to the CA even on pure questions of law
without prejudice of going to the SC later on.
The petitioner shall also submit together with
the petition a certification under oath that he
Sec. 3. Effect of failure to comply with
has not theretofore commenced any other
requirements. The failure of the petitioner to
action involving the same issues in the
comply with any of the foregoing
Supreme Court, the Court of Appeals or
requirements regarding the payment of the
different divisions thereof, or any other
docket and other lawful fees, the deposit for
tribunal or agency; if there is such other
costs, proof of service of the petition, and the
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I have a similar case now on that issue. The case originated from
the MTC for ejectment. The defendant lost, akyat ngayon sa RTC,
affirmed. And then akyat na naman ang defendant sa CA on
petition for review (although right now, it has not yet been given
due course) with a prayer for TRO. But the CA said that there is no
compelling reason to issue one. In the meantime, I filed a motion
for execution. The defendant opposed on the ground that a
judgment cannot be executed daw because of a pending petition
for review. But this is under the Summary Rules – ejectment. This is
an exception, so that will not apply.
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Rule 43
because all decisions of all quasi-judicial bodies are appealed to the
CA.
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF
Four years later the Constitution took effect. In July 1987 during
APPEALS
the term of Cory Aquino, she promulgated E.O. No. 226, the so-
called Omnibus Investment Code of 1987 where provisions from
Let us now go to Rule 43 which governs Appeals from the Court of
the old code were merely lifted. And among those included is the
Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.
provision on appeals from the BOI where you go directly to the SC.
Take note that under Section 9 of BP 129, the CA has the exclusive
appellate jurisdiction to review decisions of all RTC and Quasi-
The position of Lepanto is, the new law (E.O. No. 226) has modified
Judicial Bodies, and Rule 43 is the governing rule on appeals from
BP 129 because the old law was modified by BP 129. And since this
quasi-judicial bodies.
is a new law, binalik na naman ang appeal sa SC. So na modify ang
BP 129.
So, before this, appeal to the CA of Tax cases is supposed to be to
the SC. Now it is reverted to the CA, and also quasi-judicial
HELD: NO. Lepanto is wrong because when Cory Aquino issued E.O.
agencies. What was the prior law? It is Revised Administrative
No. 226, the New Constitution has taken effect. And under the
Circular No. 1-95, which was promulgated on January 1, 1995. Now
1987 Constitution, you cannot increase the appellate jurisdiction of
it is Rule 43 – the circular was actually quoted here verbatim. So,
the SC without its consent and concurrence. In effect, the new law
you can no longer go to the SC, even on pure questions of law, ha!
(E.O. No. 226) increased the work of the SC without its knowledge
Decisions of quasi-judicial agencies must pass first to the CA even
and consent therefore the SC did not agree. The SC rejected the
on pure questions of law.
provision that decisions of the BOI are appealable directly to the
SC.
Now what are these quasi-judicial bodies? They are enumerated in
Section 1:
In the case of FABIAN vs. DESIERTO [December 16, 1998], a
provision under RA 6670, which provides that decisions of the
Section 1. Scope. This Rule shall apply to
Office of the Ombudsman in administrative disciplinary cases, was
appeals from judgments or final orders of the
declared unconstitutional because the appellate jurisdiction of the
Court of Tax Appeals and from awards,
SC was increased without its advice and consent.
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is before
exercise of its quasi-judicial functions. Among
Revised Administrative Code No. 1-95. As I have told you before,
these agencies are the Civil Service
rulings of different constitutional commissions, CSC, COA,
Commission, Central Board of Assessment
COMELEC should be direct to the SC. That is why the case of
Appeals, Securities and Exchange
MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned
Commission, Office of the President, Land
because the new procedure is that decisions of the CSC are now
Registration Authority, Social Security
appealable to the CA.
Commission, Civil Aeronautics Board, Bureau
of Patents, Trademarks and Technology
Sec. 2. Cases not covered. This Rule shall not apply to
Transfer, National Electrification
judgments or final orders issued under the Labor Code
Administration, Energy Regulatory Board,
of the Philippines. (n)
National Telecommunications Commission,
Department of Agrarian Reform under
Section 2 refers to decisions of NLRC and the Secretary of Labor.
Republic Act No. 6657, Government Service
Their decisions can be brought directly to the SC by way of petition
Insurance System, Employees Compensation
for Certiorari under Rule 65, not by appeal (Rule 43).
Commission, Agricultural Inventions Board,
Insurance Commission, Philippine Atomic
Sec. 3. Where to appeal. An appeal under this Rule may
Energy Commission, Board of Investments,
be taken to the Court of Appeals within the period and
Construction Industry Arbitration
in the manner herein provided, whether the appeal
Commission, and voluntary arbitrators
involves questions of fact, of law, or mixed questions of
authorized by law. (n)
fact and law. (n)
So, very specific! The latest addition there are decisions of
Sec. 4. Period of appeal. The appeal shall be taken
voluntary arbitrators. Prior to that, it can be brought by certiorari
within fifteen (15) days from notice of the award,
to the SC, but because of a decided case it is now be brought to the
judgment, final order or resolution, or from the date of
CA.
its last publication, if publication is required by law for
its effectivity, or of the denial of petitioner’s motion for
One case under Rule 43 which I want to discuss with you is the case
new trial or reconsideration duly filed in accordance
of
with the governing law of the court or agency a quo.
Only one (1) motion for reconsideration shall be
LEPANTO CERAMICS vs. CA – 237 SCRA 519 [1994]
allowed. Upon proper motion and the payment of the
full amount of the docket fee before the expiration of
FACTS: This involves appeals from the Board of Investments (BOI).
the reglementary period, the Court of Appeals may
Now, as provided in the original Omnibus Investment Code of 1981
grant an additional period of fifteen (15) days only
during the Marcos era, decisions of the BOI are appealable directly
within which to file the petition for review. No further
to the SC. But years later it was nullified by the Judiciary Law
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So akala mo may change of theory, yun pala wala! Why are they
annulling? To recover their property. In other words there was no
change of theory.
GENERAL RULE: If you are the winning party, you may appeal the
decision if you think you are entitled for more. So, you must
appeal. You cannot just state of errors in the appellee’s brief.
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Rule 46
reconsideration, if any, was filed and when
notice of the denial thereof was received.
ORIGINAL CASES
(Cir. No. 39-98)
Q: What is the difference between Rule 46 and Rule 44?
It shall be filed in seven (7) clearly legible
copies together with proof of service thereof
A: Rule 44 deals with appealed cases. Rule 46 deals with original
on the respondent with the original copy
cases. Remember that the CA is both an original and appellate
intended for the court indicated as such by
court.
the petitioner, and shall be accompanied by a
clearly legible duplicate original or certified
Q: What are these original cases which can be filed in the CA?
true copy of the judgment, order, resolution,
or ruling subject thereof, such material
A: Under Section 9 of BP 129, Certiorari, prohibition, mandamus,
portions of the record as are referred to
quo warranto, annulment of judgment of the RTC.
therein, and other documents relevant or
pertinent thereto. The certification shall be
The Annulment of Judgment of the RTC, which belongs to the
accomplished by the proper clerk of court or
exclusive original jurisdiction of the CA, is governed by Rule 47.
by his duly authorized representative, or by
the proper officer of the court, tribunal,
Now, all the rest of the sections here are almost the same: how
agency or office involved or by his duly
many copies, docket fees, certification of non-forum shopping,
authorized representative. The other
etc…
requisite number of copies of the petition
shall be accompanied by clearly legible plain
Section 1. Title of cases. In all cases originally
copies of all documents attached to the
filed in the Court of Appeals, the party
original.
instituting the action shall be called the
petitioner and the opposing party the
The petitioner shall also submit together with
respondent. (1a)
the petition a sworn certification that he has
not theretofore commenced any other action
Rule 44 on appeal to the CA, the caption of the case is the same as
involving the same issues in the Supreme
the caption in the RTC (e.g. in the RTC, “RED HOT vs. LIMP BIZKIT”).
Court, the Court of Appeals or different
You just add the word ‘appellant’ and ‘appellee.’ BUT in Rule 44 in
divisions thereof, or any other tribunal or
original cases, the parties are now called ‘petitioner’ and
agency; if there is such other action or
‘respondent.’
proceeding, he must state the status of the
same; and if he should thereafter learn that a
Sec. 2. To what actions applicable. This Rule
similar action or proceeding has been filed or
shall apply to original actions for certiorari,
is pending before the Supreme Court, the
prohibition, mandamus and quo warranto.
Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he
Except as otherwise provided, the actions for
undertakes to promptly inform the aforesaid
annulment of judgment shall be governed by
courts and other tribunal or agency thereof
Rule 47, for certiorari, prohibition and
within five (5) days therefrom.
mandamus by Rule 65, and for quo warranto
by Rule 66. (n)
The petitioner shall pay the corresponding
docket and other lawful fees to the clerk of
Therefore, the provisions of Rules 65, 66 and 47 which apply to this
court and deposit the amount of P500.00 for
original action should be read with Rule 46.
costs at the time of the filing of the petition.
Just read Section 3. Take note of the second paragraph which was
The failure of the petitioner to comply with
inserted in 1998 by SC Circular 39-98).
any of the foregoing requirements shall be
sufficient ground for the dismissal of the
Sec. 3. Contents and filing of petition; effect of
petition. (n)
non-compliance with requirements. The
petition shall contain the full names and
Sec. 4. Jurisdiction over person of respondent,
actual addresses of all the petitioners and
how acquired. The court shall acquire
respondents, a concise statement of the
jurisdiction over the person of the
matters involved, the factual background of
respondent by the service on him of its order
the case, and the grounds relied upon for the
or resolution indicating its initial action on
relief prayed for.
the petition or by his voluntary submission to
such jurisdiction. (n)
In actions filed under Rule 65, the petition
shall further indicate the material dates
When you file an original action before the CA like certiorari,
showing when notice of the judgment or final
normally under Section 3 you already furnish the adverse party
order or resolution subject thereof was
with a copy of your petition. Then the CA will now issue a
received, when a motion for new trial or
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serving you a copy of the order indicating its initial action. So there
That is how the CA acquires jurisdiction over your person –
is no more summons because you were already furnished a
earlier.
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Rule 47
Well of course the remedy of new trial under Rule 37 must be
availed of before the judgment or order becomes final and
ANNULMENT OF JUDGMENTS OR
executory. Also, the remedy of appeal must also be availed before
FINAL ORDERS AND RESOLUTIONS
the judgment or order becomes final and executory.
Rule 47 is an entirely new rule which governs the remedy of
In petition for relief under Rule 38, although the judgment or order
annulment of judgments or final orders or resolutions. We already
is already final and executory, it must be done still within 60 days
met this remedy in judiciary law. The CA has original exclusive
and 6 months.
jurisdiction to annul final judgments and resolutions of the RTC.
(Section 9, BP 129) So it is an entirely original action for annulment
Q: Suppose all the abovementioned remedies have lapsed, is
of judgment of the RTC.
there a remedy left?
Now, that should not be confused with certiorari, prohibition and
A: Section I says YES. There is annulment of judgment but only on
mandamus which fall under the original concurrent jurisdiction of
limited grounds.
the CA. Rule 47 or annulment of judgment of the RTC falls within
the exclusive original jurisdiction of the CA.
Who may file the action?
Take note that in an appeal, the judgment appealed from is valid.
The petitioner need not be a party to the judgment sought to be
But in annulment under Rule 47, the judgment is being asked to be
annulled. What is essential is that the petitioner is one who can
declared void.
prove his allegation that the judgment was obtained by the use of
fraud and collusion and that he was affected thereby (Alaban vs.
Under the prior law there was no direct rule governing that
CA; Islamic Da’Wah Council of the Phil. vs. CA 178 SCRA 178). An
remedy. The only guideline for annulment of judgments of the RTC
action for annulment can be filed by one who was not a party to
are decided cases. Now for the first time the 1997 Rules have a
the action in which the assailed judgment was rendered. It is a
definite rule on how to enforce this remedy.
remedy in law independent of the case where the judgment sought
to be annulled is promulgated (Villanueva vs. Nite 496 SCRA 459).
Section 1. Coverage. This Rule shall govern
the annulment by the Court of Appeals of
Sec. 2. Grounds for annulment. The
judgments or final orders and resolutions in
annulment may be based only on the grounds
civil actions of Regional Trial Courts for which
of extrinsic fraud and lack of jurisdiction.
the ordinary remedies of new trial, appeal,
petition for relief or other appropriate
Extrinsic fraud shall not be a valid ground if it
remedies are no longer available through no
was availed of, or could have been availed of,
fault of the petitioner. (n)
in a motion for new trial or petition for relief.
(n)
Nature of the action
Q: What are the grounds for annulment of judgment under
An action for annulment of judgment is a remedy in law
Section 2?
independent of the case where the judgment sought to be annulled
was rendered. The purpose of such action is to have the final and
A: The grounds recognized by law for annulment of judgment are
executory judgment set aside so that there will be a renewal of
the only two (2):
litigation. It is resorted to in cases where the ordinary remedies of
new trial, appeal, petition for relief from judgment, or other
1) The judgment was secured through extrinsic fraud; or
appropriate remedies are no longer available through no fault of
the petitioner, and is based only on two grounds: extrinsic fraud, Extrinsic fraud should not be a valid ground if availed of,
and lack of jurisdiction or denial of due (Alaban vs. CA 470 or could have been availed of, in a motion for new trial
SCRA 697). or petition for relief.
This remedy is available only where the ordinary remedies of new 2) The judgment is void for lack of jurisdiction.
trial, appeal, petition for review or appropriate remedies are no
longer available through no fault of the petitioner. Hence, if such The rationale for the restriction is to prevent the extraordinary
remedies were not availed of due to the petitioner’s fault, the action from being used by a losing party to make a complete farce
petition will be dismissed (Republic vs. Asset Privatization Trust GR of a duly promulgated decision that has long become final and
141241, Nov. 22, 2005; Sec. 1, Rule 47). executory.
Like a petition for relief, an action for the annulment of a judgment First Ground: EXTRINSIC FRAUD
is a recourse equitable in character, allowed only in exceptional
cases as where there is no available or adequate remedy (Ramos Petition for relief under Rule 38 is a remedy against a final and
vs. Combong 473 SCRA 499). The remedy may no longer be invoked executory judgment kaya lang merong deadline – 6 months and 60
where the party has availed himself of the remedy of new trial, days. So after these periods lapse, wala na.
appeal, petition for relief or other appropriate remedy and lost or
where he has failed to avail himself of those remedies through his Sa petition for relief, apat yon eh: Fraud, accident, mistake and
fault or negligence (Heirs of Maura So vs. Obliosca 542 SCRA 406) excusable negligence. In annulment of judgment, wala na yung
accident, mistake and excusable negligence. But yung EXTRINSIC
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FRAUD natira pa. That is the only one which can be left behind
“For sure, the CA restricted the concept of fraudulent acts within
under Rule 47.
too narrow limits. Fraud may assume different shapes and be
committed in as many different ways and here lies the danger of
Q: Now what is meant by extrinsic fraud ?
attempting to define fraud. For man in his ingenuity and fertile
imagination will always contrive new schemes to fool the unwary.”
A: We already discussed this. Fraud, to be a ground for nullity of a
judgment, must be extrinsic – that fraud done by the adverse party
So fraud by your attorney-in-fact is also considered as a ground for
which prevented a party from having a trial or from presenting his
annulment.
case fully.
Second Ground: JUDGMENT IS VOID FOR LACK OF JURISDICTION
Therefore, intrinsic fraud is not a ground for new trial. It is not a
ground for petition for relief. And it is not a ground for annulment.
Lack of jurisdiction
COSMIC LUMBER CORP. vs. CA – 256 SCRA 168 [1996]
Lack of jurisdiction as a ground for annulment of judgment refers
to either lack of jurisdiction over the person of the defending party
FACTS: Cosmic Lumber owns a piece of land occupied by some
or over the subject matter of the claim. Where the court has
squatters. Now, Cosmic Lumber executed a board resolution for a
jurisdiction over the defendant and over the subject matter of the
special power of attorney authorizing an attorney-in-fact to initiate,
case, its decision will not be voided on the ground of absence of
institute and file in any court action for the ejectment of the
jurisdiction (Republic vs. “G” Holdings GR No. `141241 November
squatters from its property. Then the agent by virtue of the power
22, 2005). The petitioner must show not a mere grave abuse of
of attorney, filed a case to recover a portion of this property from
discretion but an absolute lack of jurisdiction (Republic vs.”G”
its occupants before the RTC.
Holdings 475 SCRA 608). A claim of grave abuse of discretion will
support a petition for certiorari under Rule 65 but it will not
While the case was going on, the agent (the attorney-in- fact)
support an action for annulment of a judgment.
entered into a compromise agreement with the squatters. In the
compromise agreement, the attorney-in-fact sold the property or
In a petition for annulment of judgment, based on lack of
land to the squatter for only P26,000. And the compromise
jurisdiction, petitioner must show an absolute lack of authority to
agreement was approved by the court and it became final and
hear and decide the case. There would be no valid ground to grant
executory.
the petition for annulment where the error raised pertain to the
trial court’s exercise of jurisdiction, not the absence of jurisdiction
Now it was several years later that the Cosmic Lumber heard about
(Heirs of Maura So vs. Obliosca 542 SCRA 406).
it. The Cosmic Lumber filed an action to annul the judgment before
the CA on the ground of extrinsic fraud.
If we follow jurisprudence, there is a third ground which is implied:
LACK OF DUE PROCESS. When there is lack of due process there is
The CA: The case will be dismissed because that is not one of the
also lack of jurisdiction.
grounds for annulment of judgment because the alleged nullity of
the compromise judgment, because petitioner’s attorney-in-fact
Q: How do you attack a judgment which is void?
was not authorized to sell the property. That does not amount to
extrinsic fraud. That was fraud by your own representative, it is not
A: It depends:
fraud by the other party. The one who exercised fraud was your
own attorney-in-fact, not the squatter. So kaya nga that is not a
a) when the judgment is null and void on its very face, the
ground. The CA dismissed the action. So Cosmic Lumber went to
judgment may be attacked:
the SC.
1) DIRECTLY; or
HELD: “The petition to annul the decision of the trial court in civil
2) COLLATERALLY;
case before the CA was proper. Emanating as it did from a void
compromise agreement, the trial court had no jurisdiction to
b) when the nullity is not apparent on the face of the
render a judgment based thereon.” So there is another ground –
judgment, the judgment can be attacked only be
lack of jurisdiction.
DIRECTLY attacked.
“The highly reprehensible conduct of attorney-in-fact in the civil
Q: What is a COLLATERAL ATTACK?
case constituted an extrinsic or collateral fraud by reason of which
the judgment rendered thereon should have been struck down.
A: Meaning, there is no need for me to file a case but I can invoke
Not all the legal semantics in the world can becloud the
its nullity anytime because a judgment which is void on its very face
unassailable fact that petitioner was deceived and betrayed by its
can be attacked at anytime, in any manner anywhere.
attorney-in-fact. The latter deliberately concealed from petitioner,
her principal, that a compromise agreement had been forged with
EXAMPLE of Collateral attack: You are moving to execute a
the end result that a portion of petitioner’s property was sold
judgment. I will oppose the execution on the ground that the
literally for a song, for P26,000. Thus completely kept unaware of
judgment is void. That is collateral attack. I’m just saying that the
its agent’s artifice, petitioner was not accorded even a fighting
judgment cannot be enforced because it is null and void. But I
chance to repudiate the settlement so much so that the judgment
never filed a direct action to declare its nullity. That can be done if
based thereon became final and executory.”
the judgment is void on its very face.
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And under Rule 65, you can avail of certiorari only within 60 days. Sec. 3. Period for filing action. If based on
But if you want annulment, it could be longer under Rule 47. That is extrinsic fraud, the action must be filed
under section 3. That could be a big difference. within four (4) years from its discovery; and if
based on lack of jurisdiction, before it is
Moreover, what do you attack in certiorari? Normally, interlocutory barred by laches or estoppel. (n)
orders eh. But a final judgment can be attacked by annulment
under Rule 47. This is based on decided cases. If your ground is extrinsic fraud, the
action is filed within four (4) years from its discovery. Now, if it is
Now, those remedies were summarized in the case of based on lack of jurisdiction, before it is barred by laches or
estoppel. That is very elastic – laches or estoppel.
BAYOG vs. NATINO – 258 SCRA 378 [1996]
Although if you look at the strict law based on Article 1144 of the
HELD: It is a settled rule that a final and executory judgment may New Civil Code, the prescriptive period really is 10 years for any
be set aside in three (3) ways. To wit: action on judgment. That is the strict law but it could be barred
earlier by laches or estoppel.
1) By petition for relief from judgment under Rule 38;
2) When the judgment is void for want of jurisdiction, Now as to the contents of the petition, we have Section 4:
by direct attack, by certiorari, annulment of
judgment or by collateral attack; and Sec. 4. Filing and contents of petition. The
3) When the judgment was obtained by fraud and action shall be commenced by filing a verified
Rule 38 cannot be applied anymore. petition alleging therein with particularity the
facts and the law relied upon for annulment,
So those are the summary of the remedies. as well as those supporting the petitioner’s
good and substantial cause of action or
ISLAMIC DA’WAH COUNCIL vs. CA – 178 SCRA 178 defense, as the case may be.
ISSUE #1: Can a person, who is not a party to the judgment, file an The petition shall be filed in seven (7) clearly
action for annulment of judgment? legible copies, together with sufficient copies
corresponding to the number of respondents.
HELD: A person who is not a part of the judgment may sue for its A certified true copy of the judgment or final
annulment PROVIDED that he can prove [1] that the judgment was order or resolution shall be attached to the
obtained through fraud and collusion and [2] that he would be original copy of the petition intended for the
adversely affected thereby. court and indicated as such by the petitioner.
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Rule 48
Rule 49
PRELIMINARY CONFERENCE
ORAL ARGUMENTS
Preliminary Conference is like a pre-trial in the CA. Iba lang ang
The CA may or may not require oral argument. Just read that.
tawag but it is really a pre-trial because there are cases which fall
under the original jurisdiction of the CA, like annulment of
Section 1. When allowed. At its own instance
judgment of the RTC. Its purpose is the same as in Rule 18 on pre-
or upon motion of a party, the court may
trial.
hear the parties in oral argument on the
merits of a case, or on any material incident
Section 1. Preliminary conference. At any time
in connection therewith. (n)
during the pendency of a case, the court may
call the parties and their counsel to a
The oral argument shall be limited to such
preliminary conference:
matters as the court may specify in its order
or resolution. (1a, R48)
(a) To consider the possibility of an amicable
settlement, except when the case is not
Sec. 2. Conduct of oral argument. Unless
allowed by law to be compromised;
authorized by the court, only one counsel
may argue for a party. The duration allowed
(b) To define, simplify and clarify the issues
for each party, the sequence of the
for determination;
argumentation, and all other related matters
shall be as directed by the court. (n)
(c) To formulate stipulations of facts and
admissions of documentary exhibits, limit the
Sec. 3. No hearing or oral argument for
number of witnesses to be presented in cases
motions. Motions shall not be set for hearing
falling within the original jurisdiction of the
and, unless the court otherwise directs, no
court, or those within its appellate
hearing or oral argument shall be allowed in
jurisdiction where a motion for new trial is
support thereof. The adverse party may file
granted on the ground of newly discovered
objections to the motion within five (5) days
evidence; and
from service, upon the expiration of which
such motion shall be deemed submitted for
(d) To take up such other matters which may
resolution. (2a, R49)
aid the court in the prompt disposition of the
case. (n)
How are cases decided in the CA? Normally, you file your petition;
submit argument in writing; then you wait for the decision. But
Sec. 2. Record of the conference. The
sometimes, the CA is provoked by legal issues. So the CA would
proceedings at such conference shall be
decide to listen to oral arguments of the parties, especially when
recorded and, upon the conclusion thereof, a
the case is controversial.
resolution shall be issued embodying all the
actions taken therein, the stipulations and
Under Section 3, one difference between motions filed in the RTC
admissions made, and the issues defined. (n)
and in the CA is that:
Sec. 3. Binding effect of the results of the
a) in the RTC, there must be notice of hearing (Rule 15)
conference. Subject to such modifications
attached to the motion, otherwise it will be denied;
which may be made to prevent manifest
b) in the CA, there is no need for notice of hearing to be
injustice, the resolution in the preceding
attached to the motion.
section shall control the subsequent
proceedings in the case unless, within five (5)
days from notice thereof, any party shall
satisfactorily show valid cause why the same
should not be followed. (n)
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Rule 50
Normally, that happens when the party did not state the exact date
when he received the decision. He may just state the date of the
DISMISSAL OF APPEAL
decision without stating the date of receipt. With that, the court
will presume that you received it on the date of the decision. It
Grounds for dismissal of appeal in the CA. Take note that under
might be beyond the period to appeal. So on its face, there is no
Section 1, an appeal may be dismissed by the CA on its own (motu
showing whether the appeal was within the 30 day period or not.
propio) or upon motion of the appellee. And there are nine (9)
grounds for dismissal of appeal under Section 1:
The first ground is called the MATERIAL DATA RULE – that the
record on appeal must show on its face that the appeal was taken
Section 1. Grounds for dismissal of appeal. An
on time.
appeal may be dismissed by the Court of
Appeals, on its own motion or on that of the
In the 1973 case of BERKENKOTTER VS. CA, this ground was
appellee, on the following grounds:
supposed to be abolished already where the SC said that from now
on, We will no longer follow the material data rule. Meaning this is
(a) Failure of the record on appeal to show on
abandoned.
its face that the appeal was taken within the
period fixed by these Rules;
So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the
SC has already refused to apply this ground. So when they drafted
(b) Failure to file the notice of appeal or the
the Rules, dapat tinanggal na yon. Bakit nandito na naman? They
record on appeal within the period
might have forgotten that it has been abandoned by
prescribed by these Rules;
jurisprudence, unless the intention is to return it.
(c) Failure of the appellant to pay the docket
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR
and other lawful fees as provided in section 5
THE RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY
of Rule 40 and section 4 of Rule 41;
THESE RULES;
(d) Unauthorized alterations, omissions or
Take note that under paragraph [a], the appeal was filed on time
additions in the approved record on appeal
but the record on appeal does not show that it was filed on time.
as provided in section 4 of Rule 44;
But here in paragraph [b], the appeal is really out of time. Take
(e) Failure of the appellant to serve and file
note that you can raise this ground in the trial court. The trial court
the required number of copies of his brief or
is also authorized to dismiss an appeal on this ground (Rule 41,
memorandum within the time provided by
Section 13). But assuming that you failed to raise it in the trial
these Rules;
court, you can raise it in the CA.
(f) Absence of specific assignment of errors in
Q: Are you under estoppel for not raising it earlier in the RTC?
the appellant’s brief, or of page references to
Meaning, why did you not bring it out earlier, bakit hinintay pa sa
the record as required in section 13,
CA?
paragraphs (a), (c), (d) and (f) of Rule 44;
A: There is no estoppel here because actually this is a jurisdictional
(g) Failure of the appellant to take the
challenge. When the notice of appeal is filed out of time or beyond
necessary steps for the correction or
15 days, actually the judgment of the RTC has already become final
completion of the record within the time
and executory. So you are now challenging the jurisdiction of the
limited by the court in its order;
CA. Meaning, you are trying to say that the CA has no jurisdiction to
review on appeal a judgment of the RTC which has already been
(h) Failure of the appellant to appear at the
final and executory.
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
Q: Does the CA have the power to review and reverse an RTC
the court without justifiable cause; and
judgment which is already final and executory?
(i) The fact that the order or judgment
A: No more. The judgment which is already final cannot be changed
appealed from is not appealable. (1a; En Banc
by the CA. Meaning, the CA has no jurisdiction to entertain the
Resolution, Feb. 17, 1998)
appeal in that case. So in effect, it is a jurisdictional challenge which
can be raised even in the CA even if not raised earlier in the RTC.
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW
ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE PERIOD
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE
FIXED BY THESE RULES;
DOCKET AND OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF
RULE 40 AND SECTION 4 OF RULE 41;
So this only applies in cases where a record on appeal is required.
Failure to show on its face that the appeal was perfected on time –
Section 5 of Rule 40 is about filing of docket fees if you appeal from
meaning, the appeal might have been perfected on time but by
the MTC to the RTC. Section 4 of Rule 41 refers to filing of docket
reading the record on appeals, you will not see it.
fees when the appeal is from RTC to CA.
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A: Within the 15-day period, you already pay it in the RTC clerk of
Now if you file a brief without footnotes, without citing the law,
court. Unlike before you pay it with the CA later. That is why as I
without citing the transcript, without citing the exhibit, that would
said, failure to pay the docket fee in the RTC is a ground for
be dismissed. That’s what happened in the 1995 case of
dismissal of the appeal because of this.
DEL ROSARIO vs. CA – 241 SCRA 553 [1995]
Q: But how about failure to pay the appeal fee in the MTC prior to
transmittal to the RTC? Is it a ground for dismissal by the CA?
FACTS: The CA dismissed the case simply because the appellant’s
brief was sloppily written – no reference to exhibit, no reference to
A: To my mind NO because why will the CA dismiss it when the
page, no reference to anything. It was dismissed! The appellant
appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang kaso
went to the SC pleading liberality.
sa kanila? The CA has nothing to do with the appeal. It is supposed
to be in the RTC, bakit ang CA ang mag-dismiss? In other words,
HELD: “Petitioner’s plea for liberality in applying these rules in
there is something wrong with this amendment. (referring to
preparing Appellant’s Brief does not deserve any sympathy. Long
“Section 5 of Rule 40”)
ingrained in our jurisprudence is the rule that the right to appeal is
a statutory right and a party who seeks to avail of the right must
But if the appeal is from the RTC to the CA, you must you must pay
faithfully comply with the rules. Deviations from the rules cannot
the docket fees because it is a specific ground for dismissal for the
be tolerated. The rationale for this strict attitude is not difficult to
dismissal under Rule 50.
appreciate. These rules are designed to facilitate the orderly
disposition of appealed cases. In an age where courts are bedeviled
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR
by clogged dockets, these rules need to be followed by appellants
ADDITIONS IN THE APPROVED RECORD ON APPEAL AS PROVIDED
with greater fidelity. Their observance cannot be left to the whims
IN SECTION 4 OF RULE 44;
and caprices of appellants.”
That’s only when there is a record on appeal. When the record on
Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE
appeal is approved, you have to reproduce it and you are not
NECESSARY STEPS FOR THE CORRECTION OR COMPLETION OF THE
allowed to make any alteration, revision or addition.
RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER;
Well, you may file an appellant’s brief, eh wala namang page (d) To transmit the records to the appellate
references, wala namang assignment of errors. My God! What kind court.
of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief
without telling the CA kung anong mali and then you expect the CA If the efforts to complete the records fail, he
to look for the errors. My golly! Do not expect the CA to do that. shall indicate in his letter of transmittal the
Meron dapat citations – e.g. “See Exhibit ‘A’”, “See transcript…” exhibits or transcripts not included in the
Merong reference ba! like kung anong page yan. records being transmitted to the appellate
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Prior to this under the 1964 Rules, the rule is if there is wrong
A: YES, prior to the transmittal of the original record or the record
appeal like pure questions of law to the CA, the CA should not
on appeal, the court may allow withdrawal of the appeal. (Section
dismiss the appeal but elevate it to the SC. That rule has long been
9, Rule 41)
abandoned. It was abandoned in the case of MORILLO and in
Circular 2-90. Now, it is here. Kung question of law you better
Q: Where will you file the motion to withdraw?
appeal to the SC. If you appeal to the CA, the CA will dismiss it.
A: In the RTC if the records are still in the RTC. If the records of
MORILLO vs. CONSUL
appeal is already in the CA, you file the motion to the CA at
anytime before the filing of the appellee’s brief you can withdraw it
HELD: “There is no longer any justification for allowing transfers of
as a matter of right. When there is already an appellee’s brief, it
erroneous appeals from one court to the other, much less for
can be allowed in the discretion of the Court (Section 3). That is
tolerating continued ignorance of the law on appeals.”
similar to the Rule in Rule 17, Section 1:
Take note that this refers to appeal under Rule 41 from RTC. This
Rule 17, Section 1. Dismissal upon notice by
does not apply when the appeal to the CA is from a quasi-judicial
plaintiff. A complaint may be dismissed by
body. Appeal from a quasi-judicial body on a pure question of law
the plaintiff by filing a notice of dismissal at
should be to the CA, never to the SC. You compare this with Rule
any time before service of the answer or of a
42, Section 2:
motion for summary judgment. Upon such
notice being filed, the court shall issue an
Rule 42, Section 2. Form and contents.- The
order confirming the dismissal. Unless
petition shall be filed in seven (7) legible
otherwise stated in the notice, the dismissal
copies, with the original copy intended for
is without prejudice, except that a notice
the court being indicated as such by the
operates as an adjudication upon the merits
petitioner, and shall:
when filed by a plaintiff who has once
xxx
dismissed in a competent court an action
(c) set forth concisely a statement of the
based on or including the same claim. (1a)
matters involved, the issues raised, the
specification of errors of fact or law, or both,
Q: Can you withdraw a complaint if you file a complaint in the
allegedly committed by the RTC and the
lower court?
reasons or arguments relied upon for the
allowance of the appeal.
A: YES, as a matter of right for as long as there is still no answer
xxx
filed. But when the defendant has filed an answer, dismissal of the
complaint is already discretionary upon the court. So it is the same!
“Errors of fact or law, or both.” This refers to Petition for Review
from the RTC to the CA.
Class)
WITHDRAWAL OF APPEAL
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Rule 51
FRANCISCO vs. PERMSKUL – 173 SCRA 324
JUDGMENT
HELD: “The Court finds it necessary to emphasize that the
memorandum decision should be sparingly used lest it become an
You already know that the Court of Appeals operates by division.
addictive excuse for judicial sloth. It is an additional condition for
There are more than 50 justices there. Every division is composed
its validity that this kind of decision may be resorted to only in
of 3. The 3 must be unanimous. In case there is no unanimity, there
cases where the facts are in the main accepted by both parties or
should be a special division of 5 to hear the case all over again and
easily determinable by the judge and there are no doctrinal
the majority rules. Although from what I gathered sa CA, this is a
complications involved that will require an extended discussion of
farce . Actually, they do not discuss it, they will just give it to the
the laws involved. The memorandum decision may be employed in
ponente. Tapos sabihin mo ‘concur.’ Bihira lang talaga ang naga-
simple litigations only, such as ordinary collection cases, where the
participate unless siguro malakas ka sa isang justice and then mag-
appeal is obviously groundless and deserves no more than the time
dissent para magkaroon ng division of 5. That is not really the
needed to dismiss it.”
intention of the of the law.
Q: When is a case deemed submitted for judgment?
Let’s go back to what we were saying before under Rule 36. Every
decision or resolution of a court shall clearly and distinctly state the
A: Section 1 of Rule 51:
facts and the law on which it is based. If a decision does not state
its basis, it is a SIN PERJUICIO judgment. That is not a valid
Sec. 1. When case deemed submitted for
judgment. The requirement applies to all courts whether MTC, RTC,
judgment. - A case shall be deemed
or CA. This is emphasized again in Section 5:
submitted for judgment:
Sec. 5. Form of decision. - Every decision or
A. In Ordinary appeals. -
final resolution of the court in appealed cases
shall clearly and distinctly state the findings
1) Where no hearing on the merits of
of fact and the conclusions of law on which it
the main case is held, upon the filing of the
is based, which may be contained in the
last pleading, brief, or memorandum
decision or final resolution itself, or adopted
required by the Rules or by the court itself, or
from those set forth in the decision, order, or
the expiration of the period for its filing.
resolution appealed from. (Sec. 40, BP Blg.
129) (n)
2)Where such a hearing is held, upon its
termination or upon the filing of the last
The CA must state its findings and conclusions or according to
pleading or memorandum as may be required
Section 5 it may simply adopt the findings and conclusions set forth
or permitted to be filed by the court, or the
in the decision or order appealed from. If the CA is going to affirm
expiration of the period for its filing.
the judgment of the RTC, it may simply copy or adopt the findings
and conclusions of the RTC. It is called a “MEMORANDUM
B. In original actions and petitions for review.
DECISION”.
1) Where no comment is filed, upon the
If you will look at Section 5, it states that the provision is taken
expiration of the period to comment.
from Section 40, BP 129. It is taken from the Judiciary Law.
2)Where no hearing is held, upon the filing of
Is this provision not an invitation to laziness on the part of the CA
the last pleading required or permitted to be
justices? If the CA will affirm the judgment of the RTC, the work is
filed by the court, or the expiration of the
easier because it may simply adopt on its own the findings of the
period for its filing.
RTC. If the CA would reverse the decision, the job would be more
difficult, because it would write an entirely new decision to rebut
3)Where a hearing on the merits of the main
or dispute the findings of the RTC. This is why when this provision
case is held, upon its termination or upon the
came out in the Judiciary Law, there was a sort of fear that this
filing of the last pleading or memorandum as
might be the cause of laziness.
may be required or permitted to be filed by
the court, or the expiration of the period for
The SC, well aware of that danger, clarifies in one case that
its filing. (n)
memorandum decisions are not allowed in all cases. The CA is only
allowed to render a memorandum decision in simple cases
Sec. 2. By whom rendered. - The judgment
especially when the appeal is dilatory and there is nothing wrong in
shall be rendered by the members of the
the appealed decision. But if the case is complicated or complex,
court who participated in the deliberation on
even if CA would affirm the decision, it cannot simply copy the
the merits of the case before its assignment
work of the RTC. It should write its own decision. The limitation or
to a member for the writing of the decision.
guidelines was issued by the SC precisely to avoid the danger of
(n)
laziness on the part of CA justices. The SC said in the case of
Sec. 3. Quorum and voting in the court. - The
participation of all three Justices of a division
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
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A: Stayed – it is not yet final unless the court for good reasons shall
otherwise direct like when there is a good ground to execute
pending appeal.
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Rule 53
resolved within ninety (90) days from the
date when the court declares it submitted for
NEW TRIAL
resolution. (n)
Q: What is the ground for new trial in CA?
Sec. 4. Procedure in new trial. - Unless the
court otherwise directs, the procedure in the
A: The ground for new trial is newly discovered evidence. (Sec 1)
new trial shall be the same as that granted by
a Regional Trial Court. (3a)
Sec. 1. Period for filing; ground. - At any time
after the appeal from the lower court has
Q: If the motion for new trial is granted, can the CA conduct the
been perfected and before the Court of
new trial itself acting as a trial court?
Appeals loses jurisdiction over the case, a
party may file a motion for a new trial on the
A: YES, under section 4 and under the Judiciary Law particularly
ground of newly discovered evidence which
section 9, the CA can receive evidence and act as a trial court. That
could not have been discovered prior to the
is why it is a powerful court.
trial in the court below by the exercise of due
diligence and which is of such a character as
BP 129, Section 9, last paragraph:
would probably change the result. The
motion shall be accompanied by affidavits
“The Court of Appeals shall have the power
showing the facts constituting the grounds
to try cases and conduct hearings, receive
therefor and the newly discovered evidence.
evidence and perform any and all acts
(1a)
necessary to resolve factual issues raised in
cases falling within its original and appellate
The ground is newly discovered evidence similar to the second
jurisdiction, including the power to grant and
ground for new trial in the RTC (FAME). Fraud, accident, mistake –
conduct new trials or further proceedings.”
hindi kasali. Only newly discovered evidence is the ground under
Rule 53.
Rule 54
Q: Suppose the case is before the SC, can a party file a motion for
new trial on the ground of newly discovered evidence before the
INTERNAL BUSINESS
SC under Rule 53 in a civil case?
Section 1. Distribution of cases among divi-
A: NO. The SC said in the case of
sions. - All the cases of the Court of Appeals
shall be allotted among the different
NAVARRA vs. CA – 204 SCRA 850
divisions thereof for hearing and decision.
The Court of Appeals, sitting en banc, shall
HELD: The Rules of Court allows only two (2) occasions where a
make proper orders or rules to govern the
party may file a motion for new trial on the ground of newly
allotment of cases among the different
discovered evidence. That motion may be filed only with the trial
divisions, the constitution of such divisions,
court under Rule 37 or with the CA under Rule 53 BUT NEVER with
the regular rotation of Justices among then
the SC.
the filing of vacancies occurring therein, and
other matters relating to the business of the
“Time and again, We have stressed that the SC is not a trier of
court; and such rules shall continue in force
facts. It is not a function of the SC to analyze or weigh all over again
until repealed or altered by it or by the
the evidence already considered in the proceedings below. Its
Supreme Court.
jurisdiction is limited to reviewing only errors of law that may have
been committed by the lower courts.”
Section 2. Quorum of the court. –A majority of
the actual members of the court shall
If there would be a motion for new trial with the SC and it would be
constitute a quorum for its sessions en banc.
granted, you are converting the SC into a trial court.
Three members shall constitute a quorum for
the sessions of a division. The affirmative
Sec. 2. Hearing and order. - The Court of
votes of the majority of the members present
Appeals shall consider the new evidence
shall be necessary to pass a resolution of the
together with that adduced at the trial
court en banc. The affirmative votes of three
below, and may grant or refuse a new trial, or
members of a division shall be necessary for
may make such order, with notice to both
the pronouncement of a judgment or final
parties, as to the taking of further testimony,
resolution, which shall be reached in
either orally in court, or by depositions, or
consultation before the writing of the opinion
render such other judgment as ought to be
by any member of the division.
rendered upon such terms as it may deem
just. (2a)
(just read)
Sec. 3. Resolution of motion. - In the Court of
Appeals, a motion for new trial shall be
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Rule 55
Rule 56
PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS
PROCEDURE IN THE SUPREME COURT
The decisions of the CA must be published. Kung wala sa Philippine
This is an entirely new provision. In the SC, there are 2 types of
Reports, nasa Court of Appeals Reports. They call that CARA (Court
cases – ORIGINAL and APPEALED. The SC has both the original and
of Appeals Reports Annotated).
appellate jurisdiction.
Section 1. Publication. - The judgments and final
What are the original cases cognizable by the SC?
resolutions of the court shall be published in the Official
Gazette and in the Reports officially authorized by the
A.) ORIGINAL CASES
court in the language in which they have been originally
written, together with the syllabi therefore prepared by
SECTION 1. Original cases cognizable. – Only
the reporter in consultation with the writers thereof.
petitions for certiorari, prohibition,
Memoranda of all other judgments and final
mandamus, quo warranto, habeas corpus,
resolutions not so published shall be made by the
disciplinary proceedings against members of
reporter and published in the Official Gazette and the
the judiciary and attorneys, and cases
authorized reports.
affecting ambassadors, other public ministers
and consuls may be filed originally in the
Section 2. Preparation of opinions for publication. - The
Supreme Court. (n)
reporter shall prepare and publish with each reported
judgment and final resolution a concise synopsis of the
You know them no? – Certiorari, prohibition, mandamus, quo
facts necessary for a clear understanding of the case,
warranto, habeas corpus, cases affecting ambassadors other public
the names of counsel, the material and controverted
ministers and consuls – nasa Constitution din yan. This is only a
points involved, the authorities cited therein, and a
repetition of Article VIII, Section 5 (1) of the Constitution. Aside
syllabus which shall be confined to points of law.
from that, the Rules of Court give the SC authority to hear
disciplinary proceedings against members of the judiciary,
Section 3. General make-up of volumes. - The published
disbarment or removal of judges. SC man yan ba! And they are
decisions and final resolutions of the Supreme Court
governed specially for disbarment by Rule 139-B of the Rules of
shall be called "Philippine Reports," while those of the
Court.
Court of Appeals shall known as the "Court of Appeals
Reports." Each volume thereof shall contain a table of
SEC. 2. Rules applicable. – The procedure in
the cases reported and the cases cited in the opinions,
original cases for certiorari, prohibition,
with a complete alphabetical index of the subject
mandamus, quo warranto and habeas corpus
matters of the volume. It shall consist of not less than
shall be in accordance with the applicable
seven hundred pages printed upon good paper, well
provisions of the Constitution, laws, and
bound and numbered consecutively in the order of the
Rules 46,48, 49, 51, 52 and this Rule, subject
volumes published.
to the following provisions:
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終わり…
それは長かっ
た…
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