TRANSCRIBED DEAN ORTEGA NOTES

CIVIL PROCEDURE
PART I ORDINARY CIVIL ACTIONS
- Anna Fe Abad & Darrell Lao Bagang -

CHAPTER 1
First Step - Filing The Complaint In The Proper Barangay
Republic Act 7160 Chapter 7: Katarungang Pambaranggay
Section 412 No complaint or petition shall be commenced without the partys confrontation before the
proper barangay. Otherwise, the adverse party can file a motion to dismiss the case.
- Clerk of court ordered not to docket a case without certification issued by the barangay secretary.
Requisites for a complaint to be governed by the katarungang pambarangay
1. The parties to the controversy are all natural persons and no juridical entity is involved.
2. If any of the parties are public officers, the controversy should not involve the performance of their
public functions or duty.
3. Parties must reside in the same city or municipality not necessarily the same barangay.
EXPTN: where the parties reside in adjoining barangays, although in different cities or
municipalities, if they agreed to submit their dispute to the proper barangay.
4. When the dispute involves REAL PROPERTY, such property must be situated in the same city or
municipality where the parties reside. (forcible entry and ejectment included)
5. The controversy should not arise from an employer-employee relationship or it must not be a labor
dispute.
EXPTN: if employer-employee relationship has already ended and it involves recovery of
backwages (purely money claim) barangay justice can settle it.
6. The dispute should not arise from landlord-tenant relationship or governed by the agrarian reform
law.
7. The dispute should not involve the government or any of its subdivision or instrumentality.
8. Must pay filing fee
o Filing fee any action cannot be considered filed unless docket fee has been given.
filing upon payment of right amount of docket or filing fee to the barangay treasurer.
Otherwise, the complaint is a mere scrap of paper.
Proper barangay for filing the complaint shall be:
1. The barangay where the parties reside if they all reside in the same barangay, or
2. The barangay where the respondent or any of the respondents reside if the parties reside in different
barangays.
3. If the dispute involves real property or interest therein, the barangay where the real property is
situated.
o If situated in more than 1 barangay, where the larger portion of the real property is situated.
4. If the complaint arose in a workplace, the barangay where the workplace is situated. Provided, both
parties resides in the same city or municipality where it is situated.
5. If the dispute arose at an institution where the parties are enrolled, the barangay where such
institution is located, if parties reside in the same city or municipality.
NOTE: in barangay adverse party is not called defendant and complaining party is not called complainant.
These terms are only used in court.
When barangay mediation, although required, may be dispensed with and a complaint may be directly filed
in court:
a. Where the cause of action is about to prescribe
b. When the action calls for any provisional remedy under the rules of court (provisional
remedies are devised in order to immediately seek remedies. Hence, when time is of the
essence, the civil rules of procedures will require provisional remedies.
i. Preliminary injunction
ii. Preliminary attachment
iii. Appointment of a receiver
iv. Replevin
v. Application for support pendent lite
vi. VAWC barangay can issue provisional remedy
c. Where a writ of habeas corpus is called for.
d.
e. Lupon tagapagsundo and Pangkat tagapamayapa
defined by law
- In conciliation when dispute in a lupon is not settled, it will be referred to the proper pangkat

Page 1 of 48

Anna Fe Abad & Darrell Lao Bagang

1.
2.
3.

4.
5.

a.
b.
c.

1.
2.
-

If the parties agreed to an amicable settlement, parties may adopt a contract of conciliation
settlement. Such conciliation settlement has the force and effect of a judgement of a court of law.
Unless, the same was repudiated before the lapse of 10 days from its approval.
When the case is not settled in a lupon, it shall be referred to the pangkat.
The pangkat will determine whether parties are agreeable to submit their case for arbitration. If not,
barangay intervention ends and secretay issues certification that dispute is not settled in barangay
and this is used to file in a court of law.
If parties agree, the pangkat will continue or conduct the arbitration. Resolution in an arbitration is
called an award
It may be repudiated within 10 days after it has been handed down. Otherwise, it becomes final and
executory. (res adjudicata)
f.
g. EFFECT of proceedings before the barangay
upon filing the complaint with the proper barangay, the prescriptive period of the cause of action
shall be interrupted and suspended for not more than 60 days from such filing.
The conciliation settlement or the arbitration award has the force and effect of a judgement of a court
of law. It becomes final and executory after 10 days from the date thereof, unless repudiated.
Such settlement may be repudiated w/in 10 days from the date thereof only on the ground that
consent is vitiated by:
a. Fraud
=
b. Violence
= in which case a certification for filing the case in court may be issued
c. Intimidation = by the barangay secretary.
Execution of said settlement or award may be enforced by the lupon within 6 months from the date of
finality thereof. (After 6 months period has lapsed, an action to enforce the same before the proper
MeTC or MTC is necessary.)
The arbitration award may be assailed in a petition to annul filed before the proper MeTC or MTC
h.
i. Res Judicata rule on conclusiveness applies if parties settled.
j.
k. Commencement of action in a court of law when:
The barangay justice system does not govern
The mediation process before the barangay may be validly dispensed with
Barangay mediation was had but not amicable settlement was arrived at.
l.
m. LGC authorizes to refer a civil case already filed in court to any barangay whether or not the
jurisdiction of such court to conduct conciliation between the parties involved, when the court
believe that litigation can be dispensed with through conciliation, mediation, arbitration
between and among parties involved in the litigation
n.
o. Policy where amicable settlement is possible, the court may resort to this without going to
the trial on
p.
the merits
q. Tenet avail of alternative dispute resolution and avoid litigation to declog dockets of courts
(public
r.
policy)
s.
t. Civil action is commenced in 2 ways:
File the complaint with barangay, and/or
File the complaint with a court of law.
u.
v. Complaint
Barangay ordinary meaning any written or oral grievance
Court must follow legal form

Page 2 of 48

Anna Fe Abad & Darrell Lao Bagang

w.

x. CHAPTER 2
y. Second step Commencement of the civil action in a court of law
z. (if Katarungang pambarangay does not apply or the procedure governs had no
settlement was arrived at)
aa.
ab. INTRODUCTION:
ac.
ad. action is different from proceedings
adversarial. There is always an adverse
- action commenced by a complaint
party.
- proceeding special civil actions
ak.
commenced by petition
al. Proceeding a mere application in
o petition for declaratory relief
court seeking for
am.
recognition from the court of
o petition for certiorari, prohibition,
existence of fact or right or status.
or mandamus
- Petition for declaration of absence (recog
o petition quo warranto
of fact)
o contempt
- Petition for support by illegitimate child
ae. special civil actions commenced by petition.
(recog of right)
Hence, called petitioner
- Petition for naturalization (recog of
af.
status)
ag. Pleadings plaintiffs action is known as
an.
complaint
ao. Answer - pleading of party against
ah.
whom a claim is
ai. Action vindication covered the res of a
ap.
brought to court. Generally it is
grievance
a
pleading
of a defendant. But if
aj.
brought about by violation of the
defendant
raised
a counter claim, the
defendant of his correlative obligation to
plaintiff becomes a defendant hence
respect the rights of the plaintiff. It is
may also file an answer.

I.

aq.
PREPARATION OF A COMPLAINT TAKING CONSIDERATION OF THE FF:
ar.
1. JURISDICTION
the authority of the court to hear and decide cases.
- Jurisdiction signifies different connotation subject matter of the action, over the parties, over the
cause of action, over the res or the property subject of litigation.
as.
at. Jurisdiction over the subject matter
- The more decisive matter of jurisdiction is that over the subject matter of the action. This is
conferred by law. To know this you must be familiar with the law that should govern.
- Everything that the court will do on a case will not be valid if after all that case is not within the
jurisdiction of that court.
- If the complaint was filed with the court which has no jurisdiction over the nature of the action,
everything that the court would do would have no legal effect, it is simply null and void.
au.
2. VENUE
- the place or court where the action should be filed.
o The distinction between the two :
Jurisdiction affects the relation of the parties to the court, not to each other. That is
why the parties cannot stipulate or agree on jurisdiction whether they like it or not
they have to act in conformity with what the laws says.
av.
Venue connotes the relationship of the parties to each other. That is
why the parties are allowed to agree or stipulate on venue because this is for the
convenience of the parties.
If the question is about the court on different levels that should hear the case, its
one of jurisdiction. If the question is whether the case should be filed in a city or
municipality but the same level of court the question is one of venue.
Error in venue does not invalidate the proceeding done by the court although not
properly made. Error in jurisdiction makes the proceedings null and void.
In civil cases the place where the action should be filed venue. In criminal action
the place where the criminal case must be heard and tried is jurisdictional, its not a
matter of venue. This is what you call territorial jurisdiction in Crim Pro. Being
jurisdictional it cannot be agreed upon by the parties. It is set by law. Under crim pro
- rule 110 as to the place where the criminal action must be instituted, it is
jurisdictional.
aw.
- In civil cases, the parties can agree or stipulate here the dispute may arise in their transaction t is
respected as long as not contrary to law, custom, public moral, public interest.
ax.
- About the stipulation on venue, the stipulation will be exclusive of all other courts in different places
if the stipulation is exclusive or restrictive of the particular court where the controversy may be
litigated.
ay.
- In civil transactions you may see this stipulation on venue in sales invoices or official receipts in
small printed letters dispute or controversy that may arise from this transaction shall be subject of
an action before the proper court of the city of manila. That means to say the action will
preferentially be filed in the proper court in the city of manila.
az.
- Under the rules of court, as to the venue of the action, the determining factor is whther the action is
personal action or a real action.
o A personal action is one predicated on the privity of contract such as damages arising from
breach of contract, of claims of money under a contract,
o A real action if the basis of the action is real property of interest therein.
ba.
o in personal actions the rules lay the venue of the action in the place where the plaintiff
resides or where the defendant resides. At the option of the plaintiff.
o In real actions, the venue is at the place where the real property involved in the action is
situated and if situated in more than one city or municipality, then it shall be at the place
where the greater porton of the real property is situated.
bb.
- Although you have these rules fixing where the action should be filed, these rules are not
obligatory. The parties may agree on a different place where the action should be filed.
o Example: possession of real property situated in the city of manila. Absent any stipulation
the action to recover that possession may be filed in the city of manila. If the action was
filed not in the city of manila but in a different city or municipality, a motion to dismiss the
action on the ground of venue was improperly made, may bring about the dismissal of the
case

However, if the defendant would join in the controversy despite improper venue and file an
answer and litigated before the court of the wrong venue, since venue of an action can be
waived. The parties cannot belatedly raise the question of improper venue. Once it had
begun litigating already. This is because venue is waivable.
So you may think as a layman that if the action involves a controversy over a parcel of land
in Cebu. The action is to recover possession from the defendant but the action was filed in
the city of manila because the plaintiff resides here. That the city of manila can act on the
action what is involved is only venue, and it can be moved. If the action is not filed in the
RTC, then it is a matter of jurisdiction, thus nullify the proceedings.

bc.
bd. Venue the more important question here is where the parties have agreed on where the
controversy may arise between them should be made subject of a court case or litigation.
The rule is that any specification of venue will only be regarded as in addition to what the
rules of curt provide as to the venue of an action. So under this rule, if the action involves
real property or interest therein, if for example is situated in Cebu, under the rules it must be
filed in Cebu, but if parties agreed that it may be filed in the proper court in the city of
manila, then the agreement authorizes the parties to file in cebu or in manila. It is regarded
only as an addition to what the rules of court provides.
be.
bf. On the other hand, if the agreement of the parties made an exclusive specification of venue,
the action can only be properly filed at that venue agreed upon by the parties. No other one
shall be allowed.
bg.
bh. So under the same example, the real property in Cebu, the venue under the rules must be n
Cebu, parties agreed that it shall be in manila. This shall be in addition. But if the stipulation
says that any controversy shall be filed in the proper court in the city of manila ONLY it
cannot be filed in cebu because the stipulation is restrictive excluding all other courts.
bi.
bj. If the case was filed in the wrong venue the adverse party or defendant can file a motion to
dismiss the case on the ground that venue is improperly made. Motion to dismiss is provided
in rule 16 of the ROC governing civil actions and among the ground stated there you find
improper venue as a ground for a motion to dismiss.
bk.
bl. (Before: When a litigant questions the wrong venue through motion to dismiss, he cannot
raise any other contention. When the movant files a motion to dismiss with improper venue
as a ground, he should not raise any other ground for dismissal otherwise, improper venue is
waived because he would ask the court affirmative relief and to look into the merits of the
case. If defendant files an answer , he submits to the jurisdiction of the court.)
bm.
bn. NOW: the defendant can question venue or any ground for the dismissal of the case either
by filing a motion to dismiss under rule 16 of the ROC or filing an answer under rule 9 and 11
under the rules.
bo. He can now raise it in the answer, no motion to dismiss is necessary. Answer is a pleading. A
motion to dismiss is not, it may be summarily disposed of. Thereby bringing more delay.
bp.
- Once the answer if filed, the issues are joined. And the court will have to look into the issues but
where the ground is only improper venue therefore the delay.
bq.
br. If over subject matter (lack of juris) outrightly dismissed. Null and void.
bs. Stipulation will not control.
- There is an exception to this when the stipulation on venue would operate as a denial of free
access to the court. The stipulation shall be regarded as null and void. For being contrary to public
policy.
o Illustration: the parties involved entered into a transaction in Pampanga. They have agreed
upon any controversy shall be subject of litigation only in proper court in bacolor, Pampanga.
ONLY makes the stipulation exclusive or restrictive. But then came eruption of Pinatubo and
the whole place was buried. The court room was nowhere and the case cannot be filed,
another court must be established therefore a denial of free access thus would be contrary
to the fundamental law guaranty (free access to courts)
bt.
3. PARTIES TO BE MPLEADED
- The basic rule, the action must be brought in the name of the real party in interest. It does not
require that the real party in interest must actively handle the case, what is required only is that the
action must be brought in his name, so that the execution of the judgement is made by the real
party in interest. It may be prosecuted by another.
bu.
bv. Indispensable party
- would render the proceedings invalid if the proceedings went on without them being joined as a
party to the case. (example: in an action for partition or real property and there are 10 parties to
whom it is to be parted, each of the co owner is an indispensable party, if any one of them is

omitted , the proceeding will be null and void. Fundamental law provides that no person shall be
deprived of property without due process of law. If a co owner s left out and not pleaded, it is
tantamount to deny him opportunity in his share.
bw.
bx. Necessary party
- one which is required to be joined to have a complete determination of a case is totally arrived at.
(example, mortgage, 2nd mortgage is necessary to realize completely). Required to be impleaded in
order to bring about a complete determination of the controversy involving the subject matter of
the action. Their non inclusion in the action however, will not amount to a nullification of the
proceedings that may be had. It is simply that the judgement rendered in the action will not
prejudice the necessary party who was not joined. In judicial foreclosure of mortgage, if the
mortgaged property is also encumbered with a 2nd mortgage, the 2nd mortgagee should be
impleaded otherwise his right to redeem property even though forclosed by 1 st mortgagee is not
affected. He can forclose even though he is only the 2nd morgagee, he is a necessary party. But the
proceedings are valid as long as the impleaded are concerned. But should not affect interest of
those necessary not impleaded
by. (New rules: Proper party eliminated.)
bz.
ca. Joinder of parties
- An indispensable party must be joined otherwise proceedings are null and void. = mandatory that
he be joined. The rules provide that the non joinder or misjoinder of a party to a civil action is not a
ground for a dismissal of the action. The court should only direct the pleader to include the
indispensable party to be joined or drop the party not to be joined. Not be dismissed by the court.
This is not a ground for the dismissal of the action. This is made to avoid multiplicity of suits.
cb.
4. CAUSE OF ACTION
-

Different from right of action

Right of action- is decisive from the law which defined the right to litigation of every citizen and if
those rights were violated it will bring about remedy provided under the law. A matter determined
from the law which is the basis of the plaintiffs complaint.
Cause of action- determined by the allegation which must comply with the required allegation
under the law on procedure.
The pleader states before the court the cause that the plaintiff is complaining about. As to how this
cause shall be alleged is regulated by the Rules of Court. These allegations determine whether the
complaint which is the initial pleading filed by the plaintiff constitutes a cause of action or not.
Although the plaintiff in the civil case may have the right of action, if the allegation of his complaint
fails to comply with the cause required by law to be stated, the complaint does not state a cause of
action.
Under the Rules of Procedure the primary consideration is whether the complaint states a cause of
action or not. For although the plaintiff may have a right of action under the law which was
committed by the defendant, if the complaint filed by him fails to make such allegation which under
the procedural rule will bring about a cause of action, a motion to dismiss the complaint may be
filed on the ground that the complaint fails to state a cause of action. It is not therefore the lack of
the right of action which will be considered but the lack of cause of action.
If a motion to dismiss the complaint was filed because of the failure of the complaint to state a
cause of action, the court is limited only to the allegation in the complaint in resolving whether a
cause of action is stated or not.
It is not allowed for the court to receive evidence on this matter because the only basis is the
allegation in the complaint. So if the allegation in the complaint failed to comply with the required
cause of action, the right of action of the plaintiff is in this point irrelevant because whether the
plaintiff has a cause of action or none depends only on the allegations made in the complaint.
Illustrations:
1 In an action to eject a lessee from the property leased by him, if the basis of the action for
ejectment is because the lessee failed to comply with the payment of the rental, the allegation
in the complaint require that there must be a demand already made upon the defendant to
comply with the contract of lease. Otherwise the complaint does not state a cause of action.
2 Even though the plaintiff actually made a demand upon the lessee to pay the rental when it
became due, if the complaint does not state an allegation to that effect the allegation does not
state a cause of action. that is true if the right of the defendant to remain in the premises has
already become a ground for breach or violation of the agreement of the lease contract. And
that is not required if the right of the defendant of possession of the defendant has already
ended because the contract of lease has already expired. Hence, even without the demand,
there is a cause of action.
3 If case for ejectment is filed on the basis of failure to comply with the terms and conditions of
the contract of lease, a demand is necessary. The demand should not only be to vacate the
premises but must primarily be to comply with the condition which was not complied with by
the defendant.
cc. This is true if the ejectment case is for unlawful detainer. But this is not true if the ejectment
case is for forcible entry.

cd.
-

Rule 70 of the Rules of Court- where a requirement for one action is different from the requirements
in the other action. Although both are actions to eject the defendant from the premises belonging to
the plaintiff.
The allegation that demand was made is indispensable as a cause of action because an obligor is
not considered to be in default if there is no demand upon him to comply with the conditions which
he failed to comply with. NO DEMAND, NO DELAY.
Unlawful detainer- a demand to vacate is essential to the successful prosecution of the action. If no
allegation that demand was made, that complaint will be stricken down in a mere motion to
dismiss. Because allegation fails to state a cause of action.
Grounds for dismissal of the action is stated under Rule 16- among them is the failure to state a
cause of action. Note that the ground does not say that the plaintiff has no right of action.
If the case is dismissed due to failure to state a cause of action, one cannot recover the filing fee
anymore.
ce.
cf.
GROUNDS FOR JOINDER OF CAUSES OF ACTION
Principle: RC is averse to multiplicity of suits. The rules are against filing more than one action.
Hence, the policy states that: The plaintiff may join in one complaint as many causes of action a s
he may have against the defendant provided that the causes of action joined are within the
jurisdiction of the court where the case is filed.
Even though the causes of action joined are incompatible with each other, the plaintiff who is the
pleader filing the complaint can raise as many causes of action as he may have against the said
defendant as long as it is within the competent jurisdiction of the court.
Limitation: while the cause of action would constitute special civil action under RC and the other
causes of action joined therewith constitute ordinary civil action such causes of action are not
allowed to be joined in one complaint. The causes of action for a special civil action must be a
subject of a separate complaint.
Reason: special civil action is not governed by the ord. rules of procedure. RC provides abbreviated
procedural rules for special civil action. It does not follow the procedure for ordinary civil action.
Otherwise the court will adopt a rule of procedure for the ordinary and other rules of procedure for
the special.
While joinder of causes of action is being encourage in the sense that a party filing a case a said
defendant should join as many causes of action as he may have against defendant, where the
cause of action involves special and ordinary cause of action the rule shall not apply because that
will bring about confusion.
LIMITATION: as to the jurisdiction of the court where there are several causes of action joined, take
note that jurisdiction of the court is determined by the causes of action joined and not alone by the
law enumerating the subject matter that is within the jurisdiction of that level of court.
cg. If the case is filed with the courts of 1 st level (MTC, MeTC, MCTC) these are courts of limited
jurisdiction. They can only act on a case which the law expressly confer jurisdiction to them.
Memorize what are these cases.
ch. If the complaint is to be filed with any of these courts of 1 st level, all the cause of action in
the complaint must be within the jurisdiction of such court. Otherwise such court cannot act
on the cause of action which is beyond its jurisdiction.

In a case involving money claim such as for example claims for damages, the rule is that the
jurisdiction of the court shall be determined by the aggregate or totality of the money claim
involved. This is called TOTALITY RULE or AGGREGATE RULE.
ci.
EX: Where there are 5 causes of action joined and the 5 causes of action, the amount
involved in each does not exceed P300,000 outside of Metro Manila, that is within the limit of the
jurisdiction of the courts of 1 st level, since the 5 causes of action are joined the totality rule shall
apply (P300,000 x 5) amounting to a total of P1,500,000 that is no longer within the jurisdiction of
the courts of 1st level. Hence in this case, the complaint must be filed with the RTC.

If the complaint joined causes of action where some causes of action are within the jurisdiction of
the inferior court while the other causes of action involves cases where the jurisdiction is within the
RTC, if that complaint will be filed with the courts of 1 st level, the case will be dismissed because
not all of the causes of action joined are within the competence of the courts of 1 st level.
If that complaint will be filed with the RTC, even though some of the causes of action are not within
the competence of the RTC it is allowed that such complaint be filed with the RTC and that is valid.
Because even thought some of the causes of action are subject of a separate complaint with the
courts of the 1st level courts, whatever judgment will be made by the court of 1 st level could be
appealed to with the RTC. RTC has the ultimate say as to the merit of that case.
Rules require that every cause of action should be designated as 1 st cause of action, 2nd cause of
action, 3rd and so forth. It also requires defendant to make his allegations by way of Answer to the
cause of action joined to make reference as Answer to the 1 st cause of action, answer to the 2 nd

cause of action 3rd and so forth. It must be alleged separately and not intertwined; otherwise the
client will be confused.
cj.
ck.
cl.
5. PRAYER OR RELIEF
- It is that which the party asks the court to grant
- RULE: a litigant is not allowed to pray for a relief which the law does not allow.
- As a civil law country we do not accept common law code of conduct. Hence if a woman lives in
companionship with a married man even for so many years she has no right of support. Only if they
have children will their children be entitled for support. In common law there is recovery for
support.
- Also, the court cannot grant relief which the party-litigant does not pray for. The court cannot be
more popist than the Pope.
- If a lawyer may not know all the relief that may be allow by the law, it is a usual practice that at the
end of the pleading there is always a general prayer that further plaintiff prays for that other relief
as this honorable court may consider just and equitable in the premise.
- The relief prayed for must be substantiated by the allegations in the complaint. The relief prayed
for must have a basis. The relief prayed for must be alleged in the body of the pleading. If no
allegations in the body that would be the foundation of the relief prayed for, the court will not grant
that. Because the court would have no jurisdiction to grant the relief. Also, what is alleged must be
proven.
cm.
6. SIGNATURE OF COUNSEL
- Rule 7 makes distinction as to the legal consequence of the signature made by the counsel and
client.
- Law imposes obligations upon the lawyer under section 3 of Rule 7. Lawyer cannot deny anything
which by signing he is mandated by the rule to claim as facts.
- Legal significance of the lawyers signature on a pleading to be filed.
cn. When a lawyer signs a pleading, he in effect certifies that:
1

That the allegations made therein are true and correct.

co.
Hence, if any allegation there was found out to be false, he cannot claim good faith.
cp.
Reason: when the lawyer is not certain he must not sign.

2 That there is a good cause for maintaining the allegations in the pleading.
3 That the same is not interpose of delay.
- In the case of Answer filed by a defendant, the signature of the lawyer certifies that all the defenses
there are impressed with merit and not alleged there without substance.
- The Rule poses an administrative sanction for the lawyer. He may be suspended for practice or
disbarred if violation is so gross.
- Signature of lawyer has far reaching consequences.
- If it was the client who signed the pleading the certification did not attach. Certification will attach
only if it is signed by the lawyer. But there is suspicion if a litigant is assisted by a lawyer but the
pleading filed in court is never signed by the lawyer. There is a presumption now that there maybe
something fishy about the allegation that the lawyer does not want to certify it.
- If the litigant was the one who signed the pleading, what the court could do only is either to strike
out the allegations which are not correct, either motu propio or upon motion of the other party. And
the litigant may be administratively sanctioned by paying a fine.
cq.
7. VERIFICATION (if required)
- The party who may verify may be the counsel. If it was filed by the plaintiff, either the lawyer or the
plaintiff ay sign the verification.
- Verification certifies that:
1
the party who signed the verification (either the lawyer or the litigant) would assume that it
was he who undertook the allegations in the pleading.
2 It will have to state that he understood and has read such allegations.
3 That the allegations are true and correct of his own knowledge.
4 On the basis of authentic record any reference that the allegations were made out of that
information would render the verification defective.
- Verification in a pleading is not jurisdictional. It is required only to give added assurance of the
veracity of the allegations made in the pleading. And because the verification is not jurisdictional
even though allegations therein are defective, the allegations made with reference to information
which is not allowed, that is not a ground to dismiss the case or the striking out of the pleading. The
court may simply direct the pleader to amend the complaint by making the correct verification
thereon.
- Even when there is a rule of procedure requiring that petition filed should be verified, but the
plaintiff does not verify the pleading, and the other party did not raise questions therein so that the
case proceeded without the allegations without being certified, the other party who allow the
proceeding to go on without the verification is estopped or precluded from complaining that the

cr.

pleading lack the required verification. Absence of verification must be raised at the earliest
opportunity.
Verification is not complete when it is not accompanied by an oath or jura that subscribed and
sworn to before an officer who is authorized to administer oaths.
This is not required on court pleading but only specifically required for certain action pertaining to
civil proceedings. Generally, a special civil action requires to be verified because it is governed by
abbreviated rules of procedure and regular rules of procedure are not applied. Because in special
civil action, time is of the essence of the remedy being invoked. Verification is required to give
veracity on the allegations therein.

8. CERTIFICATE OF NON-FORUM SHOPPING

- Required only in initiatory pleadings or whenever there is a rule requiring that this certification must
accompany the petition being filed.
- NOTE: Memorize the required allegations for a certificate of non-forum shopping. (Rule 7)
- Failure to comply with this certification of non-forum shopping cannot be cured by amendment. The
case will be dismissed. Filing fee cannot be recovered any more.
- Exception: in a case, SC allowed amendment despite lack of certification of non-forum shopping
because the filing fee is worth more than 1 million. The Court ruled that to dismiss the case and
forfeit the filing fee is considered unconscionable. So although rules required that no amendment
can be made, SC says that for the reason that SC can always deviate from the rules, whenever the
rules will bring injustice to the litigant, SC invokes the prerogative now that the litigant may make
the amendment.
- 1 required allegation in a certificate of non-forum shopping is that if the party who files the
initiatory pleading would learn thereafter that there is another case pending between the same
party in another tribunal, court or other quasi-judicial agency, he undertakes to bring the same to
the attention of the court within 5 days after learning the case. In this case, the pleader is allowed
to amend the complaint.
- If the party filing the petition complies with the certification of non-forum shopping but undertakes
to bring to the attention of the court the same case pending before another tribunal within
REASONABLE TIME, instead of the required 5 days, the SC declared that the case must be dismissed
for non-compliance. Because reasonable time is a question of fact and has no definite duration.
- However in a case where the parties are husband and wife the case involves property, the
certificate of non-forum shopping carries the name of the husband and the wife who are supposed
to file it because they are the party-litigant in the complaint, but only the husband has the
signature above his name, so the other party moved to dismiss the complaint for failure to comply
with the rule which is mandatory. Trial case granted the motion to dismiss. CA affirmed. SC granted
an amendment saying that there was substantial compliance. Reason: In the eyes of the law,
husband and wife possess uniform interest as one. This is true in the Family Code especially now
that the property regime is absolute community. Hence, the wife may affix her signature later on.
cs.
II.
FILING OF COMPLAINT IN COURT
ct. HEIRARCHY OF COURTS which law authorizes to act on specific disputes:
1.

2.

TRIAL COURTS
a. Courts of first level competent to try cases expressly conferred to by law.

MTC in chartered cities not metropolitan area

MeTC in metro cities

MCTC in remote municipality where judges are roaming from one court to another
b. Collegiate courts courts of general jurisdiction

All matters not expressly conferred by law for trial can be filed at this level unlike first level courts which
needs express provisions of law.

RTC includes family court, special commercial courts

Sandiganbayan jurisdiction to try criminal cases brought before it at first instance and not on appeal.
APPELLATE COURTS
a. Court of appeals
b. Court of tax appeals
c. Sandiganbayan (on its appellate jurisdiction only in criminal cases
d. Supreme court (highest tribunal)

cu.
cv. Decision that is null and void does not prescribe. But a party may be estopped from
questioning what is null and void on the basis of laches or estoppel. Not prescription
because anything null and void is inexistent. If greater injustice by disturbing the proceeding
which is null and void, the proceeding shall not be disturbed. Prescription is determined by
law, laches is determined by inequity of matter will be disturbed.
cw.
cx. RA 7691 expanding the jurisdiction of court of first level
cy. Rule: lawyers should know the proper court for if wrongfully filed, the court is bound to
dismiss the case and not duty bound to refer the case to the proper court.
If the period for appeal has lapsed, the lawyer cannot transfer the case to refer the case to the
proper court.
Absent jurisdiction over parties void

cz.
da. RTC both trial and appellate court.
Judgments rendered by 1st level courts are appealable only to the RTC.
What can be raised in the trial court cannot be raised for the first time on appeal.
Cases not capable of pecuniary estimation must be filed with the RTC
o Illustration: case for specific performance requires delivery of property not delivered and is
seeking rescission and to be paid 100K where should it be filed?
RTC subject matter is rescission which is not capable of pecuniary estimation.

db.
dc. FILING OF DOCKET FEE
dd.

Unless and until the correct amount of the filing fee has been fully paid, the complaint or petition
shall not be considered as filed. In short payment of the correct amount of the filing fee is a
condition sine qua non to the court acquiring jurisdiction over the case.
At this juncture, I would call your attention that the rules on filing legal fees under RC have been
amended. So you have to go over the rules governing the legal fees to know the correct amount of
the docket fee. Because If the correct amount as stated there has not been fully paid, the docket
fee in court for the complaint or the petition is considered forfeited as not legally done, if the
correct amount has not been paid.
If there has been an honest mistake as to the amount of the docket fee, the party who fails to pay
the correct amount of the docket fee the party may be allowed by the court to pay the petition fee
and the case can proceed provided that the cause of action has not yet prescribed.
But if the cause of action has already prescribed prior to the payment of the correct docket fee, the
corresponding payment of the docket fee will not revive the cause of action. The cause of action
shall be regarded as already prescribed. You cannot collect back the docket fee.
Where the non payment of the correct docket fee was not attributable to an honest mistake rather
the party who should pay the docket speculated on the amount that should be paid, the SC out
right dismiss the case even if he is willing to pay the deficiency, the SC upheld the dismissal.
Because non payment of the docket fee cannot be attributed to an honest mistake but rather
brought about by speculation. So the SC said that the conduct of the petitioner in speculating as to
the correct amount of the docket fee is apart from being realistic. So dismissal is upheld. He cannot
re-file it anymore. Dismissal amounts to the adjudication on the merits. And that is justified as a
punishment for the litigant for his trying to speculate against the right of the court to receive the
docket fee.
Filing of the complaint in court will be done personally or by registered mail. And if in the place
where the plaintiff resides there is no registered mail available the plaintiff can send it by ordinary
mail. but if there is a registered mail he should do it by registered mail.
OLD MAXIM: If the filing was done through registered mail the date of mailing shall be regarded as
the day of filing. BUT THIS IS NO LONGER TRUE.
NEW MAXIM: the payment of the correct amount of the docket fee that will determine whether the
pleading is properly filed or not. Hence the rule that if the filing of petition was done by registered
mail the date of mailing is the date of the filing of the pleading will be correct if the filing fee is also
enclosed with the registered mail. so that when the clerk of court receive the registered mail the
correct amount of the docket fee is included there. If the filing fee is not made even if the clerk of
court already received the mail, the case shall not be considered filed until and unless the correct
filing fee is paid.
If amount paid is still less than what the rule as amended is filed for the case the complaint or
petition is not considered filed. It will be considered filed only when the correct amount is paid. If
during the time that the correct amount o the docket fee is not yet paid the prescriptive period of
the cause of action continues to run because the case is not yet considered to be filed in court.
If by the time the correct amount of docket fee is paid, the cause of action has already prescribed
payment of the deficiency will not revive the cause of action.
When a defendant answers the complaint he may raise in his answer a counter claim against the
plaintiff claiming that the action is without merit. And when the defending party raise the counter
claim invariably he may state an amount greater than the claim of the plaintiff in order to
intimidate the plaintiff from proceeding with the action. This is particularly true if the case is filed in
the courts of 1st level where the jurisdictional amount is only P300,000-outside Metro Manila, and
P400,000 within Metro Manila, over and above this the RTC already.
The Answer is not an initiatory pleading. So the same need not contain a certification of non-forum
shopping. certification of non-forum shopping is mandatory in initiatory pleading. An Answer is filed
in response to the complaint so it is not an initiatory pleading. But if the Answer to be filed is to
initiate Counter-Claim as far as that counter-claim the Answer becomes an initiatory pleading.
Therefore a certificate of non-forum shopping is required.
Know the difference between counterclaim which is known under the law as COMPULSORY
COUNTERCLAIM and the counterclaim under the law known as PERMISSIVE CONTERCLAIM.

A counterclaim is a claim by the defending party against the party claiming against him. The
counter claim that the defending party may raise against the party filing the action is alleged to his
answer in the complaint. So he need not file a separate pleading.
A counterclaim is regarded as COMPULSARY COUNTERCLAIM and must be alleged in the same
answer filed by the plaintiff if such counter claim arose out of the same transaction or occurrence
that was the subject of the plaintiffs complaint. This is compulsory because if this kind of
counterclaim is not raised in the same action that the plaintiff filed, the counterclaim shall be
considered void and it is considered abandoned and the defendant cannot collect it anymore.
Purpose, the court avoids multiplicity of claim.
Counterclaim shall be regarded PERMISSIVE if it arose out of a different transaction or occurrence
from the subject of the plaintiffs complaint. It is called permissive because the defendant is only
permitted to raise it in the same action that was commenced by the plaintiff. But if the defendant
did not want to raise it in the same complaint it is alright. The counterclaim shall not be considered
as abandoned.
If the counterclaim raised by defendant is PERMISSIVE it is in essence a different claim having no
relation with the claim raised by the plaintiff. The court may or may not allow the defendant to raise
it in the same action filed by the plaintiff. A court may not allow if it will only confuse the resolution
of the action. But generally the court will allow this because of the principle in procedural law is to
avoid multiplicity of suit.
If the case was filed by the plaintiff before a court of the 1 st level the amount and the nature of the
counterclaim must be within the jurisdiction of that court because courts of 1 st level are courts of
limited jurisdiction. What the law does not confer upon them they have no competence to
adjudicate. RTC is a count of general jurisdiction so even though the case was not conferred by law
to them as long as it is not conferred by law in any other tribunal the RTC has jurisdiction to act on
the case.
If the permissive counterclaim is foreign or alien to the claim of the plaintiff in the latters complaint
for all legal intents and purposes a permissive counterclaim is a claim where the defendant is the
claimant and the plaintiff is the defendant. So it is tantamount to filing a different complaint against
the plaintiff. Only it is called counterclaim because it is filed in the same claim against the
defendant, if not this will no longer be called counterclaim anymore. Hence, if the amount of the
counterclaim made by the defendant in a permissive counterclaim is outside the jurisdiction of the
court where the plaintiffs case was filed, the defendant cannot raise it as a counterclaim because
the court has no jurisdiction to consider the same. The defendant will be compelled to file it in a
separate proceeding.
If he will have to file it in a separate proceeding he will have to pay docket fee. And even if he
raised it with the same action filed by the plaintiff he will still have to pay docket fee because for all
legal intents and purposes it is considered a separate action.
If correct docket fee is not paid the counterclaim will have no standing in court. Because the
counterclaim shall be considered as not filed at all if the docket fee has not been fully paid.
de.

dg.

1.

2.

3.

1.

2.

df. CHAPTER 3
Third Step Issuance of Summons by the clerk of court upon filing of
complaint

dh.
di.
dj. ISSUANCE OF SUMMONS
In every court there is a clerk of court. But the clerk of court is only one. It is in his office where
summons are prepared. If the complaint would allege where the defendant may be served with
summons and it is the residence of the defendant, it will be served there. If the place is the office or
business address , then it shall be addressed there.
When you come to the study of legal forms, one of the forms to be studied is the complaint. The
pleading filed by the one complaining, he discloses where the person he is suing may be served
with summons, in the jurisdictional allegation generally in the 1 st paragraph, the plaintiff who is
filing the case would state his legal capacity to sue, the address where the defendant may be
served with summons.
dk.
dl. The service of summons necessary to acquire jurisdiction over the person of the defendant.
This is a requisite for a judgment to be valid against a defendant. Jurisdiction over the
defendant may be acquired
dm.
by voluntary appearance of defendant in the court where the case against him is filed and
submission to the authority of that court. If defendant filed a motion to dismiss on ground that court
has no jurisdiction over his person = not voluntary appearance, he is not submitting to the
authority of court.
o But if defendant submitted extension of time to answer the complaint, summons not
necessary anymore, that equals submission to the authority of the court to proceed against
him.
service of summons in person, substituted manner, thru publication, and as now recognized in
new rules thru any other means by which the defendant is informed of the case filed against him
which the court find sufficient to acquire jurisdiction over the defendant. If the court finds that the
defendant was after all informed, trial court may find it sufficient to proceed against the defendant.
There may be failure of summons, or voluntary appearance, but if in fact the defendant learned
from another that he had been sued in court, the court may after inquiring about that manner of
informing the defendant is already sufficient for the court to proceed. There is not specific manner
by which he is to be bound, it is in the trial courts sound discretion. After all the defendant already
knows that he had been sued in court.
dn.
do. When a defendant files In court any motion that would imply that he is invoking the
authority of the court that motion is regarded as voluntary appearance. The court then will
acquire jurisdiction over him. But if the defendant filed a motion to dismiss questioning the
authority of the court to act on the case against him, the same may amount to a nonsubmission to the authority of the court and therefore will not be considered as voluntary
appearance. But he more common manner of acquiring jurisdiction over the person of
defendant is through summons.
dp.
dq. Summons
is a legal process issued by the court where the civil case was filed to inform the defendant about
the case filed against him and requiring the defendant to answer the same. So summons is
necessary to acquire jurisdiction and enter judgement against the defendant.
dr.
ds. Rule 14 of the ROC prescribes 3 ways of serving summons.
Preferably the summons is required to be served upon the defendant in person. the summons
must be tendered to the defendant himself. The other manner of serving summons will only be valid
if serving the defendant in person cannot be made within a reasonable time. Otherwise, the court
may not acquire jurisdiction over the defendant if summons was not properly served.
dt.
o Upon the filing of the complaint, received by the office of the clerk of court, after payment of
docket fee, that office will issue summons.
du.
When it comes to substituted service, - it is valid only if service to the defendant in person cannot
be made despite allowing reasonable time to do so. So if the summons was addressed to the
residence of the defendant and sheriff went there, the defendant had gone to market, when the
sheriff arrived, the defendant was not there, but his wife was there, substituted service may be
made to a person of sufficient age and discretion residing in the same place where the defendant
resides as indicated in the summons.
dv.
o So although the defendant was not around when the sheriff came when served summons,
serving the summons to the wife of defendant is NOT VALID for being a substituted service.
This cannot take the place of personally serving it if after all it is still possible to serve it
personally.

o
o
dw.

The defendant is not around, and there is no definite time when he will be around, if the
defendant would be out of his residence for a time that is already inconsistent with what is
reasonable then and only then may the sheriff serve summons by substituted service.
If in an office to that in charge of that office or business of sufficient age and discretion

Valid service is pivotal to have a valid judgment and properly enforced. If not failure
of due process of law. It is by summons that defendant is informed of the case filed
against him and given opportunity to be heard through answer filed.

dx.
3. The rules allow upon leave of court serving summons by publication
o Publication always require an application filed in the court where the case is filed asking for
leave of court or permission of the court to serve summons by publication so this manner of
serving summons cannot be had without prior leave of court.
o Note: the instances when summons may be served by publication. (outside these instances
service summons by publication is not allowed)Do not think that if personal and substituted
service cannot be done publication can be made NO! It will only be valdly done if the court
allowed it to be done! Proper application must be filed in a court where case was filed. If
court granted leave, then the court will issue an order to this effect. Not only the summons
will be published by also a copy of the complaint which is to be attached to the summons,
also the court order approving the service of summons by publication.
dy.
o The court order then will specify the newspaper of general circulation where publication is to
be done t is not the privy of the plaintiff to publish the summons and other paper at his own
discretion. This is controlled by the court.
dz.
o Publication is not complete without copies of the paper where it was published. It also by
registered mail to the last known address of the defendant and all his counsel and proof of
service by publication and the registered mail must be filed in court to attest to the proper
service of the summons by publication.
ea.
o Generally, serving summons by publication does not operate if the action involved is an
action in personam. Generally, publication is allowed only in actions in rem or quasi- in rem.
But where the defendant is a resident of the Philippines but temporarily out of the country
summons may be served upon him by substituted service or by publication. Without regard
to the nature of the action.
Before, publication is limited only to in rem or quasi in rem, but since the new rules
allow serving summons by publication where the defendant is a resident of the
Philippines but temporarily out if the country, it is submitted that this has no regard
whether the action is one in personam or in rem or quasi in rem.
If the defendant is not a resident of the RP and publication is had, and action is in
personam, that publication is not a valid summon
Whether the action is in personam, in rem or quasi in rem is not synonymous to a
real or personal action.
eb.
- Whether the action is personal or real action, is determined by the subject matter involved in the
action.
- The action is regarded as personal if the subject matter thereof arose from a claim of money or
damages or arises out of the privity of contract.
- It is a real action when the subject matter thereof is real property or interest therein. This
classification of action is relevant to the determination of Venue.
- Whether the action is in personam or in rem is determined by the binding effect of the judgement
that may be rendered in the case.
- If the judgement that may be rendered in the case is binding only on the parties litigated and their
successor in interest of privies, then it is an action in personam.
- If the action would bring about a judgement that is binding not only upon the litigants but any party
who may be minded to raise a claim on the subject matter of the action then it is an action in rem
- Obligation is generally required of such action as a requirement of due process of law. Since not
only the litigants will be bound by the judgement rendered but any other person that may be
minded to raise a claim on the subject matter of the case, then due process requires that there
must be publication to inform all about the pendency of the action.
- The action is regarded as quasi in rem where the judgement will be binding only upon the litigants
their privies or successors in interest but he judgement shall be executed against a particular
property only by the defendant. So it is the property or the res involved that will answer for the
judgement although the judgement can only bind the parties to the action and privies or successors
in interest. Not anybody can claim the benefit of the judgement.
- Where the action is in personam, serving summons by publication GENERALLY is not allowed, the
party litigant must be informed of the case in person not by publication. Where however the action
in personam has been converted to an action quasi in rem, the judgement that may be rendered
out of the property involved in the action and the effect will be against all who may lay a claim on

that property. So if the nature of the action is one in personam, and the defendant is not a resident
of the Philippines, serving summons by publications will not be allowed unless the action is
converted to an action quasi- in rem. This is done by plaintiff or his counsel locating any property
situated in the Philippines where the defendant has an interest or the defendant claims a right to
the property involved. The plaintiff or his counsel may cause the preliminary attachment of that
property in order to convert the action to quasi in rem instead of an action in personam. So the
judgement that will be rendered in the case will be binding upon the parties to the case but the
same will be satisfied out of the property attached located and situated in the Philippines
authorizes serving summons by publication.
ec.
ed. Publication is not legally allowed may be converted to an action at least quasi in rem to
allow serving summons thru publication. This is done by locating any property where the
defendant has any interest found in the Philippines and have these properties attach by a
writ of preliminary attachment, by that attachment makes the action initially in personam to
a quasi in rem.
ee.
ef. But that is true only for as long as the defendant who was sued in the action has not yet
filed his answer or has not yet appeared in the case. Once jurisdiction over the action of the
defendant is acquired, the action reverts back to an action in personam and therefore
notices of the proceedings must be sent or served t the defendant litigant in person. It is
only for purposes of serving summons that the action is converted into an action quasi in
rem. Once jurisdiction is acquired it reverts back to in personam so any subsequent notices
must be served in the manner applicable to action in personam not by publication anymore.
eg.
eh. PLAINTIFF JURISDICTION OVER HIS PERSON
is acquired by the court upon the filing of the complaint. Do not think that summons are to be
served to plaintiff this is true only to the defendant. Where the action is one in rem or quasi in rem
jurisdiction over the action is acquired the moment the court acquires jurisdiction over the res or
matter involved in the litigation. The defendant is serve with summons only to comply with the
requirement of due process of law. Preferential jurisdiction over the res or matter involved is the
one important.
ei.
Where the jurisdiction is on the plaintiff upon the filing of the complaint in court, jurisdiction over
the person of the plaintiff is acquired because he submits to the jurisdiction of the court. So if he
files in the wrong court which has no jurisdiction over the matter, the plaintiff can no longer raise
the question that the court which rendered judgment on the case has no jurisdiction over the action
since it was he who brought about the jurisdiction of the court erroneously. Plaintiff is estopped or
precluded from questioning the jurisdiction of the court where he filed his complaint. Upon such
filing, the court acquires jurisdiction over the plaintiff, so he cannot assail that jurisdiction is
defective, only defendant can raise this.
ej.
In the matter of serving summons, you will notice under rule 14 that rules provide for a dfferent
service of summons to nature persons and juridical persons. In the case of juridical persons, the
rules distinguishes whether the juridical entity is a domestic corporation or partnership or the same
is a foreign corporation or partnership.
ek.
In the case of a partnership, note that juridical personality is acquired only if the partnership was
registered in accordance with law with the SEC otherwise it is only an ordinary partnership not
registered not juridical person. It must be regsterd according to law with the SEC
el.
In the case of domestic juridical entities, in a corporation summons must be served to the
president, the general manager, the corporate secretary, the treasurer or the in house counsel of
the corporation. And it must be in that order of preference. So serving the summons to the general
manager where the president was there is there is not valid. Unless it was shown that the general
manager gave the summons to the president the service to the president is equivalently effected
also. So if this order of serving summons was not followed a motion to dismiss the case on the
ground that summons was not served upon the defendant may be filed.
em.
The rules now speak of the treasurer not the cashier. Treasurer as an officer of the corporation. The
rule now made it categorical that the service where the president or general manager is not
available must be made to the corporate secretary. Before it was only secretary it was confused
to include private secretary. Now it is specific to be the corporate secretary as filed in the SEC. the
lawyer who may also be served summons must be an IN HOUSE lawyer.
en.
Registered partnership served to the managing partner. Not just to any partner.
eo.
Foreign corporation find out whether it has a resident agent in the Philippines because he is doing
business here, or he does not have a resident agent. If the foreign corporation has one service
shall not be made to president, gen magager, etc. it shall be served to the resident agent, and if
the corporation has no resident agent and it is doing business here, then under the DTI, summons

shall be served to the public office exercising supervision over the foregin corporation (example
insurance company to the insurance commissioner, if offshore banking unit to the
superintendent of the Central bank)
ep.
If the sequence is not followed then service of summons may be regarded as invalid and therefore
jurisdiction is not acquired over the defendant. There is however a ruling by the supreme court that
although a corporation was not properly served with summons if after all the corporation is
informed that the case had been filed against it, such corporation should not capitalize on the
improper service of summons but should file a motion to dismiss to inform the court that summons
was served to it improperly. If the defendant corporation simply kept quiet on the erroneous service
of summons and the sheriff filed a return in court that summons was served to the defendant to this
address, the court will rely on the return filed by the sheriff, has the benefit of good faith because of
the presumption that public officers perform their duties with regularity. Here he must make an
affirmative step if he knew about the filing of the case. There is bad faith in this situation.
eq.
It would be different if the erroneous service denied the defendant due notice where he never
learned about he action. SC : failure of due process. Not properly informed. So no judgment will be
valid.
er.
es.
et. EXTRATERRITORIAL SERVING OF SUMMONS
Even serving summons in person to the defendant can be done extra territorially. If a case was
fileda person in the US, and here is a fellow who knows the defendant and he was requested by the
plaintiff to serve the summons to that defendant in person abroad. That cannot be dont without
leave of court. Understand that summons as a judicial porcess can only be served within the
jurisdiction of the court.
eu.
If upon hearing, that person who volunteered to serve the summon has assured the court that he
will do it, the court may then deputize the person to serve summons to one who is abroad, that
personal service can only be done upon proper application to the court where the case is filed and
upon proper hearing where leave of court is given for the summons to be served extra territorially.
ev.
Where the action filed against defendant abroad involves the personal status of the plaintiff, that
proceeding is in rem. So serving summons either by publication or personal service with prior leave
or court is still valid. The action is an action in rem. Or where summons is served and it involves
property located in the Philippines where the defendant has interest claims a right in rem =
publication summons is also valid.
ew.
ex. Substitution service is not really in the nature of substitution service = only done if not
possible to be done in person. SC metioned that if sheriff came to house of defendant, the
sheriff should ask where the defendant is and find out if he is to come back. The sheriff must
go back. He is not allowed to make just one attempt. Earnest effort must be exercised to see
to it that serving summons would be complied with.
ey.

ez. CHAPTER 4
fa. Fourth Step Defendants options after having been served with summons
fb.
fc.
fd. OPTIONS AVAILABLE TO DEFENDANT UNDER THE RULES OF COURT AFTER HAVING BEEN
SERVED WITH SUMMONS:
1.
2.
3.
4.

File
File
File
File

Effect of failure to react to summon- defendant will be considered in default.

Rule 11 provides for the period within which defendant will have to react to the summon. If litigant
cannot react within such period, he should file a Motion for Extension of Time. Litigant cannot file
his answer beyond the reglemented period. Anything filed to the court beyond the reglementary
period is no more than a piece of paper, which has NO LEGAL EFFECT.

ff.
fg.

a MOTION TO DISMISS under RULE 16;

a MOTION FOR BILL OF PARTICULARS under RULE 22;
a MOTION FOR SUMMARY JUDGMENT under RULE 35;
an ANSWER in accordance with RULES 6, 7, 8, 9 and 11.
fe.

1ST OPTION- FILE A MOTION TO DISMISS under RULE 16

fh. Defendant received Summon without complaint attached
- When a defendant ids served with summon, the complaint of the plaintiff regularly should be
attached thereto because the summons require the defendant to answer the complaint.
- Should the complaint be not attached to the summon, the defendant should inform the court that
the complaint is not attached to the summon. And this is done by filing a MOTION TO DISMISS on
the ground that the court did not acquire jurisdiction over the person of the defendant.
- If the defendant after being served with summon simply did not react because there is no complaint
attached, the time within which to answer the summon will continue to run because the court has
the right to presume that the sheriff as a public officer performed his official duty with regularity(provided in Rules of Evidence).
fi.
fj. Defendant received Summon with complaint
- 1st thing that a lawyer do when consulted by the defendant regarding the summon served is to
look for the grounds to dismiss the action.
- Grounds for which a Motion to Dismiss is allowed is stated under Rule 16. (MEMORIZE!!!)
fk. Section 1. Grounds.- Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the defending party;
fl.
(b) That the court has no jurisdiction over the subject matter of the claim;
fm. (c) That venue is improperly laid;
fn. (d) That the plaintiff has no legal capacity to sue;
fo. (e) That there is another action pending between the same parties for the same cause;
fp. (f) That the cause of action is barred by a prior judgment or by the statute of limitations;
fq. (g) That the pleading asserting the claim states no cause of action;
fr.
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
fs.
(i) That the claim on which the action is founded is unenforceable under the provisions of the
statute of frauds; and
ft.
(j) That a condition precedent for filing the claim has not been complied with.
fu.
-

fy.

These options given to defendant are available only within the time frame in which he is allowed
ton react to the summons.
If the Answer to the Summon is filed belatedly, the defendant should file a MOTION TO ADMIT. The
delayed answer of motion must be annexed to the Motion to Admit stating there the reason why it
was filed belatedly.
If the Court would grant the Motion, it means that the delayed answer is admitted. If the Court deny
the Motion to Admit because the reason for the delay is not justifiable, that means the end of the
defendant reacting to the summon. It follows that the defendant is declared in default.
NOTE: One must understand the Grounds to Dismiss the action. Failure to state the correct ground
although there are other grounds raised will not result to the dismissal of the action. Because the
GENERAL RULE is that the Court cannot grant dismissal based on the ground that was not raised.
fv. Exception: when the Court has no jurisdiction over the subject matter.
fw. Reason: because jurisdiction over the subject matter is a matter of law and beyond the
agreement of the party.
fx.
MOTION- in laymans term is a REQUEST.

As to how such motion must be written, we have RULE 15.

Except for the incidents that arose during the course of the trial, all motions must be in WRITING.
Those that arose during the course of the trial may be raised verbally or orally by the lawyer.
If the court is not in session, anything that the party would ask the court to grant must be by
Motion.
There are Motions that must be set for hearing. The Court cannot act on such Motion without a
hearing.
Those Motions which affect the substantial right of the litigant always require a hearing. This is
known as a LITIGATED MOTION. That means the Court is not supposed to act on such Motion
without hearing where both parties are given the opportunity to be heard.
Unless this motion we have the so called MOTION OF COURSE or MOTION REGARDED AS A MATTER
OF COURSE. These are Motions that do not affect the right of the adverse party but only address on
the sound discretion of the Court acting on the case.
fz. Ex: Motion for the Extension of Time

REASON why you have to differentiate a LITIGATED MOTION from a MOTION OF COURSE :
a LITIGATED MOTION would only partake as a mere scrap of paper UNLESS it carries with it a
NOTICE OF HEARING which is address to the adverse party informing the latter of the date
and time that Motion should be argued in Court. So that the adverse party will appear in the
court within the place and time specified in the notice.
When a LITIGATED MOTION is without a Notice of when the motion is to be heard, this is
what is called an EX PARTE MOTION. A litigated motion cannot be resolved by the court ex
parte because it would violate the constitutional provision on the due process of law.
Only the MOTION OF COURSE that the court may act upon ex parte even without notice of
hearing to the adverse party because it is only address to the sound discretion of the court.
ga.
RULE 16: MOTION TO DISMISS

OLD RULE: If defendant files a Motion to dismiss, the period for reacting is vacated until the motion
is resolved whether granted or denied. If the Motion is denied, the defendant will acquire a new
period to answer the complaint which means another 15 days.
NOW: upon filing of the Motion to Dismiss, the period that has already elapsed will be deducted
from the period allowed for the defendant to react to the summons.
Hence, if defendant filed a Motion to Dismiss on the 5 th day, he will only have 10 days to
answer the complaint if the motion was denied.
If the motion is filed beyond 15 days from the receipt of summon, he is considered in
default.
However, the new rule allows the defendant if he files the motion to dismiss within the last 5
days of the period allowed for him to react, for at least 5 days to file an answer to the
complaint.
gc.
Ex: A filed MD on the 11th day from the date of the receipt of summons. But the Court
denied the MD. A still has a period of 5 days to answer the complaint.

gb.

gd.
-

OLD RULE: when a case is filed in wrong venue, the defendant can question the filing of the case
only through a Motion to Dismiss. And in the Motion to Dismiss, he is not allowed to raise any other
ground for dismissal that will require the court ton rule on any other ground. The implication is that
it is tantamount to telling the court that it is not the proper court to act on the case so that if he
raised any other ground, this is incompatible with the ground of improper venue.
NOW: whatever is the ground among those enumerated in Rule 16 the defendant may either file a
MD or file an Answer where the grounds in the MD are raised as a matter of defense.
If the defendant files a MD, this is not a pleading. If he files an Answer where he raised the ground
in the MD as an affirmative defense this is a pleading.
If the ground for dismissal was raised in the Answer, the move of the plaintiff to amend his
complaint to avoid the grant of dismissal will require prior leave of court. But if the defendant files
a MD. which is not a pleading, the plaintiff can amend the complaint even without leave of court.
Why: because it is only when the pleading is filed that amendment cannot be made without prior
leave of court.
Leave of court means permission of the court.
ge.

OLD RULE: There are only two grounds before which cannot be raised in the Answer and therefore if
these grounds would be raised by the defendant, he cannot avoid the filing of a MD. And these are:
1. Improper venue, and
2. Lack of jurisdiction over the person of the defendant.
gf. All other grounds may be raised either in the MD or as an affirmative defense in the Answer.

NOW: all the grounds in the MD may either be raised in the MD or in an Answer. But any ground not
raised whether in the MD or in the Answer is already WAIVED and cannot be raised any further.

Hence, if defendant files MD without raising grounds that he may raise, he may not state
such ground in the Answer. He can only raise this ground in the Answer if he did not file a
MD.
However, the rule that grounds that are not raised in the MD are deemed waived
presupposes that the grounds involved are waivable. Because there are grounds which are
not waivable because they are matters of law.
gg.
EX: The action is based on a labor dispute this is beyond the jurisdiction of
ordinary courts but within the jurisdiction of the NLRC. So even if the defendant
did not file a MD, it is not considered as waiver. Because jurisdiction over
subject matter is conferred by law and beyond the will of the parties to control.
gh.
NOTE: TAKE NOTE OF THE GROUNDS WHICH ARE NOT WAIVABLE.
gi.

GENERAL RULE: if a MD is already filed, no other subsequent MD can be filed. Only o ne MD.
EXCEPTION: if the subsequent MD raises a ground which is NOT WAIVABLE, the filing of a
subsequent MD is allowed.
REASON: These grounds which are not waivable if raised would be for the benefit of the court so
that it will not be acting in futility.
Although a MD is filed, it does not follow that the court will grant such MD.
Because if the defect raised can be corrected by mere amendment, the court may just require the
plaintiff to amend instead of dismissing the same. This is to avoid multiplicity of suit.
The dismissal could only be done if the grounds raised cannot be corrected by mere amendment.
The court are prohibited from resolving MD without granting or denying it but simply by issuing an
order stating that the ground raised in the MD does not appear to be indubitable. Because in fine
this means dismissal or denial of the MD. This is prohibited because it is proven to be a money
making scheme of the courts and is tainted with corruption.
QUESTION: can a defendant file more than 1 MD?
ANSWER: Generally, NO. Because when MD is filed all grounds not raised are deemed waived.
gj.
Exceptions, 1) a subsequent MD can be filed if the ground raised in the
subsequent
MD is NOT YET AVAILABLE at the time when the MD was
filed.
gk.
2) when the ground raised in the MD is NOT WAIVABLE.
gl.

Note: BEFORE when an action which must be referred to the appropriate barangay which is a condition
precedent before referring it to court is not complied with, the ground which must be raised in the MD
can be Ground (j) a condition precedent is not complied with or (b) the lack of jurisdiction over the
subject matter of the action.
gm.
NOW: This is no longer an appropriate ground. The only appropriate ground is (j) a
condition precedent is not complied with. Otherwise, the court will simply deny the MD.

This is also the appropriate ground in cases of the dispute between family members where the Civil
Code requires litigants to first be given the opportunity to compromise.
If the ground raised is not the correct ground then the MD shall be denied.
Hence, if there was no ground for which the defendant may file a MD so that 1 st option is not open to
him. He may however avail of other options available to him under the Rules.
gn.

go.2ND OPTION- FILE A MOTION FOR BILL OF PARTICULARS under RULE 22

gp. BILL OF PARTICULAR- is a statement of the matter subject of the case dome with
particularity for the adverse party to understand what is being complained against.
-

OLD RULE: A Bill of Particular (BP) may be filed on 2 grounds:

1. that the allegation in the complaint lack sufficient particularity so much so that the defendant is
prevented from making an intelligent response to the pleading.
2. The necessary particularization is needed for the defendant to enter trial.
gq.

This motion to be filed requires to specify 3 things:

1. It should point out the defect desired to be clarified by the BP.
2. It should point out the paragraph where such allegation that needs to be particularized is found.
gr. PURPOSE: for the court to determine whether:

the BP is not merely dilatory and

to determine whether the defendant understands the complaint.
gs. Hence, if the paragraph is ambiguous then the court will grant the BP. If it is already
clear the court will deny.

3. It should point out the particulars desired.

gt.
-

When a motion is allowed under the Rule but on specific ground, and if such motion was filed not
on the ground specified in the Rules, the same is called PRO FORMA. And it does not have any
legal effect. The pro forma motion is regarded simply as dilatory. Also when the defendant makes
his own Rule and not the rules provided by the court then the court will not grant that.
If the Motion for BP does not specify these 3 things then the motion will be regarded as pro
forma.
The BP must be filed within the period allowed by the Rules for the defendant to react to the
summon.
The effect is parallel to the MD. Upon filing a Motion for BP the period for filing an Answer is
interrupted and suspended. The defendant will have the remaining period to file an Answer
in cases when BP is denied. The period is not vacated.
When the Motion for BP is filed at least 5 days before the expiration of the period to file an
Answer to the summon, the court will allow the period of not more than 5 days after the
receipt of the order denying the BP, for the defendant to file his Answer.
When a Bp is filed, the particularized allegation forms part of the pleading that the plaintiff has
filed. This means that it forms part of the allegations of the complaint. This is legally significant.
Under the Rules of Evidence, the allegations of a pleader in the pleading filed partakes the nature of
a judicial admissions. He is not allowed to contradict this anymore because the judicial admissions
are conclusive against the party making the same.
Unless the allegations were allowed by the court to be withdrawn or amended because it is proven
to have been made out of mistake, the motion cannot be modified anymore. The plaintiff must first
file a Motion for Leave of Court to cure the mistake. Without that the mistake turns out to be
conclusive.
NEW RULES: the BP may be asked for by the defendant only if the necessary particularization
prevents him from filing an Answer. The other ground which the old rules allowed is no longer
allowed here. The BP cannot be availed of to enable the other party to prepare for trial.
Also, BP can only be availed of when the defendant has not yet filed an Answer. When the
defendant has already filed one, the purpose for motion for BP disappears.
When the Court grants the Motion for BP, the duty of the defendant to file an Answer to the
complaint remains suspended until the plaintiff comply with the order and file a BP.
Generally, the court ordering plaintiff to submit the BP specifies the period within which the plaintiff
should comply. If the order does not state a period, Rule 12 states he shall have 10 days.
If the plaintiff fails to comply with the court order within the period given by the court or within 10
days, the court upon motion of the defendant may strike out the allegation where the ambiguity
which requires particularization.
If the matter that requires particularization affects the cause of action as a whole, the entire
complaint may be stricken out of the record. Hence, no more case.
The BP as an option is available only for the defendant and not the plaintiff. Because the plaintiff
alleges and the defendant only answers the allegations. This option is limited only for the
preparation of the Answer if the defendant cannot prepare an intelligent Answer because the
allegation of the plaintiff lacks particularity. .
And if there is no reason to avail of the BP, another option available for the defendant under Rules
of court is a Motion for Summary Judgment.
gu.
gv. 3RD OPTION- MOTION FOR SUMMARY JUDGMENT under RULE 35

This option is available both to the plaintiff and to the defendant in the proper stage when the
plaintiff or the defendant is to make their own move.
It is similar to the game of chess where each has to move within a certain time frame. If not, the
other party cannot move.
The Motion for Summary Judgment (SJ) is proper as to the defendant if the plaintiffs cause of action
is a sham or not genuine. This means that the complaint state a cause of action but the cause of
action is void. If the complaint does not state a cause of action the proper remedy is to file a Motion
to Dismiss.
The situation contemplated is that the plaintiffs complaint states a cause of action but such cause
of action can be summarily shown by other affidavits as not genuine. Hence there is no need to go
to trial.
If the party filing the SJ is possessed with affidavit, deposition, admission or any other competent
evidence to show that there is really no genuine issue so there is nothing to try that movant may
instead file a Motion for SJ asking the court to render judgment for the case because there is no
genuine issue or need to go to trial.
However, this is option is proper only when everything in the plaintiffs cause of action does not
raise an issue. The moment there is something alleged in the plaintiffs cause of action that would
call for evidence for statement of facts a motion for SJ is NOT PROPER. A trial must be called.
Because evidence must be presented.

An example, let us say plaintiff files a complaint alleging the defendant does not fully paid the
amount borrowed by the latter, that there is still an outstanding balance. The defendant however,
has enough receipt issued that will prove that the amount of debt from the plaintiff has been paid
and the defendant asserts that the amount not yet paid covers the interest which under the Rule
cannot be collected unless there is a stipulation. So defendant will present evidence that he has
fully paid the amount by securing an affidavit stating that the parties did not stipulate payment of
interest. In effect the defendant contends that the alleged cause of action is not genuine because of
interest that is not due. This matter however will require determination of whether parties
stipulated payment of interests or interest was already deducted from the amount and this will
require presentation of evidence. And whenever any aspect of the litigation calls for the
presentation of the evidence, a Motion for SJ is not proper.
If there is no basis for defendant to file a Motion for SJ, he has no choice but to file an Answer.
gw.
gx.4TH OPTION- FILE AN ANSWER under RULES 6, 7, 8, 9 and 11
An Answer is a PLEADING and not a motion.
QUESTION: what does an Answer allege?
gy. An Answer allege the ff:

I.

Defenses:
a. Specific denials (Negative Defenses)
b. Confessions and avoidance (affirmative defenses)
Counter-claims
a. Compulsory
b. Permissive
Cross claims (if there were several defendants)
Prayer for Relief
Signature by counsel or client-litigant
Verification, if required
Certificate of Non-forum shopping, if a permissive counterclaim is pleaded.
gz.

II.
III.
IV.
V.
VI.
VII.

I.
DEFENSES
a) Affirmative or confessions and avoidance- are in the nature of allegations of new matters
which impliedly admit a certain proposition but however allege new matters to bar recovery
against the defendant. Known as Confession and Avoidance because the nature of this denial
makes an implied admission.
ha. Illustration: A case for recovery of sum of money. Defendants defense is that he has already
paid the sum of money. There is an implied admission that certain sum of money is indeed
borrowed by the defendant. This is affirmative defense.
hb.
Also if defendant raises the defense that his obligation has already prescribed.
b) Negative or specific denials- Rules require certain manner in order to constitute a specific
denial. If that manner has not been observed it will not constitute a specific denial but only a
general denial. The effect once the denial is only held as a general denial is that it is presumed
to constitute an admission instead of a denial.
II.
COUNTER CLAIMS- A counterclaim is any claim which a defending party may have against
an opposing party. (Rule 6, Sec. 6)
hc.
You must distinguish between compulsory and permissive.

III.

IV.
V.

a. Compulsory Counter claim- is one which, being cognizable by the regular courts of
justice, arises out of or is connected with the transaction or occurrence constituting the
subject matter of the opposing party's claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the court both as to the amount and the
nature thereof, except that in an original action before the Regional Trial Court, the
counterclaim may be considered compulsory regardless of the amount.
It must be raised in the Answer or in the same pleading. Does not require a certification of
non-forum shopping.
b. Permissive Counterclaim- It is a claim of the defendant against the plaintiff
acquiescing a transaction different from that which the plaintiffs cause of action states.
CROSS CLAIMS- is any claim by one party against a co-partyarising out of the
transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein. Such cross-claim may include a claim that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
Prayer of Relief
Signed either by the counsel or the litigant

VI.

Verification- under the law allegations of requires verification. If a document takes the
nature of an action of the litigant which requires to be under oath, the verification is
necessary.
Certification of Non-Forum Shopping- required in initiatory pleading. A permissive
counterclaim is in the nature of an initiatory pleading. It is a claim of the defendant against
the plaintiff arising from a transaction different from that which the plaintiffs cause of action
states.
hd.

VII.

The Answer referred to in the Rules of Procedure is the Answer of the defendant.
What a defendant wants to allege against the allegations of the plaintiff in his complaint is called
Answer.
The defendant is required to answer the complaint.
the period stated in the summons within which he is to file an Answer. He must file an Answer
within that period otherwise he has to file a Motion for Extension of Time to file his answer. But the
reason for the extension of time must be justifiable, otherwise, the court will deny that. In the
Motion for Extension of Time the defendant as movant will have to state how much more time he
needed to file his Answer.
A defendant who asked for the extension of time but does not file an Answer shall be liable for
Contempt of Court for delaying the proceeding.
The defendant generally, is allowed 15 days within which to file an Answer from the date of the
receipt of summons.
Should he file any of the Motions, filing of these motions will interrupt the running of the period until
the court has resolved the motion either to grant it or to deny it.
If the Motion is denied, the Answer must be filed within the remaining days. Unless the MD or BP is
filed for less than 5 days, then the defendant will be given another 5 days to file an Answer after
such denial.
Where the defendant is a foreign corporation doing business in the Philippines, ordinarily that
foreign corporation must have a resident agent in the Philippines. When he has resident
agent here, the period for filing is also 15 days after having been served with summon.
If the defendant foreign corporation is without a resident agent in the Philippines, the
summons shall be served to the government office charged with the supervision and control over
that foreign corporation.
Ex: Foreign Insurance Company- Office of the Insurance Commissioner
he.
Foreign Trading Company- DTI

The period for filing an Answer is 30 days after the notice was served by that government
officer to the foreign corp. which was the defendant of the case.
hf. If the summon was served by publication, the period is at least 60 days after notice is served
requiring the defendant to file his answer under Sec. 14 of Rule 14.
hg.

1
2
3
4

hh.
CHAPTER 5
hi. Fifth Step Options Available To A Plaintiff After The Period Of Filing An Asnwer
Of The Defendant Had Already Lapsed.
hj.
hk.
File a Motion to Declare the Defendant in Default under Rule 9, Sec. 3
File a Motion for Judgment on the Pleading under Rule 34
File a Motion for Summary Judgment under Rule 34
File a Reply
hl.

1
2
3

hm.

1st option- File a Motion to Declare the Defendant in Default (Rule 9, Sec. 3)

hn.

This motion is proper in 3 situations:

Where the defendant did not file any answer or responsive pleading to the complaint despite
valid service of summons.
Where the defendant filed answer or responsive pleading but beyond the reglementary period
for filing an answer.
Where the defendant filed answer in court but fails to serve the plaintiff with a copy of his
answer in the manner required by the rules. The consequence is No Filing of an answer was
made.
ho.
hp. Important aspects:

This is a privilege of the plaintiff. If he would not file this motion even though the filing of the
defendant of the responsive pleading is long overdue the court is not competent to declare the
defendant in default. Instead the court may dismiss the action on the ground of failure to prosecute
on the part of the plaintiff. Hence, there must be a motion of that effect made by the plaintiff. This
dismissal is provided for under Rule 17.
2nd situation: the defendant filed answer or responsive pleading but beyond the reglementary
period for filing an answer. If any step required by the rules to be taken by a litigant within a
specified period of time had not been taken, that order filed by the litigant in court pursuant to that
option filed out of time shall be regarded as a mere scrap of paper. It will not have any legal
standing in court and the court should not act on that answer which was belatedly filed.
Where the defendant would be filing his answer but beyond the period specified, the defendant
should file a Motion to Admit the answer which should be annex to the motion. Such Motion to
Admit should state the reason why the defendant was not able to file the responsive pleading within
the period fixed by the Rules of Court.
3rd situation: the defendant filed answer in court but fails to serve the plaintiff with a copy of his
answer in the manner required by the rules.
Under Rule 13 except as to the filing of the Complaint all other subsequent pleading, motions or
memoranda should be considered filed only if the adverse party in the case is properly served with
a copy of that answer or pleading or memoranda.
Sec 11 Rule 13: Service of any pleading subsequent to a complaint may be done personally, or by
registered mail, or by substituted service.
If copy for the adverse party was not served personally, let us say served by registered mail or
substituted manner, Sec 11 requires the party serving such pleading, motion or memoranda to
explain why the copy was not served personally and why it is not practicable to do so. Otherwise
such pleading, motion or memoranda not served personally without explanation shall be considered
as NOT FILED AT ALL.
NOW: When a defendant is considered in default, he cannot thereafter participate in the trial of the
case unless he would move to set aside that order. Although whenever the plaintiff would be filing
any legal paper in court, the defendant still has the right to be served a copy of such legal paper.
And he shall receive a copy of the order of the court once it reached its verdict. This is pursuant to
the requirement of DUE PROCESS.
REASON: if the defendant was ordered by the court through Summons to answer the complaint of
the plaintiff, failure of the defendant to obey the summons is tantamount to snobbing the court.
Hence the court also has the right to treat defendant as NOT A PARTY to the litigation, so he is not
allowed to participate in the trial anymore.
The defendant would regain his right to participate in the trial only after the court granted his
motion to set aside the order of the court.
OLD RULE: Once defendant is declared in default he totally losses his personality to participate in
the trial. He has no right to receive notice of the hearing or copy of the pleadings filed by the
plaintiff. He can only have a copy of the order made by the court, other than that, no more.
If the plaintiff has already completed the presentation of his evidence when the court lifted the
declaration of default against the defendant, the defendant will not acquire the opportunity to cross
examine the plaintiffs witnesses anymore. What is finish is finish. It cannot disturb the order of the
trial before the default was lifted or set aside. It cannot unmake the proceedings already taken.

Under rules on Default, a motion to declare a defendant in default cannot anymore be made ex
parte or without the benefit of a hearing on that motion.
OLD RULE: once a defendant was declared in default the court may allow the plaintiff to present
evidence on his complaint ex parte also or without the defendant being present.
REASON: the summons issued by the court so that defendant could answer the complaint. When
such summon is not heeded, the defendant will not be allowed to interfere or file answer anymore.
NOW: the court after the defendant has been declared in default may proceed with the rendition of
judgment by default against the defendant. There will be no reception of evidence for the plaintiff
anymore.
OLD: the fact that defendant has been declared in default is not an assurance that the plaintiff will
win. Because he is required to adduce evidence to prove allegations in his complaint. If he cannot
establish the merits of his case the court will dismiss the case.
NOW: the plaintiff may not be required anymore to adduce evidence ex parte in support of his
complaint. The court itself motu propioly proceed with the rendition of judgment by default on the
basis alone of the allegations in the complaint without evidence being presented by the plaintiff.
In rendering such judgment, the Rules gives the trial court the discretion to litigate the validness of
the claim prayed for by the plaintiff. So if the court believes that the claim of the plaintiff is overly
stated the court may simply reduce the amount. After all, the plaintiff did not establish the same.
Although this is the rule, the plaintiff may file motion in court to allow him to adduce evidence to
establish the amount of his claim especially if it was a claim for damages. Otherwise, the court will
proceed to render judgment. And it may motu propio reduce the amount of damages that should be
awarded.
When there are 3 or more defendant against whom plaintiff filed his complaint if the complaint
pleaded a common causes of action the court may order to proceed to render judgment against all
defendant because it is based on a common cause of action.
If one of the defendant filed an answer and the others did not, if the action is based on a common
cause of action the defense of one will apply to another. Hence, even if only one defendant filed an
answer and the others did not the case will be decided on the basis of the answer filed by the
answering defendant. Hence, no judgment by the court can be rendered against the other nonanswering defendant if after all the defendant is sued under a common cause of action and
everyone one filed an answer based on a common defense.
- EXCEPTION: But if the answering defendant filed his answer to the complaint and raised a
defense personal to him only, like his minority, the court can proceed to render judgment
against those who did not filed an answer. Because after all, the answer filed by the
answering defendant cannot be used for the benefit of the other defendants if they are not
minors. That defense is personal to the answering defendant and cannot be taken in favor of
other defendant.
As to the damage claimed by the plaintiff, and where the defendant did not file an Answer or
responsive pleading the court can render judgment without evidence as to the amount of damages
claimed if the damages claimed were in the nature of a stipulated damages. Otherwise, only claim
for damages under Civil Procedure is whether admitted by the adverse party. Only claim for
damages must at least be substantiated with evidence by the claimant. Because damages always
require proof.
hq.
NOTE FOR 1ST OPTION:
1 Motion for the plaintiff is necessary. The court cannot motu propio daclare defendant in default
without motion by the plaintiff.
2 The Motion to declar4e defendant in default can no longer be declared by the court ex parte.
3 Motion to declare defendant in default must be in writing and the Rules require due notice of
hearing to the defendant before he is declared in default. It must be scheduled in the calendar
of trials of the day.
hr. OLD RULE: The plaintiff may simply manifest to the court that the period for filing answer
had already lapsed and the defendant has not yet filed his answer. And this can be done orally
on the date of the initial trial.
hs.
In resolving the motion to declare defendant in default the movant is the one who set the motion
for hearing. If not, the court will not bother to set the motion for hearing. It will remain only as a
piece of paper.
The setting of the motion for hearing at most must be scheduled not more than 10 days after the
filing of that motion to the court which will resolve the same.
OLD RULE: the movant may schedule the date of hearing so that the court may resolve it even
beyond the 10 day period.
If the defendant has complied with the summons and filed a responsive pleading, a declaration of
the court is not proper. So the 1st option cannot be availed of under Rule 34 another option is given
ht.
hu.
hv. 2nd option- File a Motion for Judgment on the Pleading under Rule 34

When the plaintiff filed this motion the implication is that a trial on the case is not necessary
because answer filed by the defendant does not tender an issue.
does not tender an issue means in procedural law that the responsive pleading filed by the
adverse party did not deny expressly or impliedly the allegation forming the plaintiffs cause of
action. Hence, it implies that the defendant admit the allegation. Therefore the court can already
render judgment based on the allegations which are deemed admitted.
The admissions of the allegations of fact in the complaint may arise because of the failure of
defendant to make a specific denial.
Under the rules, the defendant in making the denial of the plaintiffs cause of action in the
complaint it requires either to make specific denial which serves as a negative defense, or
defendant may impliedly admit the allegations of the plaintiff but he would raise new matters on
denying the claims or defeat recovery of the plaintiff under his complaint, this is called affirmative
defense or confession and avoidance.
When the defense raised by the defendant is by way of Confession and Avoidance the court may
reverse the order of trial. Instead of the plaintiff proving what he claimed which is impliedly
admitted, the court may order the defendant to present his evidence. And the plaintiff will only
present rebuttal evidence. This is called trial in the reverse.
When the plaintiff filed a motion for judgment on the pleading in effect the plaintiff is asking the
trial court simply to render judgment based on what are alleged on the pleading filed by the
defendant and the plaintiff. No trial will be conducted. The court will simply render judgment based
on the allegation.
Hence, the plaintiff in effect submits his case without submitting evidence but only based on what
is alleged in his complaint and what is alleged by the defendant by way of defense in his Answer.
The court cannot go to any other source outside the plaintiffs complaint and the defendants
answer in rendering judgment in the case.
Consequently, since damages cannot be recovered without being proven, in effect stipulated
damages also called liquidated damages are agreed upon by the parties. Hence no need to present
evidence to prove damages. Any claim other than this, the plaintiff has the obligation to prove or
substantiate the claims for damages. Otherwise, the court is not allowed to grant damages which
are not clearly proven by evidence.
When the plaintiff filed a motion for judgment on the pleading the implication is that the Answer did
not render any issue, which means that the answer fails to deny the material allegations in the
plaintiffs cause of action.
The defendants failure to deny is not because he admits the allegation. The admission of the
plaintiffs allegation is a consequence if the defendant made his denial but not in the tenant
required by the rules of court.
The Rules requires that the denial must be made in the particular language. There is a particular
manner of stating the denial which the rules referred to as specific denial. Not every denial is
regarded as a specific denial. There are denials which are regarded as implied admission of what
was alleged.
If the court will resort to evidence outside of the pleading filed by the parties to prove that the
Answer does not tender any issue, the court then acted in error. Whatever proceeding thereafter is
null and void. Because when a plaintiff filed a Motion for Judgment on the Pleading he in effect
waives presenting any other evidence beyond what he alleged in his complaint and beyond what
the defendant alleged in his answer. No outside evidence or external evidence may be inquired into.
When this is not available, the plaintiff is allowed another option, that is, Motion for Summary
Judgment.
hw.
hx.3rd option- Motion for Summary Judgment under Rule 34

This option is also available to the defendant.

Under Rule 34, Sec 1: is for the plaintiff to file a Motion for Summary Judgment (SJ).
Under Rule 35 Sec 2: is for the defendant to file a Motion for SJ.
The Motion for SJ is proper when trial is not necessary anymore because the material allegations in
the complaint or answer are not genuine. In other words, the pleading of the parties alleges an
issue but that issue can be shown as sham or not genuine through affidavits of witnesses or
through depositions or through admissions or any other evidence contesting the truth of the
allegations.
If the defendant contention is that the plaintiffs complaint fails to state a cause of action, the
proper remedy is to file a Motion to Dismiss under Rule 16.
Distinctions should be made between a Right of Action and a Cause of Action.
The basis of a MD is a cause of action and not right of action. Cause of action refers to what are
alleged in the complaint.
Right of action refers to what the law confers to the plaintiff to bring the action as his right under
the law. Because of that right he can bring the action.
But although the plaintiff has the right of action but the pleading fails to state a cause of action
then the MD is proper.
Where the complaint states a cause of action but the cause of action stated is in reality not genuine
and it can be shown by affidavits of those who witnessed the transaction or depositions of parties

involved or by admissions made by the parties before the action can be filed or by any evidence
which can show that what is being claimed is a sham or not genuine, the complaint still states a
cause of action. Hence, MD is not the proper remedy but a Motion for SJ.
Motion for SJ whether available to the plaintiff or to the defendant can only be a proper option if
there is no issue of fact at all that will require a trial. If there was a issue of fact that will require
submission of evidence a motion for the court to render summary judgment is not proper.
If the court acted favorably in that motion and proceeded to render judgment without benefit of the
trial the court acted illegally. Whatever judgment the court rendered pursuant to that motion is null
and void ab initio.
Hence, Motion for SJ is available only when there is total absence of facts that must be threshed out
in the trial. That is why the trial is dispensed with.
Since this would involve a determination by the court whether trial is still necessary or not under
Rule 35 the remedy must set the motion for resolution or hearing 10 days after filing of that motion
precisely because the allegation on that motion through affidavits, depositions or admissions or
other evidence to prove that the cause of action is not genuine.
Usually for a motion the notice of hearing is only 3 days before the date when the motion is
submitted to the court for it to resolve the motion.
As in the case of Motion for SJ the period is 10 days. The movant is allowed to set the motion for
hearing 10 days after he filed it. Ordinarily, it is only 3 days. And it is because in this motion the
rules required that the affidavit, depositions or admissions and other evidence that the trial is not
necessary anymore should be annexed and made on several parts of the motion.
If defendant in his Answer raises a counter-claim against the plaintiff, we recall what an answer may
allege. Among them are counterclaims. A counterclaim under procedural law may be compulsory or
permissive counterclaim. In a compulsory counterclaim it arose out of the same transaction or
occurrence on which the plaintiffs cause of action is based. If the counterclaim arose from a
different transaction from that of which the cause of action is based, that is called permissive
counterclaim.
If the counterclaim arose out of the same occurrence or transactions on which the plaintiffs case is
based the defendant is not allowed to raise the counterclaim in any other action. That is why it is
called compulsory is because if the defendant did not raise it in the same action filed by the plaintiff
such counterclaim is forever barred. He cannot recover the same anymore. Hence, he is compelled
to raise it in the same action.
The only time when a compulsory counterclaim becomes permissive and therefore may be raised in
a separate action is when the counterclaim would require the bringing in of another party who is not
yet a party to the case filed by the plaintiff.
Hence, if the action is filed by the plaintiff alone the defendant raised a counterclaim which arose
on the same transaction made upon by the plaintiff and the defendant filed a counterclaim which
includes not only the plaintiff but also the brother of the plaintiff who agreed in the amount involve
in the counterclaim. The brother of the plaintiff is not a party claimant to the plaintiffs cause of
action. Hence, although the claim arose out of the same transaction on the plaintiffs cause of
action, but since it involves a party who is not a party to the action filed by the plaintiff, the court
allows that the action be filed by the defendant to file a separate action in raising the counterclaim
against the brother of the plaintiff.
When a counterclaim is permissive it is totally foreign to the transaction or occurrence which brings
about the plaintiffs complaint against the defendant.
But consistent with the policy of the rules that multiplicity of suit should be avoided, if the parties to
the plaintiffs complaint are the same parties to the defendants counterclaim, even though the
counterclaim did not arise out of the same transaction or occurrence, the rules allow that such
counterclaim be raised in the same action because the parties are the same even though the cause
of action in the plaintiffs complaint and the cause of action in the defendants counterclaim are
different.
In effect plaintiffs action is different from the defendants counterclaim. The defendants
counterclaim partakes the nature of an independent action filed by the defendant. While the
defendant in the action filed by the plaintiff is the plaintiff in the counterclaim. On the other hand,
the plaintiff in the action filed by him is the defendant in the counterclaim.
But because they are parties to the same action filed by the plaintiff no summon will be served to
the plaintiff to answer the counterclaim raised by the defendant.
plaintiff should file an Answer to the permissive counterclaim IF any has been pleaded.
Since Permissive counterclaim stands as a separate action where the defendant is the plaintiff and
the plaintiff in the original action is the defendant, filing fee must be paid by the defendant.
Moreover, the Answer will partake the character of an initiatory pleading. Hence, a certification of
non-forum shopping is required. If theres no compliance in the filing of the Answer the court should
not take cognizance of the permissive counterclaim. It will have no standing in law and the court
shall dismiss the case.
If there was no permissive counterclaim in the defendants answer to the plaintiffs complaint, the
plaintiff may not avail of this option where he is required to file answer to the permissive
counterclaim. Instead, his next option is to File a Reply.
hy.
hz. 4th option- File a Reply

In response to the plaintiffs controverted the new matter in the defendants answer what is to be
filed is NOT an Answer but a REPLY.
An Answer is necessary when the defendant answer pleaded a permissive counterclaim. If the
defendants answer pleaded a compulsory counterclaim, an Answer is NOT NECESSARY. Although
under the rules the plaintiff is required to file an answer to the counterclaim which is compulsory if
the compulsory counterclaim raises new matter which the plaintiffs complaint has not yet pleaded.
So to join issue with the new matters raised in the defendants answer, the rules require plaintiff to
answer the compulsory counterclaim.
BEFORE: compulsory counterclaim is a matter of defense which does not require an answer.
NOW: even a compulsory counterclaim will require an answer if it is not born out of any allegations
of the plaintiff in his complaint. Because any new matter brought out in the defendants defense in
such a case the plaintiff is required to answer the ounterclaim, not just to reply.
ia.
ib. REPLY WHEN TO FILE?

Filed not to controvert a counterclaim whether compulsory or permissive.

It is a pleading for the plaintiff or claimant in the action to file where the defendants answer alleges
new matters which are not found in the allegations of the complaint constituting the cause of action
of the plaintiff.
Even when no reply is filed, the new matters raised by the defendant are deemed controverted or
denied.
Unlike when a new matter where an answer is required, when an answer is denied the new matters
raised in the answer is impliedly admitted.
There are matters in procedural law which may be denied only under oath. So if the new matters
raised are denied but NOT UNDER OATH, effect is IMPLIED ADMISSION. When new matters required
in oath, it becomes mandatory for the plaintiff to file a reply. Otherwise if he files a reply or denied
to file a reply which is not under oath, the new matters raised by the defendant are deemed
admitted.
ic.
id. ACTIONABLE DOCUMENT

Rules required that an actionable document pleaded in the manner require by the rules to be
denied under oath.
Although denial is made if it was not under oath the effect would be an implied admission of due
execution of that document.
If that document is by operation of law deemed impliedly admitted after that admission the parties
may simply file a Motion for Summary Judgment. There is no need to go to trial because the
execution of actionable document is admitted.
An actionable document although called actionable is not limited only to the plaintiff who may
avail of the document.
An actionable document as defined by the rules is where the plaintiffs cause of action is based or
where the defendants defense is based. But to be considered an actionable document which
requires the adverse party who may deny this to make the denial under oath, the document must
be pleaded in a specific manner. If simply pleaded without following the requirements of the rules
the document will not be regarded as an actionable document. therefore, even if the denial thereof
is not made under oath the execution of the document is not deemed impliedly admitted.
ie.
if.
HOW MUST AN ACTIONABLE DOCUMENT BE PLEADED?
1

It may be copied verbatim in the plaintiffs complaint without the necessity of annexing to the
complaint a certified true copy of the actionable document.
It is only when the adverse party insisted that the original or certified true copy be shown to
him that the pleader is required to bring the original and show it to defendant.
EXAMPLE: in an action for a sum of money, if defendant after paying his debt to plaintiff
asked for a receipt such receipt is an actionable document because it is a document on
which the defendants defense is based.
If the defendant then pleaded guilt in his Answer, proving as basis the wordings of the
document, there is no need to annex the copy of the document to the answer because the
entirety of the document is quoted verbatim.
2 The pleading should only make reference to the substance of the document and a certified true
copy of that document must be annexed to the complaint as an integral part thereof.
3 Or if it was the defendant who invokes the actionable document as a defense, the defendant
may plead the actionable document by taking reference to the substance of the document in
the defendants answer. And a certified true copy of that document must be annexed as an
exhibit to the answer filed by the defendant.
ig.

When this mode of pleading has been followed the document becomes an actionable document and
therefore the adverse party should make a denial of due execution of that document under oath.
A denial of the genuine and due execution of the document which is not under oath will bring about
an implied admission (known as judicial admissions conclusive upon the pleader) that the document
is genuine and duly executed. So, no evidence thereafter may be received to contest the
genuineness of the document unless the court, for cause shown, allowed the party impliedly
admitting the same to be brought the admissions made on the ground that it was done out of
palpable mistake only. That the admission arose out of that mistake but not really intended as an
admission.
So the pleading in which this arose must be amended. The implied admission must be withdrawn.
Otherwise, the court will not allow such party to controvert that admission because it is a judicial
admission.
Although the document is the basis of the plaintiffs cause of action or the defendants defense, if it
was not pleaded as required by the rule, it does not invoke the status of an actionable document.
Hence, even if the denial was done not under oath such denial will bring about an implied
admission of the genuine and due execution of the document because legally the document is not
an actionable document.
NOTE: To be an actionable document it is not enough that the document be the basis of the
plaintiffs cause of action or the defendants defense. But it must be treated in the manner required
by the rules of court.
ih.
ii. These are the options available to the plaintiff within 10 days after having received the
defendants answer or motion about the other options allowed him under the rules of court.
ij.

ik. CHAPTER 6
il. Sixth Step Pre-Trial Stage

im.
in.
io. Pre-Trial
Before, pre-trial is not allowed in criminal cases, because it is regarded as derogatory to the consti
right of an accused to remain silent. In a criminal action, the accused is presumed innocent; it is for
the prosecution to prove that there is merit in the charge. Burden is always upon prosecution.
Purpose is to expedite the proceedings.
ip.
iq. PT in Civil Action
ir. PT in Criminal action
is. The parties are required to file preit. There is no requirement of a pretrial briefs. At least 3 days before the
trial brief. Rule 118 specifies the
date of the scheduled pre-trial.
matters under which pre-trial shall
be conducted.
iu. The rules specify what the pre-trial
iv. Both the counsel and the accused
brief should contain and required to
are required to agree and express
be raised. (rule18) if not followed, it
their conformity to any agreement
is tantamount to not filing at all and
entered in pre-trial to be in writing
be declared non-suit or in default.
and signed by them. Otherwise
any such stipulations are not
admissible as evidence.
iw. If the plaintiff failed to file the preix. The matters required for the
trial brief, as required, he is declared
coverage of the pre-trial are
non-suited, thus, the complaint may
different. The period to appear in
be dismissed. But if it was the
pre-trial will bring about
defendant who failed to do so, he
disciplinary measures (usually a
may be declared in default. And the
fine) only not a declaration of nonconsequences of default will attach
suit or default.
to him.
iy.
iz.
ja. Similarity - After pre-trial conference, the court is required to issue a pre-trial order
jb.
jc. Pre Trial Order
Recites what transpired during pre-trial, to guide the cause of the action during the trial.
States the matters which are already threshed out during the pre-trial and those matters taken up
during the trial. The counsels are expected not to raise the same matters already threshed out
during the pre-trial conference in trial because that will only delay the conduct of the trial.
jd.
je. NOTE:
Notice is required as to the scheduled date for pre-trial .
o the notice is given only to the counsel of each of the parties and such counsel is the one
responsible for notifying his respective client. (before notice is given separately to lawyer
and party)
If the litigant cannot be present for any reason, an atty in fact properly authorized by a special
power of atty shall represent him.
o The power of atty should not be limited as to the matters that the atty in fact is authorized
to agree to whatever the litigant may personally do. If he should be present in the pre trial
conference, it is also the scope of authority of the atty in fact or the agent.
o Example the amount of the claim is 500K the litigant is the defendant who cannot attend, so
he executes a special power of atty for a particular person to represent him during trial
authorizing him to enter into stipulation of facts one matter which must be raised. If
authorized to stipulation is upto 200K that SPA is not valid for purposes for pre-trial. The
same discretion that the litigant himself has if he were the one present must be the same
latitude of discretion to the atty in fact. He must have the same authority as to what is to be
done. If he is limited to the facts, stipulation, etc. is not the one contemplated there. It is one
that will authorize as the same latitude of authority as the party himself.
If the litigant was a juridical entity, eg a corporation
o the officer of a corporation who would represent the corporation during the pre trial must be
authorized by a special board resolution that would categorically state the authority of the
officer to represent the corporation purposely for that pre-trial only. And the certificate of the
corporate secretary attesting that a special board meeting was held for that purpose and
that during that meeting that particular resolution was adopted by the required majority that
would bind the corporation.
o The fact that the counsel appearing for the corporation is the in house counsel will not
suffice without the board resolution giving him the authority to represent the corporation in
that pre-trial. His authority must be distinct.

The trial court is no longer authorized to render a summary judgment or judgment on the pleadings
motu proprio after pre-trial. It must be at the instance of the parties involved. They should move for
a summary judgment or a judgment on the pleadings.
jf.

jg. CHAPTER 7
jh. Seventh Step Trial Proper
ji.
jj.
After pre-trial conference has ended and the Trial Court has already issued a pre-trial order.
The date must be stated as to when the trial would be. It particularly states wherefore, let this case be
conduct for trial on the merit on DATE and TIME at which both parties are enjoined to be present for their
respective allegation
jk.
jl. Rules provides for Trial by Commissoners and Trial as ordinarily conducted.
jm.
jn. BEFORE: there is this trial with assessors.
- if any of the parties would apply for trial with assessors, there is nothing in the revised rules that
prohibits trial with assessors. The reason why the rules on such trial has been removed or deleted
from the rules of court is because the rules has been rarely availed of. And that is so because an
application or motion for the court conduct trial with assessors gives an unpleasant implication
upon a judge. He will take this as insulting.
- Under this form, the court will set a date for the litigant to appear and choose among a line up of
about 20 known members of the community who are trust worthy in the conduct of the merits. The
implication is that they dont trust the judge and for the assessors sit with the judge.
- Before, if the litigant wants it to be with assessors, the judge cannot refuse. Assessors cannot make
a ruling, they just give it to judge and the judge must be convinced and make a ruling.
- Must be made part of the records, that when appealed to a higher court, it would be a dissenting
opinion, but if reversed- assessors are correct it becomes the ruling.
- The judge can motu propio call a trial with assessors, in effect he himself would say that he is not
competent to judge the case. This time it will not be unpleasant.
jo. ~If there is a need for it, it can still be had. As to who the assessors are, it would depend on
their expertise and the issue of the case.
jp.
jq. NOW ordinary trial and trial by commissioners (rule 36)
jr.
js. Trial by commissioners as a general rule can only be had upon conformity of both parties or
at the instance of one party which the trial court found meritorious and thus granted the
same.
- The court cannot motu proprio refer a case to be tried by commissioners (because he is being paid
for that and cannot delegate to others.)
- The rules provides 3 instances where trial may be conducted by assessors even without request by
the litigant but motu proprio by the court mentioned in rule 36. Outside of this, it must be upon
conformity of the parties and the judge cannot delegate.
- In these 3 instances, time is of the essence for the court to undertake the work which is to be
assigned to commissioners and consume so much time of the court and that denied other litigants
the time required for taking cognizance of their case.
- Example, partnership to be dissolved and determine share of each partner. That would require
examination of the operation of partnership for how long it existed. A strict accounting needed and
the court cannot look into this alone and postpone other cases. Here even if the litigants object to
the reference to a commissioner, it must be dismissed, the rules allow it time is of the essence and
deny other litigants expeditious trial of their cases.
jt.
ju. The commissioner may for this purpose, which should be not more than 3 persons, will
receive an authority from the court, and the order of reference state when they will conduct
the trial, the same as the court may hear the case.
jv.
jw. The order of reference given to Comm, does not prohibit them on ruling on the admissibility
of evidence. The comm are competent to rule on the admissibility of the exhibit.
jx.
jy. In deposition comm has no authority to rule on the admissibility on evidence, objection
only noted. The taking of deposition, conducted by municipal judge. The municipal judge
taking the deposition cannot rule on it.
jz. Commissioners who are not judges can rule on admissibility of evidence.
ka.
kb. From the speedy trial act of 1997? trial only to 180 days 120 days 80 days.
kc. what are those matters counted and not counted in the counting of the period.
kd. It would be dilatory to question the days spent for trial.
ke.
kf. NOTICE OF TRIAL- upon entry of the case in the trial calendar, the clerk shall:
a) Notify the parties of the date of its trial
b) In such manner as shall ensure his receipt of that notice atleast 5 days before such date.
kg.

kh. ORDER OF TRIAL (Sec.5, Rule 30) - subject to the provisions of Sec.2, Rule 31 and UNLESS
the court for special reasons otherwise directs, the trial shall be limited to the issues stated
in the pre-trail order and shall proceed as follows:
a) plaintiff adduce evidence in support of his complaint
b) defendant adduce evidence in support of his defense, counterclaim, cross claim and third
party complaint.
c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and fourth-party complaint;
d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
e) The parties against whom any counterclaim or cross-claim has been pleaded, shall
adduce evidence in support of their defense, in the order to be prescribed by the
court;
f)

The parties may then respectively adduce rebutting evidence only, unless the court,
for good reasons and in the furtherance of justice, permits them to adduce evidence
upon their original case; and

g) Upon admission of the evidence, the case shall be deemed submitted for decision,
unless the court directs the parties to argue or to submit their respective memoranda
or any further pleadings.
ki. If several defendants or third-party defendants, and so forth, having separate
defenses appear by different counsel, the court shall determine the relative order of
presentation of their evidence.
-

Trial begins with the plaintiff adducing evidence on the merits of his claims. This is called
evidence in chief.

Order of trail may be modified by the trial court.

If the evidence is not sufficient, the defendant may file a DEMURRER TO THE EVIDENCE
which means that the evidence adduced by the plaintiff does not show that the plaintiff is
entitled as a matter of right to the relief prayed for.

DEMURRER TO THE EVIDENCE- nature is that of a Motion to Dismiss. But unlike MD, this is
purely predicated on sufficiency of evidence.
kj. DEMURRER TO EVIDENCE DISTINGUISHED IN CRIMINAL CASE AND CIVIL CASE

kk.
Civil Case (Rule 33)
km.
1. In filing a demurrer, prior leave of
court is not required.

ko.
2. if demurrer was denied, the
defendant still has the right to adduce
evidence in his defense.
kq.
4. No specified period for defendant to
file a demurrer.
kr.
The defendant can file the demurrer to
the evidence within REASONABLE TIME, unless
the court fixed a period.
kt.
5. if the demurrer is GRANTED, plaintiff
may appeal the dismissal of the case pursuant
to the demurrer. If on appeal, the court found
that the evidence of the plaintiff is
preponderant to entitle him to the relief
prayed for, the appellate court will simply
render judgment in favor of the plaintiff.
ku.
It will not remand the case to the trial

kl.
Criminal Case (Rule 119)
kn.
Leave of court is required. Otherwise, filing of
demurrer will amount to a waiver of the presentation of
evidence by the defendant or accused should the
demurrer be denied.
kp.
If filing of demurrer is done without prior leave of
court, the denial of the demurrer will amount to the lost
of the defendants right to present evidence in his
defense.
ks.
There is a specified period which is unextendable
for filing a motion for leave of court and the demurrer, if
lrave was granted. Otherwise, the opportunity to file the
same is lost.
kv.
If the trial court grants the demurrer, the effect is
ACQUITTAL as long as such acquittal was had with
jurisdiction. No appeal could be taken from the dismissal
of the case.
kw.
kx.
Reason: Doctrine of Double Jeopardy
ky.
Note: equivalent of double jeopardy in civil cases
is Res adjudicate.

court for reception of the defendants

evidence. Hence, the defendant losses his
right to present defense evidence.
kz.

la. ADJOURNMENT AND POSTPONEMENTS - A court may adjourn a trial from day to day, and to
any stated time, as the expeditious and convenient transaction of business may require.
LIMITATIONS:
- But it shall have no power to adjourn a trial for a longer period than 1 MONTH FOR EACH
ADJOURNMENT,
- Nor more than 3 MONTHS in all
EXCEPT: when authorized IN WRITING by the Court Administrator, SC.
lb.
lc. REQUISITES OF MOTION TO POSTPONE FOR ABSENCE OF EVIDENCE
ld.
Can be granted only upon:
1. Affidavit showing the materiality or relevancy of such evidence
2. That due diligence has been used to procure it.
le. NOTE HOWEVER: that if the adverse party admits the facts to be given in evidence, even if
he objects or reserves the right to object to their admissibility, the trial shall not be
postponed.
lf.
lg. REQUISITES OF MOTION TO POSTPONE TRIAL FOR ILLNESS OF PARTY OR COUNSEL
lh. Can be granted only if:
It appears upon AFFIDAVIT or SWORN CERTIFICATION that the presence of such party or counsel at
the trial is INDISPENDABLE, and
That the character of his illness is such as to render his non-attendance excusable.
li. NOTE: The motion for postponement must be made under oath so that any false statement
may be a basis for perjury.
lj.
lk. CHAPTER 8
ll.

lm.
ln.

Eight Step Rendition Of Judgment

Differentiate JUDGMENT from ORDER:

1. Judgment- disposes of the merits of the case. Such that the trial court has nothing more to do
about the case after the judgment was rendered.
2. Order- disposes only incidents that may have been raised in the action, generally upon motion.
lo. NOTE: IT IS NOT THE CAPTION WHICH DETERMINES WHETHER IT IS A JUDGMENT OR ORDER
BUT THE NATURE.
lp. REASON: it is necessary to distinguish between judgment and order because the litigant
could know whether or not to file an appeal.
-

If what was rendered is ORDER, no appeal may be had.

If it was JUDGMENT, may be appealed after the lapse of 15 days.
lq.
lr. INTERLOCUTORY JUDGMENT vs. FINAL AND EXECUTORY JUDGMENT

1. Interlocutory judgment- means that the trial court still has something to do about the case and the
dame cannot be brought before the appellate court.
2. Final and Executory Judgment- the trail court has nothing more to do.
ls.
lt. RENDITION OF JUDGMENT AND FINAL ORDERS (rule 36- Sec.1)
lu. A judgment or final order determining the merits of the case shall be:
1.
2.
3.
4.
5.

In writing
Personally and directly prepared by the judge (only a general rule)
Stating clearly and distinctly the facts and the law on which it is based
Signed by him
And filed with the clerk of court
lv.
lw. The rules on judgment in criminal cases requires more details than in civil cases.
lx. DIFFERENT DESIGNATION OF JUDGMENT

1. JUDGMENT BY DEFAULT- refers o judgment rendered where the defendant either did not file an
Answer to the complaint or having filed an Answer, but did not submit to a pre-trail of the case,
such that the court has to dispose of the case even without participation of the defendant.

2. JUDGMENT UPON COMPROMISE- significant only to mean that such judgment is not appealable
and is immediately final and executory.
- It does not comply with the requirement of the rule on what a judgment is, which must state the
facts, evidence, the law and applicable decision on which the findings of facts was based.
- The parties entered into a compromise and the terms of such compromise are reduced to
writing.
- There is reciprocal confession given by parties.
- If such compromise agreement is not contrary to law, morals, public order and public policy, the
court will approve that and will admonish the parties to comply with its terms in good faith. This
takes place the disposition of the court and the parties are stopped to deny the same.
3. JUDGMENT UPON CONFESSION- may arise in 2 ways:
A. Judgment in Cognovit Actionem-defendant upon receipt of the complaint would not bother
to contest the complaint or the claims of the plaintiff, but merely ask for grace period to comply
with his obligation to the plaintiff.
- It is based on the confession of the defendant. It is NOT APPEALABLE.
B. Judgment Relicta Verificatione-At the beginning, the defendant contests the plaintiffs claims
and files and Answer. But subsequently finds that it is futile to litigate where he has no chance
of succeeding. Hence, he manifest to court that he withdraws his Answer and accept the
plaintiffs right ton recover against him.
4. SEVERAL JUDGMENT (RULE 36. SEC. 4)- in an action against SEVERAL DEFENDANTS, the court
may, when several judgment is proper, render judgment against one or more of them, leaving the
action to proceed against the others.
- There is plurality of defendant.
- GR: Although the judgment against one defendant has already been severed, appeal cannot be
taken.
- EXC: unless made with leave of court.
- Reason for GR: the decision is subject to 1 complaint.
5. SEPARATE JUDGMENT- based on the plurality of cause of action.
ly. Rule 36, Sec 5: When more than one claim for relief is presented in an action, the court, at
any stage, upon a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of the
claim, may render a separate judgment disposing of such claim.
lz.
The judgment shall terminate the action with respect to the claim so disposed of and
the action shall proceed as to the remaining claims.
ma.
In case a separate judgment is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgment or judgments and may prescribe
such conditions as may be necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered.
-

Meaning: if plaintiff has more than 1 causes of action against the defendant, he may join it
under 1 complaint even if such causes of action are different from each other as long as they
are within the jurisdiction of the RTC or Courts of 1st level. But such causes of action under one
complaint must be identified separately as 1st cause of action, 2nd cause of action and so forth.
- The plaintiff may ask the court to render separate judgment based on one cause of action.
- No appeal can be taken unless allowed by the court. This is to avoid multiplicity of appeal.
- Not really a judgment at all because only the dispositive portion of the judgment is pronounced.
The legal basis of the disposition is reserved to be written later on.
- Until it is completed, it will not become a judgment at all and will never become final and
executory.
6. JUDGMENT FOR SPECIFIC ACTS (RULE 39, SEC.10)7. SPECIAL JUDGMENTS (RULE 39, SEC. 11)
8. JUDGMENT SIN PERJUICIO- or without prejudice
- According to Justice Moran: Not really a judgment because the dispositive portion of the
judgment is only pronounced. The factual and legal basis is written later on. It is not a judgment
at all. Hence, not a valid judgment.
- According to Justice Paras: it is a judgment where the court dismisses the case but without
prejudice for the plaintiff to re-file the same. (Rule 17). It is valid.
- Not a judgment on the merits.
- It is when the plaintiff choose to withdraw the case. The case will be dismissed without prejudice
to his re-filing for the 2nd time. But if he withdraws it again. He cannot re-file it anymore. The
dismissal is final and with prejudice. This is called THE 2 DISMISSAL RULE.
9. JUDGMENT NUNC PRO TUNC- literally means, Judgment now or a hearing conducted then or in
the past.
- refers to a matter subject of the case but the decision rendered by the court failed to include in
the disposition of that case. So to bring about a complete disposition of that case, a judgment
will be rendered now that will show that the matter now rendered is in fact included in that case
that was tried before.
10. CLARIFICATORY JUDGMENT- significance: is when the judgment becomes final and executory.

If the clarification is not a matter of substance, the period for appeal will date back to the
time when notice of that judgment was received by the prevailing party.
- So if the prevailing party receives judgment Dec. 20, the period for appeal dates back from Dec.
20. After the lapse of 15 days.
- If the clarification makes a substantial change in the judgment, the judgment will deemed to
be rendered from the time the substantial change was made. Period for appeal will run from the
time of the substantial clarification was made. Not from the time notice of the judgment was
received by the prevailing party.
11. MEMORANDUM JUDGMENT- refers to judgment rendered by the appellate court in a case
supposedly reviewed by it but the judgment rendered merely reiterated the findings of the trial
court without explaining the reason for adopting such.
- SC held: where the appellate court did not exert any effort to review the case it is supposed to
review, its decision is INVALID. Because the same only repeated what the trial court has done
about deciding the case.
- But if the appellate court makes memorandum of the findings of the trial court with its own
knowledge and appreciation that the trial courts decision is what is just and correct, then such
judgment is valid.
mb.
mc.

JUDGMENT IN CRIMINAL CASE vs. JUDGMENT IN CIVIL CASE

1. CIVIL- simply rendered NOT promulgated.

md.
CRIMINAL- not only rendered but also promulgated.
me.
NOTE: Judgment is rendered when after being completed and signed by the judge,
judgment is transmitted to the Clerk of Court to record the same in the book of judgment
even though no actual recording was done.
2. CIVIL- whether judgment is valid or not, will be determined on the date of the rendition of
judgment.
mf. Ex: if judge prepare judgment of the case outside the office hours, left it to his secretary to
file it with the Clerk of Court, but since the Office of the Clerk of Court is already closed, so he
kept the judgment in his table and instruct the secretary to deliver it in the morning to the Clerk
for recording. But on his way home judge died.
mg.
Question: is the judgment valid? Supposed that the judgment was delivered the
next day to the Clerk of Court, is such judgment valid?
mh.
Answer: No. Because such judgment is not rendered. It is only rendered when it is
delivered already.
mi.
mj. CRIMINAL- Rendered and Promulgated. Promulgation is done by reading the judgment in
the presence of the accused made in open court.
mk.

mm.

ml.CHAPTER 9
Important incidents available to a litigant in a civil action

mn.
mo.
1. Where a party to an action dies (plaintiff/defendant)
mp.
- (BEFORE: the party must be substituted by one who can represent him in the action. If the
action will involve the estate of the party, jurisdiction of that estate is with a probate court,
therefore a special proceeding not anymore a civil action. So the court where the civil action is
pending will have to be dismissed and the claim will be prosecuted in the special court dealing
with estate of deceased person. This is true if it is the defendant who died. Once a person dies,
his estate acquires a juridical personality. No recovery to the estate without passing upon the
probate court. So plaintiff must pursue in the probate court.)
- NOW: if defendant dies, the civil action will continue up to the time that judgement rendered in
that action becomes final and executory. Although it will continue, and judgement has become
final, execution of the judgement cannot be done by the court which rendered the same. It
cannot be executed by the sheriff by that court but instead will be presented in the probate
court. This is to avoid further proceedings before the probate court. Hearing in the probate court
is dispensed with, but not the execution of the judgement.
- Probate court may be the same court acting as a regular court of a general action. It is only
exercising on a different jurisdiction. Probate court has limited jurisdiction. It can only act on
matters having to do with the estate of a deceased.
mq.
2. In the matter of pleading so called ACTIONABLE DOCUMENT (Rule 8)
mr.
- Actionable document document on which plaintiffs cause of action or the defendants defense
is based. This is not limited to the plaintiff.
- EXAMPLE: If the action was for the recovery for a sum of money purportedly owed by defendant
to the plaintiff. The defendant having a receipt would be his defense. That is his actionable
document as the defendant.
- Importance: when the document is the basis of the plaintiffs claim or the defendants defense,
the ROC require a specific manner of pleading that document. (2 ways)
o Allege the substance of the document in the pleading of the party invoking such
document AND Annex to the pleading the original or the copy of that document for ready
preference by the adverse party.
If plaintiffs action is for a sum of money based on a promissory note, he must not
only refer to the substance of the note, but also must attach the note or a true
copy thereof.
o Alleging in the pleading the provision of the document verbatim in which case there is no
need to annex a copy of the document to the pleadings.
In same example, you may copy verbatim the note, no need to attach. This is
practical if the actionable document is only short.
- If not pleaded in any of this 2 ways, it will not be regarded as an actionable document but
merely an evidentiary document.
- The significance where the document is pleaded as an actionable document, the adverse party
is required to deny the genuineness and pure execution of that document under oath.
- If he would deny the same, absent an oath, the effect would be an implied admission of the
genuineness and due execution thereof.
- If the document was not pleaded in neither of the 2 ways, even if there is denial without an
oath, the effect of impied admission does not arise. It shall not be regarded as an actionable
document but only an evidentiary document. An evidentiary document may not be denied
under oath.
- If the document is already deemed admitted and the issue is only on the genuineness or due
execution thereof, trial may be dispensed with, hence the party invoking the actionable
document may simply fine a motion for summary judgement, there may be no trial anymore
where the court may grand the motion by giving an order disposing the case. It will be in the
nature of a judgment.
ms.
3. Amendment of Pleading(Rule 10)
mt.
- 2 ways: 1. By filing an amendatory pleading or 2. By filing a supplemental pleading. So if the
plaintiff makes an amendment, he may either file a supplemental complaint or an amended
complaint.
- If the amendment would be done thru supplemental pleading, prior leave of court is always
necessary.
- if the matter to be brought to the pleader by way of amending the pleading already filed in
court, already existing at the time original pleading was filed, the amendment should be done
by filing an amended pleading only. The nature that calls for an amended pleading is a matter
which is overlooked or forgotten but already existing in the original pleading filed correcting the
original.

The amended pleading must reiterate everything alleged in the original pleading which the
pleader wanted to maintain in the action. All matters not reiterated is deemed abandoned and
waived. Therefore cannot be referred to anymore during the trial. More than this, the new
matters brought by the amended pleadings must be underlined or underscored to indicate what
has been amended.
- So if the pleader omitted some allegations which are in the original, it is deemed abandoned,
during trial you cannot make reference to that allegation anymore. The amended pleading in
effect supersedes or replaced the original pleading.
- However, as far as the adverse party is concerned, the allegations in the original pleading may
be used by him as a judicial admission.
- Example: plaintiff in original states that the defendant paid him P20K and still owing so much, in
the amended plaintiff failed to state that defendant paid 20K and has balance, it is deemed
abandoned and cannot claim balance anymore. He cannot use it but the other party may use it
as a judicial admission.
- An amendment may be done to a pleading which does not state a cause of action and an
amended pleading may be made to state a cause of action. Before, this cannot be done
because if the complaint does not state a cause of action, the court does not acquire
jurisdiction.
- NOW: The pleader in fact has a right of action under the law that his allegation in the pleading
failed to make up a cause of action, he can make the amendment to make the pleading state a
cause of action, in fact when he filed, he has a right of action.
- If he would amend his pleading, he must have a right of action from the time he first filed his
pleading. If not, he may not amend to give a cause of action anew. Right of action emanate from
the law itself, cause of action emanate from the complaint.
- Example.. If during pre-trial the money claim turned out to be arising from employer-employee
relationship, it is beyond the jurisdiction of ordinary court, if the plaintiff amended the pleading
so that the money claim would not appear as such to give jurisdiction, this is not allowed.
Jurisdiction is conferred by law.
- This is allowed for expeditious disposition of the case.
- An amended pleading will need proper steps to take if the matter to be brought was already
existing at the time the original pleading was filed. It was overlooked or forgotten by the
pleader. If the matter to be brought to the original accrued or arose only after the original was
filed, the amendment must be done by SUPPLEMENTAL PLEADING.
- SUPP. Pleading always require prior leave of court because this gives new matters to the court.
- If the action involved instalments falling due on different periods, at one period only one is due
and plaintiff filed a complaint only that alleged. Defendant answered. Before it was called for
pre-trial, 2nd instalment became due. Since there is already a case in court on that obligation, it
is better to raise it in the same action to avoid multiplicity of suits. Only file a supplemental
complaint. Therefeore leave of court is necessary. If not, he will have no legal standing and it
will just be a mere piece of paper.
mu.
4. Filing and Serving Pleadings (rule 13)
mv.
- All pleadings filed after complaint must be served to the adverse party to that action.
- Served means copy furnished in law.
- May be done 1. In person 2. By registered mail 3. By substituted service
- Old rules: lawyer to serve whatever by mail.
- NOW it must be made personally, and if it cannot be done, you must explain the reason why
you have not served it personally. If without the explanation, its effect is as if the pleading,
motion, or memo is NOT filed at all.
- Rule 13, Sec 14 notice of lis pendens applies only to actions where subject of litigation is real
property and issue involved title to or ownership or possession of real property.
- Notice of lis pendens is annotated by the register of deeds even without the courts intervention
as long as the litigation is in respect of ownership or possession of real property or interest in
them until permanently dismissed.
- This cannot be cancelled without court proceedings through declaratory relief.
mw.
5. Motion (rule 15)
mx.
- Means requests
- Must contain a notice of hearing stating the date when the same will be submitted to the court
for resolution. If not, the motion is just a scrap of paper. Movant must file the notice of hearing
required to be reflected in the motion.
- There are motions acted upon by court ex parte motions of cause. They do not affect the
rights of the adverse party but instead only address to the discretion of the court.
o For instance, GR- defendant is allowed 15 days, or 30 days, or no less than 60 days as
the case may be to file answer to the case depending on how summons was served to
defendant if ordinarily 15 days, he should file a motion to extend time, otherwise he
may be declared in default. This motion as long as filed within 15 days addressed to the

discretion of court. This time a motion may be filed even without motion for hearing
because it may be acted upon ex parte.
o But if plaintiff obtained judgement and defendant appealed the judgement, execution is
generally not allowed because it is in appeal. But if there are valid reasons to execute
the judgement, like the defendant is disposing off his property, by the time the case on
appeal, the defendant had no more property left to satisfy the judgement. The plaintiff
with good reason may show that it should execute judgement. (GR judgement can only
be executed when final and executor. EXPT discretionary execution when there are
good reasons to have judgement executed even when pending appeal or even when final
and executory)
such a motion cannot be heard ex parte. The right of the defendant is necessarily
affected. The defendant must be given pportunity to show that there are no good
grounds to show so that there be execution pending appeal.
it is a litigated motion whatever resolution the court may make from the motion
is null and void. Because no notice of hearing.
- On omnibus motions attacks on the pleading or proceedings motion to quash, dismiss, etc,
all grounds must be alleged in the motion and those not alleged = waived.
o EXPT those cannot be waived jurisdiction, etc
my.
6. Dismissal or Withdrawal of the complaint of the Plaintiff (Rule 17)
mz.
- Different from dismissal by defendant (rule 16) only had only on the grounds stated there:
- This one is initiated by the plaintiff. It should not be called dismissal but withdrawal because the
plaintiff decided to discontinue his complaint.
- If the plaintiff has decided to discontinue his complaint before the defendant has filed an
answer, meaning no issues has not been joined, the plaintiff may simply cause the dismissal of
the complaint thru a manifestation in court (not a motion) that he is withdrawing his complaint.
- NOW: the dismissal need to be made known to the court. Court should be informed that it was
dismissed by plaintiff.
- 2 dismissal rule plaintiff allowed to dismiss his case twice only. The second dismissal will
become final and cannot re-file it anymore. May re-file it when only dismissed once. If not final
dismissal without prejudice. Can be re-filed. If dismissal for the second time, amount to
adjudication of the case as though it was tried on the merits = with prejudice and cannot re-file
his complaint.
o Effect is res adjudicata. Although actually no actual trial on the merits.
- Dismissal as ordered by the court may not state if with prejudice or not. Its up for the lawyer to
know if that dismissal would bar the filing of the case. If 2 nd dismissal, if order did not say that it
is without prejudice, it is already understood.
- If the 1st dismissal is silent, it is understood to be without prejudice. But if it expressly state that
it is with prejudice, then cannot re-file it anymore.
- Where the plaintiff realized that it is not advantageous to proceed with complaint and received
answer already, and there is counterclaim (ex atty fee), issues are already joined and plaintiff
cannot just withdraw the case without the courts passing upon the merits of withdrawal.
Because if the defendant raised counterclaims, the dismissal of complaint does not carry the
dismissal of the counterclaim.
o When issues are joined, plaintiff can no longer withdraw by mere manifestation. It must
be thru a motion to dismiss requiring a hearing.
Unless the dismissal of the counterclaim is part of the agreement of the parties to
terminate the case.
- 2 ways by which a plaintiff may initiate dismissal
o By mere manifestation when there is no answer yet
o By motion when issues are joined already, and submitted to the jurisdiction of the court
by the parties.
- If it was a cross claim that was pleaded by a defendant (claim against a co-defendant), dismissal
will unavoidably dismiss the cross claim. This is predicated on the plaintiffs claim.
- Non-Suit Dismissal failure of the plaintiff to come up with evidence on schedule date of trial is
always with prejudice. This may arise in any of the following situations:
o If on the day of initial hearing of a case the plaintiff did not appear or was not ready to
adduce evidence for his complaint, the dismissal of the case is with prejudice unless the
court expressly stated in the order of dismissal that it is without prejudice.
na.
7. Intervention (rule 19)
nb.
nc. Intervention as an action
nd. Interpleader
1. Ordinary action
ne. Special civil action
2. Ancillary action there must be on going
nf. Principal action
principal action
3. Prior leave of court is always required
ng. Leave of court not required
4. Proper in any of the following:
nh. Proper when:

a. When the prospective intervenor has

legal interest in the subject matter of
the litigation in the principal action
b. When prospective intervenor has a
legal claim against both parties in te
principal action (2 parties who has
the right to possess the land but not
owner, the true owner may intervene
for rentals not paid to him)
c. Prospective intervenor is interested in
the success of either party (not both)
- If to plaintiff file complaint in
intervention
- If to defendant file answer in
intervention
d. When property in custodialegis is
about to be disposed of or distributed
by the court.

a. Plaintiff is to make payment of money

or a delivery of property and
conflicting claimant confronted him to
receive such payment or delivery and
he is not aware of who is the rightful
claimant to such money or property.
ni.

nj.
There must be an ongoing principal action. If the action was already submitted for decision, an
intervention is not proper anymore. An independent action will have to be filed by the
intervenor.
- 2 criteria whether or not the court should grant leave:
o w/n to allow intervention, there would be unreasonable delay in the determination of
principal action to the prejudice of the parties thereto.
o w/n the claim of the prospective intervenor can be amply protected in another separate
action
between the 2 criteria the 2nd is controlling = even though the intervention would
unreasonably delay the determination of right of parties in the principal action, if
the claim of the intervenor cannot be protected in any other action, the court
where the principal action is on-going should allow the intervention to give justice
to the intervenor.
- CASE: When property of intervenor was levied upon in a writ of execution, and under the
inventiory of the sheriff, it was set for public auction already. He intervened to prove ownership,
is that right?
o A: NO. intervention presupposes that there is an on-going action, if already levied, it is
already decided and is final and executory. The remedy is to file an action to stop the
sale thru injunction.
nk.
8. Rule on Subpoena (Rule 21)
nl.
- Court process issued to compel the appearance in court of a person either to testify in a case
pending before the court issuing the subpoena or to bring to the court any object, record,
document needed in the case being heard by the court.
- GR disobedience = contempt!
o EXPT if have no means to reach the court, he can quash the subpoena based on the
grounds provided.
- 2 classes
o Subpoena ad testificandum testimony only
o Subpoena ducestecum bring to court object, record, document, paper.
- NOW: Both are subject to motion to quash but on different grounds.
- GROUNDS TO QUASH (in ducestecum)
a. Subpoena is Unreasonable and Oppressive
Unreasonable if it does not contain enough description of the object, document or
record called for such that the person cannot know what particular object he has
to bring with him. (ambiguous description)
Oppressive of object is so voluminous and require a jeep-load of records.
b. The party desiring the bringing to court of the object, record, or document called for in
the subpoena did not advance the expenses for the reproduction or copying of the
matter to be brought to court.
Reproduction needed to be marked as exhibits
If public document under the rules on evidence = IRREMOVABILITY OF PUBLIC
RECORDS kept in a public office or repository officially designated (like
registered of deeds) it must be kept there and original cannot be taken because
of the risk that it might get lost. Therefore, only a certified true copy is given.
EXPT if theres a court order to examine the original.
c. When the party requesting for the subpoena did not tender the kilometrage feeof which
the witness is entitled to under the law.
Tender it upon filing subpoena.
-

If the witness who appear in court resides more than 100KM from the court, he
cannot be compelled by subpoena, even if the party gives him money.
Remedy take down his deposition
d. When the object, record, document, is privileged in nature and not subject to public
scrutiny or inquiry
- GROUNDS TO QUASH (in ad testificandum)
a. Where the person subpoenadresides at a place more than 100KM from the place of the
court hearing the case.
100Km to be counted by ordinary travel not by exact distance. And this ordinary
travel is the basis of the kilometrage fee.
b. Where the person is sick, or over-aged, or infirm, that he cannot travel anymore.
Remedy - deposition
c. Where the witness is out of the country
d. For any other reason that would render travel to the court no longer possible
e. When kilometrage fee is not tendered at the time subpoena is served to him
f. When the matter he is to testify is considered privileged and cannot be subject of public
inquiry or scrutiny.
- When to file a motion to Quash a subpoena?
o Filed before the day required to be present and to explain why he is to quash subpoena.
Otherwise, he may be cited in contempt and court may order his arrest.
nm.
9. MODES OF DISCOVERY
nn.
- Purpose is to put party litigant in equal footing in knowledge of facts involved in the case.
- Idea is to equip a litigant which he may be able to fathom how much the other litigant may
know the details of the case thru any of these modes of discovery:
a. Depositions Pending Action (Rule 23)
b. Depositions before Action or Pending Appeal (Rule 24)
c. Interrogatories to Parties (Rule 25)
d. Request for Admission (Rule 26)
e. Inspection of Documents or Things (Rule 27)
f. Physical and Mental Examination of Persons (Rule 28)
no.

A. DEPOSITIONS PENDING ACTION (Rule 23)

B. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (Rule 24)
- Does not mean that he becomes an automatic witness. It is purely informative and not bound to
offer in evidence.
- GR - It cannot substitute the testimony of deponent as long as he is available to testify in court.
The judge must have opportunity to observe deportment and demeanor of witness. This is a
prerogative which rules allow the trial judge not available to appellate court justice who only
rely to what the trial judge observe during the trial. For their findings of fact is generally
conclusive to appellate court.
o EXPT (sec 4, rule 23)
only use if person is not available anymore and his information is material.
Used only to impeach witness testimony on trial when there is contradiction
between deposition and testimony.
Used if adverse party has had opportunity o cross examine the deponent. If taken
without cross examine, useless.
- Proceedings here similar to a court trial. Person shall appear at designated place. The officer
taking deposition, with the lawyers, and stenographer
- Deposition taken either oral examination or written interrogatory
- ORAL lawyers will appear there where deposition is taken, and ask the deponent direct
examination questions called direct interrogatories. After deposition has been taken down, the
session will reset to another day for the stenographer to transcribe it. 3 copies will be made,
with the seal of the court, and only the court can open it.
- WRITTEN INTERROGATORIES lawyer write down questions (5 days) then send it to all parties to
the action and others prepare cross-interrogatories (3days) and serve it to other parties.
Lawyers will not appear at the place anymore.
- If during deposition, objection was made, one taking deposition will just note the objection and
have no power to rule on it. It is the judge who will rule on it.
o EXPT when objection could have been resolved and avoided had it been raised during
the taking of the deposition. When deposition, a document was marked for evidence, but
it was only a photocopy, objection to this, officer taking deposition may require to show
original.
o If not raised there, it is deemed waived.
np.
C. INTERROGATORIES TO PARTIES (Rule 25)

PURPOSE: Any party desiring to elicit material and relevant facts from any adverse parties shall
file and serve upon the latter (adverse party) written interrogatories to be answered by:
- The party served, or
- If party served is a PUBLIC OR PRIVATE CORPORATION, or a PARTNERSHIP, or ASSOCIATION, by
any officer thereof competent to testify in its behalf.
ANSWER TO INTERROGATORIES- answers to interrogatories shall be:
- Fully in writing
- Signed and
- Sworn to by the person making them- means that it must be made under oath.
EFFECT IF NOT MADE UNDER OATH: Any denial on the matters being asked will bring
about the contrary result. Meaning, denial made not under oath shall be deemed as an
implied admission.
nq.
nr. OLD RULE: the interrogatories are sent by proponent to the other party who shall answer
the same.
ns. NEW RULE: Interrogatories shall be filed in court and the proponent shall only serve a copy
thereof to the party who will answer the interrogatories.
nt.
nu.

SEC. 6. RULE 25: EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES

(New Rule)

nv. GEN. RULE: A party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending appeal.
nw. EXCEPTION: Unless thereafter allowed by the court for GOOD CAUSE SHOWN and to
PREVENT A FAILURE OF JUSTICE.

Sec. 6 Imposes a function on a litigant who could have discovered matters appropriate for the
interrogatories but did not resort to this mode of discovery.
If during the trial he would find it necessary to call on the other party to take the witness stand as a
hostile witness, the rules gives the court the discretion to prevent the adverse party from
compelling the other party to take the witness stand and answer the questions that he would like to
ask. UNLESS, the court finds that the question calls for facts, which in the interest of justice, are
necessary to be disclosed in the records of the case.
HENCE, in effect, it imposes a duty on the litigant who may want to ask something from the other
party to resort to Written Interrogatories instead of asking it during the trial. If not, he cannot
compel the other party to take the witness stand just to be examined and bring out those facts
needed by the one proposing the interrogatories.
nx.
ny. D. REQUEST FOR ADMISSION (Rule 26)

WHEN TO FILE: at any time after issues have been joined.

A party may file and serve upon any other party a WRITTEN REQUEST FOR THE ADMISSION by the
latter of the:
a. GENUINENESS of any material and relevant document described in and exhibited with the
request, or
b. Of the TRUTH of any material and relevant matter of fact set forth in the request.
nz.

If the party ADMIT, the required oath is not necessary.

But if he DENY, it must be made under oath.
oa. If not, effect is that it is one of implied admission which amounts to a JUDICIAL ADMISSION
because it was made during the course of the judicial process.
-

JUDICIAL ADMISSIONS are conclusive upon the party making the same. So if the party
who made it would adduce evidence contrary to what was already admitted, that
contradiction cannot stand. Because the admission being judicial is CONCLUSIVE upon the
party making the admission.
NOTE: this however, is LIMITED under the Modes of Discovery.
Generally, a judicial admission binds the party making the admission in any case
between the same parties, for the same subject matter and under the same issue.

od.
oe.

But under Rule 26, Sec. 3 on the EFFECT OF THE ADMISSION: the judicial admission
is expressly limited only to that particular action where the admission was made
although it is for the same party, same subject matter and same issue.
Any admission made by a party pursuant to such request is:
ob.
a. for the purpose of the pending action only and,
oc.
b. shall not constitute an admission by him for any other purpose nor may
be used against him in any other proceeding.

RELATIVE TO THIS:
-

If the case where the admission was made was provisionally dismissed and was revived by filing
the same case but under DIFFERENT DOCKET NUMBER, the subsequent case cannot be said
to be the same case as the one previously dismissed. So the admissions made in the previous
action cannot be invoked in that subsequent case which was re-filed.
If the case where the admission was made was provisionally dismissed and was revived by
simply filing a motion to that effect, if action that was revived carries the SAME DOCKET
NUMBER as the case which was provisionally dismissed, the admissions made can still be
utilized in the action that was revived. It will be regarded as the same case is the docket number
is identical to the case where the admission was made.
NOTE: The criterion you have to adopt is whether the DOCKET NUMBER is IDENTICAL.
of.

WHERE TO FILE REQUEST FOR ADMISSION?

- in the court where the principal action is pending.
- A copy of the request will be served to the adverse party who should respond or react to the
request for admission.
og.

Request for Admission of:

a. GENUINENESS of any material and relevant document described in and exhibited with the
request
oh. - the document in this case may partake the nature of an ACTIONABLE DOCUMENT.
oi. - if this ACTIONABLE DOCUMENT is not denied under oath, the genuineness and due
execution of this document is deemed already admitted.
oj. - Therefore, the document is not subject to proper proof of its admissibility. And the party
who raised the same may simply file a Motion for Summary Judgment, PROVIDED, there is no
other issue of facts requiring for a trial where evidence must have to be presented during trial.
ok.

SEC. 5, RULE 26- EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION
- A party who fails to file and serve a request for admission on the adverse party of material and
relevant facts at issue, which are, or ought to be, within the personal knowledge of the latter,
shall:
ol. Not be permitted to present evidence on such facts.
-

UNLESS, allowed by the court for good cause shown and to prevent failure of justice.
om.

on.EXPLANATION

if a litigant may want to ask admission as to the genuineness and due execution of the document
relevant and material to the case, or of any facts relevant and material to the facts of the case, the
litigant interested on this should avail for the Request for Admission.
If he did not avail and instead, during the trial he examined the adverse party on the materiality
and relevancy of that document subject of the action, the provision of section 5 gives the trial court
the prerogative not to allow any such examination which could have been raised in a Request for
Admission. The party making the request will not be allowed to adduce evidence which can be
brought out in the Request for Admission.
PURPOSE: to compel the litigant to resort to a Request for Admission rather than ask for facts
during the trial.
oo.
op.E. REQUEST FOR PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS (Rule
27)
oq. Upon motion of any party showing good cause therefor, the court in which an action is
pending may:

a. order any party to produce and permit the inspection and copying or photographing, by or
on behalf of the moving party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his possession, custody or control;
b. order any party to permit entry upon designated land or other property in his possession or
control for the purpose of inspecting, measuring, surveying, or photographing the property or any
designated relevant object or operation thereon.
- The order shall specify the:
a. Time
b. Place and of taking the inspection and taking copies and photographs.
c. Manner
- And may prescribe such terms and conditions as are just.
or.
os.

LIMITATIONS OF THIS MODE OF DISCOVERY:

A. The move to copy, inspect or observe the matter cannot prevail over the character of the
books, records, documents or object which is PRIVILEGED and therefore, CONFIDENTIAL.
ot. -Hence if the privilege prevents such document from being subject of public inquiry or public
scrutiny, this mode of discovery cannot be availed of. Protected by the Constitution.
B. The court where this Motion to Copy may be filed may limit the examination or impose
conditions that the matters privileged will not be inquired into.
ou.
ov.
ow.
F. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)

When may an order for examination be issued?

- ONLY when the mental or physical condition of the party in the action is in controversy. In other
words, only when the mental or physical condition of the party is the one in issue.
- Otherwise, the Court should not allow the examination.
This is the only Mode of Discovery where the party refusing to discover it may not be made liable
for contempt of court.
As to other Modes of Discovery, if the other party is required to respond to the discovery sought
by the other party, were unreasonably refused to respond to this, the court may site him for
contempt.
ox. -initially, the court will allow him to present his reason why he should not be sited for
contempt.
oy. - if the reason appears to be justifiable, then the examination of other party will not be
desisted.
oz. -if unjustifiable, refusal will bring about some punitive sanction. And one of this is citation for
contempt.
If the Mode of Discovery is for Physical or Mental Examination then the party cannot be sited
for contempt of court just because the party having controlled of the object does not want the
examination to be made.
REASON: law respects the right of the person to refuse the examination of his body or mental
condition
pa.
pb.
PROBLEM:
pc. A person received a summon with a copy of the complaint for the recovery o sum of money.
It appears that this fellow owed plaintiff certain amount. But in truth, this supposed
defendant has not borrowed any amount from anybody. So the conclusion is that the plaintiff
is of unsound mind. hence, defendant file a motion to defer the filing of an answer and
instead examine the plaintiff whether mentally sound or not.
pd. Question: If you were the Judge, how will you resolve the motion?
pe. Answer: It should be dismissed since a Request for the Mental Examination of a party to the
case can only be applied if the mental or physical condition of the party is in issue. However,
this
case is for the collection of sum of money. Hence, mental condition of the party is out
of the controversy in the case.
pf.
pg.
Situations where the physical or mental condition is in issue:
1. Whether or not confinement of the person in the asylum is proper.
2. In cases of life insurance policy, to determine the amount of proceeds to be given.
ph.

If physical or mental examination was directed or granted by the court, the person examined
SHOULD NOT ask for the copy of the result of the examination.
Once he asked for the findings of the physician in his examination, he cannot avoid any move of
the other party to require him to come out with the physical or mental examination made on him by
other physician in some other instances. Otherwise, the one who has been examined will lose his
right to invoke the privileged character of the result of the examination.
pi.
pj. REFUSAL TO COMPLY WITH MODES OF DISCOVERY (Rule 29) -57:30
pk. Sec 1: REFUSAL TO ANSWER- (applied in Interrogatories to Party and Request for
Admission)

If a party or other deponent refuses to answer an question upon oral examination:

1. The examination may be completed on the other matters, or
2. Adjourned as the proponent of the question may prefer
The proponent may thereafter apply to the proper court of the place where the deposition is being
taken, for any ORDER TO COMPEL AN ANSWER.
- If such application is GRANTED:
1. The court shall require the refusing party or deponent to answer the question or
interrogatory
2. And, if it finds that the refusal to answer is without substantial justification, it may require
the refusing party or deponent or the counsel advising the refusal, or both of them, to pay
the proponent the amount of the reasonable expenses incurred in obtaining the order,
including the attorneys fees.
pl.
pm.

Sec. 2.Contempt of court.

If a party or other witness refuses to be sworn or refuses to answer any question after being
directed to do so by the court of the place in which the deposition is being taken, the refusal
may be considered a contempt of that court.

pn.
po. CONSEQUENCES OF REFUSAL TO ANSWER, PRODUCE DOCUMENT AND OTHER THINGS FOR
INSPECTION, COPYING OR PHOTOGRAPHING OR TO PERMIT IT TO BE DONE, OR PERMIT
ENTRY UPON LAND, OR TO SUBMIT TO A PHYSICAL OR MENTAL EXAMINATION
-

The court may make such orders as regard to the refusal as are just and among others the ff:
pp.
(a) An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the physical or
mental condition of the party, or any other designated facts shall be taken to be established
for the purposes of the action in accordance with the claim of the party obtaining the order;
pq.
(b) An order refusing to allow the disobedient party to support or oppose designated
claims or defenses or prohibiting him from introducing in evidence designated documents or
things or items of testimony, or from introducing evidence of physical or mental condition;
pr.
(c) An order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party; and
ps.
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the
arrest of any party or agent of a party for disobeying any of such orders except an order to
submit to a physical or mental examination.

pt.
pu.
Sec. 4.Expenses on refusal to admit.
If a party after being served with a request under Rule 26 to admit the genuineness of any document or
the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions
thereafter proves the genuineness of such document or the truth of any such matter of fact:
-

he may apply to the court for an order requiring the other party to pay him the reasonable
expenses incurred in making such proof, including attorneys fees.

UNLESS the court finds that there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued.
pv. Consequences of willful failure to attend the taking of deposition even after
proper notice or serve answers to interrogatories:

The court on motion and notice may:

1. Strike out all pr any part of the pleading of that party, or
2. Dismiss the action or the proceeding or any part thereof, or
3. Enter a judgment by default against the party
And in its discretion:
1. Order him to pay reasonable expenses incurred by the other including attys fees.
pw.

The Modes of Discovery may bring about a resolution of dispute without going into a full blown trial.
Hence, if this was availed of during the pre-trial, as soon as the matters involved are properly
ventilated and issues are properly clarified, the parties may resort only to judgment on the
pleadings or Summary Judgment.
These Modes of Discovery are NOT INDISPENSIBLE steps in the prosecution of civil actions. Only
useful if they are relevant to the objectives that a litigant wants to achieve.
px.
py.

qa.
a.
b.
1.
2.
3.
4.
5.

pz.
CHAPTER 10
REMEDIES AGAINST AN ADVERSE JUDGMENT
qb.

qc.
If judgment is not yet final and executory (F&E)
If judgment already final and executory
Motion for Reconsideration (Rule 37)
Motion for New Trial (Rule 37)
Appeal (Rule 40-45)
Petition for Relief from Judgment (Rule 38)
Petition to Annul Judgment (Rule 47)

qd.
qe. GEN RULE: execution of judgment will only come once judgment has already been F&E,
hence, it cannot be disturbed.
-

When judgment has become F&E it does not mean that the courts duty to examine such
judgment becomes MINISTERIAL.
HENCE, even if judgment is already F&E, the court has the prerogative to look into the execution
of the judgment.
So if the conviction of the relationship between the parties has changed, the defendant
becomes the plaintiff and the plaintiff becomes the defendant, it will not allow the execution of
judgment against the defendant who now becomes a plaintiff.
Also, where the original judgment has been NOVATED through agreement by the judgmentobligee allowing the judgment-obligor to pay the credit, the judgment calls for the delivery of
property. The defendant has already disposed of the property, there is a novation. Hence, the
original judgment cannot be executed anymore; it cannot be validated by the Writ of Execution.
qf. REASON: Novation extinguishes a judgment.
qg. The writ of execution cannot be had if the original action has been extinguished by novation.
qh. The judgment-obligee now has to file another action for the execution of that judgment.
When the judgment is on specific performance, the judgment-obligee cannot execute a
judgment for the rescission. Execution of judgment can only be done in accordance with the
terms of the judgment.
qi.
qj. ORDER OF EXECUTION OF JUDGMENT PENDING APPEAL

Although the execution of judgment routinarily follow the finality of the judgment, yet the rules
allow execution of judgment even when the case is pending appeal.
You distinguish this case when the judgment is immediately F&E because the judgment is not
anymore appealable like a judgment upon compromise or confession, and from a case where
judgment is not immediately executory because it is appealable.
There are cases where the judgment is immediately executory although it is still subject of
appeal. This is called DISCRETIONARY EXECUTION such as:
1. judgment for receivership
2. Complaint for Support
3. Judgment in a Complaint for Accounting
The rule provide for the immediate execution of this judgment even when appeal is available.
NOTE: this is allowed only on the ground of GOOD REASON shown by the party seeking the
immediate execution.
These GOOD REASONS are not specified by the rules. It is left to the appreciation of the party
and the prerogative of the trial court.
The limitation however is that, if the trial court GRANTS the order of execution, whatever the
good reasons that the movant may take must be stated in the order granting that motion. The
court cannot only pick of some outstanding reasons. It must state ALL the good reasons stated
by the requesting party. Otherwise, the Order of Execution shall be void.
REASON: Since the judgment is not yet F&E, you cannot scrutinize that. So to determine
whether the order allowing execution pending appeal is meritorious or not, will depend only on
the reasons stated there. So the court, to justify the order of execution, the good reasons cited
by the movant must be stated in the order.
qk.
ql. FILING OF A SUPERSEDUCE BOND

Although the trial court has the prerogative to issue an order of execution pending appeal, upon
opposition of the judgment-obligor, it may require the movant to file a bond in the amount fixed
by the trial court. So that if the appeal is reversed, the movant has something to refund.

PURPOSE: to protect the judgment-obligor because if the court allows execution, judgment will
be satisfied. And if appellate court reverse judgment of the trial court, judgment-obligee has
already collected the proceeds of the judgment, the judgment-obligor will be deprived of his
property without due process of law.
qm.
qn.

Must be filed with the period for taking an appeal (15 days upon receipt of notice of judgment).
Such period for filing cannot be subject to a Motion to Extend because it will not require another
hearing. The court will simply rectify the decision without going to trial.
The evidence of transcript where the error may be must be brought to the attention of the court.
Only one MR can be filed.
Grounds for filing are:
a. Excessive damages have been awarded;
b. Judgment not borne by the evidence; or
c. Judgment is contrary to law.
qo.
qp.

MOTION FOR RECONSIDERATION (rule 37)

MOTION FOR NEW TRIAL (Rule 37)

PURPOSE: to set aside the judgment or final order and grant a new trial for one or more of the ff.
causes materially affecting the substantial rights of said party.
GROUNDS:
qq.
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not
have guarded against and by reason of which such aggrieved party has probably been impaired in
his rights; or
qr.
(b) Newly discovered evidence, which he could not, with reasonable diligence, have
discovered and produced at the trial, and which if presented would probably alter the result.

Means that certain aspect of the case has to be re-opened for it will require new trial.
Period for filing- the same period for filing an appeal (15 days)
There can be more than 1 Motion for NT if:
- The basis that may be raised was not available at the time when the Motion for NT was filed.
qs.
qt. EXECUTION OF JUDGMENT

qv.

Judgment prescribes in 10 years.

For the 1st 5 years, you can require the execution by a mere motion. The prevailing party will file a
motion for issuance of a WRIT OF EXECUTION which will be carried out by the sheriff who will levy
on the property of the obligor.
The right of the prevailing party to have judgment executed by mere motion will only last for 5
years which will be counted from the FINALITY OF THE JUDGMENT- which is determined by the entry
of the judgment in the book of judgment.
The end of the 5 year period is not based on the motion or writ of execution but will recon as of the
date the levy was made on the property of the judgment obligor.
Hence, as long as levy was made within 5 years from the entry in the book of judgment, although
the execution sale was not yet done, that levy places the property of the obligor under custodia
legis. Hence, it may be sold already. Even if the sale is made beyond the 5 year period, it will still be
valid so as the levy on the property was implemented during the 5 years.
If levy was made beyond the 5 year period, the sale of the property is null and void.
NOTE: focus when the levy was made. Because only when the levy was made within the 5 year
period will the execution sale be valid.
Life of the writ of execution is 5 years from the date of entry of judgment. So, no need to file a
motion for the issuance of an Alias Writ of Execution-an extended writ of execution.
qu.
IF NO LEVY WAS MADE DURING THE 5 YEARS
-

The prevailing party still has another 5 years to satisfy the judgment (10 year prescriptive
period)
The prevailing party may revive the judgment by filing an Action for the Satisfaction of
Judgment which was not carried out or executed.
This action is not based on the original cause of action but on the non-satisfaction of the
judgment. As far as the original judgment is concerned, the judgment is already rendered res
adjudicata, hence you cannot file another action.

qw.
qx. If the execution of judgment may be levied on the property of the judgment obligor, if the
obligor DIES, no levy can be made anymore even though the judgment has become final
and executory.
-

Once a person dies, his estate acquires juridical personality. It can sue or be sued.
No levy can be had against the person of the dead obligor because his juridical personality is
extinguished.
But you cannot file an action against the estate since it is now a subject of a Special
Proceeding. So judgment will have to be filed in the Probate Court. Not the ordinary court.
qy. But if the levy on the property of the judgment-obligor has already been made, and the
obligor subsequently dies, such levy is valid.
qz.
ra. LEVY BY THE SHERIFF

rb. - the sheriff makes the levy by taking inventories on the property of the judgment
obligor.
rc. - the properties are capable of delivery, the sheriff may get a guard who will guard
the movable levied upon. Or he may receive delivery of the personal property in a
warehouse owned by him, where the prevailing party has to pay for the rentals.
rd. - if he only takes the inventory of the property but not touch such, he may have a
sheriff guard to secure that the property levied upon will not be moved or removed
to some other place.
re. - the guard and the rent is chargeable to the prevailing party.
rf.
rg. TAKE NOTE ON HOW THE LEVY ON THE REAL PROPERTY IS DONE.
-

ro.

If the levy was not properly made, the subsequent sale of the property levied upon will not be
valid.
- LEVY ON THE REAL PROPERTY OWNED BY THE JUDGMENT-OBLIGOR BUT TENANTED BY A FAMILY
OTHER THAN THE JUDGMENT-OBLIGOR
rh.
* levy requires notice to the tenant. Otherwise, it is not valid.
ri. - IF PROPERTY TO BE LEVIED IS REGISTERED ON THE REGISTRY OF DEEDS:
rj.
*the Registry of Deeds must be served notice.
rk. - IF REAL PROPERTY LEVIED IS WHERE THE JUDGMENT-OBLIFGOR LIVES:
rl.
* No need to serve a separate Notice of the levy. It will only be done through the
Registry of
Deeds.
rm.
*Instead, a Notice on the Sale of the property shall be posted. So that anyone who
wants to bid during the execution sale will have the opportunity to bid.
rn.
IF SHERIFF LEVIED A PROPERTY NOT BELONGING TO THE JUDGMENT-OBLIGOR
-

The remedy of the family claiming ownership over the property levied upon is to file an
AFFIDAVIT OF ADVERSE CLAIM or AFFIDAVIT OF 3RD PARTY CLAIM, where he will state that the
property do not belong to the defendant but to him.
The moment this is filed, the sheriff will not proceed to the execution of the property levied
upon. Otherwise, he may answer for damages should it find out that the property actually
belong to the adverse claimant.
In the case like this, the rules allow the sheriff to RELEASE FROM LEVY the property claimed by a
3rd party because continued levy might bring damages to the other family which the sheriff will
answer for.
Hence, the sheriff is allowed to make the judgment-obligee choose whether to hold the property
levied upon or release it.
If the oblige wants the sheriff to hold the property under levy, the sheriff may demand from him
a BOND that will protect the sheriff from any damages due to the 3 rd party claimant should it
find out that the property really belongs to them.
If the bond which will be posted is any amount fixed by the court to answer for damages that
may be recovered from the sheriff.
If plaintiff does not want to put up the required bond, the sheriff will have to release the
property. Otherwise, he will be personally liable for damages brought about by the wrong levy.
If the property was not released because the plaintiff posted a bond, if the property claimed is
already up for execution sale, the 3rd party claimant if he wants to recover on the bond must file
an application with the trial court before the lapse of 120 days from the posting of the bond.
The bond posted by the plaintiff will be bound only for 120 days.

If the 3rd party claimant did not file an application for release of the property within the 120
days, the bond posted by the plaintiff shall be released or discharged. The 3 rd party claimant
may recover from the plaintiff and not on the bond anymore.
rp.
rq. APPEAL FROM JUDGMENT OF RTC TO CA (Rule 41)

MAPES RULING or PRESS PERIOD RULE- In appeals from RTC to CA it will start from receipt of
judgment OR final order.
- The use of the alternative OR means that if no MR or Motion for NT was filed, the 15 day or 30
day period shall begin from the date the service of the notice was received.
- But if the adverse party filed a MR or Motion for NT, the denial of this motion will be the final
order as far as the judgment in that case is concerned. Hence, the 15 day period shall begin
from that FINAL ORDER or from the date the adverse party receives the order of denial of that
motion not from the date the notice of judgment was received.
rr. BEFORE THIS RULING- the period for the appeal, which is 15 days or 30 days, as the case
may be will recon from the time the party receives notice of the judgment