Remedial Law Notes by Ralph H.
Villanueva
Trial
Order of Trial
Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court
for special reasons otherwise directs, the trial shall be limited to the issues stated in
the pre-trial order and shall proceed as follows:
Note: A provision was added that the trial shall be limited to the issues stated
in the pre-trial order. (Feria)
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaints;
Note: As corrected in another rule, third-party claim was
changed to third-party complaint. (Feria)
(c) The third-party defendant if any, shall adduce evidence of his defense,
counterclaim, cross-claim 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.
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. (Sec. 5 Rule 30, ROC)
Note: The above order of trial is only the general rule. The order of trial is
(a) Subject to the provisions of Sec. 2 of Rule 31 (Consolidation or Severance)
and;
(b) Unless, for special reasons, the court otherwise directs. (Sec. 5, Rule 30 of
ROC)
Therefore, the normal order of trial may be modified if the court, in furtherance of
convenience and to avoid prejudice, orders a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint. It may also order, for the same reasons, a
separate trial of any separate issue or of any number of claims, cross-claims, counter-
claims, third-party complaints or issues. (Sec. 2 Rule 31 of ROC)
Under the same rule, the court may, likewise, order a modification of the
order of trial if it so directs for special reasons. (Riano)
Note: Oral argument is no longer a MATTER OF RIGHT after the admission of the
evidence. The court has discretion to direct the parties to argue orally or to submit
memoranda.
After the plaintiff has completed the presentation of his evidence, the
defendant may:
a. File a motion to dismiss on the ground of insufficiency of evidence or
b. File a demurrer to evidence. (Feria citing Rule of Court Rule 33)
Note: Additional evidence may be allowed to be offered at the rebuttal stage
of the trial for good reasons in the furtherance of justice. (Feria citing Director
of Lands v Roman Archbishops of Manila)
Where the evidence is REBUTTAL in character, whose necessity of
evidence from one party to the other or where the evidence sought to be
presented is in the NATURE OF NEWLY DISCOVERED EVIDENCE, the
partys right to introduce further evidence must be recognized. Otherwise,
the aggrieved party may AVAIL of the remedy for certiorari. (Riano citing
Republic vs Sandiganbayan)
It is generally, additional evidence is allowed
a. when it is NEWLY DISCOVERED, or
b. where it has been omitted through INADVERTENCE OR MISTAKE, or
c. where the purpose of the evidence is to CORRECT EVIDENCE
PREVOUSLY OFFERED. (Feria citing Lopez v. Liboro)
Reverse trial when complaint is admitted (Custodio)
Since the answer admitted defendant's obligation as stated in the complaint, albeit
special defenses were pleaded, plaintiff had every right to insist that it was for
Remedial Law Notes by Ralph H. Villanueva
defendant to come forward with evidence in support of his special defenses. (Yu vs
Magpayo)
The Supreme Court in a collection case for the unpaid balance of Gray Machine Engine
by the respondent reversed the decision of the Court of First Instance when the counsel
for the plaintiff insists on refusal to the order of presenting evidence after the defendant
had presented theirs. The defendant made an admission to the transaction filed by the
plaintiff. As enunciated in the former Rules of Court, admissions made by the parties
in the pleadings, or in the course of the trial or other proceedings do not require proof
and cannot be contradicted unless previously shown to have been made through
palpable mistake. In the instant case, instead of calling his witnesses, the counsel for the
plaintiff moved the Court to present them after the defendant had presented theirs. The
court asked counsel twice whether he would present his evidence for the plaintiff, but
said counsel refused to do so and sticked to the demand that he would introduce his
witnesses only in rebuttal. (Yu vs Magpayo)
Reverse trial also in criminal cases (Custodio)
When trial dispensed with; Absence of Party
A party may waive its right to present testimonial evidence and opt to adduce
documentary evidence and thereafter, submit the case for resolution based solely on
their pleadings and documentary evidence. (Republic vs Vda de Neri)
The Supreme Court affirmed the decision of the Regional Trial Court when it rendered
a decision without conducting a full-blown trial, and based on its ruling merely on the
pleadings of the parties and the documents appended to their respective memoranda
for the judicial confirmation of imperfect or incomplete title. The petitioner asserts that
unde Rule 34 of the Rules of Court, the court may render judgment on the pleadings
only:
1. When the respondents answer fails to tender an issue, or
2. Admits the material allegations of the adverse partys pleadings.
Furthermore, it was not proper for the trial court to render summary judgment under
Rule 35 of the Rules of Court for the simple reason that the private respondent, in their
answer, tendered genuine issues of facts which called for the presentation of evidence.
This finds for the Supreme Court untenable because the trial court provided with a full-
blown trial precisely, the parties themselves agreed on the claim that the issues raised
may be resolved on the basis of the pleadings, memoranda, and the appended
documents, without need of presenting witnesses thereon. In this case, no less than the
petitioner, represented by the Office of the Solicitor General through Special Attorney
agreed to dispense with a full-blown trial. (Republic vs Vda de Neri)
That the absence of a party during trial constitutes waiver of his right to present
evidence and cross-examine the opponents witnesses is firmly supported by
jurisprudence. Although a defendant who answered the complaint but fails to appear
at the scheduled trial cannot be declared in default, the trial, however, MAY PROCEED
without his presence. And if the absence of a party during the hearing was due to his
own fault, he cannot later on complain that he was deprived of his day in court. (Sps
Calo vs Sps Tan)
The Supreme Court find the contentions of the petitioners untenable. Petitioners allege
that the Court of Appeals erred in upholding the trial courts denial of their right to due
process. According to them, the trial court acted unreasonably and with undue haste
when it ruled that they waived their right to present evidence in view of their failure to
attend the hearing on 3 August 1992. They assert that they did show up in court for the
hearing, although they were late. Petitioners live in Butuan City, some 300 kilometers
from the RTC of Cagayan. They explain that they failed to appear because they believed
that their motion to dismiss and motion for reconsideration would be heard first, i.e.,
respondent spouses would be required to comment first on the motions before they
would be resolved. They contend that there was no clear evidence of intent to abandon
their right. The absence of petitioners and their counsel at the aforesaid hearings cannot
be justified by their belief that the trial court would first require respondent spouses to
comment to or oppose the motions before resolving them. The Rules of Court requires
only that the motion be heard; it does not direct the court to order the filing of comments
or oppositions to the motion before the motion is resolved. During the hearing on the
motion, the opposition to the motion and the arguments of the parties may be
ventilated; thereafter, the court may rule on the motion. Petitioners and their counsel
should have known the significance of the hearing dates since petitioners themselves
chose one of the hearing dates and the hearing dates were accordingly fixed with due
notice to all the parties. In the instant case, The reasons that petitioners have given for
their failure to attend the hearing are contradictory. In one breath, they allege that they
came late to the hearing, but in another they confirm that they intentionally did not
attend the hearing due to their mistaken belief that respondent spouses would first be
required to comment thereon before the trial court would resolve said motions. A check
of the RTC records shows that although petitioners had chosen 1 July 1999 as the next
hearing date in their Joint Motion to Dismiss, the trial court had already previously
scheduled the continuation of trial on said date as well as on 2 July 1992. However, on
1 July 1992, only counsel for respondent spouses was present. Petitioners, DBP, and
their counsel did not attend the hearing. The trial court denied the motion to dismiss
for lack of notice and set the continuation of trial on 3 and 4 August 1992. When
petitioners moved for reconsideration of the 1 July 1992 Order, they scheduled the
hearing of said motion on 3 August 1992. Again, on the date set, petitioners and their
counsel were absent and only counsel for respondent spouses was in attendance. (Sps
Calo vs Sps Tan)
Consolidation
It is a procedural device, granted to the court as an aid in deciding how cases
in its docket are to be tried, so that the business of the court may be dispatched
expeditiously while providing justice to the parties. (Riano citing Republic v Heirs of
Oribello, Jr.)
Consolidation Severance
Remedial Law Notes by Ralph H. Villanueva

Involves SEVERAL ACTIONS having a
common question of law or fact which
may be jointly tries
Contemplates a SINGLE ACTION b. Even if filed with the different branches of the same court of first instance,
having a number of claims, provided of such one cases has not been partially tried. (Feria)
counterclaims, cross-claims, third party
complaints, or issues which may be General Rule: Consolidation applies only to cases pending before the SAME JUDGE
separately tried. and not to cases pending in different branches of the same court or in different courts.

Exception to the General Rule: Cases pending in different branches of the court or in
Note: The word may provided in Sec. 1 Rule 31 of Rules of Court indicates different courts may be consolidated consistent with the rule in our jurisdiction that
that consolidation or severance of cases is NOT mandatory and is within the sound leans towards permitting consolidation of cases whenever possible and irrespective of
discretion of the court. (Riano) the diversity of the issues for resolutions.

Consolidation Permissive Joinder of parties Hence, consolidation of cases is proper when

Before After
Note: Consolidation is proper when SEVERAL ACTIONS which involve a
COMMON QUESTION OF FACT OR LAW do not ARISE of the same transaction or
series of transactions so as to permit permissive joinder of parties under Section 6 Rule
3 of Rules of Court. (Feria)
Mode of consolidating actions or special proceedings:
1. Recasting the cases ALREADY instituted, conducting only one hearing and
rendering only one decision. (Quasi-Consolidation)
Recasting cases= one hearing + one decision
2. The existing cases are consolidated, only one hearing is held and only one
decision is rendered. (Actual Consolidation)
Existing cases+ one hearing + one decision
3. Without recasting or consolidating the cases, the principal one is heard the
hearing on the others being suspended until judgment has been rendered in
the first case. (Consolidation for Trial)
No recast and no consolidation = principal one is heard and the
others are suspended until judgment has been rendered in the first
case.
The court, in the exercise of its sound discretion, may adopt any of these
forms of consolidation whenever in it opinion, the proceeding is beneficial to and
convenient for the parties. The power so exercises is discretionary. (Feria)
Consolidation is proper when:
a. A joint hearing becomes a matter of duty if two or more cases are tried efore
the same judge, or
a. the actions involve the same reliefs or
b. the same parties and
c. basically the same issues, or
d. when there is a real need to forestall the possibility of conflicting decisions
being rendered in the cases, provided that the measure will not give one party
undue advantage over the other, or prejudice the substantial rights of any of
the parties. (Feria citing Bank of Commerce v Hon. Perla-Bernabe)
Test is common questions OF FACT or OF LAW
The consolidation of cases becomes mandatory because it involves the same parties and
the same subject matter which is the same parcel of land. Such consolidation is desirable
to avoid confusion and unnecessary costs and expenses with the multiplicity of suits.
The technical difference between an action and a proceeding becomes insignificant and
consolidation becomes a logical conclusion when such consolidation is desirable to
avoid confusion and unnecessary costs and expenses with the multiplicity of suits. Thus
the rules do not distinguish between cases filed before the same branch or judge and
those that are pending in different branches, or before different judges of the same
court, in order that consolidation may be proper, as long as the cases involve the
resolution of questions of law or facts in common with each other. (Active vs CA)
The Supreme Court reversed the decision of the Court of Appeals when it denied the
petition and ruled that the consolidation of cases is proper when they involve a
common question of law or fact and they are pending before the court. The public
respondent would like to impress that consolidation is proper only when two or more
cases are before the same judge or branch and that consolidation is not allowed when
the cases are pending before different courts or different branches of the same court.
State Investment argues that the aforequoted provision of the rules mention only
actions, which means an ordinary suit in a court of justice by which one party
prosecutes another for the enforcement or protection of a right, or the prevention or
redress of a wrong. Civil Case No. 6518-M is such an action. On the other hand, LRC
Case No. P-39-84 involving the Petition for a Writ of Possession is an ex-parte
proceedings and does not require notice to be given to the other parties. The two, action
and proceedings, being different, cannot be consolidated. It is true that a petition for a
writ of possession is made ex-parte to facilitate proceedings, being founded on a
Remedial Law Notes by Ralph H. Villanueva
presumed right of ownership. Be that as it may, when this presumed right of ownership
is contested and made the basis of another action, then the proceedings for writ of
possession would also become seemingly groundless. The entire case must be litigated
and if need be as in the case at bar, must be consolidated with a related case so as to
thresh out thoroughly all related issues. In the instant case, the consolidation of cases
becomes mandatory because it involves the same parties and the same subject matter
which is the same parcel of land Therefore it appears that the respondent court in
denying the motion for consolidation, has sanctioned the departure of the trial court
from the usual course of judicial proceedings, thus calling for the exercise of the power
of supervision of the Supreme Court. The respondent court has, indeed, committed a
reversible error. (Active vs CA)
Considerations of judicial economy and administration, as well as the convenience of
the parties for which rules on procedure and venue were formulated, dictate that it is
the Cavitae court, rather than the Gumaca Court, which serves as the more suitable
forum for the determination of the rights and obligations of the parties concerned.
(Superlines vs Victor)
The Supreme Court held that consolidation of cases is proper as it deems to be a more
pragmatic solution to the controversy at bar. Hence, Gumaca cased filed by Superlines
should be consolidated to the Cavite case filed by the private respondents. As filed by
the latter on the ground of quasi-delict to Superlines, the latter filed a motion to dismiss
the case on the ground that there is a pendency of an action to the Gumaca Branch in
the Regional Trial Court of Quezon since the incident of the collision happened there.
(Superlines vs Victor)
When it becomes mandatory for the court to consolidate cases
Even though consolidation of actions is addressed to the sound discretion of the court
and normally, its action in consolidating will not be disturbed in the absence of manifest
abuse of discretion. It is a time-honored principle that when two or more cases involve
the same parties and affect closely related subject matters, they must be consolidated
and jointly tried, in order to serve the best interests of the parties and to settle
expeditiously the issues involved. In other words, consolidation is proper wherever
the subject matter involved and relief demanded in the different suits make it
expedient (easier) for the court to determine all of the issues involved and adjudicate
the rights of the parties by hearing the suits together. (Steel Corporation of the
Philippines vs Equitale PCI Bank)
The Supreme Court ruled that the Court of Appeals did not make a mistake when it
consolidated the cases pending before it. Petitioner SCP argues that the CA deviated
from its own Internal Rules when it failed to consolidate the four (4) appeals arising
from the same decision of the rehabilitation court. In fact, it points out to the fact that
CA-G.R. SP No. 101913 had already been consolidated with its own appeal in CA-G.R.
SP No. 101732. However, SCP says that the failure by the CA to consolidate the
remaining two appeals, namely CA-G.R. SP Nos. 101880 and 101881, with its own
appeal indicates not only a deviation from the rules but also a disobedience to their
plain language and obvious intent. On the other hand, BDO-EPCIB refutes SCPs
arguments by saying that the consolidation of cases is only discretionary, not
mandatory, upon the court.
The Supreme Court agrees with SCP. Rule 3, Sec. 3 of the 2002 Internal Rules of the CA:
Sec. 3. Consolidation of Cases. When related cases are assigned to different Justices,
they may be consolidated and assigned to one Justice.
(a) At the instance of a party with notice to the other party; or at the instance of
the Justice to whom the case is assigned, and with the conformity of the
Justice to whom the cases shall be consolidated, upon notice to the parties,
consolidation may be allowed when the cases involve the same parties
and/or related questions of fact and/or law.
(b) Consolidated cases shall pertain to the Justice
(1) To whom the case with the lowest docket number is assigned, if they are
of the same kind;
(2) To whom the criminal case with the lowest number is assigned, if two
or more of the cases are criminal and the others are civil or special;
(3) To whom the criminal case is assigned and the other are civil or special;
and
(4) To whom the civil case is assigned, or to whom the civil case with the
lowest docket number is assigned, if the cases involved are civil and
special.
(c) Notice of the consolidation and replacement shall be given to the Raffle Staff
and the Judicial Records Division.
In the instant case, all four (4) cases involve identical parties, subject matter, and issues.
In fact, all four (4) arose from the same decision rendered by the Rehabilitation Court.
As such, it became imperative upon the CA to consolidate the cases. Even though
consolidation of actions is addressed to the sound discretion of the court and normally, its action
in consolidating will not be disturbed in the absence of manifest abuse of discretion, in this
instance, we find that the CA gravely erred in failing to order the consolidation of the
cases. By refusing to consolidate the cases, the CA, in effect, dispensed a form of
piecemeal judgment that has veritably resulted in the multiplicity of suits. Such action
is not regarded with favor, because consolidation should always be ordered whenever
it is possible. (Steel Corporation of the Philippines vs Equitale PCI Bank)
Common question of law would not warrant consolidation alone
Consolidation of cases is proper when there is a real need to forestall the possibility of
conflicting decisions being rendered in the cases. Two cases involving the same parties
and affecting closely related subject matters must be ordered consolidated and jointly
Remedial Law Notes by Ralph H. Villanueva
tried in court, where the earlier cases was filed. (Deustche Bank AG vs Court of
Appeals)
Highlighted Doctrines in the abovementioned case:
When consolidation thereof would complicate procedural requirements and delay the
resolution of the cases which raised dissimilar issues. Hence, fairness and due process
might be hampered rather than helped if the cases were consolidated. (Republic of the
Philippines vs Hon. Mangrobang)
When the motion for consolidation was filed merely to frustrate the right to immediate
possession of property. It is a transparent ploy to delay from taking the possession of
the property it acquired at a public auction ten years again. (Philippine National Bank
vs Tyan Ming Development, Inc.)
Consolidation should be denied when prejudice would result to any of the parties or
would case complications, delay, prejudice, cut-off, or restrict the rights of a party. (De
Vera vs Agloro)
Consolidation is not proper when it will not only defeat the very purpose of
consolidation(which is to avoid unnecessary delay) be defeated but the procedural
matter of consolidation will also adversely affect the substantive right of possession as
an incident of ownership. (Espinoza vs United Overseas Bank Philippines)
GENERAL RULE: Consolidation of actions is addressed to the sound discretion of the
court and its action in consolidating will not be disturbed in the absence of manifest
abuse of discretion.
EXCEPTION TO THE GENERAL RULE: When the exercise of such discretion has been
gravely abused (Feria citing People vs Sandiganbayan)
The Supreme Court ruled that the Court of Appeals erred when it consolidated the
Deustche Bank and Vitarich petitions because neither are there interconnected
transactions, nor identical subject matter in both cases. The former involved issue
resulting from the assignment of credits of RCBC to Deutsche Bank AG whereas the
latter, the issue arose from the assignment of receivables of various creditors of Vitarich
to several corporations and special purpose vehicles Hence, the two petitions having
no factual relationship with and no interconnected transactions on the same subject
matter, they cannot be deemed related cases. As such, the necessity to consolidate
does not become imperative. The order of consolidation of CA on the sole ground that
the cases involved a common question of law was, therefore, not in order. Here,
considering that Deustche Bank AG and Vitarich cases are not related, the risk of
conflicting decisions is a remote possibility. (Deustche Bank AG vs Court of Appeals)
Consolidation of petitions in the name of the defendant after respondent failed to
redeem the foreclosed property
On 12 June 1989, petitioner executed an affidavit of consolidation over the foreclosed
properties after respondent failed to redeem the same. As a result, the Register of Deeds
of Marikina issued new certificates of title in the name of petitioner. On 24 April 1987,
Kwang Ju Bank, Ltd. Notified petitioner through cable that the Korean buyer refused
to pay respondents export documents on account of typographical discrepancies.
Kwang Ju Bank, Ltd. Returned to petitioner the export documents. Upon learning about
the Korean importers non-payment, respondent sent petitioner a letter dated 27 July
1987, informing the latter that respondent had brought the matter before the Korea
Trade Court and that it was ready to liquidate its past due account with petitioner.
Respondent sent another letter dated 08 September 1987, reiterating the same
assurance. In a letter 05 October 1987, Kwang Ju Bank, Ltd. Informed petitioner that it
would be returning the export documents on account of the non-acceptance by the
importer. Petitioner demanded from respondent the payment of the peso equivalent of
the export documents, plus interest and other charges, and also of the other due and
unpaid loans. Due to respondents failure to heed the demand, petitioner moved for the
extrajudicial foreclosure on the real estate mortgage over respondents properties.
(Producers Bank of the Philippines vs Excelsa Industries)
The Supreme Court affirmed the decision of the Regional Trial Court when it held that
the sale was conducted according to the legal procedure. The respondent here may not
question the foreclosure sale. Plaintiff is estopped from questioning the foreclosure. The
plaintiff is guilty of laches and cannot at this point in time question the foreclosure of
the subject properties. Defendant bank made demands against the plaintiff for the
payment of plaintiffs outstanding loans and advances with the defendant as early as
July 1997. Plaintiff acknowledged such outstanding loans and advances to the
defendant bank and committed to liquidate the same. For failure of the plaintiff to pay
its obligations on maturity, defendant bank foreclosed the mortgage on subject
properties on January 5, 1988 the certificate of sale was annotated on March 24, 1988
and there being no redemption made by the plaintiff, title to said properties were
consolidated in the name of defendant in July 1989. Undeniably, subject foreclosure was
done in accordance with the prescribed rules as may be borne out by the exhibits
submitted to this Court which are Exhibit 33, a notice of extrajudicial sale executed
by the Sheriff of Antipolo, Exhibit 34 certificate posting of extrajudicial sale, Exhibit
35 return card evidencing receipt by plaintiff of the notice of extrajudicial sale and
Exhibit 21 affidavit of publication. (Producers Bank of the Philippines vs Excelsa
Industries)
When consolidation be denied
Consolidation should be denied when prejudice would result to any of the parties or
would cause complications, delay, cut off, or restrict the rights of a party. A court may
order several actions pending before it to be tried together where they arise from the
same act, event or transaction, involve the same or like issues, and depend largely or
substantially on the same evidence, provided that the court has jurisdiction over the
cases to be consolidated and that a joint trial will not give one party an undue advantage
or prejudice the substantial rights of any of the parties. The obvious purpose of the rule
allowing consolidation is to avoid multiplicity of suits to guard against oppression or
Remedial Law Notes by Ralph H. Villanueva
abuse, to prevent delays, to clear congested dockets, to simplify the work of the trial
court; in short the attainment of justice with the least expense and vexation to the parties
litigants. Consolidation of actions is addressed to the sound discretion of the court and
its action in consolidating will not be disturbed in the absence of manifest abuse of
discretion. (Teston vs DBP)
The Supreme Court ruled that the Regional Trial Court exceeded its jurisdiction in
setting the joint trial of the two cases. Petitioner submits that no consolidation in
contemplation of the Rules took place since there was no order for consolidation; the
RTC only scheduled both cases for simultaneous hearing. He further argues that the
RTC erred in dismissing in one order both cases based on a motion to dismiss directed
against one case only. He maintains that failure to state a cause of action as ground of a
motion to dismiss solely applies to the complaint in SCC No. 4242 and it cannot extend
to the complaint in SCC No. 4243, unless the allegations in both complaints are entirely
the same in all respects. Furthermore, he contends that the RTC, in finding that the
complaint in SCC No. 4243 stated no cause of action, went beyond the allegations of the
complaint. On the other hand, respondent DBP submits that petitioners argument
regarding consolidation deals principally on technicalities and semantics. It avers that
it cannot be denied that the two cases involved are of the same nature and pray for the
same relief, i.e., the determination and payment of just compensation, which petitioner
admits in his petition. While admitting that there was no written order from the RTC
expressly consolidating both cases, it maintains that the RTC scheduled both cases for
simultaneous trial and hearing and all the conditions for consolidation are attendant
herein. It contends also that the RTC did not abuse its discretion when it dismissed SCC
No. 4243 in order to avoid unnecessary cost and delay since the ground for the dismissal
of SCC No. 4242 is perfectly applicable to the former. Besides, it contends that, in
dismissing SCC No. 4243, the RTC did not go beyond the averments of the complaint
therein. As for respondent LBP, it submits that the RTC did not err, much less abuse its
jurisdiction, in dismissing SCC No. 4243 upon a motion to dismiss directed against the
complaint in SCC No. 4242, since the two cases were consolidated and involved
common questions of law and facts. It argues that dismissal of SCC No. 4243 for failure
to state a cause of action is proper since petitioner has no right to voluntarily offer the
disputed properties because he was never the owner of said properties. The Supreme
Court ruled in favor of petitioner. In the present case, although both cases which were
raffled to the same branch of RTC Masbate (Branch 48), involve the prayer for
determination and payment of just compensation, and petitioner and Colarina are
represented by the same counsel, Pejo Buenviaje & Associates, and respondents LBP
and DAR Secretary are common defendants, these are not sufficient justifications for
joint trial and joint order dismissing both cases. It cannot be denied that there is no real
identity of parties, facts or rights asserted. SCC No. 4242 was instituted by Colarina in
his own name principally against GSIS and concerns fifteen parcels of agricultural land
in Barrio Malaran and Lamintao, Municipality of Dimasalong (now Uson), Masbate,
while SCC No. 4243 was instituted by petitioner represented by Colarina principally
against DBP and concerns two parcels of agricultural land in Barangay Lantangan,
Mandaon, Masbate. Furthermore, a perusal of the complaints in SCC Nos. 4242 and
4243 plainly shows that Colarina claims ownership as redemptioner while petitioner
claims ownership as buyer. Clearly, the causes of action in the two cases arose from
different events or transactions, involve different issues, and ultimately will depend on
different evidence. (Teston vs DBP)
Proceedings for the issuance of a writ of possession should NOT be consolidated with
the case for the declaration of a nullity of a foreclosure sale
GENERAL RULE: The long-standing rule is that proceedings for the issuance of a
writ of possession are ex parte and non-litigious in nature.
EXCEPTION TO THE GENERAL RULE: Where the consolidation of the proceedings
for the issuance of a writ of possession and nullification of foreclosure proceedings was
allowed following the provisions on consolidation in the Rules of Court. (Active Woods
vs Court of Appeals)
However, the circumstances in this case are substantially distinct from that in Active
Wood. Therefore, the exception granted in that case cannot be applied here.1avvphi1
In Active Wood, the petition for writ of possession was filed before the expiration of the
one-year redemption period, while, in this case, the petition for writ of possession was
filed after the one-year redemption period had lapsed. Moreover, in Active Wood, title
to the litigated property had not been consolidated in the name of the mortgagee.
Therefore, in that case, the mortgagee did not yet have an absolute right over the
property. In this case, title to the litigated property had already been consolidated in
the name of respondent, making the issuance of a writ of possession a matter of right.
Consequently, the consolidation of the petition for the issuance of a writ of possession with
the proceedings for nullification of foreclosure would be highly improper. Otherwise, not
only will the very purpose of consolidation (which is to avoid unnecessary delay) be
defeated but the procedural matter of consolidation will also adversely affect the
substantive right of possession as an incident of ownership. (Gregorio Espinoza vs
UOB)
The Supreme Court ruled that a case for the issuance of a writ of possession may not be
consolidated with the proceedings for the nullification of extra-judicial foreclosure.
Petitioners contend that peculiar circumstances in the instant case make it an exception
from the general rule on the ministerial duty of courts to issue writs of possession.
Given that the issuance of a writ of possession in this case must be litigated,
consolidation with the pending case on the nullification of extra-judicial foreclosure is
mandatory because both proceedings involve the same parties and subject matter.
Respondent, on the other hand, insists that the consolidation of the ex parte petition for
the issuance of a writ of possession with the complaint for nullification of extra-judicial
foreclosure of mortgage is highly improper and irregular because there are no common
questions of fact and law between the two cases. Respondent also argues that any
question regarding the validity of the mortgage or foreclosure cannot be a ground for
refusing the issuance of the writ of possession and should, instead, be taken up in the
proceedings for the nullification of the foreclosure. The Supreme Court ruled in favor
of the respondents. The order for a writ of possession issues as a matter of course upon
the filing of the proper motion and the approval of the corresponding bond if the
Remedial Law Notes by Ralph H. Villanueva
redemption period has not yet lapsed. If the redemption period has expired, then the
filing of the bond is no longer necessary. Any and all questions regarding the regularity
and validity of the sale is left to be determined in a subsequent proceeding and such
questions may not be raised as a justification for opposing the issuance of a writ of
possession. The proceeding in a petition for a writ of possession is ex parte and
summary in nature. It is a judicial proceeding brought for the benefit of one party only
and without notice by the court to any person adverse of interest. It is a proceeding
wherein relief is granted without giving the person against whom the relief is sought
an opportunity to be heard. By its very nature, an ex parte petition for issuance of a writ
of possession is a non-litigious proceeding. It is a judicial proceeding for the
enforcement of ones right of possession as purchaser in a foreclosure sale. It is not an
ordinary suit filed in court, by which one party sues another for the enforcement of a
wrong or protection of a right, or the prevention or redress of a wrong. On the other
hand, by its nature, a petition for nullification or annulment of foreclosure proceedings
contests the presumed right of ownership of the buyer in a foreclosure sale and puts in
issue such presumed right of ownership. Thus, a party scheming to defeat the right to
a writ of possession of a buyer in a foreclosure sale who had already consolidated his
ownership over the property subject of the foreclosure sale can simply resort to the
subterfuge of filing a petition for nullification of foreclosure proceedings with motion for
consolidation of the petition for issuance of a writ of possession. This we cannot allow as it
will render nugatory the presumed right of ownership, as well as the right of
possession, of a buyer in a foreclosure sale, rights which are supposed to be
implemented in an ex parte petition for issuance of a writ of possession. Besides, the
mere fact that the presumed right of ownership is contested and made the basis of
another action does not by itself mean that the proceedings for issuance of a writ of
possession will become groundless. The presumed right of ownership and the right of
possession should be respected until and unless another party successfully rebuts that
presumption in an action for nullification of the foreclosure proceedings. As such, and in
connection with the issuance of a writ of possession, the grant of a complaint for
nullification of foreclosure proceedings is a resolutory condition, not a suspensive
condition. (Gregorio Espinoza vs UOB)
Consolidation of civil and criminal cases
RULE 111
Prosecution of Civil Action
Section 1. Institution of criminal and civil actions. (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before
the prosecution starts presenting its evidence and under circumstances affording the
offended party a reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of
moral, nominal, temperate, or exemplary damages without specifying the amount
thereof in the complaint or information, the filing fees thereof shall constitute a first lien
on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or
information, the corresponding filing fees shall be paid by the offended party upon the
filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required for actual
damages.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in
the criminal case, but any cause of action which could have been the subject thereof
may be litigated in a separate civil action. (1a)
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to
include the corresponding civil action. No reservation to file such civil action separately
shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay
in full the filing fees based on the amount of the check involved, which shall be
considered as the actual damages claimed. Where the complaint or information also
seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the
offended party shall pay additional filing fees based on the amounts alleged therein. If
the amounts are not so alleged but any of these damages are subsequently awarded by
the court, the filing fees based on the amount awarded shall constitute a first lien on the
judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced,
it may be consolidated with the criminal action upon application with the court trying
the latter case. If the application is granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing consolidation of the civil and criminal
actions. (cir. 57-97)
Section 2. When separate civil action is suspended. After the criminal action has been
commenced, the separate civil action arising therefrom cannot be instituted until final
judgment has been entered in the criminal action.
Remedial Law Notes by Ralph H. Villanueva
If the criminal action is filed after the said civil action has already been instituted, the
latter shall be suspended in whatever stage it may be found before judgment on the
merits. The suspension shall last until final judgment is rendered in the criminal action.
Nevertheless, before judgment on the merits is rendered in the civil action, the same
may, upon motion of the offended party, be consolidated with the criminal action in the
court trying the criminal action. In case of consolidation, the evidence already adduced
in the civil action shall be deemed automatically reproduced in the criminal action
without prejudice to the right of the prosecution to cross-examine the witnesses
presented by the offended party in the criminal case and of the parties to present
additional evidence. The consolidated criminal and civil actions shall be tried and
decided jointly.
During the pendency of the criminal action, the running of the period of prescription of
the civil action which cannot be instituted separately or whose proceeding has been
suspended shall be tolled. (n)
The extinction of the penal action does not carry with it extinction of the civil action.
However, the civil action based on delict shall be deemed extinguished if there is a
finding in a final judgment in the criminal action that the act or omission from which
the civil liability may arise did not exist. (2a)
Section 3. When civil action may proceeded independently. In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil
action may be brought by the offended party. It shall proceed independently of the
criminal action and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same act or omission
charged in the criminal action. (3a)
Section 4. Effect of death on civil actions. The death of the accused after arraignment
and during the pendency of the criminal action shall extinguish the civil liability arising
from the delict. However, the independent civil action instituted under section 3 of this
Rule or which thereafter is instituted to enforce liability arising from other sources of
obligation may be continued against the estate or legal representative of the accused
after proper substitution or against said estate, as the case may be. The heirs of the
accused may be substituted for the deceased without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or representatives to appear
and be substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner
especially provided in these rules for prosecuting claims against the estate of the
deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to
any civil action the offended party may file against the estate of the deceased. (n)
Section 5. Judgment in civil action not a bar. A final judgment rendered in a civil action
absolving the defendant from civil liability is not a bar to a criminal action against the
defendant for the same act or omission subject of the civil action. (4a)
Section 6. Suspension by reason of prejudicial question. A petition for suspension of the
criminal action based upon the pendency of a prejudicial question in a civil action may
be filed in the office of the prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at any time before the prosecution
rests. (6a)
Section 7. Elements of prejudicial question. The elements of a prejudicial question are:
(a) the previously instituted civil action involves an issue similar or intimately related
to the issue raised in the subsequent criminal action, and (b) the resolution of such issue
determines whether or not the criminal action may proceed. (5a)
Consolidation of cases on appeal
Even though consolidation of actions is addressed to the sound discretion of the court
and normally, its action in consolidating will not be disturbed in the absence of manifest
abuse of discretion. It is a time-honored principle that when two or more cases involve
the same parties and affect closely related subject matters, they must be consolidated
and jointly tried, in order to serve the best interests of the parties and to settle
expeditiously the issues involved. In other words, consolidation is proper wherever
the subject matter involved and relief demanded in the different suits make it
expedient (easier) for the court to determine all of the issues involved and adjudicate
the rights of the parties by hearing the suits together. (Steel Corporation of the
Philippines vs Equitale PCI Bank)
The Supreme Court ruled that the Court of Appeals did not make a mistake when it
consolidated the cases pending before it. Petitioner SCP argues that the CA deviated
from its own Internal Rules when it failed to consolidate the four (4) appeals arising
from the same decision of the rehabilitation court. In fact, it points out to the fact that
CA-G.R. SP No. 101913 had already been consolidated with its own appeal in CA-G.R.
SP No. 101732. However, SCP says that the failure by the CA to consolidate the
remaining two appeals, namely CA-G.R. SP Nos. 101880 and 101881, with its own
appeal indicates not only a deviation from the rules but also a disobedience to their
plain language and obvious intent. On the other hand, BDO-EPCIB refutes SCPs
arguments by saying that the consolidation of cases is only discretionary, not
mandatory, upon the court.
Remedial Law Notes by Ralph H. Villanueva

The Supreme Court agrees with SCP. Rule 3, Sec. 3 of the 2002 Internal Rules of the CA: Demurrer to evidence as "an objection by one of the parties in an action, to the effect
that the evidence which his adversary produced is insufficient in point of law, whether
Sec. 3. Consolidation of Cases. When related cases are assigned to different Justices, true or not, to make out a case or sustain the issue. (Casent Realty vs Philbanking Corp
they may be consolidated and assigned to one Justice. citing Gutib vs CA)

(d) At the instance of a party with notice to the other party; or at the instance of
the Justice to whom the case is assigned, and with the conformity of the
Justice to whom the cases shall be consolidated, upon notice to the parties,
consolidation may be allowed when the cases involve the same parties
and/or related questions of fact and/or law.
(e) Consolidated cases shall pertain to the Justice
a. The regular order of trial requires the plaintiff to adduce evidence in
support of his complaint. During the trial, he presents all the pieces of
evidence availabl to him- object, documentary and testimonial. (Sec.
5(a), Rule 30 of Rules of Court)
b. After the plaintiff has completed the presentation of his evidence, the
defendant shall, then, adduce evidence in support of his defense,
counterclaim or third-party complaint, as the case may be. (Sec. 5(b)
Rule 30 of Rules of Court)

(5) To whom the case with the lowest docket number is assigned, if they are The defendant, however, may sincerely feel that the plaintiff has
of the same kind; not lived up to his burden of proving the material allegations of his
(6) To whom the criminal case with the lowest number is assigned, if two claim and is, therefore, not entitled to the relief sought for in his
or more of the cases are criminal and the others are civil or special; complaint.
(7) To whom the criminal case is assigned and the other are civil or special; c. Instead of presenting his evidence, the defendant may move for
and dismissal of the case on the ground that, upon facts and the law, the
(8) To whom the civil case is assigned, or to whom the civil case with the plaintiff has shown no right to relief (Sec. 1 Rule 33 of the Rules of Court.
lowest docket number is assigned, if the cases involved are civil and This motion for dismissal is called a demurrer to evidence. (Riano)
special.
Motion to dismiss in Rule 16 Motion to dismiss under Rule
(f) Notice of the consolidation and replacement shall be given to the Raffle Staff 33 as demurrer to evidence
and the Judicial Records Division. Made before the filing of an Made after the plaintiff ests his
answer case. e.g. after completion of the
In the instant case, all four (4) cases involve identical parties, subject matter, and issues. presentation of his evidence.
In fact, all four (4) arose from the same decision rendered by the Rehabilitation Court. There are several ground for a Only one ground (that upon the
As such, it became imperative upon the CA to consolidate the cases. Even though motion to dismiss facts and the law, the plaintiff
consolidation of actions is addressed to the sound discretion of the court and normally, its action has shown no right to relief)
in consolidating will not be disturbed in the absence of manifest abuse of discretion, in this If denied, defendant may file his Defendant may present his
instance, we find that the CA gravely erred in failing to order the consolidation of the responsive pleading evidence
cases. By refusing to consolidate the cases, the CA, in effect, dispensed a form of If granted, the complaint may be The complaint may not be
piecemeal judgment that has veritably resulted in the multiplicity of suits. Such action refiled(without prejudice), refiled and the remedy of the
is not regarded with favor, because consolidation should always be ordered whenever depending on the ground for plaintiff is to appeal for the
it is possible. (Steel Corporation of the Philippines vs Equitale PCI Bank) dismissal order of dismissal

Note: Res judicata is not a proper ground for sustaining a demurrer to

Demurrer to Evidence evidence even as it stands as a proper ground for a motion to dismiss. A demurrer may
be granted if, after the presentation of plaintiffs evidence, it appears upon the facts and
Concept of demurrer
the law that the plaintiff has shown no right to relief. In contrast, the ground for res
judicata present themselves even BEFORE the presentation of evidence, and it should
It is an objection or exception by one of the parties in an action at law, to the effect that
be invoked as a ground for dismissal. (Riano citing Republic v Tuvera)
the evidence which his adversary produced is INSUFFICIENT in point of law, whether
true or not, to make out his case or sustain an issue. (Feria citing Heirs of Pasad v Sps
Effect of denial or grant of demurrer to evidence
Parocha)
Remedial Law Notes by Ralph H. Villanueva
Effect of denial of the demurrer to
evidence
If the demurrer is denied, the defendant
shall have the right to present his
evidence. (Sec. 1 Rule 33 of ROC) This
means that the denial of the demurrer to
evidence does not deprive the defendant
of the opportunity to adduce evidence in
his behalf.
Where the court denies a demurrer to
evidence, it should set the date for the
reception of the defendants evidence in
chief. It should not proceed to grant the
relief demanded by the plaintiff. (Riano
citing Northwest Airlines, Inc. vs CA)
An order denying a demurrer to the
evidence is interlocutory and is,
therefore, not appealable. It can,
however, be the subject of discretion or
an oppressive exercise of judicial
authority. (Riano citing Katigbak vs
Sandiganbayan)
Note that a party who files a demurrer
to evidence that is subsequently denied
in an election case cannot insists on the
right to present evidence. The provision
of the Rules of Court governing
demurrer to evidence does not apply to
election cases. (Riano citing Gementiza
vs Comelec) The Rules of Court, under
the express dictum in Sec. 4 of Rule I
shall not apply to election cases. xxx
Effect of granting the demurrer to
evidence
If the demurrer is granted, the case shall
be dismissed. However, if, on appeal the
order granting the motion is reversed,
the defendant loses his right to present
evidence. (Sec. 1Rule 33 of ROC and
Republic v Tuvera)
It is not correcr for the appellate court
reversing the order granting the
demurrer to remand the case to the trial
court for further proceedings. The
appellate court should, instead of
remanding the case, render judgment on
the basis of the evidence submitted by
the plaintiff. (Riano)
The trial court acting on the
respondents demurrer to evidence,
dismissed the complaint on the ground
that the plaintiff had adduced mere
HEARSAY evidence. However, on
appeal, the appellate court reversed the
trial court because the genuineness ad
due execution of the disputed pieces of
evidence had, in fact, been admitted by
defendants. (Riano citing Radiowealth
Finance Corporation vs Del Rosario)
A demurrer to evidence abbreviates
judicial proceedings it being an
instrument for the expeditious
termination of an action. Caution,
however, must be exercised by the party
seeking the dismissal of a case upon this
ground, as under the rules, if the
movants plea for the dismissal n
demurrer to evidence is granted and the
order of dismissal is reversed on appeal,
judgment is rendered in favor of the
adverse party because the movant loses
his right to present evidence. The
reviewing court cannot remand the case
for further proceedings; rather, it should
render judgment on the basis of the
evidence presented by the plaintiff.
(Riano citing Consolidated Bank and
Trust Corporation vs Del Monte Motor
Works.
Demurrer in a civil case Demurrer in a criminal case
Leave of court is not required before Demurrer is filed with or without leave
filing a demurrer of court
If demurrer if granted, the order of The order of dismissal is not appealable
dismissal is appealable because of the constitutional policy
against double jeopardy
If the demurrer is denied, the defendant The accused may adduce his evidence
may proceed to present his evidence. only if the demurrer is filed with leave
(Sec. 1Rule 30 of the ROC) of court. He cannot present his evidence
if he filed the demurrer without leave of
court. (Sec. 23 Rule 119 of the ROC)
The court cannot on its own make a The court may on its own make a
demurrer demurrer. (sec. 23, Rule 119 of the ROC)
The Supreme Court stated that petitioners are obviously misled by the title of Rule 35
of the Rules of Court, "Judgment on Demurer to Evidence." Said Rule, consisting of only
one section, allows the defendant to move for dismissal of the case after the plaintiff has
presented his evidence on the ground of insufficiency of evidence, and provides for the
effects of the dismissal or non-dismissal, as the case may be, on the right of the
defendant to present his cause. Otherwise stated, it authorizes a judgment on the merits
of the case without the defendant having to submit evidence on his part as the relief
sought. The demurrer, therefore, is an aid or instrument for the expeditious termination
of an action, similar to a motion to dismiss, which the court or tribunal may either grant
or deny. It is thus apparent that the requirement of Section 1 of Rule 36 would only
apply if the demurrer is granted, for in this event, there would in fact be an adjudication
on the merits of the case, leaving nothing more to be done, except perhaps to interpose
an appeal. However, a denial of the demurrer is not a final judgment, but merely
interlocutory in character as it does not finally dispose of the case, the defendant having
yet the right to present his evidence, as provided for under Section 1 of Rule 35. Here,
RESPONDENTS BY COUNSEL individually filed demurers to the evidence, to which
the petitioner did not lose time to oppose. lt is uniformly maintained by said
respondents that the evidence already adduced by the petitioner does not establish a
good cause to proceed against them, for which reason the petition as against them
should be dismiss. Petitioner disagreed, arguing otherwise. As decided by COMELEC,
the demurers should be DENIED. The Commission [Second Division] would rather
have the complete facts and evidence of the parties upon which to reach a decision than
prematurely go into it now upon the facts and evidence of the petitioner only. The
rationale behind such a procedure is to enable this Body to properly adjudicate the case
on its merits and to ventilate the adversary issues on the basis of all the facts and
evidence presented by the contending parties. The challenged order being merely an
interlocutory order and not a final judgment or decision, no abuse of discretion was
committed by respondent Comelec in its failure to state the facts and the law on which
Remedial Law Notes by Ralph H. Villanueva
its order denying petitioners' demurrer to evidence is based. (Nepomuceno vs
Comelec)
When a demurrer to evidence granted by a trial court is reversed on appeal, the
reviewing court cannot remand the case for further proceedings. Rather, it should
render judgment on the basis of the evidence proffered by the plaintiff. Inasmuch as
defendants in the present case admitted the due execution of the Promissory Note both
in their Answer and during the pretrial, the appellate court should have rendered
judgment on the bases of that Note and on the other pieces of evidence adduced during
the trial. "The rationale behind the rule and doctrine is simple and logical. The
defendant is permitted, without waiving his right to offer evidence in the event that his
motion is not granted, to move for a dismissal (i.e., demur to the plaintiffs evidence)
on the ground that upon the facts as thus established and the applicable law, the
plaintiff has shown no right to relief. If the trial court denies the dismissal motion, i.e.,
finds that plaintiffs evidence is sufficient for an award of judgment in the absence of
contrary evidence, the case still remains before the trial court which should then
proceed to hear and receive the defendants evidence so that all the facts and evidence
of the contending parties may be properly placed before it for adjudication as well as
before the appellate courts, in case of appeal. Nothing is lost. The doctrine is but in line
with the established procedural precepts in the conduct of trials that the trial court
liberally receive all proffered evidence at the trial to enable it to render its decision with
all possibly relevant proofs in the record, thus assuring that the appellate courts upon
appeal have all the material before them necessary to make a correct judgment, and
avoiding the need of remanding the case for retrial or reception of improperly excluded
evidence, with the possibility thereafter of still another appeal, with all the concomitant
delays. The rule, however, imposes the condition by the same token that if his demurrer
is granted by the trial court, and the order of dismissal is reversed on appeal, the movant
losses his right to present evidence in his behalf and he shall have been deemed to have
elected to stand on the insufficiency of plaintiffs case and evidence. In such event, the
appellate court which reverses the order of dismissal shall proceed to render judgment
on the merits on the basis of plaintiffs evidence." (Underscoring supplied citing
Villanueva Transit vs Javellana) In other words, defendants who present a demurrer to
the plaintiffs evidence retain the right to present their own evidence, if the trial court
disagrees with them; if the trial court agrees with them, but on appeal, the appellate
court disagrees with both of them and reverses the dismissal order, the defendants lose
the right to present their own evidence. The appellate court shall, in addition, resolve
the case and render judgment on the merits, inasmuch as a demurrer aims to discourage
prolonged litigations. (Radiowealth vs Sps Del Rosario)
The Supreme Court held that the Court of Appeals correctly reversed the trial court, it
erred in remanding the case for further proceedings. Petitioner claims that respondents
are liable for the whole amount of their debt and the interest thereon, after they
defaulted on the monthly installments. Petitioner contends that if a demurrer to
evidence is reversed on appeal, the defendant should be deemed to have waived the
right to present evidence, and the appellate court should render judgment on the basis
of the evidence submitted by the plaintiff. A remand to the trial court "for further
proceedings" would be an outright defiance of Rule 33, Section 1 of the 1997 Rules of
Court. On the other hand, respondents argue that the petitioner was not necessarily
entitled to its claim, simply on the ground that they lost their right to present evidence
in support of their defense when the Demurrer to Evidence was reversed on appeal.
They stress that the CA merely found them indebted to petitioner, but was silent on
when their obligation became due and demandable.In the case at bar, the trial court,
acting on respondents demurrer to evidence, dismissed the Complaint on the ground
that the plaintiff had adduced mere hearsay evidence. However, on appeal, the
appellate court reversed the trial court because the genuineness and the due execution
of the disputed pieces of evidence had in fact been admitted by defendants Applying
Rule 33, Section 1 of the 1997 Rules of Court, the CA should have rendered judgment
on the basis of the evidence submitted by the petitioner. While the appellate court
correctly ruled that "the documentary evidence submitted by the [petitioner] should
have been allowed and appreciated xxx," and that "the petitioner presented quite a
number of documentary exhibits xxx enumerated in the appealed order,"we agree with
petitioner that the CA had sufficient evidence on record to decide the collection suit. A
remand is not only frowned upon by the Rules, it is also logically unnecessary on the
basis of the facts on record. (Radiowealth vs Sps Del Rosario)
What should be resolved in a motion to dismiss based on a demurrer to evidence is
whether the plaintiff is entitled to the relief based on the facts and the law. The
evidence contemplated by the rule on demurrer is that which pertains to the merits of
the case, excluding technical aspects such as capacity to sue. However, the plaintiffs
evidence should not be the only basis in resolving a demurrer to evidence. The "facts"
referred to in Section 8 should include all the means sanctioned by the Rules of Court
in ascertaining matters in judicial proceedings. These include judicial admissions,
matters of judicial notice, stipulations made during the pre-trial and trial, admissions,
and presumptions, the only exclusion being the defendants evidence. (Casent Realty v
Phil Banking)
The Supreme Court affirmed the decision of the Court of Appeals where it found that
under the Deed of Assignment, respondent clearly had the right to proceed against the
promissory notes assigned by Rare Realty. Hence, the Court of Appeals did not make a
mistake in excluding the petitoners affirmative defenses in its answer in resolving a
demurrer to evidence. Petitioner points out that the defense of Dacion and Confirmation
Statement, which were submitted in the Answer, should have been specifically denied
under oath by respondent in accordance with Rule 8, Section 8 of the Rules of Court:
Section 8. How to contest such documents.When an action or defense is founded upon
a written instrument, copied in or attached to the corresponding pleading as provided
in the preceding section, the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath, specifically denies them, and
sets forth, what he claims to be the facts; but the requirement of an oath does not apply
when the adverse party does not appear to be a party to the instrument or when
compliance with an order for an inspection of the original instrument is refused.
Since respondent failed to file a Reply, in effect, respondent admitted the genuineness
and due execution of said documents. This judicial admission should have been
Remedial Law Notes by Ralph H. Villanueva

considered by the appellate court in resolving the demurrer to evidence. Rule 129,
Section 4 of the Rules of Court provides:
Section 4. Judicial admissions.An admission, verbal or written, made by a party in the
course of the proceeding in the same case, does not require proof. The admission may
be contradicted only by showing that it was made through palpable mistake or that no
such admission was made.
On appeal to the CA, respondent claimed that even though it failed to file a Reply, all
the new matters alleged in the Answer are deemed controverted anyway, pursuant to
Rule 6, Section 10:
Section 10. Reply.A reply is a pleading, the office or function of which is to deny, or
allege facts in denial or avoidance of new matters alleged by way of defense in the
answer and thereby join or make issue as to such new matters. If a party does not file
such reply, all the new matters alleged in the answer are deemed controverted. We
agree with petitioner. Rule 8, Section 8 specifically applies to actions or defenses
founded upon a written instrument and provides the manner of denying it. It is more
controlling than Rule 6, Section 10 which merely provides the effect of failure to file a
Reply. Thus, where the defense in the Answer is based on an actionable document, a
Reply specifically denying it under oath must be made; otherwise, the genuineness and
due execution of the document will be deemed admitted. Since respondent failed to
deny the genuineness and due execution of the Dacion and Confirmation Statement
under oath, then these are deemed admitted and must be considered by the court in
resolving the demurrer to evidence. We held in Philippine American General Insurance
Co., Inc. v. Sweet Lines, Inc. that "[w]hen the due execution and genuineness of an
instrument are deemed admitted because of the adverse partys failure to make a
specific verified denial thereof, the instrument need not be presented formally in
evidence for it may be considered an admitted fact."( Casent Realty v Phil Banking)