Commentaries (Aguilar, Albano, Herrera, Regalado, Riano) & Jurisprudence

GRACE XAVIERE E.
ESCOSIA | ATENEO LAW 4A 2011

1 COMMENTARIES (Aguilar, Albano, Herrera, Regalado, RIano) & JURISPRUDENCE
RULE 23

Definition of Discovery
Discovery, in general, is defined as the disclosure of facts resting in the knowledge of
the defendant, or as the production of deeds, writings, or things in his possession or
power, in order to maintain the right or title of the party asking it, in a suit or
proceeding. (Insular Life Assurance Co. Ltd. v. CA, 238 SCRA 88, citing Bouviers Law
Dictionary)

Object of Discovery
The object of discovery is to make it possible for all the parties to a case to learn all
the material and relevant facts, from whoever may have knowledge thereof, to the
end that their pleadings or motions may not suffer from inadequacy of factual
foundation, and all the relevant facts may be clearly and completely laid before the
Court, without omission or suppression. (Dasmarinas Garments, Inc. v. Reyes, 225
SCRA 622)

Purpose of Discovery
The rules on discovery (Rules 24, 25, 26, 27, 28 and 29 of the Revised Rules of Court)
are intended to enable a party to obtain knowledge of material facts within the
knowledge of the adverse party or of third parties through depositions to obtain
knowledge of material facts or admissions from the adverse party through written
interrogatories; to obtain admissions from the adverse party regarding the
genuineness of relevant documents or relevant matters of fact through requests for
admission; to inspect relevant documents or objects and lands or other property in
the possession or control of the adverse party; and to determine the physical or
mental condition of a party when such is in controversy. This mutual discovery
enables a party to discover the evidence of the adverse party and thus facilitates an
amicable settlement or expedites the trial of the case. (Koh v. IAC, 144 SCRA 259)

Principal Benefits of Discovery
The other principal benefits derivable from the availability and operation of a liberal
discovery procedure are the following:
1. It is of great assistance in ascertaining the truth and in checking and preventing
perjury. The reasons for this are:
(a) The witness (including a party) is examined while his memory is fresh;
(b) The witness (including a party) is generally not coached in preparation for a
pre-trial oral examination with the result that his testimony is likely to be
more spontaneous. Where the examination is upon written interrogatories,
however, it appears that some lawyers furnish the witness with copies of the
interrogatories and thereby enable him to prepare his answers in advance;
(c) A party or witness whose deposition has been taken at an early stage in the
litigation cannot, at a later date, readily manufacture testimony in
contradiction to his deposition;
(d) Testimony is preserved, so that if a witness unexpectedly dies or becomes
unavailable at the trial, his deposition is available.
2. It is an effective means of detecting and exposing false, fraudulent, and sham
claims and defenses.
3. It makes available in a simple, convenient, and often inexpensive way facts which
otherwise could not have been proved, except with great difficulty and
sometimes not at all.
4. It educates the parties in advance of trial as to the real value of their claims and
defenses, thereby encouraging settlements out of court.
5. It expedites the disposal of litigation, saves the time of the courts, and clears the
docket of many cases by settlements and dismissals which otherwise would have
to be tried.
6. It safeguards against surprise at the trial, prevents delays, and narrows and
simplifies the issues to be tried, thereby expediting the trial.
7. It facilitates both the preparation and the trial of cases. (Fortune v. CA, 229 SCRA
355)

Discovery is not mandatory
Recourse to discovery procedures is not mandatory. If the parties do not choose to
resort to such procedures, the pre-trial conference should be set pursuant to the
mandatory provisions of Section 1 of Rule 20. (Koh v. IAC, 144 SCRA 259)

Applicability of Discovery in CIR
Modes of discovery are applicable to proceedings the Court of Industrial Relations.
(East Asiatic Company, Ltd. v. CIR, 40 SCRA 521)

Fishing Expedition not a defense
No longer can the time-honored cry of 'fishing expedition' serve to preclude a party
from inquiring into the facts underlying his opponent's case. Mutual knowledge of all
the relevant facts gathered by both parties is essential to proper litigation. To that
end, either party may compel the other to disgorge whatever facts he has in his
possession. The deposition-discovery procedure simply advances the stage at which
the disclosure can be compelled from the time of trial to the period preceding it, thus
reducing the possibility of surprise." (Republic v. Sandiganbayan, 358 SCRA 284)

GRACE XAVIERE E. ESCOSIA | ATENEO LAW 4A 2011

Definition of Deposition
A Deposition," in its technical and appropriate sense, is the written testimony of a
witness given in the course of a judicial proceeding, in advance of the trial or hearing
upon oral examination or in response to written interrogatories and where an
opportunity is given for cross-examination. (Republic v. Sandiganbayan, 358 SCRA
284)

A deposition is "the testimony of a witness taken upon oral question or written
interrogatories, not in open court, but in pursuance of a commission to take
testimony issued by a court, or under a general law or court rule on the subject, and
reduced to writing and duly authenticated, and intended to be used in preparation
and upon the trial of a civil or criminal prosecution. A pretrial discovery device by
which one party (through his or her attorney) asks oral questions of the other party or
of a witness for the other party. (People v. Webb, 312 SCRA 573, citing Blacks Law
Dictionary)

Function of a Deposition
Deposition is chiefly a mode of discovery, the primary function of which is to
supplement the pleadings for the purpose of disclosing the real points of dispute
between the parties and affording an adequate factual basis during the preparation
for trial. (Pajarillaga v. CA, 570 SCRA 347)

Purpose of a Deposition
The purposes of taking depositions are to:
1.) Give greater assistance to the parties in ascertaining the truth and in checking
and preventing perjury;
2.) Provide an effective means of detecting and exposing false, fraudulent claims and
defenses;
3.) Make available in a simple, convenient and inexpensive way, facts which
otherwise could not be proved except with great difficulty;
4.) Educate the parties in advance of trial as to the real value of their claims and
defenses thereby encouraging settlements;
5.) Expedite litigation;
6.) Safeguard against surprise;
7.) Prevent delay;
8.) Simplify and narrow the issues; and
9.) Expedite and facilitate both preparation and trial. (People v. Webb, 312 SCRA
573, citing 23 Am Jur 2d 493)

Taking versus Use of Depositions
No limitations other than relevancy and privilege have been placed on the taking of
depositions, while the use at the trial is subject to circumscriptions looking toward the
use of oral testimony wherever practicable. (Fortune v. CA, 229 SCRA 355)

Discovery Still Applies Even If Motion for Bill of Particulars Denied
A bill of particulars may elicit only ultimate facts, not so called evidentiary facts. The
latter are without a doubt proper subject of discovery. (Herrera)

Limitations to Discovery
The liberty of a party to avail itself of this procedure, as an attribute of discovery, is
well-nigh unrestricted if the matters inquired into are otherwise relevant and not
privileged, and the inquiry is made in good faith and within the bounds of the law.
(Republic v. Sandiganbayan, 204 SCRA 212)

Broader Meaning of Relevancy
Relevant is synonymous with the word germane. The law contemplates
examination, not only for use as evidence but also to discover information which may
be useful in the preparation for trial. (Herrera, citing Francisco)

The relevancy of evidence sought at the taking of deposition should be determined at
the trial and not with motion to terminate or limit the examination unless it plainly
appears in such motion that the evidence can have no possible bearing on the issues.
(Herrera, citing Union Central Life Ins. v. Burger)

When Leave of Court is necessary
Leave of court is not necessary to take a deposition after an answer to the complaint
has been served. It is only when an answer has not yet been filed (but jurisdiction has
been obtained over any defendant or over property subject of the action) that prior
leave of court is required. The reason for this is that before filing of the answer, the
issues are not yet joined and the disputed facts are not clear. Before service of such
answer, leave of court may be granted but only in exceptional or unusual situations.
(Republic v. Sandiganbayan, 358 SCRA 284)

Inadmissibility of Deposition
Where the witness is available to testify and the situation is not one of those excepted
under Sec. 4 of the ROC, his deposition theretofore taken is inadmissible in evidence
and he should in lieu thereof be made to testify. (Regalado)


Introduction of Deposition
GR: The introduction of the deposition binds the party who introduces it since he
thereby makes the deponent his witness.
EX:
1. If it is introduced to impeach or contradict the witness, or
2. If it is the deposition of an opposing party. (Regalado)

The deposition must be formally offered in evidence although it need not actually be
read in court. (Baron v. David, 51 Phil. 1)

Definition of a Commission
A commission may be defined as "(a)n instrument issued by a court of justice, or other
competent tribunal, to authorize a person to take depositions, or do any other act by
authority of such court or tribunal." (Dasmarinas Garments, Inc. v. Reyes, 225 SCRA
622, citing Feria, J.)

Definition of a Letters Rogatory
Letters rogatory may be defined as "(a)n instrument sent in the name and by the
authority of a judge or court to another, requesting the latter to cause to be
examined, upon interrogatories filed in a cause pending before the former, a witness
who is within the jurisdiction of the judge or court to whom such letters are
addressed." It may be may be applied for and issued only after a commission has been
"returned unexecuted." (Dasmarinas Garments, Inc. v. Reyes, 225 SCRA 622, citing
Feria, J.)

On such terms and with such directions as are just and appropriate under Sec. 12
What matters is that the deposition is taken before a Philippine official acting by
authority of the Philippine DFA and by virtue of a commission duly issued by the
Philippine Court, in which, the case is pending and in accordance with the Philippine
ROC pursuant to which opportunity for cross examination of the deponent will be
fully accorded to the adverse party. (Herrera, citing Dasmarinas Garments, Inc. v.
Reyes)

Orders for the protection of the parties, when it may be granted
The provision explicitly vesting in the court the power to order that the deposition
shall not be taken connotes the authority to exercise discretion on the matter.
However, the discretion conferred by law is not unlimited. It must be exercised, not
arbitrarily or oppressively, but in a reasonable manner and in consonance with the
spirit of the law. (Northwest Airlilnes, Inc. v. Cruz, 317 SCRA 761)

Mere failure to observe the behavior of witnesses is not a ground to refuse the taking
of a deposition. (Lopez v. Maceren, 95 Phil. 456)

Definition of Good Cause
The matter of good cause is to be determined by the court in the exercise of judicial
discretion. Good cause means a substantial reason one that affords a legal excuse.
Whether or not substantial reasons exist is for the court to determine, as there is no
hard and fast rule for determining the question as to what is meant by the term "for
good cause shown." The requirement, however, that good cause be shown for a
protective order puts the burden on the party seeking relief to show some plainly
adequate reasons for the order. A particular and specific demonstration of facts, as
distinguished from conclusory statements, is required to establish good cause for the
issuance of a protective order. What constitutes good cause furthermore depends
upon the kind of protective order that is sought. (Fortune v. CA, 229 SCRA 355)

No Power to Rule on Objections
The officer before whom the deposition is taken does not have the power to rule
upon objections to the questions. (Regalado)

Time and Place for taking Deposition upon Written Interrogatories
No express requirement that the notice state the time and place for taking the
deposition. (Herrera)

Right to Cross Examination in Written Interrogatories
There is a right to cross examine orally even if examination is based on written
interrogatories. (Herrera, citing Alitalia v. De Borja, 19 SCRA 366)

Cumulative Application of Discovery Rules
The fact that a party has resorted to a particular method of discovery will not bar
subsequent use of other discovery devices, as long as the party is not attempting to
circumvent a ruling of the court, or to harass or oppress the other party. The various
modes of discovery under the Rules are clearly intended to be cumulative, and not
alternative or mutually exclusive.

Availability of the proposed deponent to testify in court does not constitute good
cause to justify the courts order that his deposition shall not be taken. (Fortune v. CA,
229 SCRA 355)


Inapplicability of Rule 23 to criminal cases
It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil
procedure apply to all actions, civil or criminal, and special proceedings. In effect, it
says that the rules of civil procedure have suppletory application to criminal cases.
However, it is likewise true that the criminal proceedings are primarily governed by
the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and
squarely covers the situation in the instant case, we find no cogent reason to apply
Rule 23 suppletorily or otherwise. (Vda. de Manguerra v. Risos, 563 SCRA 499)

RULE 24

Applicability of Rule 24 to Criminal Actions
It is submitted that Sec. 1 may not be availed of in criminal cases, but the procedure in
Sec. 7 is available in all actions, including criminal cases. (Regalado)

Perpetuation of Testimony as Proof
Depositions taken under this Rule do not prove the existence of any right and the
testimony therein perpetuated is not in itself conclusive proof, either of the existence
of any right nor even of the facts to which they relate, as it can be controverted at the
trial in the same manner as though no perpetuation of testimony was ever had.
(Regalado, citing Alonso v. Lagdameo, 7 Phil 75)

However, in the absence of any objection to the taking thereof and even if the
deponent did not testify at the hearing of the case, the perpetuated testimony
constitutes prima facie proof of the facts referred to in his deposition. (Regalado,
citing Rey v. Morales, 35 Phil. 230)

RULE 25

Written Interrogatories under Section 25, Rule 23 and Rule 1, Section 25
Under Rule 23, interrogatories are delivered to officer duly authorized to take the
deposition who shall take note the answer thereto. Under Rule 25, interrogatories are
served directly to the adverse party only. (Herrera, citing Moran)

Effect of order in default
A defendant who has been declared in default cannot be permitted to propound
interrogatories. (Herrera)

Judgment by Default may be granted
A judgment by default may be rendered against a party who fails to serve his answer
to written interrogatories. (Regalado, citing Cason v. San Pedro, 65 SCRA 46)

Who are required to make Answer to Interrogatories
Answers cannot be made by an agent or attorney, answers not made by the parties
are nullities.

Order disallowing Interrogatories
An order disallowing interrogatory is interlocutory and remedy is to raise question of
admissibility on appeal from final judgment. (Araneta v. Rodas, 81 Phil. 507). It does
not binding against co-parties for lack of notice. (Herrera)

Effect of Failure/Refusal to Resort to Discovery Procedures
Where a party unjustifiedly refuses to elicit facts material and relevant to his case by
addressing written interrogatories to the adverse party to elicit those facts, the latter
may not thereafter be compelled to testify thereon in court or give a deposition
pending appeal. The sanction adopted by the Rules is not one of compulsion in the
sense that the party is being directly compelled to avail of the discovery mechanics,
but one of negation by depriving him of evidentiary sources which would otherwise
have been accessible to him. (Regalado)

RULE 26

Primary Function of Rule 26 as a Mode of Discovery
Rule 26 as a mode of discovery contemplates of interrogatories that would clarify and
tend to shed light on the truth or falsity of the allegations in a pleading. That is its
primary function. It does not refer to a mere reiteration of what has already been
alleged in the pleadings. (Concrete Aggregates Corporation v. CA, 266 SCRA 88)

Request must be served directly upon the party
The request for admission must be served directly upon the party; otherwise, the
party to whom the request is directed cannot be deemed to have admitted the
genuineness of any relevant document in and exhibited with the request or relevant
matters of fact set forth therein, on account of failure to answer the request for
admission. (Briboneria v. CA, 216 SCRA 607)

Contents of a Request for Admission
A party should not be compelled to admit matters of fact already admitted by his
pleading and concerning which there is no issue, nor should he be required to make a


second denial of those already denied in his answer to the complaint. A request for
admission is not intended to merely reproduce or reiterate the allegations of the
requesting party's pleading but should set forth relevant evidentiary matters of fact,
or documents described in and exhibited with the request, whose purpose is to
establish said party's cause of action or defense. Unless it serves that purpose, it is"
pointless, useless," and "a mere redundancy. (Po v. CA, 164 SCRA 668)

Answer to Request made by Lawyer
The answer to a request for admission under this Rule may be made by the lawyer of
the party and not necessarily the party himself.(PSFC Financial Corp. v. CA,GR 106094)

Effect of Failure to Answer
A Trial Court has no discretion to determine what the consequences of a party's
refusal to allow or make discovery should be; it is the law which makes that
determination; and it is grave abuse of discretion for the Court to refuse to recognize
and observe the effects of that refusal as mandated by law. (Diman v. Alumbres, 101
SCAD 246)

When Summary Judgment may be granted
It is a settled rule that summary judgment may be granted if the facts which stand
admitted by reason of a party's failure to deny statements contained in a request for
admission show that no material issue of fact exists. By its failure to answer the other
party's request for admission, petitioner has admitted all the material facts necessary
for judgment against itself. (Allied Agri-Business Development Co., Inc. v. CA, 299
SCRA 680)

Implied Admission Cannot be Set Aside by Amended Complaint
Where the plaintiff failed to answer a request for admission filed under this Rule,
based on its allegations in its original complaint, the legal effects of its implied
admission of the facts stated in the request cannot be set aside by its subsequent
filing of an amended complaint. It should have filed a motion to be relieved of the
consequences of said implied admission. (Regalado, citing Bay View Hotel, Inc. v. Kerr
& Co. Ltd., L-28237)

RULE 27

Test to be applied
The test to be applied by the trial judge in determining the relevancy of documents
and the sufficiency of their description is one of reasonableness and practicability.
(Regalado, citing Line Corp v. Moran, 59 Phil. 176)
Liberal Construction of the Rules
In passing on a motion for discovery of documents, the court should be liberal in
determining whether or not documents are relevant to the subject matter of the
action. (Regalado, citing Hercules Power Co. v. Haas Co.)

Good Cause under this Rule
Good cause does not relate to the substance in the documents, but to the reason
for producing relevant or material matters, therein; so that the enforcement of the
rule entails exercise of sound judicial discretion. The burden is on the moving party to
demonstrate the need for the documents sought beyond the relevancy or materiality
of the substance therein. (Herrera, citing Martin)

Discovery and Inspection of Things
Possession, custody or control is sufficient, and need not necessarily be in actual
possession or custody. Designation of documents demanded for inspection is
sufficiently definite if it informs the adverse party what it is required to produce.
(Herrera, citing Keone v. Lohmaier)

Rule applies even if documents already exhibited in court
When there is nothing secret or confidential about the documents sought to be
inspected, no serious objection can therefore be presented to the desire of the
requesting party to have copies of those documents in order to study them some
more or otherwise use them during the trial for any purpose allowed by law. (Republic
v. Sandiganbayan, 204 SCRA 232)

Similarity with the Rule on Search and Seizure in Civil Actions for Infringement of
Intellectual Property Rights (AM No. 02-1-06-SC) (Relevant provisions only)
SEC. 2. The writ of search and seizure. Where any delay is likely to cause irreparable
harm to the intellectual property right holder or where there is demonstrable risk of
evidence being destroyed, the intellectual property right holder or his duly authorized
representative in a pending civil action for infringement or who intends to commence
such an action may apply ex parte for the issuance of a writ of search and seizure
directing the alleged infringing defendant or expected adverse party to admit into his
premises the persons named in the order and to allow the search, inspection, copying,
photographing, audio and audiovisual recording or seizure of any document and
article specified in the order.

SEC. 3. Where application filed. The application shall be filed with any of the
Regional Trial Courts of the judicial region designated to try violations of intellectual
property rights stationed at the place where the alleged violation occurred or is to


occur, or the place to be searched, at the election of the applicant: Provided, however,
that where the complaint for infringement has already been filed, the application shall
be made in the court where the case is pending.

SEC. 6. Grounds for the issuance of the order. Before the Order can be issued, the
evidence proffered by the applicant and personally evaluated by the judge must show
that:
(a) the applicant is the right holder or his duly authorized representative;
(b) there is probable cause to believe that the applicants right is being infringed or
that such infringement is imminent and there is a prima facie case for final relief
against the alleged infringing defendant or expected adverse party;
(c) damage, potential or actual, likely to be caused to the applicant is irreparable;
(d) there is demonstrable risk of evidence that the alleged infringing defendant or
expected adverse party may destroy, hide or remove the documents or articles before
any application inter partes can be made; and
(e) the documents and articles to be seized constitute evidence of the alleged
infringing defendants or expected adverse partys infringing activity or that they
infringe upon the intellectual property right of the applicant or that they are used or
intended to be used as means of infringing the applicants intellectual property right.

SEC. 7. When writ may issue. If the judge is satisfied with the proof of facts upon
which the application is based, he shall issue the writ requiring the search, inspection
or copying of the subject documents or articles or commanding the sheriff to take
them into his custody subject to the control of the court. The enforcement of the writ
shall be supervised by an independent Commissioner to be appointed by the court.

SEC. 13. Search to be conducted in the presence of defendant, his representative,
person in charge of the premises, or witnesses. The premises may not be searched
except in the presence of the alleged infringing defendant, expected adverse party or
his representative or the person in charge or in control of the premises or residing or
working therein who shall be given the opportunity to read the writ before its
enforcement and seek its interpretation from the Commissioner. In the absence of
the latter, two persons of sufficient age and discretion residing in the nearest locality.

SEC. 14. Manner of search and seizure; duties of the sheriff. Upon service of the writ
in accordance with section 11 hereof, the sheriff, under the supervision of the
Commissioner, shall search for the documents and articles specified in the writ, and
take them in his custody subject to the control of the court.
If the subject articles are not capable of manual delivery, the sheriff shall
attach to them a tag or label stating the fact of seizure and warning all persons from
tampering with them.
The sheriff shall, in the presence of the applicant or his representative, and
under the supervision of the Commissioner, prepare a detailed list of the seized
documents and articles. He shall give an accurate copy of the same to the alleged
infringing defendant, expected adverse party, his agent or representative, to the
person in charge or in control of the premises or residing or working therein in whose
presence the search and seizure were made. In the absence of the person in charge or
in control of the premises or residing or working therein, the sheriff must, in the
presence of at least two witnesses of sufficient age and discretion residing in the
same locality, leave a copy of the receipt in the place in which he found the seized
property. Where no witnesses are available in the same locality, the copy of the
receipt shall be left by the sheriff in the presence of two witnesses residing in the
nearest locality The applicant or his representative and the Commissioner shall also
be given a copy of the receipt.
After the sheriff has taken possession of the documents and articles, he shall
deliver them to a bonded warehouse or government warehouse for safekeeping. The
applicant or his representative shall be allowed access to said materials for the
purpose of examining them.
The applicant shall be responsible for the necessary expenses incurred in the
seizure and safekeeping of the documents and articles in a bonded warehouse or
government warehouse.

SEC. 15. Use of reasonable force to effect writ. The sheriff, if refused admittance to
the premises after giving notice of his purpose and authority or in the absence of the
alleged infringing defendant or expected adverse party, his agent or representative, or
person in charge or in control of the premises or residing or working therein who is of
sufficient age and discretion, may use reasonable force to gain entry to the premises
or any part of the building or anything therein, to enforce the writ or to liberate
himself or any person lawfully aiding him when unlawfully detained therein.

SEC. 16. Seizure of computer disks or other storage devices. The seizure of a
computer disk or any storage device may be executed in any of the following manner:
(a) by the physical taking thereof,
(b) by copying its contents in suitable device or disk provided by the applicant; or
(c) by printing out the contents of the disk or device with the use of a printer.
When the computer disks or storage device cannot be readily removed from
the computer to which they are fitted, the sheriff may take the subject computer


from the custody of the alleged infringing defendant, expected adverse party or
person in charge or in control of the premises or residing or working therein.

SEC. 18. Discharge of writ by the defendant or expected adverse party. Without
waiting for the return to be filed by the sheriff, the defendant, expected adverse party
or the party whose property has been searched, inspected, copied or seized may file a
motion with the court which issued the writ for its discharge with prayer for the
return of the documents and articles seized.
The writ may be discharged on any of the following grounds:
(a) that the writ was improperly or irregularly issued, or excessively enforced;
(b) that the bond is insufficient;
(c) that the safeguards provided in the writ have been violated by the applicant or the
sheriff; or
(d) that the documents and articles seized are not infringing copies or means for
making the materials alleged to infringe the intellectual property right of the
applicant.
The writ may be discharged in a summary hearing by the court after notice to
the applicant, the sheriff and the Commissioner.
If the court finds that the bond is insufficient, it shall order a new bond to be
filed by the applicant within a reasonable time. The discharge of the writ based on the
insufficiency of the bond may only be made if the applicant fails to post the new bond
within the period fixed by the court.

SEC. 20. Failure to file complaint. The writ shall also, upon motion of the expected
adverse party, be set aside and the seized documents and articles returned to the
expected adverse party if no case is filed with the appropriate court or authority
within thirty-one (31) calendar days from the date of issuance of the writ.

SEC. 22. Judgment. If it appears after trial that the seized documents and articles are
bound to infringe the intellectual property right of the applicant or that they
constitute the means the means for the production of infringing goods, the court shall
order their destruction or donation to charitable, educational or religious institutions
with the prohibition against bringing the same in to the channels of commerce. In the
latter case, infringing trademarks or trade names found on labels, tags and other
portions of the infringing materials shall be removed or defaced before the donation.
In no case shall the infringing materials be returned to the defendant.
If the court finds no infringement, the seized material shall be immediately returned
to the defendant.

RULE 28

Blood Grouping Test in a Paternity Suit
A blood grouping test may be ordered and conducted under this Rule on a child
subject of a paternity suit. While the Rule speaks of an examination of a party, such
child is considered a party for purposes thereof as the action is brought for its benefit.
(Regalado, citing Beach v. Beach)

Not covered by Physician-Client Privilege
Since the results of the examination are intended to be made public, the same are not
covered by the physician-client privilege. Furthermore, such examination is not
necessary to treat or cure the patient but to assess the extent of injury or to evaluate
his physical or mental condition. (Regalado)

RULE 29

Dismissal of an action is discretionary
Section 5, Rule 29 of the Rules of Court warrants the dismissal of the complaint when
the plaintiff fails or refuses to answer the written interrogatories. If plaintiff fails or
refuses to answer the interrogatories, it may be a good basis for the dismissal of his
complaint for not-suit unless he can justify such failure or refusal.

It should be noted
that it is discretionary on the court to order the dismissal of the action. (Santiago Land
Development Company v. CA, 258 SCRA 535)

Sanctions imposed
Where a party willfully fails to appear or fails to serve answers to interrogatories, the
sanctions are:
1. Strike out all or any part of pleading of that party;
2. Dismiss the action;
3. Judgment by default; and
4. Payment of reasonable expenses including attorneys fees. (Herrera)

Imposition of sanction rests on sound discretion
Failure in good faith to answer written interrogatories on ancillary matters such as
to determine whether or not plaintiffs are pauper litigants which although may be
inquired into through the proper modes of discovery are not directly related to the
main issues of the suit excused from the harsh sanction of dismissal. Mere order to
answer with warning is sufficient. (De la Torre v. Pepsi Cola, 100 SCAD 491)


Nature of Failure to Answer Interrogatories
GR: Apply only if a party refuses to answer the whole set of written interrogatories,
and not just a particular question.
EX: Where the party upon whom the written interrogatories is served, refuses to
answer a particular question despite an order compelling him to answer the particular
question, still refuses to obey the order. (Riano, citing Zepeda v. China Banking Corp.,
GR 172175)

RULE 30

Postponements are discretionary
Postponements are addressed to the sound discretion of the court and, in the
absence of grave abuse of discretion, cannot be controlled by mandamus. (Olsen v.
Fressel & Co., 37 Phil. 121)

When trial is unnecessary
1. Judgment on the Pleadings
2. Summary judgment
3. Compromise on Judgment
4. Dismissed with prejudice (Rule 7, Sec. 5; Rule 16, Sec. 5; Rule 17, Sec. 3)
5. Summary Procedure
6. Parties agree in writing and submit the case for judgment on the facts agreed
upon (Rule 30, Sec. 6)

Rule on Medical Certificates
GR: A mere medical certificate is generally insufficient. It must be under oath or in the
form of an affidavit.
EX: In the interest of justice (Sarmiento v. Juan, GR 55605)

Submission of the Case for a Decision
If the trial court allows oral argument or submission of memoranda, the period shall
be correspondingly extended after such proceedings have been conducted or such
memoranda submitted. (Regalado)

Admission of Additional Evidence
Additional evidence may be offered at the rebuttal stage if it was newly discovered, or
omitted through mistake or inadvertence, or where the purpose is to correct evidence
previously offered, subject to the discretion of the court. (Regalado, citing Lopez v.
Loboro, 81 Phil. 429)

Oral Stipulation of Facts
The parties may also stipulate verbally in open court. Such stipulations are binding
unless relief therefrom is permitted by the court on good cause shown. (Ortua v.
Rodriguez, 63 Phil. 809)

But counsel cannot stipulate on what their respective evidence consists of and ask
that judgment be rendered on the basis of such stipulation. (Arzadon v. Arzadon, 15
Phil. 77)

RULE 31

When Consolidation of Cases is permitted
The rule on consolidation of cases generally applies only to cases pending before the
same judge, not to cases pending in different branches of the same court or in
different courts (PAL v. Teodoro, 97 Phil. 461), and also applies to special proceedings
(Salazar v. CFI, 64 Phil. 785)

Generally the case which was appealed later and bearing the higher docket number is
consolidated with the case having the lower docket number. (Regalado)

When Consolidation is Discretionary and Mandatory
GR: The consolidation of several cases involving the same parties and subject matter
is discretionary with the trial court.
EX: Consolidation becomes a matter of duty if two or more cases are tried before the
same judge or, if filed with different branches of the CFI, one of such cases has not
been partially tried. (Raymundo v. Felipe, L-30887)

RULE 32

Hearing is Mandatory
The order of reference may direct the commissioner to perform different acts in and
for purposes of the proceedings but, whatever may be the case, the requirement for
him to hold a hearing cannot be dispensed with as this is the essence of due process.
(Aljems Corp v. CA, GR 122216)

Filing the Report and Notifying the Parties
GR: The failure to grant the parties, in due form, this opportunity to object, may
constitute a serious error in violation of their substantial right.(effect of lack of notice)


EX: If the parties who appeared before the commissioner were duly represented by
counsel and given an opportunity to be heard. (Manila Trading and Supply Co. v. Phil.
Labor Union, 71 Phil. 539)

Extent of the Effect of the Commissioners Report Upon the Court
The commissioners report is not binding upon the court which is free to adopt,
modify or reject, in whole or in part, the report. The court may receive further
evidence or recommit the report with instructions. (Baltazar v. Limpin, 49 Phil. 39)

RULE 33

Definition of a Demurrer to Evidence
A demurrer to evidence is a motion to dismiss on the ground of insufficiency of
evidence and is presented after the plaintiff rests his case. (Regalado)

A demurrer to evidence may be issued where, upon the facts and the law, the plaintiff
has shown no right to relief. (Heirs of Santioqui v. Heirs of Calma, GR 160832)

Remedies on the grant or denial of the demurrer
Where the defendants motion is sustained and the case is dismissed, such order
would be an adjudication on the merits. Where the demurrer is denied, the denial
order is interlocutory in nature. Such denial is not controllable by certiorari unless
GAD or oppressive exercise of judicial authority.(Nepomuceno v. COMELEC,GR 60601)

Denial of Demurrer to Evidence
Where a court denies a demurrer to evidence, it should set the date for the reception
of the defendants evidence in chief. It should not proceed to grant the relief
demanded by the plaintiff. (Northwest Airlines Inc. v. CA, 284 SCRA 408)

RULE 34

Basis of Judgment on the Pleadings
The judgment is based exclusively upon the allegations appearing in the pleadings of
the parties and the annexes thereto, if any, without consideration of any evidence
aliunde. (Regalado)

Court may render judgment on the pleadings motu proprio
If at the pre-trial, the court finds that a judgment on the pleadings is proper, it may
render such judgment motu proprio. (Regalado)

JUDGMENT ON THE
PLEADINGS
SUMMARY JUDGMENT JUDGMENTS BY DEFAULT
No genuine issue between
the parties
Resorted to only where
are (1) no questions of fact
in issue, or (2) material
allegations of the
pleadings are not
disputed, or (3) the
defense interposed by the
defendant is not a valid
defense.
Genuine issues of fact
and/or law are normally
involved; Defendant filed
no answer
Based exclusively upon the
pleadings without
introduction of evidence
Based on the pleadings
and the affidavits,
depositions and
admissions of the parties
showing that, except as to
the amount of damages,
there is no genuine issue
Evidence must be
introduced on the material
allegations, albeit ex
parte, except in cases
covered by the rule on
summary procedure
Available in any action,
except (1) declaration of
nullity or annulment of
marriage and legal
separation; (2)
unliquidated damages; (3)
admission of the truth
allegations of adverse
party
Only in actions to recover
a debt, or for a liquidated
sum of money, or for
declaratory relief
All cases except for
annulment or declaration
of nullity of marriage or
legal separation
Subject only to the 3-day
notice rule and where all
the material averments of
the complaint are
admitted, such motion
may even be made ex
parte
Requires prior 10-day
notice
May be filed ex parte ,
except under the rule on
summary procedure
wherein upon failure of
defendant to answer, the
court, motu proprio or on
plaintiffs motion, shall
render the corresponding
judgment
Entire case may be
terminated
May only be partial


RULE 35

Definition of Genuine Issue
A genuine issue means an issue of fact which calls for the presentation of evidence.
(Manufacturers Hanover Trust Co. v. Guerrero, GR 136804)

Absence of Notice of Hearing
The absence of a written notice did not divest the trial court of authority to pass on
the merits of the motion made in open court. The order of the court granting the
motion for summary judgment and its execution thereof despite the absence of a
notice of hearing, or proof of service thereof, is merely an irregularity in the
proceedings. (Monterey Foods Corp. v. Eserjose, GR 152126)

Test to be applied for the grant of the judgment
The test for the propriety of a motion for summary judgment is whether the
pleadings, affidavits and exhibits in support of the motion are sufficient to overcome
the opposing papers and to justify the finding that, as a matter of law, there is no
defense to the action or the claim is clearly meritorious. (Estrada v. Consolacion, L-
40948)

When Affidavits Need Not be Submitted
Where the motion for summary judgment is duly verified and is based on facts
admitted by the adverse party, affidavits on such matters need not be submitted.
(Motor Service Co. v. Yellow Taxicab Co., 96 Phil. 688)

When Judgment May Granted as a Matter of Right
Where all the facts are within the judicial knowledge of the court, summary judgment
may be granted as a matter of right. (Regalado, citing Miranda v. Malate Garage &
Taxicab, 99 Phil. 670)

Nature of Partial Summary Judgment
A partial summary judgment is interlocutory in nature and is not a final and
appealable judgment. The appeal from the partial and appealable judgment should be
taken together with the judgment in the entire case after the trial shall have been
conducted on the material facts on which a substantial controversy exists. (Guevarra
v. CA, L-49017)

Summary Judgment and Counterclaims
A summary judgment may be rendered if the counterclaim is for a sum of money
larger than that demanded in the complaint provided the counterclaim is valid. (Sugay
v. IAC, 198 SCRA 349)

If the counterclaim is a sham, then summary judgment may not be rendered. (Albano)

Summary Judgment and Counter-Affidavits
GR: Summary judgment should be rendered if failed to file counter-affidavits.
EX: If there is factual issues. (Consunji v. Jamandre, 64 SCRA 1)

When Summary Judgment is Proper
Summary judgment is proper when there is failure to deny under oath the
genuineness and due execution of notes attached to the complaint as this is deemed
to be an admission of the existence and validity of the liability of the defendant.

However, there can be no summary judgment if a statement of account is not denied.
(Kalilid Wood Industries v. IAC, GR 75502)

Burden of Proof
A party who moves for summary judgment has the burden of demonstrating clearly
the absence of any genuine issue of fact, and any doubt as to the existence of such an
issue is resolved against the movant. (Dino v. Valencia, L-43886)

RULE 36

Conflict between the Dispositive Portion and the Body
GR: Where there is a conflict between the dispositive portion of the decision and the
body thereof, the dispositive portion controls irrespective of what appears in the body
of the decision.
EX:
1. Where the inevitable conclusion from the findings of fact and in the opinion
is so indubitable and clear as to show that there was a mistake in the
dispositive portion. (Aguirre v. Aguirre, L-33080)
2. Where explicit discussion and settlement of the issue is found in the body of
the decision. (Millare v. Millare, 106 Phil. 293)


Definition of Judgment
It is the final consideration and determination by a court of the rights of the parties as
those rights which presently exist, upon matters submitted in an action or proceeding.
(Gotamco v. Chan Seng, 46 Phil. 542)

Definition of Rendition of Judgment
It is the filing of the signed decision with the clerk of court and not its pronouncement
in open court, that constitutes rendition of judgment. (Ago v. CA, 6 SCRA 530) If the
decision is sent by the judge by registered mail, it is considered filed in court as of the
date of its receipt by the clerk, and not the date of its posting or mailing.

Definition of Promulgation of the Decision
It is the process by which a decision is published, officially announced, made known to
the public or delivered to the Clerk of Court for filing, coupled with notice to the
parties or their counsel. (Neria v. Com. Of Immigration, 23 SCRA 812)

Definition of Interlocutory Order
It refers to something intervening between the commencement and the end of a suit
which decides some point or matter, but is not a final decision of the whole
controversy. An interlocutory does not terminate nor does it finally dispose of the
case; it does not end the task of the court in adjudicating the parties contentions and
determining their rights and liabilities as against each other but leaves something yet
to be done by the court before the case is finally decided on the merits. (Albano)

Definition of Final Order
An order is deemed final when it finally disposes of the pending action so that nothing
ore can be done with it in the lower court. (Albano)

Special Forms of Judgment
1. Judgment by default
2. Judgment on the pleadings
3. Summary judgment
4. Several judgment (Sec. 4, Rule 36)
5. Separate judgment (Sec. 5, Rule 36)
6. Judgment for specific acts (Sec. 10, Rule 39)
7. Special judgment (Sec. 11, Rule 39)
8. Judgment upon confession
9. Judgment upon compromise, or on consent/agreement
10. Clarificatory judgment
11. Judgment nunc pro tunc
(7) and (8) immediately executory. (Samonte v. Samonte, L-40683), unless otherwise
provided in the judgment, as may be prayed for or agreed upon by the parties.

Definition of a Several Judgment
A several judgment is proper where the liability of each party is clearly separable and
distinct from that of his co-parties such that the claims against each of them could
have been the subject of separate suits, and judgment for or against one of them will
not necessarily affect the others. (Regalado)

GR: If the obligation is solidary and their defenses are common, the interest are not
separate; hence, several judgment is not allowed.
EX: Where one solidary debtor has a defense which is personal to him. (Albano)

Definition of Separate Judgment
This kind of judgment presupposes that there are several claims for relief presented in
a single action. (Riano)

Definition of Judgment Upon a Confession (Cognovit actionem)
This is judgment rendered by the court when a party expressly agrees to the other
partys claim or acknowledges the validity of the claim against him. (Riano)

Definition of a Judgment upon a Compromise
This is a judgment rendered by the court on the basis of a compromise agreement
entered into between the parties to the action. (Riano)

Appeal from a Judgment on Compromise
To be entitled to appeal from a judgment on compromise, a party must not only move
to set aside the judgment but must also move to set aside or annul the compromise
agreement itself. (Regalado)

A judgment rendered pursuant to a compromise is not appealable (Montejo v. Urotia,
L-27187), and has the effect of res judicata from the moment it is rendered.

Where a judgment based on a compromise is sought to be enforced against a person
who was not a party thereto, he may file an original petition for certiorari to quash
the writ of execution. (Jacinto v. Montesa, L-23098)

Definition of Clarificatory Judgment
Where the judgment is ambiguous and difficult to comply with, the remedy is to file a
motion for a so-called clarificatory judgment. (Almendras v. Del Rosario, L-20158)


Definition of Judgment Nunc Pro Tunc
A judgment nunc pro tunc is rendered to enter or record such judgment as had been
formerly rendered but has not been entered as thus rendered. Its only function is to
record some act of the court which was done at a former time, but which was not
then recorded, in order to make the record speak the truth, without any changes in
substance or in any material respect. (Lichauco v. Tan Pho, 51 Phil. 682)

Definition of Conditional Judgment
It is one the effectivity of which depends upon the occurrence or the non-occurrence
of an event. Such a judgment is generally void because of the absence of a disposition.
(Cu Unjieng v. Mabalacat Sugar Co., 70 Phil. 384)

Definition of a Sin Perjuicio Judgment
It is one that makes reservation in favor of some parties as to the right to do
something in a separate and further proceedings. It is not a binding one. (Gatus v. CA,
95 SCRA 531)

Definition of an Incomplete Judgment
It is one that does not dispose of all the issues of a case validly raised. It is not final
until it is completed. (Albano)

Void Judgments
GR: If a decision is void, it has no legal effect at all.
EX: Doctrine of operative facts. (Tan v. Barrios, 190 SCRA 386)

Definition of Judgment on the Merits
A judgment is on the merits when it amounts to a legal declaration of the respective
rights and duties of the parties, based upon the disclosed facts. There could be a
judgment on the merits even if there is no trial. (Riano)

Definition of Erroneous Judgment
A judgment contrary to the express provisions of law is erroneous but it is not void.
Once it becomes final and executor, it is binding and effective as any judgment and,
though erroneous, will be enforced as a valid judgment in accordance with its
dispositions. (Mercado v. CA, L-44001)

Difference between Amended Judgment and Supplemental Judgment
In an amended and clarified judgment, the court makes a thorough study of the
original judgment and renders the amended and clarified judgment only after
considering all the factual and legal issues. Such amended and clarified decision is an
entirely new decision which supersedes the original decision.

A supplemental decision does not take the place of or extinguish the original; it only
serves to bolster or add something to the primary decision. (Esquivel v. Alegre, GR
79425)

Definition of Obiter Dictum
It is an opinion expressed by a court upon some question of law which are not
necessary to the decision of a case before it. (Hian v. CTA, 59 SCRA 110)

Doctrine of the Law of the Case
Whatever is once irrevocably established as the controlling legal rule or decision
between the same parties in the case continues to be the law of the case, whether
correct on general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court. (Riano)

Rule of Stare Decisis
When the SC has laid down a principle of law applicable to a certain state of facts, it
will adhere to that principle and apply it to all future cases where the facts are
substantially the same. (Riano)

Minute Resolution allowed
The SC has the discretion to decide whether a minute resolution should be used in
lieu of a full-blown decision in any particular case and that minute resolution of
dismissal of a petition for review on certiorari constitutes an adjudication on the
merits of the controversy or subject matter of the petition. (Smith Bell & Co. v. CA, GR
56294)

Nature of Memorandum Decisions
A memorandum decision should actually embody the factual findings and legal
conclusions in an annex attached to and made an integral part of the decision. Also,
such decisions should be sparingly used and may be resorted to only in cases where
the facts are accepted in the main by the parties, are easily determinable by the
judge, and do not involve doctrinal complications requiring extended discussion. (Yao
v. CA, GR 132428)

Judgment in a Naturalization Case
It becomes final only after the issuance of the naturalization certificate and
compliance by the applicant with RA 530, but it does not really become executor and


a certificate of naturalization may be cancelled on grounds subsequent to the granting
thereof. (Regalado, citing Ao Sun v. Republic and Republic v. Guy)

Definition of Mittimus
It is the final process for carrying into effect the decision of the appellate court and
the transmittal to the court a quo. It is predicated upon the finality of the judgment.
(De Guzman v. Reyes, 114 SCRA 596)

Transferred Judge Can Still Render Decision
A judge permanently transferred to another court of equal jurisdiction can render a
decision on a case in his former court which was totally heard by him and submitted
for a decision, with the parties having argued the case. (Valentin v. Sta. Maria, L-
30158)

Judgment penned by a judge who had ceased to be a judge
A decision penned by a judge after his retirement cannot be validly promulgated and
cannot acquire a binding effect. In like manner, a decision penned by a judge during
incumbency cannot be validly promulgated after his retirement. (Nazareno v. CA, 378
SCRA 28)

Modification of Judgments
GR: Before the lapse of the period to appeal, the judge can change the judgment, or
even make a new one. A decision that has acquired finality becomes immutable and
unalterable. (Doctrine of Conclusiveness or Immutability of Judgments)
EX:
1. Correction of clerical errors
2. Nunc pro tunc entries which cause no prejudice to any party
3. Void judgments
4. Whenever circumstances transpire after the finality of the decision making
its execution unjust and inequitable. (Regalado)

RULE 37

NOTICE OF APPEAL RECORD ON APPEAL
Taken by filing a notice of appeal Taken by filing the notice of appeal and
the record on appeal
Perfected upon the expiration of the last
day to appeal by any party
Perfected upon the approval of the
record on appeal

Definition of the Berry Rule
It is incumbent on a party who asks for a new trial, on the ground of newly discovered
evidence, to satisfy the court:
1. Evidence has come to his knowledge since the trial;
2. It was not owing to the want of due diligence that it did not come sooner;
3. It is material that it would produce a different verdict, if the new trial were
granted;
4. It is not cumulative only;
5. The affidavit of the witness himself should be produced, or its absence
accounted for; and
6. A new trial will not be granted, if the only object of the testimony is to
impeach the character or credit of a witness. (Dinglasan, Jr. v. CA, GR 145420,
citing Berry v. State of Georgia)

Definition of a Pro Forma Motion
It is one which does not satisfy the requirements of the rules and one which will be
treated as a motion intended to delay the proceedings. (Marikina Development
Corporation v. Flojo, 251 SCRA 87)

Nature of a Pro Forma Motion for New Trial
If a motion for new trial does not satisfy the requirements of this rule, it is pro forma
and does not suspend the period to appeal. (Regalado, citing Francisco v. Caluag)
o It is based on the same ground as that raised in a preceding motion for new
trial or reconsideration which has already been denied.
o It contains the same arguments and manner of discussion appearing in the
prior opposition to the motion to dismiss and which motion was granted.
o The new ground alleged in the second motion for new trial already existed,
was available and could have been alleged in the first motion for new trial
which was denied.
o It is based on the ground of insufficiency of evidence or that the judgment is
contrary to law but does not specify the supposed defects in the judgment.
o It is based on the ground of fraud, accident, mistake or excusable negligence
but does not specify the facts constituting these grounds and/or is not
accompanied by an affidavit of merits.
EX: Motion invokes the further ground that its decision awards excessive
damages, with a certification of the courts findings and conclusions

Definition of Pro Forma Motion for Reconsideration
Where a motion for reconsideration is but a reiteration of reasons and arguments
previously set forth in the movants memorandum and which the trial court had


already considered, weighed and resolved adversely before it rendered its decision
now sought to be considered, that motion is pro forma.(Dacanay v. Alvendia, L-22633)

Where the circumstances of a case do not show an intent on the part of the pleader
to delay the proceedings, and his motion reveals a bona fide effort to present
additional matters or to reiterate his arguments in a different light, the courts should
be slow to declare the same outright as pro forma. (Guerra Enterprises v. CFI, L-
28310)

Applicability of Pro Forma Motion for Reconsideration
It is properly directed against a final judgment or order, and not those against an
interlocutory order. (BA Finance v. Pineda, GR 61628)

Same rule applies for second MRs. (Phil Green Trading Construction Co. v. CA)

When MR and MNT Same Grounds
A MR, if based on the same grounds as that for a new trial, is considered a MNT and
has the same effect. (Rodriguez v. Rovira, 63 Phil. 476) However, where the MNT is
based on the last par. of Sec. 1, it is properly a MR. (City of Cebu v. Mendoza, L-26321)

Nature of a Motion for Reopening the Trial
A motion to reopen may properly be presented only after either or both parties have
formally offered and closed their evidence before judgment. It is controlled by no
other rule than the paramount interest of justice, resting entirely on the sound
discretion of a trial court. (Regalado, citing Alegre v. Reyes and Agulto v. CA)

Contents of an Affidavit of Merits
1. Nature or character of the fraud, accident, mistake or excusable negligence on
which the motion for new trial is based;
2. Facts constituting the movants good and substantial defenses or valid causes of
action; and
3. Evidence which he intends to present if his motion is granted. (Regalado)

When Affidavits of Merits may be Dispensed with
Affidavits of merits may be dispensed with when the judgment is null and void.
o No jurisdiction over the defendant or the subject matter
o Procedurally defective
o Defendant was unreasonably deprived of his day in court
o Not required in MR

When Second MNT may be allowed
A second MNT may be entertained where the ground therefor was not available or
existing at the time when the first motion was filed. (Regalado)

When Second MR may be allowed
GR: Second MR is not allowed.
EX:
1. For extraordinarily persuasive reasons and only upon express leave first
obtained (Ortigas and Company Limited Partnership v. Velasco)
2. Meritorious on its face
3. Substantial justice

Single Motion Rule
A party shall not be allowed to file a second MR of a judgment or a final order.

Nature of a Second MR
The concept of a second MR is one which seeks a further reconsideration of an order
or resolution which denied the first MR. (Gonzales v. Sandiganbayan)

Compatibility of Appeal and Certiroari
Where defendants MNT was denied by the trial court, it has been held that he can
perfect an appeal from the judgment and also proceed on certiorari to set aside the
order denying his MNT. There is no incompatability between the two remedies as one
is directed against the judgment and other, against the order denying the new trial.
(Banco Filipinas Savings & Mortgage Bank v. Campos, L-39905)

Effect of the Absence of Notice of Hearing
Notice is mandatory. It cannot be cured by a belated filing of a notice of hearing.
(People v. CA, 296 SCRA 418)

RULE 38

Court which may grant the petition
Petition for relief from judgment can only be filed in the MTC or RTC despite the
wording in the law that it can be filed in "any court." (Redena v. CA, 514 SCRA 389)

Applicability of the petition in other cases
It is applicable to all kinds of special proceedings, such as land registration, intestate
settlement, and guardianship proceedings. (Regalado)


When petition for relief is available
A petition for relief is an equitable remedy and is allowed only in exceptional cases
from final judgments or orders where no other remedy is available. (Palmares v.
Jimenez, 90 Phil. 773)

It does not apply to an interlocutory order. (Balite v. Cabangon, L-24105)

Periods for filing
The two periods for filing of a petition for relief are not extendible and never
interrupted. (Quijano v. Tameta, L-16473).

These periods cannot be subject to a condition or a contingency. (Vda. de Salvatierra
v. Garlitos). Both periods must be complied with. (Regalado)

60-day period
The 60-day period is reckoned from the time the party acquired knowledge of the
order, judgment or proceedings and not from the date he actually read the same.
(Perez v. Araneta, 103 Phil. 1141)

6-month period
The 6-month period is computed from the date of the entry of the order or judgment.
(Date of the finality of judgment or final order is deemed to be the date of its entry).

Date of Entry of Judgment
A judgment is entered on the date it becomes final and executory. Normally, it is 15
days from the time the parties received the notice of the written judgment where no
appeal has been made or perfected. (Albano)

Who may avail
The petition is available only to parties in a proceeding where the assailed judgment is
rendered. A person who was never a party to the case, or even summoned to appear
therein, cannot avail of a petition for relief from judgment. (Alaban v. CA, 470 SCRA
697)

Order of default, not applicable
Failure to file an answer to the petition for relief does not constitute default as, even
without an answer, the court will still have to hear the petition and determine its
merits. (Regalado)

Nature of Petition for Relief
An order granting a petition for relief from judgment is interlocutory and non-
appelable.

Mistake as a Ground
Mistake must be some unintentional act, omission or error arising from ignorance,
surprise, imposition or misplaced confidence. It is the result of ignorance of law of fact
that has misled a person to commit that which, if he had not been in error, he could
have done it. (Albano, citing Blacks Law Dictionary)

Accident as a Ground
Accident is when the party seeking it had exercised ordinary diligence to ascertain the
facts which it is claimed to have surprised or prevented said party from presenting his
case. (Albano, citing Sunico v. Villapando, 14 Phil. 352)

Negligence of a Lawyer
GR: Clients are bound by the mistakes or omissions of their counsel.
EX: When the mistake of counsel is so palpable that it amounts to gross negligence.
EX to EX: Petitioners have squandered the various opportunities available to them at
the different stages of the case.

RULE 39

Meaning of Execution
It is the remedy afforded for the satisfaction of a judgment. (Cagayan de Oro Coliseum
v. CA, 310 SCRA 731)

Definition of Final Order
For purposes of binding effect or whether it can be subject of execution, an order is
final or executor after the lapse of the reglementary period to appeal and no appeal
has been perfected. (Regalado)

Execution as a Matter of Right
Sec. 1 is the rule on when judgments or orders may be executed as a matter of right,
that is, it becomes the mandatory or ministerial duty of the court to issue a writ of
execution to enforce the judgment. This happens when the judgment becomes
executory. (Regalado, citing Far Eastern Surety & Insurance Co. v. Vda. de Hernandez,
L-30359)


An ex parte motion for the issuance of the writ would suffice since the trial court may
take judicial notice of the record of the case to determine the propriety of the
issuance thereof. (Regalado)

Under Sec. 8, the writ of execution must of necessity be issued by the court where the
judgment or order was entered, that is, the court of origin. (Regalado)

Execution is Discretionary
Under Sec. 2, execution may issue in the discretion of the court even the lapse of the
period to appeal, that is, even before the judgment or order has become executory.
(Regalado)

Court of Appeals has no authority to issue immediate execution pending appeal of its
own decisions therein. Once final and executor, the judgment on appeal must be
remanded to the lower court, where a motion for execution may be filed only after its
entry. (Heirs of Reyes v. CA, GR 135280-81)

Requisites for Discretionary Execution
1. Motion filed by the prevailing party with notice to the adverse party;
2. Hearing of the motion;
3. Good reasons to justify the discretionary execution; and
4. Good reasons must be stated in a special order. (Riano)

Exception to Execution
GR: Where the judgment or order has become executory, the court cannot refuse to
issue a writ of execution.
EX:
1. When subsequent facts and circumstances transpire which render such
execution unjust or impossible;
Ex. Defendant bank was placed under receivership
2. Equitable grounds, as when there has been a change in the situation of the
parties which makes execution equitable;
3. Where the judgment has been novated by the parties;
4. When a petition for relief or an action to enjoin the judgment isfiled and a
preliminary injunction is prayed for and granted;
5. When the judgment has become dormant;
6. Where the judgment turns out to be incomplete, or is conditional. (Regalado)

When Execution Will Be Denied
1. Judgment has already been executed by the voluntary compliance thereof by
the parties;
2. Judgment has been novated by the parties;
3. Petition for relief is filed and a preliminary injunction is granted;
4. Judgment sought to be executed is conditional;
5. Judgment sought to be executed is incomplete;
6. Facts and circumstances transpire which wound render execution inequitable
or unjust;
7. Execution is sought more than 5 years from its entry without judgment
having been revived;
8. Execution is sought against property exempt from execution;
9. Refusal to execute the judgment has become imperative in the higher
interest of justice. (Riano)

When Quashal of Writ is Proper
1. Improvidently issued;
2. Defective in substance;
3. Issued against the wrong party;
4. Judgment has already satisfied;
5. Issued without authority;
6. Change in the situation of the parties renders execution inequitable;
7. Controversy was never validly submitted to the court;
8. Writ varies the terms of the judgment;
9. Where it is sought to be enforced against property exempt from execution;
10. Ambiguity in the terms of the judgment. (Regalado)

When Writ is a Nullity
Where there is substantial variance between the judgment and the writ of execution
issued to enforce the same, said writ is a nullity. (Malacora v. CA, GR 51042)

Appeal not Allowed
No appeal may be taken from an order of execution. (Reliance Surety and Insurance
Co. Inc. v. Amante, Jr., 462 SCRA 399)

Remedies Against an Executory Judgment/Order
1. Petition for Relief
2. Direct attack
Made through (1) an action or proceeding the main object of which is to
annul, set aside, or enjoin the enforcement of such judgment, if not yet
carried into effect; (2) if the property has been disposed of, the


aggrieved party may sue for its recovery. (Banco Espanol-Filipino v.
Palanca, 37 Phil. 921)
Grounds:
1) Lack of jurisdiction
2) Fraud
3) Contrary to Law
3. Collateral Attack
Made when, in another action to obtain a different relief, an attack on
the judgment is made as an incident in said action.
Ground: Patent lack of jurisdiction of the court
4. Annulment of Judgment
The fraud must be extrinsic and committed by the adverse party.
Any person adversely affected thereby can enjoin its enforcement and
have it declared a nullity on the ground of extrinsic fraud and collusion
used in obtaining such judgment. (Militante v. Edrosolano, L-27940)
Jurisdiction: (BP 129)
1) CA Exclusive original jurisdiction to annul the judgment of RTC
2) RTC Jurisdiction to annul judgments of inferior courts in the region

Definition of Supersedeas
It is an auxiliary process designed to superseddde enforcement of a trial courts
judgment brought up for review, and its application is limited to the judgment from
which an appeal is taken. (Regalado, citing Mascot Pictures Corp. v. MC of LA)

The term is used synonymously with a stay of proceedings, and designates the
effect of an act or proceeding which in itself suspended the enforcement of a
judgment. (Regalado, citing Dulin v. Coal Co.)

Execution and Injunction
GR: Appeal does not stay the execution of a judgment decreeing dissolution of a
preliminary injunction.
EX: Judgment in an action for prohibition. (Regalado)

Execution of Judgment May Be Enjoined
1. Petition for relief from judgment with prayer for an injunction or TRO;
2. Annulment of judgment;
3. Novation of judgment. (Albano)

Execution Upon Good Reasons
Even before judgment has become executor and before appeal was perfected, the
court, in its discretion, may order execution upon good reasons to be stated in a
special order, such as:
1. Where the lapse of time would make the ultimate judgment ineffective, as
where the debtors were withdrawing their business and assets from the
country;
2. Where appeal is clearly dilatory;
3. Where judgment is for support and the beneficiary is in need thereof;
4. Where the articles subject of the case would deteriorate;
5. Where defendants are exhausting their income and have no other property
aside from the proceeds from the subdivision lots subject of the action;
6. Where the judgment debtor is in imminent danger of insolvency, or is
actually insolvent;
Not apply where, assuming that one of the judgment debtors is
insolvent, the other judgment co-debtor is not and, under the terms of
the judgment, the liability of the latter is either subsidiary to or solidary
with the former. (PNB v. Puno, GR 76018)
7. Where the prevailing party is of advanced age and in a precarious state of
health, and the obligation in the judgment is non-transmissible;
8. Where there is uncontradicted evidence showing that, in order to house
machineries which they were forced to place on a public street, movants
were in extreme need of the premises subject of the suit and the possession
whereof was adjudged to them in the trial courts decision, and the
corresponding bond to answer for damages in case of reversal on appeal had
been posted by them;
9. Where the case involved escrow deposits and the prevailing party posts
sufficient bond to answer for damages in case of reversal of the judgment.
Mere filing of a bond is not a good reason for the execution of a money
judgment pending appeal. (Belfast Surety & Insurance Co. v. Solidum).
The factual context in which such orders were allowed must also be
taken into consideration. (Roxas v. CA, GR 56960)
10. Preventing irreparable injury to the consumers of an electric cooperative;
11. Goods subject of the judgment will perish or deteriorate during the
pendency of the appeal;
12. Failure in an unlawful detainer case to make the required periodic deposits
to cover the amount of rentals due under the contract or for payment of the
reasonable value of the use and occupation of the premises, or the failure to
post a supersedeas bond.


Certiorari lies against an order granting execution pending appeal where the same is
not founded upon good reasons. (Jaca v. Davao Lumber Co., L-25771)

Suspension of Writ as a Matter of Right
Filing of supersedeas bond does not entitle the judgment debtor to the suspension of
execution as a matter of right. (Regalado)

When to File Motion for Execution
As long as such motion is filed before the appeal is perfected, the writ may issue after
the period for appeal. (Universal Far East Corp. v. CA, GR 64931)

Order for Execution and Counterbonds
An order for execution of a judgment pending appeal can be enforced on a
counterbond which was posted to lift the writ of preliminary attachment issued by
the trial court. (Phil. British Association Co. v. IAC, GR 72005)

Effect of Reversal of Executed Judgment
1. In the property is still in the possession of the judgment creditor
Return the property plus compensation to judgment debtor
Effected by motion to the trial court
2. If restitution is not possible
Purchaser at the public action was the judgment creditor
= Pay full value of the property at the time of its seizure, plus interest
Purchaser at the public action was a third person
= Judgment creditor must pay the judgment debtor the amount realized
from the sale of said property at the sheriffs sale, with interest
Judgment award was reduced on appeal
= Judgment creditor return to judgment debtor only the excess which he
received over and above that to which he is entitled under the final
judgment, with interest on such excess. (Po Pauco v. Tan Juco, 49 Phil.
349)

Modes of Execution of a Judgment
1. Execution by motion if the enforcement of the judgment is sought within 5
years from the date of its entry; and
2. Execution by independent action if the 5-year period has elapsed and before
it is barred by the statute of limitations. (Riano)

5-year Period and Date of Entry (Sec. 6)
The 5-year period is to be counted not from the date the judgment became final in
the sense that no appeal could be taken therefrom but when it became executor in
the sense that it could already be enforced. (Tan Ching Ji v. Mapalo, L-21933)

However, if it is a judgment based on a compromise which is immediately final and
executor, prescription runs from the date of its rendition and not from the date of
entry. (Jacinto v. IAC, GR 66478)

If a writ of execution was issued and levy made on the property within the 5-year
period, the sale of the property thereafter will be valid provided it is made within the
10-year period. (Regalado)

Failure to object to a writ of execution issued after 5 years from judgment does not
validate the writ. (Regalado)

When 5-year Period May Be Extended
1. Financial difficulties of the debtor;
2. Suspended by agreement of the parties, especially if it was with court
approval;
3. Repealed refusal or failure of the sheriff to enforce the same;
4. Suspended by order of the court;
5. Interrupted by the filing of a motion for examination of the judgment debtor
and an action for mandamus by the judgment creditor;
6. Due to the acts of the judgment debtor;
7. Judgment creditors had complied with virtually all the requirements, and
delay was imputable to the government agencies involved. (Regalado)

When 5-year period Is Interrupted
1. Causes clearly attributable to the judgment debtor as when he employs legal
maneuvers to block the enforcement of the judgment;
2. Agreement of the parties. (Riano)

Action for Revival of Judgment
After 5 years and within 10 years from entry of the judgment, such judgment
becomes a mere right of action and if unsatisfied, the prevailing party can file an
action for revival of judgment. (Regalado)

The 10-year period for revival of judgment is counted from the date of its finality.
(PNB v. Deloso, L-28301)


If an amendatory or calrificatory judgment was rendered, it is from the date of the
entry thereof that the 10-year period is reckoned. (Sta. Romana v. Lacson, L-27754)

The 10-year period is to be reckoned from the finality of the original judgment; hence,
if within that period a judgment reviving the original judgment was obtained but again
remained unsatisfied, a second revival action beyond the prescriptive 10-year period
is not allowed. (PNB v. Deloso)

An action to revive a judgment is a personal one and not quasi in rem. (Regalado)

Instances where Sec. 6 does not apply
1. Judgments for support
EX: Support in arrears beyond 10 years from the date they become due
2. Contempt orders by reason of unauthorized reentry on the land by the
ejected defendant
3. Writs of possession in foreclosure cases within the statute of limitations
4. Special proceedings like land registration cases (Regalado)

Judgments Which May be Revived
Sec. 6 makes no distinction as to the kind of judgment which may be revived by
ordinary independent action.

Jurisdiction to Change Judgment versus Jurisdiction to Enforce Judgment
JURISDICTION TO CHANGE JUDGMENT JURISDICTION TO ENFORCE JUDGMENT
Terminates when the judgment
becomes final
Continues even after the judgment has
become final
Rules 39, Section 1 Rule 39, Section 6

Stay of Execution
GR: An appeal perfected in due time stays the execution of judgment.
EX:
1. Judgments which by express provision of the rules are immediately
executory and are not stayed on appeal; and
2. Judgments that have become the object of discretionary execution.

Immediately Executory Judgments
There must be a motion to that effect and a hearing called for that purpose. (Lou v.
Siapno, 335 SCRA 181)

Substantial errors in a judgment which could not be amended after the judgment
has already become final and executory
1. Error in the time fixed by a judgment for the payment of a certain sum of
money;
2. Error in the judgment ordering the payment of interest;
3. Error in the judgment declaring the liability of the defendants to be joinedt
instead of in solidum;
4. Error in the judgment ordering petitioner a different piece of land;
5. Error in including the moratorium clause in the judgment;
6. Error in declaring the plaintiff merely as the owner of the land, and failing to
eject the defendant as well;
7. Error in the judgment ordering the defendant to pay only P11,717.48 instead
of the correct amount of P14,030;
8. Error in the judgment fixing the rate to be charged by a public service;
9. Error in failing to make an award of back wages which should have been
made after the court found the employer guilt of unfair labor practice.
(Albano)

When Judgment Obligor Dies
If he dies after the entry of judgment but before levy on his property, execution will
issue if it be for the recovery of real or personal property. If the judgment is for a sum
of money, such judgment cannot be enforced by writ of execution but must be filed as
a claim against his estate. (Paredes v. Moya, L-38051)

If he dies after levy has been made, the execution sale may proceed. It is the actial
date of levy on execution which is the cutoff date. (Evangelista v. La Proveedora, L-
32834)

Void Writs of Execution
A writ of execution must conform with the judgment and if it is different from or
exceeds the terms of the judgment, it is a nullity. (Villoria v. Piccio, 95 Phil. 802)

A writ of execution is void when issued for a greater sum than is warranted by the
judgment despite partial payment thereof. The exact amount due cannot be left to
the determination of the sheriff. (Windor Steel Mfg. v. CA, L-34332)

Subject of Execution
GR: The portion of the decision that becomes subject of execution is that ordained or
decreed in the dispositive part thereof.
EX:


1. Where there is ambiguity or uncertainty, the body of the opinion may be
referred to for purposes of construing the judgment;
2. Where extensive and explicit discussion and settlement of the issue is found
in the body of the decision. (Regalado)

Instances When Writ of Possession May be Issued
1. Land registration proceedings
2. Extrajudicial foreclosure of real estate mortgage
3. Judicial foreclosure of real estate mortgage, provided the mortgagor is in
possession of the mortgaged property and no third person, not a party to the
foreclosure suit, had intervened
4. Execution sales. (Mabale v. Apalisok, L-46942)

Remedy for Issuance of Writ of Execution
Appeal is the remedy from an order denying the issuance of a writ of execution.
(Socorro v. Ortiz) However, an order granting the issuance of a writ of execution is not
appealable, except where (1) order varies the terms of the judgment; (2) being vague,
the court renders what is believed to be a wrong interpretation of judgment.

When Appeal is not Permitted
A party who has voluntarily executed a judgment, or who voluntarily acquiesces in or
ratifies, the execution of such judgment, is not permitted to appeal it. (PVTA v. De los
Angeles, L-30085)

Remedy When a Party Refuses to Yield Possession of a Property Ordered by a Writ
of Execution
Contempt is not the remedy. The sheriff must oust said party from the property but if
demolition is involved, there must be a hearing on motion and due notice for the
issuance of a special order. (Regalado)

A writ of execution directing the sheriff to cause the defendant to vacate is in the
nature of a habere facias possessionem and authorizes the sheriff, without the need
of securing a break open order, to break open the premises where there is no
occupant therein. (Arcadio v. Ylagan, AC 2734)

Definition of Special Judgment under Sec. 12
It is one which requires the performance of any act, other than the payment of money
or the sale or delivery of real or personal property, which a party must personally do
because his personal qualifications and circumstances have been taken into
consideration. Refusal to comply is punishable by contempt. (Chinese Commercial
Property CO. v. Martinez, L-18565)

Definition of Judgment for Specific Acts under Sec. 10
It directs a party to execute conveyance of land, or to deliver deeds or other
documents, or to perform any other specific acts in connection therewith but which
acts can be performed by persons other than said party. The disobedient party incurs
no liability for contempt. (Regalado)

Definition of Levy
It means the act/s by which an officer sets apart or appropriates a part or the whole
of the property of the judgment debtor for purposes of the prospective execution
sale. (Regalado)

Without a valid levy having been made, any sale of the property thereafter is void.
(Valenzuela v. Aguilar, L-18083)

Definition of Garnishment
It is the act of appropriation by the sheriff where the property involved is money,
stocks or other incorporeal property in the hands of third persons. (Regalado, citing
De la Rama v. Villarosa, L-19727)

Garnishment of a bank deposit of the judgment is not a violation of RA 1405 (on
secrecy of bank deposits). (China bank v. Ortega, L-34964)

Execution for a judgment for the delivery or restitution of real property
The 3-day notice is required even if judgment against the defendant is immediately
executory. (Manuel v. Escalante, GR 134141)

Exemption from Execution May be Waived
These exemptions must be claimed, otherwise they are deemed waived. (Herrera v.
McMicking, 14 Phil. 641). It is not the duty of the sheriff to set off the exemptions on
his own initiative. (Regalado)

Other properties exempt from execution
1. Property mortgaged to the DBP (CA 45);
2. Property taken over by the Alien Property Administration (US Trading With
the Enemy Act);
3. Savings of national prisoner deposited with the Postal Savings Bank (Act
2489);


4. Backpay of pre-war civilian employees (RA 304);
5. Philippine Government backpay to guerillas (RA 897);
6. Produce, work animals and farm implements of agricultural lessess, subject
to limitation (RA 6389);
7. Benefits from private retirement systems of companies and establishments,
with limitations (RA 4917);
8. Laborers wages, except for debts incurred for food, shelter, clothing and
medical attendance (Art 1708 of CC);
9. Benefit payments from the SS (RA 1161);
10. Copyrights and other rights in intellectual property (RA 8293);
11. Bonds issued under RA 1000 (NASSCO v. CIR, L-17874).

Liability under Third-Party Claim
Where a third-party claim has been filed in due form, the prevailing party can compel
the sheriff to proceed by the filing of a bond to answer for damages that may be
incurred as a consequence of the execution. (Regalado)

If the sheriff proceeds with the sale without such bond, he will be personally liable for
such damages as may be sustained by and awarded to the third-party claimant. (Bayer
Phil. v. Agana, L-38701)

Rights of Third-Party Claimants
The rights of third-party claimants should not be decided in the action where the
third-party claims are presented, but in a separate action which the court should
direct the claimants to file. (San Francisco Oil & Paint Co. v. Bayer Phil, L-38801)

Action for Damages and Surety
In the action for damages upon the bond filed by the judgment creditor, the surety
must be impleaded, otherwise the judgment therein cannot be enforced against the
bond. (Montojo v. Hilario, 58 Phil. 372)

Remedies of a Third-Party Claimant
1. Summary hearing before the court which authorized the execution;
2. Terceria or thid-party claim filed with the sheriff;
3. Action for damages on the bond posted by the judgment creditor;
4. Independent reivindicatory action.
These are cumulative remedies and may be resorted to by a third-party claimant
independently of or separately from and without need of availing of the others.
(Regalado)

Claim of Impropriety, who can file
A separate case, distinct from that in which the execution was issued, is proper if
instituted by a stranger to the latter suit.

If the claim of impropriety in t he execution is made by a party to the action, not a
stranger thereto, any relief therefrom may only be applied for and obtained from the
executing court. (Regalado)

Sale Without Notice
The sale is null and void. (Ago v. CA, L-17898), and subjects the officer to liability for
damages. (Regalado)

The creditor who induced the sheriff to sell without notice will be solidarily liable with
the tortfeasor. (Campomanes v. Bartolome, 38 Phil. 808)

Persons Who are Disqualified from Bidding and Purchasing at the Public Auction
1. Officer conducting the execution sale or his deputy
2. See Article 1491 of CC
3. Seller of goods who exercises the right of resale

Remedy against Irregular Sale
The remedy is a motion to vacate or set aside the sale to be filed in the court which
issued the writ of execution. (Regalado)

Effects of Inadequate Price
A shocking inadequacy of price at a judicial sale warrants the setting aside thereof and
such sale is null and void, but this rule does not apply to conventional sales.

Mere inadequacy of price is not material since the judgment debtor may reacquire
the property or sell his right to redeem and thus recover any loss he claims to have
suffered by reason of the price obtained at the execution sale. (Regalado)

Measure of Damages by Judgment Creditor
He is entitled to the difference between the amount which would have been realized
were it not for the illegal intervention (but not to exceed the judgment account) and
the total amount which he actually recovered on the judgment from all sources,
including the amount realized at the auction sale, plus the expenses incurred as a
consequence of the illegal intervention. (Mata v. Lichauco, 36 Phil. 809)

Pay in Cash


When there is a third-party claim, the judgment creditor must pay his winning bid in
cash. (Filipinas Colleges v. Timbang, L-12812)

Right of Redemption
There is no right of redemption where the property sold at judicial sale is personal
property.

Where the property sold is real property, the period of redemption is one year from
and after the registration of the certificate of sale. If said certificate is not registered,
the period of redemption does not run. (Regalado)

Where the parties agreed on the date of redemption, the period is that agreed upon.
(Lazo v. Republic Surety & Insurance Co., L-27365) also known as Conventional
Redemption

The right of redemption is transferable and may be voluntarily sold, but said right
cannot be levied upon by the judgment creditor so as to deprive the judgment debtor
of any further rights to the property. (Regalado)

The periods for redemption in Sec. 28 are not extendible or interrupted. (Regalado)

Nature of Certificate of Sale
It is merely a memorial of the fact of sale and does not confer any right to the
possession, much less the ownership, of the real property purchased. It is the deed of
sale executed by the sheriff at the expiration of the period of redemption which
constitutes effective conveyance of the property sold and entitles the purchaser to
possession of the property sold. (Gonzales v. Calimbas, 51 Phil. 358)

Definition of Successor In Interest
It includes a person to whom the judgment debtor has transferred his right of
redemption, or one to whom he has conveyed his interests in the property for
purposes of redemption, or one who succeeds to his property by operation of law, or
a person with a joint interest in the property , or his spouse or heirs. (Magno v. Viola,
61 Phil. 80)

Piecemeal Redemption
GR: It is allowed in redemption of properties sold at an execution sale.
EX:
1. Redemption of properties mortgaged with the PNB or DBP and which were
foreclosed = Redemptioner must pay all the amounts owed by the debtor on
said mortgagee;
2. Foreclosures by banking institutions.

Caveat Emptor Applies to Judicial Sales
Caveat emptor applies to judicial sales of both real and personal property and the
sheriff does not warrant the title of the property thus sold. (Pablico v. Ong Pauco, 43
Phil. 572)

Right of Repurchaser Retroact to Date of Levy
Since the sale retroacts to the date of the levy, any disposition of lien in favor of third
persons created by acts of the debtor after the levy on real property shall not be
binding against the purchaser to whom a final deed of sale was subsequently issued.
(Guerrero v. Agustin, L-18117)

Jurisdiction of Court Issuing Writ of Execution
A case in which execution has been issued is regarded is still pending and the court
which rendered judgment has a general supervisory control over the execution
proceedings with the right to determine every question of law or fact involved
therein. Only when the judgment has been fully satisfied does the same pass beyond
review by said court. (Seavan Carrier v. GTI Sportswear Corp., GR 65953)

Difference Between Res Judicata and Conclusiveness of Judgment
Res Judicata Conclusiveness of Judgment
Parties and causes of action in both
actions are identical or substantially the
same
Parties in both actions may be the same
but the causes of action are different
Judgment in the first action is conclusive
as to every matter offered and received
therein and as to any other matter
admissible therein and which might
have been offered for that purpose
Judgment in the first action is binding
only with respect to the matters actually
raised and adjudged therein
Judgment in the first action is an
absolute bar to a subsequent action for
the same cause
Judgment in the first action is not a bar to
another action between the same parties
but on a different cause of action

Requisites of Res Judicata
1. Former judgment or order must be final and executory;


2. It must be a judgment or order on the merits;
3. It must have been rendered by a court, having jurisdiction over the subject-
matter and the parties; and
4. There must be, between the first and second actions, identity of parties, of
subject matter and of cause of action. (Regalado)

Meaning of Identity of Parties
1. Where the parties in both actions are the same;
2. Ehere the actions are between those in privity with them, as between their
successors in interest by title subsequent to the commencement of the
action, litigating for the same thing and under the same title and in the same
capacity;
3. Where there is substantial identity even if there are additional parties,
especially so where the additional party was not a proper party in the first or
second action, or is a mere nominal party. (Regalado)

Meaning of Identity of Cause of Action
When the judgment sought will be inconsistent with the prior judgment, or if the
same evidence will sustain the second action even if the forms or nature of the
actions be different. (Regalado)

Execution of Foreign Judgment
The judgment of a foreign tribunal cannot be enforced by execution in the Philippines.
Such judgment only creates a right of action and its non-satisfaction, a cause of
action, and it is necessary that a suit be brought upon said foreign judgment in our
local courts. (Perkins v. Benguet Consolidated Mining Co., 93 Phil 1035)

Foreign Judgment, if in personam
The judgment of a foreign court is only presumptive evidence of a right on the part of
the prevailing party and if suit thereon is brought in the Philippines, the same may be
repelled by evidence of clear mistake of law. (Soorajmull Nagarmull v. Binalbagan
Isabela Sugar Co., L-22470)

APPEALS

Nature of the Right to Appeal
The right to appeal is not a natural right or part of due process. It is merely a statutory
privilege and may be exercised only in the manner and in accordance with the
provisions of the law or rule. (Ortiz v. CA, GR 127393)

Order/Judgment That Cannot Be Appealed From and Remedies
Order/Judgment Remedy
Order denying petition for relief or any
similar motion seeking relief from
judgment
Petition for Certiorari or Prohibition
under Rule 65
Interlocutory order Rule 65
Order disallowing or dismissing an
appeal
1. Certiorari
Order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent
2. Action to annul judgment
3. Petition for certiorari
Order of execution Petition for Certiorari
Judgment or final order for or against
one or more several parties or in
separate claims, counterclaims, cross-
claims, and third-party claims, while the
main case is pending
1. Wait for the decision in the entire
case then appeal
2. May allow a separate appeal
Order dismissing an action without
prejudice
1. Refile his complaint
2. Petition for Certiorari

Issues that Appellate Court Decides On Appeal
GR: For an appellate court to consider a legal question, it should have been raised in
the court below. (PNOC v. CA, 457 SCRA 32)
EX:
1. Error affects the jurisdiction over the subject matter;
2. Error affects the validity of the judgment appealed from;
3. Error affects the proceedings;
4. Error closely related to or dependent on an assigned error and properly
argue in the brief;
5. Plan and clerical error;
6. If it finds that their consideration is necessary in arriving at a just decision of
the case. (Albano)

Rules on Appeal
1. No trial de novo.
GR: Decide the case on the basis of the record.


EX: When proceedings were not duly recorded as when there was absence of
a qualified stenographer.
2. No new parties.
3. No change of theory.
4. No new matters.
5. There can be amendments of pleadings to conform to the evidence
submitted before the trial court.
6. The liability of solidary defendant who did not appeal is not affected by
appeal of solidary debtor.
7. Appeal by guarantor does not inure to the principal.
8. In ejectment cases, the RTC cannot award to the appellant on his
counterclaim more than the amount of damages beyond the jurisdiction of
the city courts.
9. Appellate court cannot dismiss the appealed cases for failure to prosecute
because the case must be decided on the basis of the record. (Albano)

Effect of mere filing of notice of appeal
The mere filing by one party of a notice of appeal does not divest the court of its
jurisdiction over a case and to resolve pending incidents. (Valencia v. CA, 352 SCRA
72)

Perfection of an Appeal
The perfection of an appeal in the manner and within the period prescribed by law is
not only mandatory but jurisdictional. (Manila Memorial Park Cemetery v. CA, GR
137122)

Ordinary Appeal Deemed Perfected
A record on appeal needs to be approved by the trial court. But a notice of appeal
does not require courts approval. (Kho v. Camacho, GR 82789)

Period for Perfecting an Appeal
Appeal Reglementary Period
Notice of Appeal Within 15 days from notice of the
judgment or final order appealed from
Notice of Appeal and Record of Appeal Within 30 days from notice of judgment
or final order appealed from
Appeal in habeas corpus Within 48 hours from notice of judgment
or final order appealed from
Appeal in amparo cases Within 5 working days from the date of
notice of the adverse judgment
Appeal in habeas data Within 5 working days from the date of
notice of the adverse judgment
Custody of minors and writ of habeas
corpus in relation to custody of minors
Within 15 days from notice of the denial
of the MR/MNT
Annulment of voidable marriages,
declaration of absolute nullity of void
marriages, and legal separation
Within 15 days from notice of the denial
of the MR/MNT

A motion for extension of time to file the notice of appeal is not allowed. (PCIB v.
Ortiz, GR L-49223)

Exceptional Circumstances When SC Relaxed the Rules on the Application of the
Reglementary Periods of Appeal
1. Questioned decision of the trial court was served upon the appellant at a
time when her counsel of record was already dead.
2. Perfection of an appeal by the Republic.
3. Subject matter in issue had already been judicially settled with finality in
another case.

Neyes Rule
If the motion is denied, the movant has a fresh period of 15 days from receipt of
notice of the order denying or dismissing the MR/MNT within which to file a notice of
appeal. It applies only to appeals (Rules 40-43, 45). The new 15-day period may be
availed of only if either motion (MR/MNT) is filed. (Neypes v. CA, GR 141524)

Extension of time, when permitted
The reglementary period for the filing of the record on appeal when required may be
extended, but the period for perfecting an appeal may not be extended for the
purpose of filing a MR/MNT. (Regalado, citing Roque v. Gunigundo)

Where file Motion for Extension
Such a motion may be filed only in cases pending with the SC as the court of last
resort, which may in its sound discretion, either grant or deny the extension
requested. (Sps. Baniqued v. Ramos, GR 158615)

Withdrawal of Appeal that Has Already Been Perfected


An appeal may be withdrawn as a matter of right at any time before the filing of the
appellees brief. Thereafter, the withdrawal may be allowed in the discretion of the
court.

When to File Appellant/Appellee Brief
MTC to RTC
Both Civil and Criminal Cases File appellants brief within 15 days from
receipt of the notice of the clerk of court
File appellees brief within 15 days from
receipt of the appelllants brief
RTC to CA
Civil Cases File appellants brief within 45 days from
receipt of notice of the clerk of court
receipt of the appellants brief
Criminal Cases File appellants brief within 30 days from
receipt of the notice of the clerk of court
receipt of the appellants brief

Examples of Cases of Multiple Appeals
1. Action for expropriation
Order of expropriation
Judgment fixing the just compensation
2. Action for foreclosure of real estate mortgage
Judgment on foreclosure
Order confirming the sale
3. Action for partition
Order of partition
Judgment of partition
4. Action for recovery of property with accounting
5. Special proceedings

Meaning of Residual Jurisdiction of the Court
Prior to the transmittal of the original record to the appellate court, the trial court
retains jurisdiction:
1. To issue orders for the preservation of the rights of the parties, which do not
involve any matter litigated by appeal;
2. To approve compromise prior to transmittal of records;
3. To permit appeals by an indigent;
4. To order execution pending appeal; and
5. To allow withdrawals of appeals. (Albano)

Nature of Partial Summary Judgment
A partial summary judgment is interlocutory. (Prov. of Pangasinan v. CA, GR 104266)

By way of exception, an appeal from a partial summary judgment may be made
provided the court allows it. But where the exception is applicable, a notice of appeal
and record on appeal would be necessary. (GSIS v. Philippine Village Hotel, GR
150922)

Nature of Summary Judicial Proceeding
Judgment of the court in summary judicial proceedings under the Family Code is
immediately final and executory. Therefore, there is no reglementary period within
which to perfect an appeal. An appellate court acquires no jurisdiction to review a
judgment which, by express provision of law, is immediately final and executory.
(Republic v. Bermudez-Lorino, GR 160258)

Failure to Pay Appellate Court Docket Fee
Payment in full of the docket fee within the prescribed period is mandatory.

This rule must be qualified, to wit:
1. Failure to pay the appellate docket fee within the reglementary period allows
only discretionary dismissal, not automatic dismissal, of the appeal;
2. Such power to dismiss should be used in the exercise of the courts sound
discretion in accordance with the tenets of justice and fair play and with
great deal of circumspection considering all attendant circumstances.
(Republic v. Luriz, GR 158992)

Payment of appellate court docket fees within the 15-day reglementary period is
mandatory for the perfection of all appeals:
1. To the CA from a decision of the RTC rendered in the exercise of its appellate
jurisdiction under Rule 42, Sec/ 8;
2. Appeal from the CA to the SC under Rule 45, Sec. 5. (Badillo v. Tayag, GR
145846)

Competence to Rule on Appeal
It is the appellate court that may dismiss the appeal for failure to prosecute. (Esperas
v. CA, 341 SCRA 583)



Rules on Appeal from the Judgments of the RTC
Original Jurisdiction
1. To the CA Questions of fact or mixed
questions of fact and law
Notice of Appeal; (Record
on Appeal only in specpro
and multiple appeals)
2. To the SC Questions of law Petition for review on
certiorari under Rule 45
Appellate Jurisdiction Questions of fact, of law,
or mixed questions of fact
and law
Petition for review under
Rule 42

RTC Reverses the Order of Dismissal of the MTC
RTC shall remand the case to the MTC for further proceedings since the reversal is an
adjudication by it that the MTC has jurisdiction over the subject matter of the action.
(Herrera v. Bollos, GR 13858)

RTC affirms the Order of Dismissal
RTC, if it has jurisdiction over the subject matter of the action, shall try the case on
the merits as if the case was originally filed with it.

If the RTC likewise has no jurisdiction, then it shall not try the case, and the case shall
remain dismissed.

What to File
RULE 43 RULE 45 (SC) RULE 65
Administrative
disciplinary cases of the
Ombudsman
Decisions of the
Sandiganbayan
Decisions of the NLRC (CA)
Judgments of the CSC Decisions of the CTA en
bank
Cases where Ombudsman
acted with GALAEJ and in
criminal cases (SC)
Judgments of the Office of
the President
Judgment or final order of
the RTC (original
jurisdiction)
Judgments of the
COMELEC (SC)
RTC decision for intra-
corporate disputes and
corporate rehabilitation
Judgment, final order, or
resolutions of the CA
Judgments of the
Commission on Audit (SC)
Judgment or final order in
a petition for a writ of
amparo to the SC
questions of law, of fact,
or both
Judgment or final order in
a petition for a writ of
habeas data questions of
law, of fact, or both

Parties Bound by Judgment
GR: In appellate proceedings, the reversal of the judgment on appeal is binding only
on the parties in the appealed case and does not affect or inure to the benefit of
those who did not join or were not made parties to the appeal.
EX: Judgment cannot be reversed as to the party appealing and liabilities of the
parties appealing are so interwoven and dependent on each other as to be
inseparable. (Rep. v. Institute for Social Concern, GR 156306)

Effect of those who did not appeal from a judgment
A party who did not appeal from a decision of a court cannot obtain affirmative relief
other than that granted in the appealed decision. (Radiowealth Finance Company v.
Del Rosario, 335 SCRA 288)

This applies to decisions of administrative or quasi-judicial tribunals. (Cabatulan v.
Buat, GR 147142)

GR: Appellate courts cannot reverse or modify decisions as to those who did not
appeal.
EX:
1. Trial court failed to award interest on damages which may be awarded by the
CA in its discretion.
2. Exemplary damages and attorneys fees that were erroneously deleted by
the CA.
3. If the court affirms the decision on appeal or clarifies it, it may increase the
award of damages. (Albano)

Motion to Dismiss an Appeal
RTC can entertain a motion to dismiss an appeal, provided that the record has not yet
been transmitted. (Vivo v. Arca, 13 SCRA 771)


If the record has already been transmitted to the appellate court, the appeal may be
dismissed on the ground that
1. Same was taken out of time; or
2. Issue raised in the appeal to the CA are purely legal. (Murillo v. Consul, 183
SCRA 11)

RULE 45

Not a matter of right
Every appeal to the SC is not a matter of right but of sound judicial discretion with the
exception of cases where the penalty of death or reclusion perpetua where an appeal
is a matter of right leaving the reviewing court without any discretion. (People v.
Flores, GR 170565)

Only Questions of Law
GR: SC cannot pass upon in a petition for review on certiorari factual findings of a
lower court.
EX:
1. Where there is grave abuse of discretion;
2. When the finding is grounded merely on speculations, surmises or
conjectures;
3. when the inference made is manifestly mistaken, absurd or impossible;
4. When the judgment of the CA was based on misapprehension of facts;
5. When the factual findings are themselves conflicting;
6. When the CA, in making its findings, went beyond the issues of the case and
the same are contrary to the admissions of both appellant and appellee;
7. When the CA manifestly overlooked certain relevant facts not disputed by
the parties and which, if properly considered, would justify a different
conclusion;
8. Where the findings of fact of the CA are contrary to those of the RTC;
9. Where the findings of fact are mere conclusions without citation of specific
evidence on which they are based; and
10. Where the findings of fact of the CA are premised on the absence of
evidence and are contradicted by the evidence on record;
11. Writ of Amparo;
12. Writ of Habeas Data. (Riano)

Certiorari under Rule 45 versus Certiorari under Rule 65
Petition for Review on Certiorari (R 45) Petition for Certiorari (R 65)
Mode of appeal Special civil action
Continuation of the appellate process
over the original case
Independent action
Seeks to review final judgments or final
orders
May be directed against an interlocutory
order or matters where no appeal may
be taken from
Questions of law Questions of jurisdiction
Filed within 15 days from notice of
judgment or final order appealed from
Filed not later than 60 days from notice
of judgment, order or resolution, or from
notice of denial of MR
Not require a prior MR Prior MR is required
Stays the judgment appealed from Does not stay the judgment or order
subject of the petition unless enjoined or
restrained
Parties are the original parties with the
appealing party as the petitioner and
the adverse party as respondent without
impleading the lower court or its judge
Parties are the aggrieved party against
the lower court or quasi-judicial agency
and the prevailing parties
Filed with SC Filed with RTC, CA, SC

Mutually Exclusive Application
GR: A party cannot file a petition both under Rules 45 and 65 of the Rules of Court.
EX: For justifiable reasons as when the petition before the court is clearly meritorious
and filed on time.

Material Data Rule
This requires the petitioner to indicate the material dates showing
1. When notice of the judgment, final or order subject of the petition was
received;
2. When a MNT or MR, if any, was filed; and
3. When notice of the denial of MNT/MR was received.

60-day period
GR: 60-day period must be considered non-extendible.
EX: Good and sufficient reason can be shown. (LBP v. Saludanes, GR 146581)

Definition of Question of Law
It is when the doubt or difference arises as to what the law is on a certain state of
facts. (Medina v. Asistio, Jr., 191 SCRA 218)


Definition of Question of Fact
It is when the doubt or difference arises as to the truth or the falsehood of alleged
facts. (Medina v. Asistio, Jr., 191 SCRA 218)

SCs jurisdiction over decisions of the Sandiganbayan
GR: SCs jurisdiction over the Sandiganbayans decisions or final orders is limtie only to
questions of law.
EX:
1. Conclusion is a finding grounded entirely on speculation, surmise and
conjecture;
2. Inference made is manifestly mistaken;
3. Grave abuse of discretion;
4. Judgment is based on a misapprehension of facts;
5. Findings of fact are premised on the absence of evidence; and
6. Findings of fact are contradicted by evidence on record. (Mendoza v. People,
GR 146234)

RULE 47

Nature of the Action
It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for
relief from judgment, or other appropriate remedies are no longer available through
no fault of the petitioner, and is based on only two grounds: extrinsic fraud, and of
jurisdiction or denial of due process. (Alaban v. CA, 470 SCRA 697)

Definition of Extrinsic Fraud
It is where a litigant commits acts outside of the trial of the case, the effect of which
prevents a party from having a trial, a real contest, or from presenting all of his case
to the court, or where it operates upon matters pertaining not to the judgment itself
but to the manner in which it was procured so that there is not a fair submission of
the controversy. (Strait Times v. CA, 294 SCRA 714)

Allowing Extraneous Evidence in an Action for Annulment of Judgment
If the action is based on lack of jurisdiction over the person of the defendant or
subject matter, only evidence found in the records of the case can justify the
annulment of said judgment.

If the action is based on extrinsic fraud, extraneous evidence is admissible. (Arcelona
v. CA, 280 SCRA 20)

Instances Action for Annulment of Judgment Does Not Apply
1. Judgments of the Ombudsman. (Macalalag v. Ombudsman, GR 147995)
2. Judgments of NLRC (Elcee Farms v. Semillano, GR 150286)
3. Levy and sale at public auction of property or the certificate of sale executed
by the sheriff over said property
4. Action to nullify a writ of execution (Guiang v. Co, GR 146996)

Remedy of Aggrieved Person
His remedy is a petition for review on certiorari under Rule 45. (Linzag v. CA, 291 SCRA
304)

Annulment of Judgments of Quasi-Judicial Bodies
A party aggrieved by a judgment or resolution of a quasi-judicial body enumerated
under Rule 43 may avail of a petition for review to the CA under Rule 47 and not an
action to annul the judgment or resolution. (Riano)

RULE 50

Appeal Not Filed in the Proper Court
An appeal erroneously taken to the CA shall not be transferred to the appropriate
court but shall be dismissed outright. (Atlas Consolidated Mining & Dev. Corp. v. CA,
201 SCRA 51)

RULE 51

Material Errors in the Proceedings
GR: When the appellate court finds that there is material error in the proceedings, it
should remand the case for retrial.
EX: If the SC can resolve the dispute on the basis of the records before it. (Albano)

Damages in favor of Appellee
GR: Damages in favor of appellee who did not appeal may not be increased.
EX:
1. Award of legal interest at the discretion of the court.
2. Award of attorneys fees.
3. Exemplary damages. (Albano)

Effect of Reversal on Appeal


A reversal of judgment on appeal is binding on the parties to the suit but does not
inure to the benefit of parties who did not join in the appeal. (Cayaba v. CA, 210 SCRA
561)

Commentaries (Aguilar, Albano, Herrera, Regalado, Riano) & Jurisprudence

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Commentaries (Aguilar, Albano, Herrera, Regalado, Riano) & Jurisprudence

Uploaded by

Copyright:

Available Formats

GRACE XAVIERE E.

ESCOSIA | ATENEO LAW 4A 2011

You might also like