CivPro Notes under J. Wagan Natazia Therese D.

Grimares|
CIVIL PROCEDURE NOTES UNDER JUDGE WAGAN
Q: Does the RTC have jurisdiction over accion publiciana?
CLASSIFICATION AND JURISDICTION OF COURTS A: Yes. If the real property has an assessed value that does not exceed P20,000 if outside Metro
Manila and does not exceed P50,000 if within Metro Manila.
Trial courts - refers to 1st level and RTC courts; a.k.a lowers courts; refers to: 1) Shari’a Courts, 2)
MCTC, 3) MTC, 4) MTCC, 5) MeTC Q: Does the RTC have jurisdiction over real actions?
A: Yes. Depending on the assessed value.
CIVIL ACTIONS - ORDINARY CIVIL ACTIONS
Q: Y is selling his property for 2 million. X paid the purchase price. Y gave the title to X and
Q: A sold B a second hand Vios for the price of P300,000. B, the purchaser, did not pay the occupied the property. X has no way to reach to highway. He filed an action for right of way. What
purchase price. A wanted to recover the Vios so he filed an action to rescind the contract. Who has kind of action is involved?
jurisdiction? A: A real action. The case involves interest over real property. Right of way is a real right. Rights over
A: MTC. MTC has jurisdiction over personal property where the price is not exceeding P300,000. The real property = interest.
phrase, “not exceeding” includes exactly P300,000.
Q: Actions to quiet title when there is a cloud over the title. What kind of real action is involved?

Q: What actions of law govern real property? What are real actions?
 A: An action involving title over real property.
A: Real actions involve title to or possession or interest in real property.
Q: Does the RTC have jurisdiction over recovery of possession of personal property?

GR: Both the RTC and MTC have jurisdiction over real actions A: Yes. Depending on market value. If the personal property has an market value that does not
E: Acción interdictal which falls exclusively within the first level courts exceed P300,000 if outside Metro Manila, the first level courts have jurisdiction. If the market value
does not exceed P400,000 if within Metro Manila, the RTC has jurisdiction.
Q: What are personal actions?
A: All other actions that are not real actions. Q: Who has jurisdiction over the recovery of an unpaid loan?

A: Both first level courts and the RTC. Depending on the value of the claim or demand.
Q: Both RTC and MTC have jurisdiction over personal actions depending on the value of personal
property. Does this refer only to recovery of possession?
 RA7691 - Judiciary Reorganization Act of 1980
A: No. It includes admiralty, maritime, probate, etc.
Q: A demand for a sum of money was filed before a Metropolitan Trial Court judge. How is
Cases falling under first level courts include ejectment. In ejectment, the issue is the right to possession. jurisdiction to be determined?
What about the possession? The subject matter is the recovery of possession. Ejectment is a real A: It should be based on the amount claimed for in the complaint because part of the loan could
action because it involves recovery of possession of property. have been already paid. It is not based on the total amount in the promissory note. The claim is for
the unpaid sum.
Accion. interdictal Accion. publiciana
Real property Assessed value
Nature Both are actions for recovery of possession of property
Personal property Market value
When Within 1 year from demand to Within 1 year or after 1 year
vacate or discovery of ?? from demand to vacate or Probate proceedings Gross value of the estate
discovery of ???
Jurisdiction Original exclusive jurisdiction of First level courts or RTC Q: Cases where the RTC has original and exclusive jurisdiction? Where the case has to commenced
first level courts (depending on the amount) only in the RTC?

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A: Actions where the subject matter is not capable of pecuniary estimation and the general
jurisdiction or catch-all provision over cases (cases that do not fall under the exclusive jurisdiction of
any court, tribunal, person or board exercising judicial or quasi-judicial functions.
Q: An accion publicana case was filed by the lawyer in the RTC was not based on assessed value.
What should the judge do?
A: The case is subject to immediate dismissal on the ground of lack of jurisdiction.
Q: X and Y entered into a Deed of Sale for a property in Muntinlupa. X bought per square meter
amounting to 3 million. X has to pay Y half of the purchase price and the other half in equal
installments for a period of 1 year. It was a Contract To Sell where the ownership remains with the
seller until full payment. X paid half but did not pay the installments. This prompted Y to rescind the
contract and recover possession of the property because he’s saying he’s still the owner of the
property (it being a Contract To Sell). Which court has jurisdiction?
A: The main issue is rescission. The issue of recovery of possession of the property is merely incidental.
Rescission is an action incapable of pecuniary estimation, hence, jurisdiction is with the RTC.
Q: X owns a parcel of land in a condo unit. X gave the title to his lawyer. The land is to subdivided
into 2 for X’s 2 children. The lawyer gave them the first title as to the half. The spouses died after the
2 children got the title of the 2nd half. The 2nd half was titled in another name and mortgaged to
PNB and buyer bought the same from PNB. The children learned about the sale and claimed that
they were the owners of the property. What they filed was a declaration of nullity of the Deed of Sale
of PNB and a declaration of nullity of the Deed of Sale between PNB and developer. The value
was in millions. Will you equate the subject matter of rescission with annulment?
A: It is a real action. The title is annulment of sale of real property but the objective/relief/prayer is
ownership of real property. They filed actions to declare the Deeds of Sale null and void but what
they want is ownership over the real property. The real venue of for the real action is the RTC where
property is located. (Whether or not it is an action where the subject matter is incapable of
pecuniary estimation vs. Rule 4. Look at the relief sought.)
Q: Define actions incapable of pecuniary estimation.
A: Actions where the issue is other than a demand or claim for a sum of money.
Q: X’s house is beside a manufacturing company with a huge blower that produces a loud sound.
A: It is a nuisance. The complaint is an action for abatement of a public nuisance in the RTC. There
are 2 kinds of nuisance: per se (needs no court process) and accidens (can be subject to
abatement proceedings). It is neither real, nor capable of pecuniary estimation. It is not a claim
under the Civil Code. It falls under the general jurisdiction of the RTC.
Q: In a case for recovery of a sum of money. X borrowed P200,000 from Y evidenced by a
promissory note which also states P50,000 interest. Y filed a case against X. Y is thinking to recover
the P200,000 loan, P50,000 interest, P100,000 moral damages and P100,000 attorney’s fees.
Which court has jurisdiction?
 by law
Natazia Therese D. Grimares|
A: MTC. In determining the jurisdictional limit of P300,000, it does not include interest, damages,
attorney’s fees, etc. (IDALEC). They are to be deducted from the principal claim. The law says that in
computing the jurisdictional amount, it is exclusive of the aforementioned.
Q: In the case above, will the totality rule apply? How many causes of action are in the problem?
A: The principal claim is to collect the unpaid loan. The claim was based on the promissory note. For
moral damages, the factual basis was the serious anxiety while the legal basis was the New Civil
Code. For attorney’s fees, the factual basis was the testimony that he secured the services of a
lawyer while the legal basis was the New Civil Code. There are 3 different causes of action: 1) sum
of money, 2) moral damages, and 3) attorney’s fees. But in determining the main cause of action,
IDALEC is excluded. Hence, the totality rule does not apply as there is only 1 amount = the principal
cause of action which is to collect the unpaid loan.


Q: In what court will the Rules of Court apply? 

A: All courts, unless expressly provided for by the Supreme Court. An exception is the Rules of
Procedure on Small Claims and the Rule on Summary Procedure.
Q: Cases where the Rules of Court do not apply
A: Election laws, Cadastral proceedings, land registration, FLSP & FRIA (pages 87-96 of MEMAID)
Q: Do civil actions favor plaintiff or defendant?
A: The plaintiff. Under Sec. 6, the general rule is that civil actions are to be liberally applied for just,
speedy, and inexpensive. The exception is that, while the Rules are liberally construed, the provisions
with respect to the rules on the manner and periods for perfecting appeals are strictly applied. As
an exception to the exception, these rules have sometimes been relaxed on equitable
considerations.
Q: In a criminal case, if there are ambiguous provisions amidst exceptions?
A: Liberally in favor of the accused on the basis of the Constitution which provides for the
presumption of innocence. (Section 14, par. 2 of Art. III of the Constitution)
RULE 1: GENERAL PROVISIONS
GR: These rules shall also apply in all courts

E: As otherwise provided by the Supreme Court
Cases governed
1. Civil actions (ordinary or special - one by which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong
2. Criminal actions - one by which the State prosecutes a person for an act or omission punishable
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3. Special proceedings - A remedy by which a party seeks to establish a status, a right, or a
particular fact
RULE 2: CAUSE OF ACTION
Q: Define cause of action. Which comes first? Cause of action or right of action?
A: Cause of action.
Q: Elements of cause of action
A: 1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created;
2. An obligation on the part of the named defendant to respect or not to violate such right;
3. An act or omission on the part of such defendant in violation of the right of the plaintiff or
constituting a breach of the obligation of the defendant to the plaintiff for which the latter may
maintain an action for recovery of damages or other appropriate relief.


Q: What is the basic rule (1ST RULE IN CAUSE OF ACTION) in ordinary civil actions in relation to
cause of action. Must it always be based on course of action? What is the remedy if the complaint is
not based on a cause of action?
A: Yes. Every ordinary civil action must be based on a cause of action. Defendant can file a motion
to dismiss on the ground of no cause of action.
Q: Students of Judge Wigan’s CivPro class filed a case against the latter because we weren’t
dismissed early. Do we have a basis?
 A: I will file a motion to dismiss based on the ground of litis pendentia. Either case may be dismissed.
A: No. Class is until 9:30 pm.
Q: You asked the court to compel specific performance. What is your remedy if what was filed was a
baseless complaint?
A: A motion to dismiss for failure to state in the complaint the cause of action. (Sec. 1, Rule 16)
Q: You are standing under a fluorescent light. It fell. You sustained injuries. What is your cause of
action?
A: You have a right to safety. The school has the duty to keep you safe. The omission was the
negligence of the school.
Q: What is the 2ND RULE IN CAUSE OF ACTION?
A: There should be only 1 cause of action for every ordinary civil action. Splitting a cause of action
is prohibited.
Q: Remedy by which you can raise cause of action as a ground of splitting a cause of action
A: A motion to dismiss.
Q: What are the elements of res judicata?
Natazia Therese D. Grimares|
A: The elements of res judicata are as follows: (1) the former judgment or order must be final; (2) the
judgment or order must be on the merits; (3) it must have been rendered by a court having
jurisdiction over the subject matter and the parties; (4) there must be, between the first and the
second action, identity of parties, of subject matter and cause of action.
*There must be at least 2 cases - one that has been decided by final judgment and the subsequent
case based on the same cause of action
Q: X is a tenant of the condo of Y. X failed to pay rentals. Y filed an ejectment case and X did not
vacate. After 3 months, X filed an action for annulment of title of Y saying that he is not the owner.
The condo was worth more than P300,000. When X filed for annulment of title, Y filed a Motion to
Dismiss on the ground of litis pendencia. If you were the judge, will you grant the motion to dismiss?
A: No. In this case, there are 2 causes of action. The first one based on the non-payment of rentals
and the second one based on the issue of ownership.
Q: A PN with the contents: P200,000 as the debt, P50,000 as the interest, P100,000 as attorney’s
fees and P100,000 for moral damages. How many causes of actions are there?
A: There is the same cause of action because the loan and interest were based on the same
promissory note.
Q: A 5 million loan was contracted and secured by real estate mortgage. 2 cases were filed by the
bank, one for collection of the payment of the loan and one for foreclosure of the real estate
mortgage. As the counsel, what will you advise your client? Which case will you want dismissed?
What the law prohibits is splitting of cause of action. There is one single (same) cause of action
which is the non-payment of the loan. If you file a case for collection, you can no longer file a
separate action for judicial foreclosure.
Q: What is the 3RD RULE IN CAUSE OF ACTION?
A: Joinder is allowed and even encouraged. Here, splitting is allowed. A party may, in one pleading,
assert as many causes of action against a defendant. Why? To avoid multiplicity of suits and
conflicting decisions on the part of judges.
Q: In the example where there is a PN with the contents: P200,000 as the debt, P50,000 as the
interest, P100,000 as attorney’s fees and P100,000 for moral damages. Is it the same as joinder?
A: You can actually file one case for the P200,000, one case for the P50,000, so on and so forth.
But the law encourages that they be joined in 1 complaint. In this case, there is actually 4 causes of
action: 1) collection of the unpaid loan - based on the PN and the contract of loan, 2) interest -
PN, 3) attorney’s fees - Art. 2209 New Civil Code, 4) moral damages - Art. 2219, New Civil Code.
Q: What are the conditions for joinder?

A: 1.The party joining the causes of action shall comply with the rules on joinder of parties;
2. The joinder shall not include special civil actions or actions governed by special rules;
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3. Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies therein; and
4. Where the claims in all the causes action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction. (5a)
GR: Every ordinary civil action shall must be based on a cause of action
- no cause of action = case is vulnerable to dismissal for failure to state a cause of action
Failure to state a cause of action vs. lack of cause of action
Failure to state cause of action Lack of cause of action
Natazia Therese D. Grimares|
A: For example, A owes B P500,000. Despite demand, she doesn’t pay. What is your cause of
action? Cause to collect the unpaid loan. It is for the collection of a sum of money. You file a case.
You had sleepless nights so you ask for moral damages - Art. 2219 New Civil Code. Attorney’s fees -
Art. 2209 of the New Civil Code. Here there are 3 causes of action. It is your prerogative to file 1
case or 3 separate cases. You have the right to file 3, such is allowed by law. Can you join them?
Yes, provided he complies with the conditions of joinder under Section 5, Rule 2. The reason is to
avoid multiplicity of suits.
Q: What do you mean by “in the alternative or otherwise”?
A: There may be cause of action the plaintiff asks for. For example, in the event I cannot get back the
bicycle (chattel mortgage), I can ask for the value of the bicycle. In the alternative meaning either I
get back the bicycle or get the value of the bicycle.

Ground to dismiss under Rule 16 Ground to demurre. evidence presented under Recall: RECTO LAW: Sale of personal property in installments
Rule 33 If the buyer fails to pay, what are your options?
1. Exact payment
2. Rescind the contract of sale
Important questions to ask with regard to cause of action:
3. Foreclose chattel mortgage
1. Whether the allegations in the complaint are sufficient to state a cause of action
*These options are alternatively or mutually exclusive as they serve just 1 purpose = collect the
2. Whether the plaintiff presents sufficient evidence to present cause of action
unpaid sum
SUMMARY: 3 RULES ON CAUSE OF ACTION In a case where a X contracts a loan with a bank and it includes chattel mortgage. X does not pay.
It is the option of the bank to recover the vehicle or exact payment. In the event the vehicle cannot
RULES REMEDY be recovered, the bank can collect the unpaid purchase price of the vehicle. The cause of action
is by reason of non-payment in the alternative = you cannot pray for both at the same time.
1. Every ordinary civil action must be based on Motion to Dismiss for failure to state a cause of
a cause of action. (Section 1, Rule 2) action Conditions for joinder
2. A party may not institute more than one suit Motion to Dismiss based on either:
for a single cause of action. (Section 3, Rule 2) a. litis. pendencia A. The party joining the causes of action shall comply with the rules on joinder of parties
b. res judicata • Is this mandatory? No, it is permissive.
B. The joinder shall not include special civil actions or actions governed by special rules;
3. A party may in one pleading assert, in the
alternative or otherwise, as many causes of
None. This is at the option of the plaintiff.
(Permissive)
• When does it not apply? To those cases governed by special rules (this is made specific
under the Rules of Court)
action as he may have against an opposing
party, subject to the following conditions…
• Example: Rules 62 to 71 govern special civil actions. A case for collection for sum of
money and a case for unlawful detainer cannot be joined. They are not subject to the
(Section 5, Rule 2) same jurisdiction and same rules.
C. Where the causes of action are between the same parties but pertain to different venues or
Q: In filing a civil case in court, who is concerned in observing this rule on joinder? jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes
A: It is the plaintiff. It is his prerogative. of action falls within the jurisdiction of said court and the venue lies therein;
• Rationale: RTC is a court of general jurisdiction
Q: Why is joinder of causes of action more advantageous? • Q: X and Y entered into a contract of lease for a BMW car. The agreement was Y is to pay
P60,000 a month for a period of 6 months. With the stipulation that failure to pay 1 monthly

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rental will entitle X to recover the BMW. Y does not pay. (X’s cause of action is the non-
payment of rentals and his relief is to collect the unpaid monthly rentals) Despite demand, Y
did not pay amounting to P60,000 x 3 = P180,000. X filed a complaint to recover the
BMW for failure to pay 3 monthly rentals. The BMW is worth 3 million. X is also asking for moral
damages. Who has jurisdiction?
• A: Two things to consider: 1. Recovery of personal property, the value of which exceeds
P400,000 outside Metro Manila and P300,000 within Metro Manila falls within the
jurisdiction of the RTC (The BMW is worth 3 million) 2. Unpaid rental is worth P180,000 - falls
within the jurisdiction of the 1st level courts. Cause of action falls within the jurisdiction of the
RTC because it is a court of jurisdiction. 1st level courts cannot hear and decide cases
where the value of the personal property is greater than its jurisdictional amount.
D. Where the claims in all the causes action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction, a.k.a. the Totality Rule
• Where totality rule applies: There is a complaint (joining 5 causes of action, the 1st three
involving 3 PNs and the last 2, attorney’s fees and moral damages, respectively) involving
claims of sum of money amounting to P300,000. It is the MTC or 1st level courts with
jurisdiction. Under BP 129, IDALEC is excluded. So claim for interest and damages are
excluded. The totality rule applies because the total amount is P300,000, knowing that the
1st level courts have jurisdiction. Add all the principal claims.
• Where totality rule does not apply: X obtained a loan from Y worth P250,000 payable
in equal monthly installments in 6 months, with an interest of P50,000. Despite demand, X did
not pay. Y filed 4 different cases for: a) collection of payment, b) collection of interest, c)
moral damages worth P100,000 and d) exemplary damages worth P100,000. Total claim =
P500,000. Which court has jurisdiction? Does the totality rule apply?
• The MTC has jurisdiction. The totality rule does not apply. Pursuant to BP 129, in determining
the jurisdiction of cases involving demands or claims of sum of money, IDALEC is excluded.
(BP 129, and not the Rules of Court principally governs) Here, there are 4 causes of action
in which the last 3 involve interest and damages. Under BP 129, only the principal amount
shall be taken into consideration for the purpose of determining jurisdiction. Principal amount
= P250,000, hence, jurisdiction is with the MTC.
Q: Is right to relief the same as cause of action? That he has a reason to file a case?
A:


Q: Will the requisite on rule of joinder of parties apply to 2 plaintiffs or 2 defendants? In the
P500,000 example, there is no need for joinder. Why? There is only 1 plaintiff vs. 1 defendant.
• Example: XYZ are owners of a parcel of land. They filed a case against B for quieting of
title (B is encroaching on their land). It’s XYZ vs. B. There are 3 plaintiffs against 1
defendant. They can join the plaintiffs
• Usually the issue of joinder arises when there is more than 1 defendant
Natazia Therese D. Grimares|
Requisites of joinder
Right to relief in whom or against whom:
1. Same transaction or series of transactions
2. Cause of action is based on a common question of fact or law
3. They must be parties (parties in whom or against whom relief may be enforced) over whom the
court may acquire jurisdiction
- Court must acquire jurisdiction over the parties to be joined; case against the 2nd or 3rd
defendant cannot proceed if jurisdiction is not acquired over the other defendant who cannot
be jointed
- Ex. You cannot serve summons in Antarctica, more so if it’s a personal action
Ripe causes of action = due and demandable obligations
*Only when there are 3 causes of action in 1 complaint can the plaintiff claim all 3 PNs
Scenario 1
Q: X obtained a loan from Y. They executed a PN where X promised to pay P100,000 payable in 2
months, in equal monthly installments. X is usually a borrower of Y so Y trusts him. After 1 month, the 1st
loan matured. X obtained another loan of P100,000 payable in 2 months, in equal monthly
installments. After 3 months from obtaining the 1st loan, X obtained a 3rd loan containing the same
terms in the 2 other PNs. When the 1st loan became due, Y demanded X to pay but he did not. Y
wants to claim all loans - for a total of P300,000, plus P50,000 interest. Is Y allowed to join in 1
complaint the 2 other PNs when the other loans have not yet become due? Will Y only have 1
cause of action at that time because the 2 other PNs are not yet due?
A: No, there can be no joinder. In this case there is only 1 cause of action, the non-payment of the
1st loan. The other 2 loans are not yet due and demandable. There is no cause of action (omission
through non-payment) in the 2 other PNs yet.
Scenario 2
Q: X does not pay the 1st PN despite the lapse of 2 months. The 2nd PN became due and X does
not pay. Will Y be allowed to join the 3rd PN (cause of action) which is not due?
A: Yes, under the doctrine of anticipatory breach. Under this doctrine, there is a showing of 2 or more
separate or different, obligations or successive failures to pay the remaining debts. In which it can be
inferred based on the 2 failures to pay, that the debtor will not be able to pay the 3rd PN. In
Scenario 1, it cannot be reasonably inferred or concluded that X will not be able to pay the
obligations in the 2 PNs if he only failed to pay the 1st PN, unless his refusal is unqualified. (LOOK
FOR CASE OF ANTICIPATORY BREACH)
*NOTE: If all are PNs are due, the doctrine of anticipatory breach does not apply.
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Q: A was driving car at 30kph. B bumped A. A’s car sustained serious damages. P200,000 for repairs
and A did not use the BMW for 3 months. He was forced to rent and spend P180,000 (P60,000 a
month for 3 months rent). He suffered serious anxiety. He could not go on a date with his girlfriend so
they broke up. He suffered sleepless nights. He asked for P100,000 for moral damages and
P100,000 for attorney’s fees.
A: 1. Which court has jurisdiction? In computing, P380,000 is considered, which falls under the
jurisdiction of MTC (CHECK JURISDICTIONAL LIMIT FOR MTC). Nature of the P200,000 is actual
damages, P180,000 is compensatory damages.
2. What is the jurisdictional amount? P480,000. Where the main cause of action or one of the
causes of action is principally a claim for damages, you add all.
3. Will you apply the Totality Rule? Yes. The totality rule applies. GR: When the case is a claim for sum
of money, in determining the jurisdictional amount = amount of the principal claim. Exclude IDALEC. E:
The cause of action is principally a claim for damages (Like i this case)
Q: A PN consists of P150,000, P200,000 and 100,000 as unpaid loans, P100,000 moral damages,
and P100,000 attorney’s fees.
A: There is an aggregate amount of P450,000 (total of unpaid loans), which falls under the
jurisdiction of the RTC. The test of jurisdiction depends if the amounts are all due or you apply the
doctrine of anticipatory breach for as long as all the claims are for sum of money. If claims are all for
damages, you add all (even moral damages and attorney's fees). In both situations, the Totality Rule
applies insofar as the principal claim.
Misjoinder of causes of action
Q: What happens if there is a misjoinder? Give examples.
A:
Q: Is it a ground for dismissal?
A: No. The remedy is either by motion of any party or the court motu. proprio file a petition to severe
the disjoined cause of action so it can proceed independently. It is unfair for the court to dismiss the
case because money was paid by the client for attorney’s fees and preparation of the complaint.
RULE 3: PARTIES TO CIVIL ACTIONS
IMPORTANT RULE UNDER RULE 3
- Every action must be prosecuted or defended in the name of the real party in interest. (Section 2,
Rule 3)
• If not, the consequence is that it is can be a ground for dismissal under Rule 16 for failure
to state a cause of action.
• If the complaint is not filed against a real party in interest, there is no cause of action
because for the complaint to sufficiently state cause of action, it must be filed by the
plaintiff who has the right to be respected and whose right is violated, against a
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defendant who has the obligation to respect such right and committed the act or
omission which violated the same.
• Recall: Cause of Action: A cause of action is the act or omission by which a party
violates a right of another. (Section 2, Rule 2) ROVID - right, obligation, violation,
indemnity, damages.
Q: Who is a real party in interest?
A: A real party in interest is the party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit. (Section 2, Rule 3)
Q: What are the kinds of parties?

A: 1. Indispensable - those without whom no final determination can be had of an action
2. Necessary - those who are not indispensable but ought to be joined as parties if complete relief
is to be accorded as to those already parties, or for a complete determination or settlement of the
claim subject of the action
3. Representative - may be a trustee of an express trust, a guardian, an executor or administrator, or
a party authorized by law, or by the Rules
4. Pro forma - those who are required to be joined as co-parties in suits by or against another party
as may be provided b the applicable substantive law or procedural rule (Example: Joinder of
spouses or in certiorari actions wherein the court or agency whose adjudication is challenged is
impleaded as the public respondent.
5. Quasi - those in whose behalf aa class or representative suit is brought
Q: Against whom can you file a case in ordinary civil actions? Can you sue foreigners or aliens?
A: Against a real party in interest, for an act or transaction committed within its jurisdiction, the
Philippines.
Who may be parties
Only natural or juridical persons, or entities authorized by law may be parties in a civil action.
- Example of juridical persons: corporations and partnerships.
- Example of entities authorized by law (MEMAID OR LAKAS)
Q: Can persons suffering from civil interdiction be parties to civil acions?

A: Under Art. 25 of the CC, civil interdiction is an accessory penalty in offenses punishable by death
(if not remitted) and reclusion perpetua to reclusion temporal. There is no civil interdiction if
punishable by prision mayor and below. (See Arts. 40 & 41 of the RPC)
Spouses as parties
GR: Pro forma husband and wife shall sue or be sued jointly (together; commonality of interest under
the Civil Code)
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CivPro Notes under J. Wagan
E: As provided by law or when the civil action is between them
- Pro forma spouses that are not joined when suing conjugal partnership can be joined instead as
defendants (unwilling co-plaintiff)
Indispensable vs. necessary parties (p. 127 of Lakas Atenista)
Indispensable parties must be joined or must be impleaded because their rights are affected. There
will be denial of due process.
Q: PAL boarded on MV Princess of the Stars, P800,000 units of generators to be shipped to Davao.
Because of a typhoon, the ship sank in the sore of Mindoro. PAL sustained loss of cargo. PAL filed a
case against Suplicio Lines. Sulpicio Lines filed a Motion to Dismiss on the ground that the insurance
company, ABC Corporation should be impleaded as an indispensable party because it is the surety
over cargo and vessel. Is surety ABC corporation a necessary or indispensable party?
A: Surety ABC corporation is a necessary party.
Test to apply in whether or not a party is indispensable or necessary
- Whether or not the cause will proceed
- If an indispensable party is not impleaded, the case cannot proceed. The court must acquire
jurisdiction for judgment to be valid.
In the PAL example: The claim of PAL to be indemnified, can he get it from Suplicio Lines? Does PAL
have a complete relief only against Sulpicio Lines? No, there is no complete relief because Suplicio
Lines can get reimbursement from ABC Corporation.
In cases of double sale
Q: A purchased land from B. They executed a contract of sale. A paid B in full. B sold the same land
to C. A learned of the 2nd sale. A, the 1st buyer was aggrieved. C caused annotations to the TCT.
A did not annotate because the Register of Deeds issued the TCT to C, the 2nd buyer. What cases
can you file?
A: 1. Recovery of possession of property: Will the judge’s decision be valid without impleading C?
No, C is an indispensable party.
2. Annulment of deed of sale: It cannot be annulled without pleading C who is the possessor of the
property.
3. Recovery of sum of money: No need to implead C, B is the 1st buyer, action against the seller.
If C, an indispensable party, is not impleaded and B filed a Motion to Dismiss on the complaint of A
on the ground that an indispensable party is not impleaded. If you were the judge would you grant
it? No, because it is not a remedy. If an indispensable party is not joined, the plaintiff may move for
joinder or make a motion to implead (a Motion to Dismiss to be treated as such even if it not the
proper remedy) [COMPULSORY JOINDER OF INDISPENSABLE PARTIES]
Natazia Therese D. Grimares|
NOTE: In practice, the judge usually directs the amendment of the complaint in order to implead the
indispensable party. The judge will give the plaintiff 10 days to amend and if the indispensable party
is not impleaded within the period, the remedy of the defendant is to file a motion to dismiss on the
ground of failure of the plaintiff to comply with the order of the court (Section 3, Rule 17)
Necessary parties
Need not be joined because it is permissive. They are “quasi-parties”.
succeeding generations can only be based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the rhythm and harmony of nature. This became a self-executing provision.
(Section 16, Art. II of the 1987 Constitution.)
Unwilling co-plaintiffs
Real parties in interest and pro forma. As a rule, they should have been included in as parties. If the
consent of any party who should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint.
Class suit
Q: There are 500 occupants X’s 1 hectare property. X would like to eject all of them. Will this be a
class suit?
A: No. The tenants have different interests, different portions occupied, different areas, different
manner of possession (lease or tolerated).
Q: MV Princess of the Stars sank. 1,500 people died. Is there a commonality of interests?
A: No. There is no common or general interest. Some of the passengers were doctors, bystanders, or
unemployed.
NOTE: If you cannot remember anything at all about class suit, remember the landmark case of
Oposa v. Factoran in which the Supreme Court upheld the suspension and cancellation of TLAs
because of the minors’ (represented by their parents) intergenerational responsibility Their personality
to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned.
Alternative defendants
Example: In cases of subrogation like in cases of insurance. In the PAL case, PAL can proceed
against Sulpicio Lines or ABC corporation (surety). Its option is in the alternative as there is only 1
claim against 2 defendants. This applies only to necessary parties. There are no alternative
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CivPro Notes under J. Wagan
defendants in indispensable parties because they are the real parties in interest or the real
defendants.
Entity without juridical personality as defendant
Example: ABC shop or Aling Nena’s. They have no SEC registration and they are not juridical
persons. Can aggrieved party file a case against the proprietor or owner? If X gets food poisoning.
The cause of action being the negligence of Aling Nena’s. The case can be labeled as X v. Juana
Dela Cruz, doing business in the style or under the name and style of Aling Nena’s.
Unknown identity or name of defendant
Examples: Where an unknown person smashed a windshield of a car and caused damage to
property or where a bottle of beer drops from Shangrila Hotel without knowing the floor of the
tortfeasor
NOTE: This almost never gets filed because to whom will summons be served? The identity of the
defendant cannot be ascertained and it will be difficult for the case to proceed.
Natazia Therese D. Grimares|
A judgment creditor may institute a claim against the estate ???
Correlate provisions on death and money claims (expressly or implied) ???
Transfer of interest
Rule: In case of transfer of interest by either the plaintiff or defendant, the court has 2 options:
1. The case may be continued by the new real party in interest or transferee
2. The original party may continue to be original party - joined and impleaded. transferee as co-
plaintiff
• In the case of PAL and PhilAm, even if there was a transfer of interest, the counsel will also
represent PhilAm with the same lawyers
Options for the case to continue in case of transfer of interest
- You must prove the transfer of interest (not a manifestation) [Example: insurance policy, or contract
of insurance and proof of payment]
Indigent party

In criminal cases, where there is an unknown co-conspirator, a case can be filed in order to meet the Who are indigents? Those who qualify under PAO (R. A. 9406). They must have a certificate of
prescriptive period and the identity of the accused can be ascertain later on. indigence given by the barangay or DSWD.

Death of party; duty of counsel GR: They may contract legal services for free
E: P1,000 deposit for service of summons
Effect when the defendant dies during the pendency of the case:
- Any of the parties in interest or defendants in action may substitute the deceased. It is the duty of Notice to the Solicitor General
counsel to: inform the parties in interest of the fact of death via manifestation or appending the
certificate of death and inform the court of the names of the legal representatives that may be In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree,
substituted in the case. rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General
- There is no need for reservice of summons. When the court issues an order substituting the heirs as who may be heard in person or a representative duly designated by him.
parties in interest, it is equivalent to service to them, that they will appear for the predecessor in
interest. RULE 4: VENUE OF ACTIONS

Effect when the defendant dies before the institution of the complaint: Criminal vs. civil cases
- There can be no substitution of any parties in interest.
Civil cases Criminal cases
In testate or intestate proceedings
Purpose Convenience Jurisdictional
Money claims are final and executory. Can a court execute judgment in money claims make a
determination when the defendant dies during the pendency and substitute the same? No. Money Basis Exercise of jurisdiction under Court of where the place
judgment is considered as a claim against the estate. But the case can proceed until final Rule 4 where the crime was committed
judgment ???

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CivPro Notes under J. Wagan
Kinds of actions
Real
Type Actions affecting title to or
possession of real property, or
interest therein
Venue In the proper court which has
jurisdiction over the area
wherein the real property
involved, or a portion thereof,
is situated
Personal
All other actions
Where the plaintiff or any of
the principal plaintiffs resides,
or where the defendant or any
of the principal defendants
resides, or in the case of a
non-resident defendant where
Natazia Therese D. Grimares|
Venue is important because if it is not complied with, the consequence is that a Motion to Dismiss
may be filed on the ground of improper venue. However, this may be waived. (Rule 9 in relation to
Sec. 1, Rule 16)
RULE 5: UNIFORM PROCEDURE IN TRIAL COURTS
GR: The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts
E: a) where a particular provision expressly or impliedly applies only to either of said courts,
• In criminal cases where the victim or accused is a minor - Family Court (RTC)
• Children in conflict with the law - RA 9344
b) in civil cases governed by the Rule on Summary Procedure
• Only first level courts (also Small Claims)

he may be found, at the RULE 6: PLEADINGS

election of the plaintiff
Pleadings allowed to be filed in ordinary civil actions
For actions in personal = foreign nationals found in the Philippines can be served with summons
while foreign nationals not found in the Philippines cannot be served with summons (court cannot Initiatory Responsive
acquire jurisdiction over their person)
For actions in rem = jurisdiction can be acquired over persons who are non-residents and cannot 1. Complaint 1. Answer
be found
2. Counterclaim 2. Reply
When Rule not applicable:
a) Where a specific rule or law provides otherwise 3. Crossclaim
• Civil liability in libel (venue is provided under the Revised Penal Code)
4. Third, (fourth, etc.)—party complaint.
• Offenses with special rules like cybercrime and anti-terrorism
• BP 22 (Rule 111 of the Rules of Court)
b) Where the parties have validly agreed in writing before the filing of the action on the exclusive
5. Complaint-in-intervention
venue thereof * Plus, counter-counterclaims and counter-crossclaims. Although Ma’am usually states there are only
• Prior consent of action as to the exclusive venue 7 pleadings.
• It is permissive when the exclusive venue is not provided or when no restrictive words are
used Requisites for initiatory pleadings
• Example: In case of litigation arising from the contract, parties agree to file the case in
Manila where the plaintiff or defendant resides, or “in addition to Rule 4” in case of non- Why is it important to distinguish them?
performance of the contract, or in Metro Manila or within NCR Judicial Region = - There are mandatory formal requirements in filing - if they are not followed, it can be a ground to
permissive (not exclusive or specific) dismiss on the matter of form.
• Example: In case of litigation arising from the contract, the parties agree to file exclusively 1. Payment of the correct docket fees
and only in the courts of Manila = mandatory (the contract is the law between them on • If not paid, jurisdiction cannot be vested or exercised
the basis of mutuality of contracts • Absence of the same is a ground to dismiss for lack of jurisdiction
• Case cannot be dismissed outright, the court may allow payment within a reasonable
time

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CivPro Notes under J. Wagan
• Manchester v. CA: All complaints, petitions, answers and other similar pleadings should
specify the amount of damages being prayed for not only in the body of the pleading
but also in the prayer, and said damages shall be considered in the assessment of the
filing fees in any case. Any pleading that fails to comply with this requirement shall not
bib accepted nor admitted, or shall otherwise be expunged from the record.
• Sun Insurance Ltd. v. Hon. Asuncion: It is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of the prescribed docket fee, that
vests a trial court with jurisdiction over the subject matter or nature of the action. Where
the filing of the initiatory pleading is not accompanied by payment of the docket fee,
the court may allow payment of the fee within a reasonable time but in no case
beyond the applicable prescriptive or reglementary period.
2. Compliance with the certification of non-form shopping (Section 5, Rule 7)
• Prohibits the filing of multiple suits
• In order to avoid a “friendly court”
3. Verification (Section 4, Rule 7)
• GR: Pleadings need not be verified
• E: When otherwise specifically required by law or rule.
MEMAID ROC (p. 48, Sec. 4, Rule 7)
Q: What are the requisites of forum shopping?
A: There is forum shopping when the following elements are present, namely: (a) identity of parties, or
at least such parties as represent the same interests in both actions; (b) identity of rights asserted
and reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two
preceding particulars, such that any judgment rendered in the other action will, regardless of which
party is successful, amounts to res judicata in the action under consideration.
Q: Why is it that the plaintiff certifies?
A: He is the real party in interest.
Q: What is the effect if not signed by the counsel and not the plaintiff?
A: The plaintiff is the one in the best position to know whether or not he actually filed or caused to
file the case. The effect is as if there had been no certification. The remedy is also the same, the
defendant can move for its dismissal.
Q: Plaintiff applied amended complaint with plaintiff’s signature signed by counsel. Can it be cured
by amendment?
A: No, it cannot, by express provision of law. Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or other initiatory pleading.
Q: May the court motu. proprio. dismiss complaint for non-payment of docket fees after a reasonable
time?
A: Yes. Always motu. proprio.
Natazia Therese D. Grimares|
Q: Nature of dismissal on the ground of forum shopping.
A: If non-compliance is intentional and deliberate (during the pendency of the case although
plaintiff knows), dismissal is with prejudice and he cannot file a complaint against the same
defendant. If it is not intentional and deliberate, dismissal is without prejudice and the complaint can
be refiled.
Q: Nature of dismissal on the ground of non-payment of docket fees.
A: It is without prejudice as expressly stated by the provision. If dismissal is due to the fault of the
plaintiff, dismissal is with prejudice. (Section 3, Rule 17)
Q: Effect of submission of a false certification or non-compliance with any of the undertakings
therein?
A: It shall constitute indirect contempt of court, without prejudice to the corresponding administrative
and criminal actions.
Q: The 3rd requisite in initiatory pleadings is verification. Do all pleadings need to be verified?
A: No. Pleadings need not be under oath, verified or accompanied by affidavit. Verification is
required only when otherwise specifically required by law or rule.
Q: Examples of laws that require verified pleadings?

A: 1. Land registration cases (PD 1529) - petition for issuance of new owner’s duplicate title or lost
title. Correction of description of property.
2. Naturalization (CA 473)
3. Interim Rules of Procedure Governing Intra-Corporate Controversies (RA 8799)
4. COMELEC cases (Rules of Procedure) - disqualification, quo warranto
5. Financial Rehabilitation and Insolvency Act (FRIA - RA 10142)
6. Laws that provide for its own rules of procedure - the Rules of Court applies suppletorily
GR: Pleadings need not be verified
MEMAID ROC (p. 48, Sec. 4, Rule 7)
Q: Examples of special rules that require verified pleadings?
A: 1. Revised Rules on Summary Procedure
2. Rules on Procedure of Small Claims
3. FLSP under FRIA Law
4. Interim Rules of Procedure Governing Intra-Corporate Controversies
Rules of Procedure.
5. Rules of Procedure in civil actions in Intellectual Property Law
Q: Defendant filed a motion to dismiss on the ground of non-verification. Will you sustain the motion
to dismiss?
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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
A: Yes. It is a ground to dismiss as it is a requirement on form. It can be dismissed motu. proprio., even moral damages and attorney’s fees are compulsory in nature. Had X not sued Y, he would not have
without a motion from the defendant. suffered sleepless nights and he would not have spent money on a lawyer.

Q: How is verification done? When is it sufficient? Q: Example of permissive counterclaim.

A: When there is personal knowledge. Anything you can perceive through your senses. Like reading. A: If in the above scenario, Y says, you obtained a loan from me. Evidence in this PN where you
That it is true and correct based on personal knowledge that it is authentic. borrowed P100,000 from me. You should be liable to pay me. If moral damages, attorney’s fees, and
exemplary damages is asked for, it is compulsory. The P100,000 is permissive because it is a
Q: Why is it that not all pleadings need to be verified? separate action or transaction. It is a separate allegation of an unpaid loan. It did not arise out of
A: There are LO wants guaranteed that court wants turn - what happened based on the complaint of X.
personal knowledge (I CAN’T UNDERSTAND MY WRITING)
Q: Importance of knowing whether or not a counterclaim is compulsory or permissive.
Q: Who signs verifications? A: A compulsory counterclaim is any claim for money or any relief, which a defending party may have
A: Plaintiff or counsel. Must state that he has read the contents, attests to the facts, and that he has against an opposing party, which at the time of suit arises out of, or is necessarily connected with, the
personal knowledge. same transaction or occurrence that is the subject matter of the plaintiffs complaint. Any other
counterclaim is permissive. A permissive counterclaim is essentially an independent claim that may be
Q: If there are several plaintiffs, must they all sign? filed separately in another case. (UST vs. Surla: The so called counterclaim of petitioner (Surla) really
A: Yes. consists of two segregative parts: (1) for unpaid hospital bills of respondents son, Emmanuel Surla, in
the total amount of P82,632.10; and (2) for damages, moral and exemplary, plus attorneys fees by
Certificate of non-forum shopping vs. Verification reason of the alleged malicious and unfounded suit filed against it. It is the second, not the first,
claim that the Court here refers to as not being initiatory (compulsory) in character and thereby not
covered by the provisions of Administrative Circular No. 04-94 (certification of non-forum shopping))
Certificate of non-forum Verification
shopping
Q: SMDC entered into a memorandum of agreement with X. SMDC purchased X’s property in the
Who signs Plaintiff only Plaintiff or counsel amount of P60,000. X stipulated that the condominium was free from occupants. But there were
actually occupants. Expenses of ejectment must be borne by X. SMDC was forced to eject and
Failure to comply Cannot be cured by Can be cured by amendment demanded reimbursement of 1.5 million. X did not pay and did not eject the tenants from the
amendment (stricter) subject to the discretion of the property. X filed an action for reformation of the contract, stating that it did not express his intention.
court An answer was filed by SMDC, by way of counterclaim, claiming the 1.5 million reimbursement. that it
paid to the tenants in the MOA. The claim for reimbursement is separate claim SMDC has against X,
Nature of dismissal If non-compliance is intentional Always without prejudice
so it is permissive. If you’re the counsel for X and SMDC has permissive counterclaim against X, can
= with prejudice, if not
SMDC file a separate case for reimbursement?

intentional = without prejudice
A: Yes. It can be filed separately. The reimbursement arose from a separate cause (another
stipulation) although from the same MOA. The remedy of X is to file a motion to dismiss on the ground
Counterclaim of non-payment of docket fees since the counterclaim is permissive. Here there are 2 causes of
action, reformation of the contract and collection of reimbursement.
A counterclaim is akin to or equivalent to a complaint initiated by the defendant against the plaintiff.
Cross-claim
Q: Example of compulsory counterclaim.
A: In collection of sum of money, Y is to pay X P300. Y alleges that I’m not indebted to you, I already A cross-claim is any claim by one party against a co-party arising out of the transaction or
paid. Because Y suffered sleepless nights and besmirched reputation, you ask for P50,000 as moral occurrence that is the subject matter either of the original action or of a counterclaim therein.
damages and P50,000 as attorney’s fees. Here, Y’s claim arose out of X’s complaint Y’s claim for (Section 8, Rule 7)

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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
A crossclaim is barred if it is not set up in the same complaint (Section 2, Rule 9) A: On the part of the plaintiff, it is a pleading where he denies or alleges new matters in the answer of
the defendant. New matters that respond to the complaint.
Q: In crossclaim is there permissive or compulsory?
A: No. It is because it always arises or is necessarily connected to the subject matter. Q: Does defendant’s alleging new matters or denying defenses raised deny the defenses alleged (in
the reply) in the answer?

Counter-counterclaim vs. countercrossclaim A: No. The answer is not joined if he does not answer or reply.

Q: Is a reply mandatory?
Counter-counterclaim Counter-crossclaim
A: No. There is no effect if you don’t file a reply.
Claim of opposing party against counter- Claim of defending party against original cross-
claimant claimer Q: Should there be a an answer to a counter-claim or third party complaint?
A: Yes.
Complaint-in-intervention
RULE 7: PARTS OF A PLEADING
A pleading which states a third party who is not a party against either a plaintiff or defendant or
Parts of a Pleading
both, provided he has legal interest to intervene. It is akin to a separate complaint (third party
1. Caption - the name of the court, the title of the action (names of parties), and the docket
complaint). A claim filed by third persons who are not parties against the original parties.
number if assigned
2. Body - personal circumstances, ultimate facts that constitute cause of action
Q: What kind of party is a 3rd party defendant under Rule 3?
A: He is a necessary party. He is ought to be joined if relief is to be accorded as to those already • Includes personal circumstances. Purpose: It may be a ground to dismiss on the ground of
legal capacity and age. Residence is for determining the venue especially in personal
parties or for a complete determination of the claim. If you don’t implead all who may be liable in the
actions so you know where to send process or notice. It shall state if it’s a domestic
alternative.
corporation (juridical personality).
3. Prayer - relief sought
Answer
Specific prayer vs. general prayer
An answer is a pleading in which a defending party sets forth his defenses.

Q: Instances where plaintiff files an answer. Specific prayer General prayer

A: 1. Counterclaim
2. Cross-claim Particular sums alleged or prayed for Other reliefs as may be warranted, as alleged
3. Complaint-in-intervention by the facts. It throws the prayer to the court,
4. Where the defending party is the plaintiff, defendant, or plaintiff-in-intervention even if it is not specifically prayed for.

Q: What is it that the plaintiff denies? Date of filing vs. date of pleading
A: Material allegations.
Date of filing Date of pleading
Q: Does an answer need to comply with parts of a pleading?
A: Yes, an answer is a pleading under Rule 6. Date of receipt Date of preparation or signing


Reply *Purpose: for court records and for tolling the prescriptive period
*What matters? Date of pleading, if it was not dated but not signed (purposes of prescriptive
Q: Purpose of a reply. period.
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CivPro Notes under J. Wagan
Q: If plaintiffs are married. Does that matter?
A: Under Section 4, Rule 3: Spouses must be sued jointly.
Q: If you do not put ultimate facts or allege facts that constitute cause of action. What will happen?
A: The case will be vulnerable to dismissal on the ground of no cause of action.
Q: Example of relief sought.
A: Wherefore, I pray for the payment of the loan in the amount of…with interest in the amount of…
Q: Effect if pleading is not dated?
A: It can be cured if there is substantial compliance.
Q: Must a pleading be signed?
A: Yes. It must be signed by either the plaintiff or counsel. If there is no signature, it has no legal effect,
meaning it cannot be considered or the court cannot take cognizance of it or the court cannot act
on it. If it wasn’t signed through inadvertence, the court can order the parties to sign usually within a
period of 10 days depending on the judge.
Verification
GR: Pleadings need not be verified
E: When otherwise specifically required by law or rule.
(Section 4, Rule 7) MEMAID ROC (p. 48, Sec. 4, Rule 7)
Certification against forum shopping
Every initiatory pleading must be accompanied by a certification against forum shopping.
NOTE: See notes under Rule 6 (above) on non-forum shopping and verification
RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Rule on specific denial (negative defense)
A defendant must specify each material allegation of fact the truth of which he does not admit and,
whenever practicable, shall set forth the substance of the matters upon which he relies to support his
denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it
as is true and material and shall deny only the remainder. Where a defendant is without knowledge
or information sufficient to form a belief as to the truth of a material averment made to the complaint,
he shall so state, and this shall have the effect of a denial. (Section 10, Rule 8)
Natazia Therese D. Grimares|
Pleading grounds as affirmative defenses
If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss had been filed.
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer.(Section 6, Rule 16)
Q: Effect on non-specific denial.
A: If you do not specifically deny, it is equivalent to an admission of facts. The court must be able to
know which facts you do not admit to be true.


Q: Why is he deemed to have admitted if he does not specifically deny?

A: Recall: cause of action. There is a right that the plaintiff has, the defendant’s obligation to respect
that right, and his violation through acts or omission of that right. For a sufficient cause of actions, the
facts must consist of those 3 requisites. Otherwise, the case is vulnerable for dismissal.
Allegations not specifically denied deemed admitted (negative pregnant)
Material averment in the complaint, other than those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under oath. (Section 11, Rule 8)
Q: Is it possible for an answer to contain admissions?

A: Yes. When there are affirmative defenses like when you do not expressly admit something. It alleges
new matter that in effect, you hypothetically admit it but the doing of the same prevents or bars
recovery. The rule is that it is deemed admitted.
Q: Aura borrowed money from Rica. This is a collection of unpaid loan and Rica asked the court to
render judgment. Aura avers that she “does not have utang.” Is this an affirmative or negative
defense?
A: Neither. It is a negative pregnant. “Wala akong utang” is not the negative defense required by this
rule.
Affirmative defense
Anything that the defendant raises to bar or prevent recovery, which cannot be done unless there is
admission.
Q: Is it possible to raise both affirmative and negative defenses?
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CivPro Notes under J. Wagan
A: Yes. It is up to the defendant on how to go about it. You can put negative defenses and those
material allegations that you do not deny are deemed admitted. You can also put affirmative
defenses and the admissions depend on what is set forth in the answer.
Q: Example of both affirmative and negative defenses.
A: “I admit paragraphs 2 & 3 as to the personal circumstances and the execution of the promissory
note but I specifically deny paragraphs 4, 5, & 6 as to non-payment or receipt.” or “I admit
paragraphs 2 & 3 as to the personal circumstances and the execution of the promissory note but I
had no knowledge to form a sufficient belief as to the truth of thee material allegations.”
Q: What is an actionable document?
 3. Res judicata
A: For example, in a case for specific performance based on a contract of service, the basis of the
cause of action is the contract.
Q: How should an actionable document be contested?
A: Specific denial as to the fact of its due execution and genuineness. Such denial must be under
oath. If you don’t specifically deny, the fact of due execution and genuineness of the contract is
deemed admitted.
Q: What is the consequence?
A: You can no longer present evidence to prove its due execution and genuineness.
Q: What if the plaintiff wants to allege new matters arising from new matters set in matter?
A: It cannot be raised in the reply which is a responsive pleading. It can be raised in an amended or
supplementing pleading.
RULE 9: EFFECT OF FAILURE TO PLEAD
Defenses and objections not pleaded
Q: X filed a case for collection of sum of money against Y. After service of summons. Y filed an
answer. Before pre-trial, Y’s counsel found that there is improper venue. Defendant’s counsel filed a
motion to dismiss on the ground of improper venue. If you were the judge, will you grant the motion?
A: No. Defendant filed an answer. Under Section 1, Rule 9: Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. In other words, Rule 4 was not
raised seasonably.
Q: What is the rule in so far as raising or setting forth defenses and objections in Rule 9?
A: Defenses or objections not pleaded in the motion to dismiss or answer are deemed waived.
Q: Is there a difference between defenses and objections?
Natazia Therese D. Grimares|
A: Yes. Defenses are those under Rule 6 (negative and affirmative). Objections are those that refer
to form under Rule 4 (venue), certificate against forum shopping (Section 5, Rule 7) and requisites or
defect in verification (Section 1, Rule 16).
Non-waivable defenses
Q: Are there exceptions?
A: Yes. The following are exceptions:
1. Jurisdiction over the subject matter
2. Litis pendentia
4. Prescription
Although defenses or objections are not raised, and are deemed waived, these are defenses and
objections that are not waived even if or after an answer was filed. They are non-waivable defenses.
Q: Why can they still be raised?
A: It’s because the court has no jurisdiction. It goes into the very power and authority of the court to
hear the case. It shall be dismissed upon motion or motu proprio (appeals from pleadings and
evidence on record shown during trial, testimony, and evidence presented).
NOTE: Often times complaints don’t get dismissed based on no jurisdiction, limits pendentia, res
judicata, and prescription because lawyers craft their complaints well. It’s usually seen in answers
when the lawyer does not exert efforts to research or investigate previous actions or that the action
it has already prescribed. So even if it’s not shown in the answer, it may be realized during trial when
documents are shown that the cause of action has prescribed or that there was already a previous
action. It is important for the lawyer to highlight the strengths and hide the weaknesses of his case in
the complaint because if not, the defendant will find the error and file a motion to dismiss.
Compulsory counterclaim, or cross-claim, not set up barred
A compulsory counterclaim not set up cannot be barred. A permissive counterclaim that does not
arise from the same subject matter can be filed separately.
Default; declaration of.
Plaintiff usually wins when there is default because there is not defense or opposition.
Q: X filed a complaint for specific performance against Y. Summons was served to Y. Y does not file
an answer within the given period. What is X’s remedy?
A: Motion to declare the defendant in default.
Q: Upon which will plaintiff base his contention that defendant did not file his answer on time?
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CivPro Notes under J. Wagan
A: Proof of sheriff’s return of summons. When a defendant fails to file an answer. The plaintiff’s motion to
declare defendant in default is equivalent to notice to the defendant of default. This motion shall
be subject to hearing under Section 4, Rule 15.
Q: After the declaration of default by the court, must the judgment grant relief in a case always?
A: No. The court has the option to receive evidence ex-parte.
Q: What is the immediate or next proceeding after declaration of the court of default?
A: The court will render judgment based on the complaint or it can direct the claimant to submit
evidence. So if a motion to declare the defendant in default is granted, the court will order default,
and either the court will render a judgment or direct the presentation of evidence .
Q: Complaint is for actual, moral, and exemplary damages, plus attorney’s fees. Defendant did not
answer so he was declared in default. The court ordered for presentation of evidence and testimony
ex-parte.
A: Yes, the court can order the same.
NOTE: The court cannot immediately declare judgment when the documents are mere photocopies.
The original documents must be presented during trial. For example: the actionable document does
not show that the party is entitled to relief, or that the cause has already prescribed or that the
condition precent does not comply after earnest efforts of members of family.
Q: Should the judge personally receive the evidence ex-parte?
A: No. It can be the clerk of court, provided he is a member of the bar.
Effect of order of default (NEW PROVISION)
Q: How would the defendant know he was declared in default?
A: Defendant must be given a notice of default. He is entitled to notice of subsequent proceedings
under Section 3a of Rule 9. He can receive orders, pleadings and manifestations in compliance with
due process.
Relief from order of default
Q: What are the requirements that a defendant has to comply with for relief from order of default?
A: He must file motion under oath to set aside the order of default any time after notice and before
judgment. He must state that his failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense.
Q: You are the counsel of the defendant. Defendant showed you the summons and order declaring
him in default. He engaged your services as counsel. What should you do?
A; I will do the following:
Natazia Therese D. Grimares|
1. File a motion to set aside the order of default
2. Must be in writing
3. Must state that his failure to answer was due to fraud, accident, mistake, or excusable
negligence (FAME) and that he has a meritorious defense
4. Must be under oath and verified or append an affidavit of merit (on the facts of FAME)
5. Notice to defendant (every time you file a motion, you must serve a notice)
Motion to declare defendant in default vs. Motion to set aside or lift order of default
Motion to declare defendant in default Motion to set aside or lift order of default
Strictly construed against the defendant Liberally construed in favor of the defendant
Motion must be granted if there is no answer Provided it can be shown that there is a ground
filed within 15 days. The rule refers to regular for FAME and there is a meritorious defense (so
persons. there is no inconsistency of rulings)
Q: FAME means what with respect to lifting the order of default? What constitutes fraud?
A: There are 2 kinds of fraud = Extrinsic fraud - fraud that is outside of the proceedings or not related
to the subject matter of the case; neither cause or defense. Intrinsic fraud - related to the subject
matter of the case; might be a cause or defense. The fraud asked for here must be extrinsic for
purposes of lifting the order of default.
Q: X and B are friends. X filed a case against B in order to collect B’s unpaid loan. B knew that the
case was filed. He went o X and asked, “Pwede ba pag-usapan?” “Di mo ako binayaran! Issue the
check now and the other half next week and I’ll dismiss the case. Y issued check and X did not
bother to send summons. But B received notice of motion to declare him in default and notice of the
order of default. He went to his lawyer. Was the agreement valid?
A: The fraud in this case is misrepresentation. The misrepresentation that X will drop the case if B
issues a check. The words uttered by X did not prevent B from filing an answer. B must show, using
FAME why he did not file an answer. For example, if on day 14 or 15, he got sick, he must append a
medical certificate or clinical proof. Or if his tire blew up, he must append a receipt from the auto
repair shop.
NOTE: Other than bare allegations, he must show proof that these facts occurred. For example, it
must be shown that the case was filed in the RTC by mistake through the stamp.
Q: Until when may defendant move for lifting the order of default.
A: Anytime before judgement.. It is not available on appeal because it was rendered even during
presentation of evidence.
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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
Q: Can you still file for motion to lift order of default after the trial on merits but prior to rendering of Q: What can be amended?
judgment? A: Formal amendments and substantial amendments.
A: Yes.
Formal vs. substantial amendments
Effect of partial default.
Formal amendments Substantial amendments
Q: X filed a case against A, B, & C. Sheriff served summons to all. Only A filed an answer. B & C did
not file an answer. What is the plaintiff’s remedy? As a matter of right Both can be amended
A: His remedy is to file a motion to declare B & C in default (those who did not file an answer).
As a matter of discretion Cannot be amended Can be amended
Q: What will happen to the case? Can the court immediately declare judgment against B & C?
A: Yes. There can be partial default. The rule requires that the court can proceed with trial against all *Formal amendments can be amended anytime, even if a responsive pleading is served. Why?
(A, B, & C) based on the answer of A and render judgment upon the evidence presented. Because there is no cause of action. It can even be done during trial (even without motion or leave
Q: The complaint was dismissed against A but granted against B & C. Is this allowed? of court) motu. proprio. for as long as it does not cause prejudice the defendant (affect his
A: Yes, because A filed an answer and presented evidence. B & Cdid not answer and court defenses)
rendered judgment against them based on A’s defense. The court can render judgment as *Change in date is not always a formal amendment, it is substantial when it affects the prescriptive
warranted by the facts alleged in the complaint. The case can also be dismissed against all of them period
because B & C did not file an answer. But X is not entitled to relief. *Generally, amendments as a matter of discretion is shorter than when made as a matter of right

Extent of relief to be awarded Whether or not an answer has been served

A judgment rendered against a party in default shall not exceed the amount or be different in kind Answer is not served Answer is served
from that prayed for nor award unliquidated damages.
Where no defaults allowed As a matter of right You can do anything. You can N/A
add or delete a cause of
If the defending party in an action for annulment or declaration of nullity of marriage or for legal action. Make formal or
separation fails to answer, the court shall order the prosecuting attorney to investigate whether or substantial amendments.
not a collusion between the parties exists, and if there is no collusion, to intervene for the State in
As a matter of discretion N/A There must be leave of court.
order to see to it that the evidence submitted is not fabricated.
Applies only substantial
amendments. [An answer is filed.
RULE 10: AMENDED AND SUPPLEMENTAL PLEADINGS
Issues have been joined and
there can be no more
Amendments in general
substantial changes based on
material allegations because it
Pleadings may be amended by adding or striking out an allegation or the name of any party, or by
will prejudice the defendant.]
correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in
any other respect, so that the actual merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and inexpensive manner Q: A complaint for a collection of sum of money was filed. Client decides he wants moral damages
on top of actual damages. Can he amend the complaint?
Q: Kinds of amendments. A: Yes, if no responsive pleading was filed and no summons was served. [After amending, summons
A: Amendments as a matter of right and amendments by leave of court (discretionary). can be served, as well as the amended complaint from receipt of 5 days??? If you want to

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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
increase your claim you can no longer, without leave of court, amend the complaint if the Q: Are there other amendments that can be made aside from these two?

defendant has already filed an answer] A: WHAT EVEN

Q: What if the 2nd amended complaint was filed before the service of summons? Q: Recall: Aspects over which court can acquire jurisdiction over civil actions
A: Although no answer was served, the rule allows amended of complaint only once as a matter of A: 1. Subject matter
right. If you want to make a 2nd amendment, you must ask for leave of court. You must file a motion for 2. Parties
leave to file an amended complaint of the 2nd amendment complaint. 3. Issues - By the pleadings or allegations in the complaint
4. Res
Q: Requisites if motion for leave to amend complaint was a substantial amendment and an answer
was filed. Amendment to conform to or authorize presentation of evidence
A: If a party seeks leave of court and the remedy in seeking leave of court is to admit pleading, it
must be accompanied by the pleading itself. There is implied consent when the opposing party does not object in the alternative. If there is an
objection, the same party who raises the same can insist on hearing the question. Also applies to
Q: If change of date becomes a substantial amendment and an answer is filed. How must it be answers, not just complaints.
amended?
A: With leave of court. There must be a motion for leave to amend the complaint. Q: X filed a case of collection of sum of money against Y. The allegations were that upon such a
date, X loaned Y P500,000. Y executed a PN attached thereto containing facts that constitute
Q: Will Rule 10 apply to all 7 pleadings? cause to collect. Y did not pay despite repeated demands. X also asked for attorney’s fees. Trial
A: Yes. All pleadings can be amended as a matter of right or discretion. ensued. Plaintiff X presented a witness. The lawyer asks what is the agreement as to payment of
interest. If Y’s counsel defendant asks X’s counsel as to the agreement to the payment. X raised in the
Amendment vs. supplemental pleading [W/N leave of court] complaint that there is no relevance or materiality. He objected on the ground that it was not raised
or it was not an issue to be resolved in the case. It’s in the PN. But Y insisted on the objection. It was
not alleged in the complaint which is the fault of plaintiff’s counsel that he did not raise it and that it
Amendment Supplemental pleading
was a valid objection. There was a hanging question which he was not allowed to answer. But every
Necessity of leave of court As a matter of right or matter of Always with leave of court word is testimonial evidence. What is your remedy?
discretion A: You can amend the complaint because you inadvertently forgot. So in the interest of justice, X
can file a motion for leave to amend the complaint so as to conform to the evidence. In effect, to
When made Prior to or after the filing of a When there may have been authorize the presentation of evidence because there was a valid objection.
responsive pleading transactions, occurrences or
events which have happened NOTE: There is implied consent on the issue of payment where plaintiff presents a witness and a
since the filing of the original question on the agreement of payment (in the PN) was asked and there were no objections and
pleading there was cross-examination.
How made As a matter of form or Attachment of other
substance documents Q: As a judge, how will I know which portion was amended?
A: The portions which appropriate marks. Usually they are underlined.
As to result Supersedes pleadings Acts merely in addition to, but
does not withdraw original Q: Effect of amendment to the original pleading.
pleading A: It supersedes the original pleading or all pleadings. In effect, they are of no use. However,
admissions in the original complaint are deemed to have been admitted.
CHECK MEMAID
Q: Is it possible to have a 3rd, 4th, or 5th amended complaint?

A: Yes. With leave of court. In deciding whether or not to grant the amendment, the court will take into

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CivPro Notes under J. Wagan
consideration: intent to delay, intended to confer jurisdiction to the court, or to cure a premature or
non-existing cause of action CHECK LAKAS
RULE 11: WHEN TO FILE RESPONSIVE PLEADINGS
Q: Defendant does not file an answer to an amended complaint both as a matter of right and a
matter of discretion. May he be declared in default?
A: Even if an answer is not filed, the answer in the original answer becomes the answer in the
amended complaint. Only when it is a matter of discretion or 2nd amendment when it was filed
before an answer is joined??. If it was a matter of right and there was no answer, you can file an
answer within 15 days.
Q: Is the period to file an answer to permissive or compulsory counterclaim is different?
A: No. Rule 11 does not distinguish. It’s always 10 days.
NOTE: An answer to a supplemental pleading arises only when the pleader adds transactions,
occurrences, and events which have transpired since the filing of the original complaint. It is
considered as part of the original complaint.
RULE 12: BILL OF PARTICULARS
Q: Counsel for defendant wants to figure out the plaintiff’s objective by asking the court what the
latter wants.
A: The defendant or definedng party is concentred as to motion for bill of particulars.
Q: When is it filed?
A: Before filing of a responsive pleading (answer) after the the service of summons.


Q: What is its purpose?
A: So the defendant can prepare intelligently his answer. He cannot do so if in the complaint, the
allegations were not specified or definite. They must be alleged with particularity so the defendant
can prepare his answer.
Q: If the defendant is given a copy of the complaint (that was malabo) along with the summons,
what is his remedy?
A: His remedy is to file a motion to dismiss on the ground that there is no cause of action.
NOTE: If you know however, that the complaint is defective and not sufficient to state a cause of
action or does not state facts constitutive of it, the judge might not grant the motion to dismiss.
Q: If stated in the personal circumstances, A & B entered into a transaction (the basis of the claim for
return of share) and A does not pay his share despite demands. He asked for P350,000 as his share.
Natazia Therese D. Grimares|
The amended complaint still did not specify if the transaction was a joint venture or if there was a
MOA. The defendant filed a motion for non-compliance with the order directed by the judge. He
filed to dismiss the complaint because B did not comply with the order of the court. What is the
effect?

A: It suspends or tolls the period. If the defendant filed the motion for bill of particulars on the 15th
day from the service of summons. It tolled the period when the motion was granted.
If motion for bill of particulars was filed on the 5th day after service of summons, the defendant still
has 10 days to file an answer.
Q: How will plaintiff comply to state to state with particularity or definiteness?

A: The purpose for motion for bill of particulars is to fill in the defects and details. It is made in a
separate pleading. There are 2 ways by which to comply: by either amending pleading or filing a bill
of particulars in a separate pleading with paragraphs pointed out which are not alleged with
particularity. The choice is with the pleader. The bill of particulars forms part of the complaint.
NOTE: Amendment is preferred because it supersedes the original items and pragraphs. If there is a
bill of particulars filed, there will be 2 things to read.
Q: Must there be a motion for bill of particulars? With a hearing?
A: Yes, because it’s a motion. You have to notify the plaintiff the plaintiff and send a copy of the bill
of particulars. It must be made from service of summons to before filing an answer.
RULE 13: FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Q: Which comes first? Filing or service?
A: It depends. In initiatory pleadings, filing comes first. But in responsive pleadings, service comes first.
For example, in a case for collection of sum of money, complaint-in-intervention, and a third party
complaint, filing comes first. But in a motion to declare the defendant in default and in counterclaims,
cross-claims, and replies, service or notice comes first.
Q: How are pleadings served?
A: By personal service, registered mail, substituted service and publication. In that preferred order. It
can also be done via private courier, subject to the rule on proof of service.
Proof of filing CHECK MEMAID
1. Proved by existence of the record
• If it is not in the record, but claimed to have been filed personally = proved by the written
or stemmed acknowledgement of its filing by the clerk of court on a copy of the same
2. Registered mail
• Proved by the registry receipt and affidavit of the person who did the mailing (full
statement of the date and place of depositing the mail in the post office in a sealed
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CivPro Notes under J. Wagan
envelope addressed to the court, with postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if not delivered.
Proof of Service. CHECK MEMAID
Proof of personal service shall consist of a written admission of the party served, or the official return
of the server, or the affidavit of the party serving, containing a full statement of the date, place and
manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the
person mailing of facts showing compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing
office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu
thereof the unclaimed letter together with the certified or sworn copy of the notice given by the
postmaster to the addressee.
Section 2, Rule 10: Amendment as a matter of right before a responsive pleading is served so date
of service matters if she amended as a matter of right or matter of discretion.
Service of papers
1. Personal service
2. Registered mail
3. Substituted service
4. Publication
NOTE: Franking privilege - for free. Process server or sheriff serves it at the plaintiff’s expense. For
example, a temporary restraining order must be served as once so there is a need for subdidy??
What are served? Pleadings, summons and notices.
Date of filing/service CHECK MEMAID
Q: Instances when postman goes to the house and no one is there to receive the papers.
COMPLETENESS??
Mail matter unclaimed for ordinary mail is 10 days from the service of notice and for registered mail is
5 days from the service of notice.
Q: Motion to return to sender — is that deemed notice?
A: No. What is the remedy for proof of service? Recourse: substituted service. The envelope served
attached to a manifestation of the court to be given to the clerk of court is deemed service. It is not
unfair because defendant filed an answer. It is his duty to inform the court that he transferred.
RTS (Return To Sender) if the person is no longer residing there. CBL (Cannot Be Located) - if the
person cannot be located. IA (Insufficient Address). M.O (Moved Out). They are not proof of service.
Natazia Therese D. Grimares|
Notice of lis pendens
Requires registration with the Registry of Deeds = deemed constructive notice. ONLY if the action
involves title to or right to or possession of or any interest therein over real property. By the plaintiff
and defendant who are conversed with protection of their rights.
Example: An action of annulment of a deed of sale over real property but if defendant does not
want the seller to sell to another while the case is pending, he can file notice of lis pendens.
(annotation and registration). So the buyer is in bad faith if he buys the property with a lis pends
annotation and registration — knowing it’s subject to a pending action. Some people take the risk to
buy, in bad faith, because of lowered prices. So if SMDC in this case, wants to buy the property,
SMDC’s remedy is to file a motion for cancellation of the notice of lis pendens.
Cancellation of the notice of lis pendens
Only upon order of the court, after proper showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights of the rights of the party who caused it
to be recorded. Applies both to the affected defendant and/or plaintiff who may be the ones to
cancel and applies during the pendency of the case but before final judgment.
Recall: LTD: Section 76 of PD 1529 on Notice of Lis Pendens. One of the involuntary dealings
concerning real property. It notiifies the adverse party and termination and disposition by final
judgment??? The remedy is par. 1, Section 14, Rule 13.
NOTE: After the final judgment, the notice of lis pendens can still be cancelled by securing a
certificate form the clerk of court or branch clerk that the case was already terminated in however
means (either by dismissal or final judgment).. The certificate must be presented and registered with
the Registry of Deeds and the Registrar of Deeds may now cancel notice. It is not a court action.
RULE 14: SUMMONS
Summons is a court process whose primrose is to notify the defendant of a court action, in
compliance with due process (otherwise, it cannot bind him because he was not property notified
and the same is his constitutional right. Its effect is that the court acquires jurisdiction over the
defendant.
Q: Who issues summons?
A: The clerk of court.
Q: What is the plural of summons?
A: Summonses.
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CivPro Notes under J. Wagan
Q: How is summons served?
 Q: In what manner should the sheriff exert efforts before he could validly serve summons?
A: By handing over or tendering to the defendant. If the defendant does not accept it, you must
tender it to him by leaving it inside his house or wherever you found him.
Who serves summons MEMAID
1. Sheriff
2. Deputy sheriff
3. Other proper court officer
4. For justifiable reasons by any suitable person authorized by the court issuing the summons.
Duties of the person who serves summons MEMAID
1. Service of summons through the modes of services in the order of preference, along with a copy
of the complaint
2. Exert efforts to personally serve the summons
3. Make a return stating the facts and manner of service
Q: You are the sheriff and you are serving summons. You reach the place and you see that the
building was abandoned and chained. How will you serve summons?
A: You must inform the court in your return that the building was abandoned, hence summons could
not be served. Summons can be served through publication instead. If the person is a resident
whose whereabouts are unknown, summons can be served through publication.
Q: There is a case where the defendant resides in Davao and plaintiff’s counsel tells the court that
he wants to serve summons himself since he is from Davao. Can he do that?
A: Yes. Any person, under justifiable circumstances, can be authorized by the court to serve summons.
Here, there is a justifiable circumstance, so he can be authorized to serve summons. Even the plaintiff
himself can serve summons to the defendant, provided he was authorized by the court.
Q: Is there an order of preference for service of summons?
A: Yes. 1. Personal service
2. Substituted service
3. Publication
Q: Sheriff went to the house of Mr. X. Sheriff asked the person in the residence, “Where is Mr. X?” The
woman replied, “Nasa field.” Sheriff asked the woman, “Is this his residence? How old are you? What is
your relation to Mr. X?” Yes. I am 25. I am a househelper. So the sheriff served summons through
substituted service. Was it proper to immediately resort to substituted service?
A: In the sheriff’s return, he must state the manner by which he served summons. In this case there were
no efforts exerted to try to personally serve summons. There was no justifiable cause for the sheriff to
resort immediately to substituted service.
Natazia Therese D. Grimares|


A: In the case of Manotoc v. CA, Imelda Manotoc filed a motion to dismiss on the grounds of lack of
jurisdiction over her person and invalid service of summons. She contended that 1) The place was
not her dwelling, 2) Macky de la Cruz (alleged caretaker of the petitioner at the condominium) was
neither representative, employee, or resident there, 3) Procedure on substituted service was ignored,
(4) She was in fact a resident of Singapore, (4) Judgment, if any was rendered, would be futile. The
court ruled that there was invalid substitution of service. There was a lack of requisite specific details
in the return. There was no clear reason why the attempts failed. – wanting in the details. The Court
ruled that narration, written on broad and imprecise words will not suffice. Facts should be stated with
more particularity and detail, no of attempts, dates and times of attempt, inquiries made to locate,
names of occupants of the alleged residence, and reasons for failure. De la Cruz, who did not sign
the receipt of the summons, lacked the requirements that the recipient must be of suitable age and
understanding and the recipient must reside in the alleged house of defendant.. Both were not
complied with so due to non-compliance, proceedings held before the trial court must be annulled.
NOTE: For there to be valid substituted service, if in the first place he finds the residence and the
defendant really resides thereat, why was he not able to notify the defendant himself? The
defendant is the real party in interest who has the right to be informed (to know) of the case filed
against him. So whenever practicable, the sheriff must serve summons personally. Guide as to when will
the service as to justifiable service: The sheriff must personally attempt to serve summons: 3 attempts
and on 2 different dates. On the 3rd attempt, there is a valid service of summons.
Service upon entity without juridical personality
They can be sued. How is summons served? They are sued under the name by which they are
generally or commonly known (Example: ABC Shop, kareinderya, autoshop). The modes are the
same: 1. Personal service, 2. Substituted service, and 3. Publication.
Service may be effected upon all the defendants by serving upon any one of them, or upon the
person in charge of the office or place of business maintained in such name. But such service shall
not bind individually any person whose connection with the entity has, upon due notice, been
severed before the action was brought.
Service upon prisoners
Service shall be effected upon him (the prisoner) by the officer having the management of such jail
or institution.
Service upon minors and incompetents
1. Minor - served upon the minor, regardless of his age, and upon his legal guardian, or also upon
either of his parents.
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CivPro Notes under J. Wagan
2. Incompetent - served upon him personally, and upon his legal guardian, but not upon his
parents, unless, obviously, when they are his legal guardians.
3. No legal guardian - plaintiff must obtain the appointment of a guardian ad litem for him
Service upon domestic private juridical entity
The list is exclusive. They are the only officers to whom which summons can be served.


Q: The sheriff goes to ABC Corporation. He tells the guard, “Hello, I’m the sheriff and I’m here to serve
summons.” The guard will not let the sheriff near the secretary or the in-house counsel. Huwag
palapitin sa president, managing partner, general manager, corporate secretary or treasurer. If on
the 1st attempt, you’re told the president is on leave. On the 2nd attempt, you’re told everyone is on
leave or is abroad. On the 3rd attempt, you can serve it to whoever is there. There is valid
substituted service of summons. That the persons to whom which you can serve summons were not
around and those corporate officers could not be personally served with summons.
NOTE: In big corporation, the sheriff will look for the legal counsel in the legal department. The sheriff
serves the summons to the front desk of the legal department. who will issue a receipt. In practice, it
does not have to be served to the lawyer mismo, it can be served to the legal department. Same
goes with the office of the president. Receipt can be made via stamp.
Q: Is it possible for there to be a managing partner and a general manager exist in a single entity?
 2. Its executive head, or on such other officer or officers as the law or the court may direct, in case
A: Yes. In a a partnership. It is not possible in a corporation.
NOTE: So substituted service also applies to juridical entities. More often than not, summons is not
actually served to the 5 in the exclusive list.
Service upon foreign private juridical entity
GR: They cannot sue or be sued 
 any newspaper of general circulation. An order granting the motion to serve summons by publication
E: When they are doing business or transacted in the Philippines
 will include the summons, the whole of the complaint and its attachments. Publication in the place


Doing business vs. transacted (NEW PROVISION)
“Doing business” implies continuity while “transacted” refers to an isolated transaction. In the new
rules, it is not limited to doing business. Section 12 now includes isolate transactions. So for as long
as there was a transaction here in the Philippines, it gives rise to litigation and the foreign private
juridical entity can sue or be sued.
In the case of GSIS. There was a bug on their website and they were hacked. So they filed a case
against the domestic corporation (IBP Philippines which provided the program that enabled the
hacking). The IBP main office in Washington was also impleaded. They are separate and distinct
Natazia Therese D. Grimares|
juridical entities so summons must be served to both. Jurisdiction could not be acquired over IBP
Washington because it is a foreign private juridical entity but since it asked for an affirmative relief it
was deemed to have submitted itself to the jurisdiction over the court.
NOTE: The modes of service of summons in the order of preference applies here. Except for the 3rd
mode of publication. It cannot be served here by publication.
Check: Foreign Investment Act ??
Summons is to be served to:
1. The resident agent (15 days)
2. Government officer (60 days)
3. Any of its officers or agents within the Philippines
- Extra-territorial service of summons applies to foreign private juridical entities with leave of court, if
the court allows. The 4 modes of service of summons applies here as well.. Personal service
abroad is the preferred mode at the expense of the plaintiff.
Service upon public corporations
Service may be effected on:
1. The Solicitor General - when the defendant is the Republic of the Philippines
of province, city or municipality, or like public corporation .
Service upon defendant whose identity or whereabouts are unknown


Q: With leave of court. Sheriff goes there. The whereabouts are unkwnon. He makes a report saying
the defendant cannot be found or is not residing therein. A motion for service of summons can be
filed stating the facts of how service was attempted. Summons can then be served by publication in
where the plaintiff resides = deemed constructive notice.
OLD RULE of Section 14, Rule 14 of in rem proceedings and applies to actions in personam, in rem,
and quasi-in-rem.
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CivPro Notes under J. Wagan
Classification of actions as to object
In personam In rem
An action against a person on An action against the thing
the basis of his personal itself instead of against the
liability person
Purely an action for personal Affects the status of the plaintiff, It deals with status, ownership
liability of the defendant and right, interest, title to, or
possession of real property
Brought against the Brought against the whole
defendant world
Requires personal service Need not be personal service.
Complementary service
(copies of the complaint by
registered mail is sent to the
defendant’s last known
residence) is required. It is only
for due process because the
court already acquired
jurisdiction over the res.
Case of Santos v. CA. If the building is padlocked, or it was closed, and there was not forwarding
address, service of summons by publication can be effected.
Sections 15 and 16 - applies to in rem proceedings
Q: Section 12, in an action in personam. Can it proceed if there is no personal service or substituted
service?
Quasi-in-rem
One wherein an individual is
named as defendant and the
purpose of the proceeding is
to subject his interest therein to
the obligation or lien
burdening the property
or liability or a particular
property but which are
intended to operate on these
questions only as between the
particular parties to the
proceedings and not to
ascertain or cut off the rights or
interests of all possible
claimants
Brought against the whole
world but binds only the
participants
Need not be personal service.
Jurisdiction over the person of
the defendant is not a
prerequisite to confer
jurisdiction on the court
provided that the court
acquires jurisdiction over the
res (by custodia legs or the
institution of legal
proceedings).
Natazia Therese D. Grimares|
A: No. But it can proceed if there was service by publication.
Section 15 on extra-territorial service apples to actions in rem and quasi-in-rem.
NOTE: If the defendant is a non-resident and cannot be found but he is a green card holder
resident of his country and cannot be found here. If he is found here, extra-territorial service has no
applicability because he is on vacation in an action for specific performance. If personal service
cannot be effected, the remedy is to attach a property. He must ask for issuance of preliminary
attachment of property. Civil actions in personam, when property is attached, will become quasi-in-
rem and the property will be in custodia legis. The other remedy is to wait for the balikbayan to
return.
Extra-territorial Service
1. Personal service
• Process: Summons will be given to the DFA —> Philippine embassy near or in the place of
business —> DFA of the state or country where the defendant corporation is found —>
Court in that state or country —> Process served of that court to the defendant
corporation
2. Publication in a foreign newspaper where the business is done
3. Analogy to Sections 14 & 15
4. 3rd mode: non-resident, not found, ANY OTHER MEANS??

Q: Can there be extra-territorial service to foreign private juridical entities? What are the modes
of extra-territorial serve to foreign private juridical entities.
A: Yes. 1. With leave of court for personal service, assisted by the DFA.
2. With leave of court by publication in foreign newspapers of general circulation.
3. By facsimile with proof of service
4. Any other means
Plaintiff or server cannot immediately resort to the other modes if summons cannot be served to
anyone in paragraph 1.
Summons by publication (in extra-territorial service)
With leave of court - proof of affidavit of publication for 15 days. The time for when the court grants
motion for leave to serve summons my publication is fixed by the court but it usually 60 day.
Residents temporarily out of the Philippines
Examples: OFWs or students abroad.
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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
Service may, by leave of court, be also effected out of the Philippines as under extra-territorial RULE 15: MOTIONS
service. Does not apply to in personam proceedings but it applies to in rem and quasi-in-rem
proceedings. Motions of all civil actions, criminal actions, special civil actions and special proceedings. Motion is
a relief other than a pleading. Filed usually after an initial pleading.
Voluntary appearance
IMPORTANT RULES ON MOTIONS
The defendant's voluntary appearance in the action shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the 1. GR: It must be in writing (Section 3, Rule 9)
defendant shall not be deemed a voluntary appearance. Occurs when the defendant seeks 2. E: in open court or when the rules allow it
affirmative relief. 3. Must be set for hearing
• There must be notice and must be heard by the court
Q: The defendant is served summons and has 15 days to file an answer. On the 15th day, he files a
motion to extend the time to file an answer, which was granted. On the 10th day, he filed a motion to
• Example: Motion for leave of court to amend the complaint (litigated motions - prejudicial
to the adverse party)
dismiss on the ground that the court did not acquire jurisdiction over his person because the sheriff 4. Set not more than 10 days
resorted to substituted service on the first try. Is this equivalent to an affirmative relief? What is an • Receipt by adverse party in 3 days (3 day notice rule)
affirmative relief?

A: When you ask for relief, it means you recognize that the court has jurisdiction. If you seek for relief,
• Example: If the hearing is set on Friday afternoon, dapat. nakuha na ni adverse party on
Tuesday to allow adverse party to prepare for the hearing.
you recognize the court’s jurisdiction to give you the relief. 5. Notice of hearing
• Notice addressed to the parties
NOTE: Special appearance operates as an exception to the general rule on voluntary • Notice served to the branch clerk or clerk of court
appearance. If you appear and argue in court by way of special appearance, the jurisdiction of
the court is acquired.
• Consequence if no notice, it may be dismissed on the matter of form (pro forma)
6. Proof of service for personal, registered mail, and substituted service
7. Evidence presentation
The inclusion in the motion to dismiss of any other ground that is not lack of jurisdiction, is not
tantamount to voluntary appearance.
• Evidence in motion (Rule 132)
8. Omnibus motion - if the relics are present during the filing or else they are deemed waived;
movant asks for more than one relief
Q: Summons was served. Defendant filed a motion to dismiss on the ground that the venue was 9. Motion for leave must be accompanied by the document for its purpose
improperly laid, there was no cause of action, and there was no jurisdiction over the person in
substituted service. Is there voluntary appearance? Motion vs. Pleading
A: No. In this case, what he filed was an affirmative relief he asking for dismissal. The filing of an answer
per se should not be treated automatically as a voluntary appearance.. The defendant also Motion - after initiatory pleading is filed, after the service of summons, and distinct relief sought is
invoked the ground of lack of jurisdiction over the person. The court does not acquire jurisdiction incidental to the case
because the defendant is questioning the manner of how summons is served to him. If the answer
objects to the jurisdiction over the person, it is not considered voluntary appearance. Q: What is actually provided by this rule?
A: Procedure - all motions in general must be in writing. E: when made in open court
Q: Ways to acquire jurisdiction over the person?

A: Valid service of summons (the defect of which can be cured by seeking affirmative relief) and Q: Motions acted upon that do not cause prejudice.
voluntary appearance. A: Motion to postpone, motion to extend time to file pleading or opposition.

Proof of service by publication Q: Form?

A: Same as pleading under Rule 7.
Affidavit of the publisher. 1. Must be in writing; relief sought - grounds the relief is based

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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
2. Must be set for hearing - if it causes prejudice or if it is a litigated motion * no proof of service = no jurisdiction of the court to act = no due process
E: Does not cause prejudice to the adverse parties (non-litigated)
3. 3 day notice rule Motion day
4. Proof of receipt - correlate with Rule 13
Omnibus motion rule - all grounds which are available at the time of filing of the motion should be
Q: What is a litigated motion?
 alleged. If not, they are waived.
A: Motion to declare in default, motion to lift order of default, motion to dismiss, motion for bill of
particulars (rule on motion), motion to intervene, motion for leave to intervene Sec. 1, Rule 19: …. are also deemed waived
E: JP LR (1. no jurisdiction, 2. prescription, 3. litis pendencia, 4. res judicata)
Q: How is a motion set for hearing?
A: A notice with the date and time shall be served to the adverse party within 3 days, no later than Section 8: Non-waivable defenses
10 days from the date of filing.
Q: Motions asking or leave of court or permission to file motions
Q: Compliance with notice of hearing. A: 1. Motion to serve summons by publication
A: For due process. Due process on the part of the parties and counsel - when movant is seeking the 2. Motion for leave to intervene
motion to be set for hearing. Due process on the part of the clerk of court - movant is asking him/her 3. Motion for leave to amend answer filed
to include the motion to be placed on the calendar (of cases) and set the motion or hearings. 4. Motion for leave for supplemental complaint
5. Motion for leave for supplemental answer
Q: Effect if motion is not accompanied by a notice of hearing. 6. Motion for leave for supplemental reply
A: If the movant does not comply, the court may not act on it. It is a mere scrap of paper. Sections 4 * Requires leave of court, accompanied by the pleading sought to be admitted
& 5 on the 3 day notice rule: copy of the motion must be served to the adverse party within 3 days
before the intended date of hearing. As a rule under Section 7: Friday afternoon, if it is a holiday, the Q: Mandatory procedure in filing
next working Friday. It must be received on Tuesday, Friday excluded. A: 1. Rule as to form under Section 7
2. Must be in writing, E: if made in open court
Q: How should summons be served? Service of pleadings is the same. 3. Set for hearing, E: if the act does not prejudice the adverse party/non-litigated motion
A: 1. Personal service 4. 3 day notice rule
2. Substituted service 5. Proof of service
3. Publication 6. Motion day rule
4. Any other… 7. Omnibus motion rule
8. Leave of court - must be accompanied with the pleading sought to be admitted
By mail: 1. registered mail, 2. substituted service * Same rule in criminal cases, special civil actions, special proceedings, even special proceedings
Under Rule 13: personal service is preferred under other laws like land registration cases (they are not governed by the rules of court and they
may be applied suppletorily)
There is leniency in service of pleadings or motions for as long as there is an explanation. For
example: due to the distance of the places — the movant effects substituted service. For the service RULE 16: MOTION TO DISMISS
of summons, there must be just causes and 3 attempts made in 2 different days for valid substituted
service. Motion to dismiss must be in writing, set for hearing, and must adhere to the 3 day notice rule. It is a
remedy resorted to by the adverse party. It is filed 15 days from the receipt of summons. [Sometimes
Personal service - stamp received 10 days within the 10 day period before filing an answer]
Mail - registry return receipt
Substituted service - manifestation filed in court that despite efforts of personal service and mail, they Must comply with Rule 15. Must be made within the time for filing an answer but before filing of an
were unavailing that is why substituted service was resorted to. answer. [Rule 11 - period to answer]

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CivPro Notes under J. Wagan
A motion to dismiss is filed under any of the grounds under Section 1. Enumeration of the grounds is
exclusive (like WITQ??)
A party may raise 2 or more grounds for dismissal.
Nature of dismissal: without prejudice. Thus, a complaint may still be filed, except for paragraphs E, H,
and I.
Correlate with Sections 1 to 9
Q: What happens when he does not file a motion to dismiss? What is the remedy?
A: He may file a hearing for affirmative defense or motion for preliminary hearing, for the purpose of
setting the affirmative defenses. Assessment is made by the judge whether or not there are grounds
to reverse trial. It is the second opportunity to move for a motion to dismiss. Section 6 can only be
avail of if he did not file a motion to dismiss.
Section 1:
Par. a: Rule 14 (lack of jurisdiction), modes of service of summons. If there is no valid service of
summons, the court does not acquire jurisdiction over the person.
Par. b: No jurisdiction over the subject matter. Can be acted upon motu proprio., even without a
motion to dismiss. If the court does not give notice, there is no jurisdiction and defendant may file a
motion to dismiss. Section 1, Rule 9: non-waivable. It may be raised at any time even without a PP???
It refers to the authority of the court or power to hear cases.
Par. c: Venue is improperly laid. Real actions - location of the property. Personal actions - election of
the plaintiff. Rule 4. Section 4, Rule 4: qualifying restrictive words, by agreement of where to file.
Par. d: No legal capacity to sue. It is basic and substantive. Minors can file civil actions through their
legal representative (Rule 3).
If there is no legal capacity, is that equivalent to locus standii? No.
Natazia Therese D. Grimares|
Legal capacity Locus standi
Capacity required by law in order for you to file Simply as to the issue as to whether or not the
a case plaintiff or defendant has personality to file a
case. Not a violation of a right but it is asking
the court about he constitutionality of a law,
ordinance, or regulation.
Ex. Derivative citizenship, as a taxpayer,
constitutionality of a law
Correlate to: #7: Who is the real party in interest? The party benefitted or injured by the judgment or
avails of the suit. If there is no legal personality, it is a ground to dismiss.
Who are the parties to the case? The individual, juridical entity, or those carrying civil interdiction =
they have the authority to sue and be sued
*Those carrying with them civil interdiction: adverse party if principal penalty is death, reclusion
perpetua, or reclusion temporal. The party may (not carrying civil interdiction) may sue and execute
a SPA. [ DOUBLE CHECK]
Par. e: Litis Pendentia. Same ground, same cause. Elements: 1. Same parties, 2. Same issues, 3. Same
cause of action. Under Rule 2, splitting of cause of action is prohibited and the ground to dismiss is
litis pendentia.
Par. f: Res judicata or statute of limitations (prescription). Requisites of res judicata: 1. Previous
judgment, 2. Judgement must be final, 3. Contains the same subject matter (same cause of action of
the case decided with finality). As for prescription, it is substantive in matter. The prescriptive period
for a written contract and a judgment is 10 years. For fraud, it is 4 years. Key phrase: When will the
cause of action accrue? If it is a contract, by the stipulation. Whenever default of judgment, from the
finality of judgment.
Par. g: No cause of action. 3 requisites of cause of action under Rule 2 (ROV). Sufficiency of cause
of action of the allegations and not the veracity of the allegations in the event he is entitled to
judgment. The veracity does not get resolved because it will be proven during trial. It determines who
the real party in interest is. It is different from locus standi. or legal standing.
NOTE: He stands to show that he may be entitled to judgment based on what he has alleged.
Q: When does a pleading assert a claim?
A: Not just confined to a complaint. It includes counterclaims, cross-claims, 3rd party complaints and
complaint-in-intervention.
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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
Who are members of the family? Immediate family. If the defendant is the brother-in-law and the
Q: When does it not state a cause of action? plaintiff is the sister-in-law, there is no need for earnest efforts to conciliate as they are not immediate
A: If it does not allege facts constitutive of a cause of action. Must state the right of the plaintiff family.
sought to be protected, the obligation on the part of the defendant to respect or not violate that
right, and the violation of the right through an act or omission. (ROV) 3. Valid tender of payment or consignation
4. Arbitration Law - arbitration clause and must comply with the stipulation of referral of dispute to
arbitration. It can also be voluntary as when it is stipulated in the contract (actionable
No cause of action Lack of cause of action
document)
Rule 16: motion to dismiss Rule 33: Motion to demurrer
Q: With all the grounds from A-J, can they be motu proprio?
Insufficiency of allegations to make out a cause Whether or not there is sufficiency of evidence A: All must be upon motion. E: 1. When there is leave of court, or 2. When it is apparent from the
of action to prove cause of action pleading/evidence/trial that the action has prescribed (RJ LP - non-waivable defenses)

Determine when it is not proper to file a motion to dismiss, that pleading has no cause of action. Q: Effect of dismissal in the enumeration.
Determine the ground for demurrer, if no cause of action or if there is failure to state a cause of A: Without prejudice to reform pleading as serving the same claim.
action. ???
With prejudice - BAR: substantive
1. Res judicata
Difference w/n a real party in interest* Know this
2. Claim is PWAE
3. Unenforceable claim
Difference w/n same cause of action* Know this

Par. h: When the claim is paid, waived, abandoned or extinguished. Payment - must be complete
and to the person ought to be paid. Waived - rights and obligations that can be waived.
Abandoned - estoppel by laches. Extinguished - ground of extinguishment in the Civil Code by
compensation, set-off, novation. This is a substantive ground.
Par. i: Claim is unenforceable under the Statute of Frauds. It is a substantive ground. Partly executed
(principle) ???
Par. j: Condition precedent is not complied with.
*Notice that must of the grounds are substantive in character. [LGC-KP-LJ]
SETTLEMENT OF CASES
1. By way of ADR as provided by law. It sets the parameters. It is settled first on conciliation.
In summary procedure: a motion to dismiss is prohibited. Under Rule 5, the ground is alleged in the
answer as an affirmative defense
2. Family Courts - Earnest efforts among family members before they file an action
Resolution of motion to dismiss is adjudication on the merits. Therefore parties may file another case
but is subject to dismissal.
Even if the ground is no jurisdiction, you can refile the case to the court with jurisdiction, unless the
action has already prescribed.
Q: Effect of filing motion to procedure.
A: Interrupts the period within which to file an action.
Q: Court denied motion to dismiss. How many days left to file an answer?

A: In no case be less than 5 days. Within the 5 day period is a matter of discretion. Remedy of
plaintiff is to file a motion to declare the defendant in default and the remedy of the defendant is a
motion to lift the order of default.
Q: Possible action of the court on the motion to dismiss.
A: To grant, with or without prejudice. General rule: without prejudice. To deny and let the defendant
file the answer within the remaining period, in no less than 5 days.
Requirements to amend a pleading:
1. No cause of action
2. Plaintiff has no legal capacity to sue

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CivPro Notes under J. Wagan
3. Corporation with SEC certificate that the president has power to file the case on behalf of the
corporation (if not by a board resolution, it can be attacked)
*Advocacy is to convince the court
Q: What if the defendant does not file a motion to dismiss and immediately files an answer within the
period after receiving the summons? In the complaint, the grounds are: 1. Venue is improperly laid, 2.
There is no cause of action, 3. There is no (fulfillment) of the condition precedent. He raised
affirmative defenses in the answer, technically not a motion to dismiss. What is the remedy or option?
A: Go to trial because you already filed an answer. Under Section 6, Rule 15: If there is no motion to
dismiss or if it is not raised under any ground that is alleged as an affirmative defense, you ask for
leave of court to be allowed for the conduct of preliminary hearing for the defendant — as if a
motion to dismiss was filed.
2 options, generally:
1. File a motion to dismiss after the valid service of summons.
2. (opp) to file affirmative defenses
*Motion for hearing of preliminary defenses or preliminary hearing of affirmative defenses or motion
for hearing of affirmative defenses.
Q: Can the defendant say, “Ako muna mauna before plaintiff?”
A: Yes. There is a reverse trial if granted.
NOTE: In criminal cases, where there is the justifying circumstances of self-defense, the prosecution
cannot present evidence because the person admits the killing. [B presenting evidence, x burden of
proof shifted]
IMPORTANT: If the defendant raises affirmative defenses, if he raises any of the grounds of a motion
to dismiss, the plaintiff may move for the conduct of a preliminary hearing of affirmative defenses,
subject to the court’s direction. With regard to propriety, it is not yet a preliminary hearing so to
speak but rather asking the court to hear the affirmative defenses. The court will determine whether or
not there is a need or showing that the defendant’s affirmative defenses are meritorious. But as a rule,
it is denied. The court has to look into the circumstances of the case, as to whether or not it was filed
to cause delay.
The defendant presents evidence. Plaintiff refutes evidence. If the court finds that the defendant’s
defenses are not meritorious, the case goes back to trial. Plaintiff presents evidence. Defendant
presents evidence.
In the case of PNB: There was a conduct of preliminary hearing. Trial is reversed (defendant proves
his defenses). Trial ensued. Defendant presents his evidence. Plaintiff presents his evidence. A motion
to dismiss is filed and it was dismissed.
Natazia Therese D. Grimares|
In a preliminary hearing, the relief is also to dismiss (motion for preliminary hearing) if the court finds
ground or merit in the affirmative defenses. If they are not meritorious, the motion to dismiss the
preliminary hearing should be denied.
In a preliminary hearing, the evidence is adopted in the case but its resolution is prolonged. That is
why a preliminary hearing is by discretion.
If a preliminary hearing is granted. Like for example, the defendant claims the the complaint was
improperly laid. The plaintiff filed the cases in RTC Batangas and not Pasay.
Q: When does the defendant resort to this remedy? Requisites.
A: 1. Defendant does not file a motion to dismiss
2. He raised a ground as a defense in the answer
3. Plaintiff asks for a motion for leave to hear the affirmative defense
4. If the motion is not for the purpose to not cause prejudice. It was with intent to delay adjudication.
Q: Effect of filing a motion for preliminary hearing on affirmative defense.

A: It is the second opportunity to move for the dismissal of the case. The first opportunity is the file a
motion to dismiss after a valid service of summons.
Q: A motion to dismiss is filed based on the following grounds: 1. Venue is improperly laid, 2. There is
no cause of action, 3. No fulfillment of the condition precedent, 4. Obligation has been paid. He
raised the same grounds in his answer as affirmative defenses. (He first filed a motion to dismiss and
then an answer as affirmative defenses) There is no more preliminary hearing because they were
already heard when he filed the motion to dismiss. But this does not prevent him in using other
defenses. There are many defenses.
Q: After the preliminary hearing, the court grants the motion to dismiss, what happens to cross-claim,
counterclaim?
A: The dismissal of the complaint does not affect them. UNLESS, the defendant moves for the
dismissal to file a separate complaint. Under Rule 16 (Motion to dismiss): it is resorted to by the
adverse party while Rule 17 (Dismissal of actions) is resorted to by the plaintiff or claimant.
RULE 17:: DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing
a notice of dismissal at any time before service of the answer or of a motion for summary judgment.
Upon such notice being filed, the court shall issue an order confirming the dismissal. UNLESS
otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court
an action based on or including the same claim.
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CivPro Notes under J. Wagan
The notice of dismissal is the remedy. The judge cannot rule but can only confirm (WHAT? confirm
what?) For example, the case is between ex-lovers and the ex-boyfriend asks if they can settle the
case between them. Why must notice be served? If there is no answer served or If there is no motion
of summary judgment served — it is a matter of right so you can amend or do anything. If they decide
not to continue the case, it is not relief that is being asked so there is dismissal without prejudice.
[Keyword: CONFIRM, not motu proprio]
Dismissal upon motion of plaintiff
Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's
instance save upon approval of the court and upon such terms and conditions as the court deems
proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the
plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be
without prejudice to the right of the defendant to prosecute his counterclaim in a separate action
unless within fifteen (15) days from notice of the motion he manifests his preference to have his
counterclaim resolved in the same action. UNLESS otherwise specified in the order, a dismissal under
this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without
the approval of the court. [Keyword: GRANT, not motu proprio]
When an answer is filed, it may cause prejudice to the defendant. If an answer is filed, the issues must
be joined. The dismissal via approval of the court is made upon motion. The plaintiff wants to dismiss
the case after an answer or after a motion for summary judgment under Rule 35. You go to the court
and you prove it! You present your evidence or cause of action. “See you in court!” [Relate to Rule
15 and 16]
Dismissal due to fault of plaintiff
If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence
in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply
with these Rules or any order of the court, the complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of
an adjudication upon the merits, unless otherwise declared by the court.
It is done through a motion by the defendant or motu proprio.
Grounds:
1. Justified causes: does not appear at scheduled presentation of evidence — indicates lack of
interest. A motion to dismiss is usually done in open court. The plaintiff is to present evidence and
despite notice (he knows), so defendant moves for the dismissal.
2. Failure of the plaintiff to prosecute for an unreasonable length of time
Natazia Therese D. Grimares|
3. Failure to comply with the rules of court [Section 1, Rule 18: Duty of the plaintiff to promptly move
ex parte that the case be set for pre-trial after the last pleading has been served and filed]
4. Failure to comply with an order of the court
*RECALL: Rule 12 on Bill of Particulars. In a motion for bill of particulars, a new bill of particulars can
be filed or you can amend the original complaint or strike off certain parts. A motion to dismiss can
be filed for failure to comply with the order to amend or strike off.
*RECALL: Rule 3 on Parties to Civil Actions. Non-joinder of parties is not a ground to dismiss. The
court can order to have the indispensable parties impleaded. A motion to dismiss can be filed for
failure to comply with the order to implead the indispensable party.
Dismissal of counterclaim, cross-claim, or third-party complaint
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made
before a responsive pleading or a motion for summary judgment is served or, if there is none, before
the introduction of evidence at the trial or hearing.
The remedies under 1, 2, and 3 can apply to other pleadings like counterclaims, coss claims,
complaint-in-intervention and 3rd party complaints. They are common to all.
Dismissal:
1. Notice of dismissal
2. Motion of the plaintiff
3. Dismissal under Section 3 (Fault of plaintiff)
* They do not affect or prejudice the counterclaim if the answer has been filed (even cross-claim),
UNLESS, the defendant files another complaint or manifests to the court that he wants to file
another complaint.
Q: Plaintiff files a collection case against her boyfriend. She wants to collect P500k. Before summons
is served by the sheriff, the defendant begs plaintiff for forgiveness. He says he will issue a check and
interest. The plaintiff (GF) doesn’t want the case to continue anymore.
A: She should file a notice of dismissal. Acting on the notice of dismissal, the court confirms the same
and orders for its dismissal. Hence the case is dismissed. The tenor is without prejudice. But if the
plaintiff is no longer interested and wants the case to be dismissed but files no notice of dismissal,
the case is dismissed with prejudice. “You get what you ask for” [WHEN WITH OR WITHOUT
DISMISSAL?]
Q: Instance where notice of dismissal is with prejudice.
A: When there is a 2nd notice of dismissal for the same case or same cause. Filing of notice =
adjudication on the merits.
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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
Example: A is adopted. B, his father dies. He wants to collect his share and files a case in RTC of Q: When is pre-trial conducted?

Mandaluyong. He is able to settle things with the legitimate children. The 1st notice of dismissal is A: After the last pleading has been served and filed. It is the plaintiff’s duty to move the case ex-
confirmed. The legitimate children do not comply with the requirements for motion to revive the case parte that the case be set for pre-trial. (Section 1, Rule 18)
(within 15 days in the same court which is granted). Case goes to pre-trial. Defendant files a motion
to dismiss based on the ground of improper venue. The court grants the motion to dismiss. Plaintiff Q: Matters to be taken. There are 9.
refiled same complaint in the RTC of Pasay. The defendant files a motion to dismiss on the ground of A: PRE-TRIAL PROPER/ORDER/BRIEF (Pars. A-I, Section 2, Rule 18)
res judicata. The motion to dismiss is granted. This is the 2 adjudication rule. How did Judge Wagan Par. (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute
rule? There is no adjudication on the merits because the 2nd motion to dismiss was not on the merits resolution; [ADR, mediation, JDR, etc.]
— the 2 dismissal rule does not apply. - In mediatable civil aspect of a criminal case, there is no JDR (Revised Guidelines on Continuous
Trial of Criminal Cases)
A notice of dismissal is a matter of right. If the court confirms the notice of dismissal, then the case is Par. (b) The simplification of the issues;
dismissed. If another notice of dismissal is filed, it is an adjudication on the merits. If you refile the same - Ex. court determines the amount due or parties manifest what they want to happen
case subsequently, there is res judicata. Par. (c) The necessity or desirability of amendments to the pleadings;
- The court asks if they want to amend the pleadings
NOTE: Notice need not comply with the rule on motions. There is dismissal with prejudice if the Par. (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid
defendant pays the money owed in the collection case and there is a joint motion to dismiss filed by unnecessary proof;
both parties. Still, the plaintiff wants to continue the case. The defendant may file a motion to dismiss - Ex. demand letter, stipulation in the promissory note (issue on its due execution).
because the plaintiff might forget to file the motion to dismiss and you might be declared in default. - Manifested by saying, “Admitted, your honor.” - You do not anymore present evidence to the
Sigurista. contrary.
- Why will he admit? His defense is payment or a fact that is not inconsistent with payment. He
RULE 18: PRE-TRIAL admits the facts, notice to him, receipt of the demand, and other documents.
- The plaintiff no longer presents evidence in order to shorten the proceedings.
Pre-trial is mandatory. After pre-trial, there is the conduct of trial and the presentation of evidence. - The pre-trial order is controlling. A party can say, “We object. That fact has already been
Why? In aid of prompt disposition of the case. The pre-trial order controls the procedure. admitted.” - Hence, the issue can be dispensed with.
Par. (e) The limitation of the number of witnesses;
- In the pre-trial order, the parties can agree that they should be limited to 10. 3 for
Civil caes Criminal cases
corroborative ???
Brief - can be mediated. During the mediation Mediation can be resorted to. There is no Par. (f) The advisability of a preliminary reference of issues to a commissioner;
process, the case is suspended in the 1st and judicial dispute resolution. - When advisable? Usually when there are technical issues to be resolved.
2nd level courts for 30 days. Then the case - A.k.a. trial by commissioner
goes back to court for JDR (1st level - 30 days, - Ex. CPA, geodetic engineers, and panel of assessors (shouldered by the parties)
2nd level - 60 days) If there is no settlement, the Par. (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing
case goes to pre-trial proper. the action should a valid ground therefor be found to exist;
- Court will motu proprio dismiss the case in case of a 1. Compromise agreement, 2. Litis pendentia,
Presence of both parties is mandatory Presence of counsel only 3. Res judicata, 4. Summary judgment
- Motu proprio dismissal can be done even during pre-trial because they found that there was
AM-1-11-06 SC: Contains special guidelines to already a judgment based on the same cause of action
implement the expanded coverage of court Par. (h) The advisability or necessity of suspending the proceedings; and
annexed mediation & judicial resolution - They can set a period within which the issues have to be reconciled.
- Ex. mental condition of either party
Par. (i) Such other matters as may aid in the prompt disposition of the action.

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CivPro Notes under J. Wagan
- Where there is a pre-trial order/brief, dismissal is always with prejudice because it is an
adjudication on the merits because of subsequent lack of intersest
- If X does not appear in court despite notice (there is a pre-trial brief) and the motion to dismiss is
made in open court, the motion should be granted. If the defendant does not appear, the
plaintiff may be allowed to present evidence ex-parte.
NOTE: You ask for leave of court for demurrer to evidence. It need not be in writing. Dismissal may be
made motu proprio or in open court.
Example: Counsel for the defendant is early. According to the calendar, the case is set for pre-trial
and plaintiff is first to be called. If plaintiff or his counsel is not around, the defendant can manifest in
open court for the dismissal of the case. If both the plaintiff and defendant are not present, the court
may motu proprio dismiss the case with prejudice.
GR: You cannot present the documents during trial if they have not been pre-marked in the pre-trial
conference
U: For good cause (Ex. evidence is not yet available, you move to reserve the marking of the
document, in the meantime, you manifest to present it at a later date, SEC documents take time)
*RECALL: Under Section 1, Rule 18: After the last pleading (answer and reply) has been served and
filed = there shall be pre-trial.
IMPORTANT: AM- 03-09 Jan. 2004 (J. Velasco) - Plaintiff did not set the case for pre-trial. The branch
clerk set the case for pre-trial. Clerk of court can set the case for pre-trial. Although it is the duty of
the plaintiff o set the case for pre-trial, under the AM, the clerk of court has the duty. Since it was
implemented in 2004. In practice, it is rare for the plaintiff to file a motion for pre-trial because they
rely on the branch clerk. To allot time because the plaintiff might file the reply after 1 month or 13
weeks.
Example: In a petition for certiorari, there was a case in METC Pasay, a civil action. The plaintiff did
not move for pre-trial, neither did the branch clerk. The defendant filed a motion to dismiss under
Section 3, Rule 17: Dismissal due to fault of plaintiff. The case went on for an unreasonable length of
time. For 4 months. The METC did not grant the motion to dismiss and set the case for pre-trial. The
defendant filed a motion for reconsideration. It went up to the RTC and it found that the METC
judge committed GADLEJ for making the case go on for an unreasonable length of time.
Notice of preliminary conference and pre-trial
- You can accomplish the pre-trial order (mark evidence, stipulate admissions, limit number of
witnesses) before the branch clerk. The judge subsequently adopts the minutes of the preliminary
conference.
- Why is there a need for a preliminary conference? In both civil and criminal cases, the AM applies.
It is the branch clerk who conducts the same prior to the conduct of pre-trial.
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- Purpose? To expedite or shorten the proceedings.
NOTE: The pre-trial order can be amended within 15 days from the receipt of the pre-trial order.
Examples:
1. Instead of X who is abroad, we will present Y.
2. We do not admit the fact of the demand letter (stenographer).
3. There is a palpable mistake in the evidence.
4. In a bigamy case, the documents of the 1st marriage are in Cebu and the documents for the
2nd marriage are in Pasay and you want to delete the admission of the 2nd marriage.
GR: Notice to counsel = notice to the party
U: The party is not assisted by a lawyer
RULE 19: INTERVENTION
Intervention by a 3rd party — by someone who is not a party to the case.
Who may intervene
A person who has a legal interest in the matter in litigation, or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties, and whether or not the
intervenor's rights may be fully protected in a separate proceeding.
The legal interest must be existing (actual and substantive), NOT incohte.
Q: How will the 3rd party intervene?
A: He will file a motion for leave to intervene (with leave of court), allege the interest that he has, and
append his complaint-in-interst or answer-in-interest.
Q: When the complaint-in-interest is filed, the interest is against either or both parties? And that
interest is a property subject to disposal or distribution.
A: If he wants to join or unite the defenses of the defendants, he can file an answer-in-intervention.
NOTE: A complaint-in-intervention is initiator and an answer-in-intervention is responsive.
GR: You have 15 days to file an answer
U: The court orders a different period.
Q: Until when may a motion to intervene be made?
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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
A: Anytime before judgment, even if trial is already done. For as long as a judgment has not been 2. Subpoena deuces tecum - Ex. turnover of firearms, if sent to a hospital = to send over medical
rendered. records


BEST TIME TO INTERVENE: During pre-trial, before presentation of evidence. You can intervene and REQUISITES FOR SUBPOENA DEUCES TECUM
join in the trial of the main case. 1. The books, documents, or other requested must appear to be prima facie relevant [Test of
Relevancy] - sufficiently relevant, clear and unequivocal proof
Q: What does legal interest mean?
 2. Such books must be reasonably described to be readily identified [Test of Definiteness] -
A: Subject to the court’s discretion. Specific documents or rather for specific proof. Precise book, paper, or document.

Q: What does the court look into, acting on a motion to intervene? You can avail of both. You can ask a person to produce documents and testify in court. It is the
A: 1. Intent to delay prerogative of the parties to ask or request to the judge (prior to presentation of witnesses) for
2. Prejudice in the adjudication of rights of the original parties the use of both. It is not upon motion. It is ex-parte and a matter of right. It is the assistance of the
3. If what is best for intervenor is the filing of a separate case because it will turn into a complicated court to compel the attendance of the witnesses.
process if he intervenes
Example: BPI account is in issue. BPI is asked to testify on the genuineness of the signature in the
Purpose: Avoid multiplicity of suits cards and produce the statement of accounts.

Q: May a necessary party intervene? Q: By whom issued?

A: Yes. Somali ka sa gulo. A: By the clerk of court. Like summons.
Section 2, Rule 21: C2OJ
RULE 20: CALENDAR OF CASES (a) the court before whom the witness is required to attend;
- the most common: where the case is pending
It is the duty of the branch clerk or clerk of court to make the calendar of cases. (b) the court of the place where the deposition is to be taken;
- Rule 23
Priority is given to the following cases: (c) the officer or body authorized by law to do so in connection with investigations conducted by
1. Writ of habeas corpus said officer or body; or
2. Writ of habeas data - even administrative bodies or quasi-judicial officers are authorized to issue subpoenas (Ex. Labor
3. Writ of amparo Arbiter)
4. Provisional remedies - preliminary attachment, injunction, temporary restraining order for support (d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending
pendente lite, receivership within the Philippines.
5. Special civil actions - preliminary injunction or temporary restraining order (TRO) - Any justice can issue a subpoena to attend a particular case, although it may not be before the
Supreme Court.
RULE 21: SUBPOENA
When application for a subpoena to a prisoner is made, the judge or officer shall examine and
It is a court process whereby the court: 1. Compels the appearance of the defendant before it or 2. study carefully such application to determine whether the same is made for a valid purpose.
A compliance with its demands. It requires the person to: 1. Attend and testify (the haring, the trial or
any investigation conducted by competent authority), 2. Taking the deposition, or 3. Bring No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any
documents to the court. penal institution shall be brought outside the said penal institution for appearance or attendance in
any court unless authorized by the Supreme Court.
There are 2 kinds:
1. Subpoena ad testificandum - to attend and testify in a hearing, trial, or investigation Grounds for quashal of deuces tecum
(competent authority) A: 1. If the subpoena decease tecum is unreasonable and oppressive

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CivPro Notes under J. Wagan
2. The relevancy of the books, things or documents does not appear
3. The person in whose behalf the subpoena is issued fails to advance the reasonable costs for the
production thereof.
4. The witness fees and kilometrage allowed by the Rules were not tendered.
*These grounds are not exclusive. It includes secrecy of bank documents and self-incriminating
documents and diaries.
Other grounds:
1. The subpoena relates to books, documents, or things constitute privileged communication or
information, and therefore inadmissible
2. The subpoena relates to books, documents, or things that are otherwise inadmissible for being in
violation of Constitutional rights
3. The subpoena relates to books, documents, or things that are declared by law to be absolutely
confidential (Secrecy of bank deposits)
Grounds for quashal of ad testificandum.
1. The witness if not bound thereby AND
2. The witness fees and kilometrage allowed by these Rules were not paid.
Q: Grounds to quash a subpoena. (from Ma’am)
A: 1. Unreasonable
2. Used to harass
3. Person subpoenaed lives > 100 kms
4. No kilometrage fees paid - sometimes parties don’t ask for this because they already have it.
*They can ask for leave from their employers to issue a subpoena
*A bench warrant may be issued - order for incarceration until they testify
NOTE: In cases of habeas corpus, it originates from subpoena (police in criminal cases serve the
warrant and subpoena) and is served in the same manner as summons.
IMPORTANT: KINDS, MODES OF SERVICE, PURPOSE, NATURE, GROUNDS TO DISCHARGE*
Know these
Q: A subpoena to testify on his behalf?
A: If he calls that witness — he is called a hostile witness.
GR: Anyone can be a witness, even a child (Rule on Examination of a Child Witness)
E: A prisoner
Section 6. Service. — Service of a subpoena shall be made in the same manner as personal or
substituted service of summons. The original shall be exhibited and a copy thereof delivered to the
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person on whom it is served, tendering to him the fees for one day's attendance and the kilometrage
allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of
the Philippines or an officer or agency thereof, the tender need not be made. The service must be
made so as to allow the witness a reasonable time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the reasonable cost of producing the books,
documents or things demanded shall also be tendered.
OLD RULE: no substituted service; NEW RULE: YES
NOTE: If the person to be served with subpoena is a government official or any private person,
tender is to be made (fees and kilometrage). If the subpoena is issued by or on behalf of of the
government/officer/agent, tender need not be made.
Personal appearance in court
A person present in court before a judicial officer may be required to testify as if he were in
attendance upon a subpoena is sued by such court or officer.
GR: You cannot be compelled to testify if you have not been served with a subpoena
E: Section 7: A person present in court before a judicial officer maybe required to testify as if he is
under subpoena.
*If there is personal appearance = no need for a subpoena
*An audience is a courtroom can be compelled to testify
Compelling attendance
In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or
his deputy, to arrest the witness and bring him before the court or officer where his attendance is
required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the
court issuing it shall determine that his failure to answer the subpoena was willful and without just
excuse.
Contempt
Failure by any person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued
by a court, the disobedience thereto shall be punished in accordance with the applicable law or
Rule.
Consequences of failure to appear
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CivPro Notes under J. Wagan Natazia Therese D. Grimares|
1. Ask the court for a warrant of arrest Subpoena Summons
2. Failure is willful and without just excuse, the cost of such warrant and seizure shall be paid by the
witness Rule Rule 21 Rule 19
3. Declare him in contempt
To whom directed Directed to a witness Directed to a defendant in a
Exceptions civil case

The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than What is being ordered The witness is directed to The defendant is informed that
one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary appear in court or to bring a complaint is filed against him
course of travel, or to a detention prisoner if no permission of the court in which his case is pending documents and he must file a responsive
was obtained. pleading within the period
otherwise, judgment can be
NOTE: This does not apply to criminal cases where there is compulsory attendance. rendered.

Recalcirant witness = a witness who disobeys or fails to comply with a subpoena compelling him to
Effect of failure to comply The witness will be declared in A judgment in default will be
appear before the court contempt or his attendance rendered against the
can be compelled by the defendant who fails to comply
Absent witness Recalcirant witness issuance of a warrant of arrest

May or may not have been subpoenaed Subpoenaed but fails to appear or testify after Applicability Applicable to both criminal Applies only to civil cases
being properly compiled by order or process of and civil cases
the court
Distance limitation There is a 100 km limitation of There is no distance limitation
May be due to lack of proper notice Due notice was disobeyed its enforceability

RULE 22: COMPUTATION OF TIME

Section 1. How to compute time. — In computing any period of time prescribed or allowed by these
Rules, or by order of the court, or by any applicable statute, the day of the act or event from which
the designated period of time begins to run is to be excluded and the date of performance
included. If the last day of the period, as thus computed, falls on a Saturday a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until the next working day. (a)

Section 2. Effect of interruption. — Should an act be done which effectively interrupts the running of
the period, the allowable period after such interruption shall start to run on the day after notice of
the cessation of the cause thereof.

The day of the act that caused the interruption shall be excluded in the computation of the period.

MODES OF DISCOVERY (Rules 23 to 28)

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CivPro Notes under J. Wagan
Why? Modes/remedies a party may avail of in order to gather facts to aid in the presentation of his
cause (claimant) or defense (defendant).
There are generally FIVE:
1. Depositions pending action (Rule 23) and before action or pending appeal (Rule 24)
2. Written interrogatories to parties (Rule 25)
3. Request for admission of adverse parties (Rule 26)
4. Production or inspection of documents and things (Rule 27)
5. Physical and mental examination of persons (Rule 28)


RECALL: Matters to be stated in the pre-trial brief, a party may manifest if he wants to avail of the
mode or discovery or intent to avail.


Q: Are the Modes of Discovery applicable to criminal cases?
A: Yes. All violations of RA9065 for example. Exempting circumstance of insanity. Frustrated muder/
homicide. In civil cases: computation of shares or interest can be examined by account officer.
Inspection of property - ocular inspection upon request of party or motu proprio.
Q: What happens in a deposition?
A: It can be oral (Rules 23 and 24) or written (Rule 25)
JUDICIAL AFFIDAVIT RULE
RULE 23: DEPOSITIONS PENDING ACTION
Principle: Lay your cards on the table
1. Oral examination - deponent appears before the notary public, judge, or any person
authorized. Usually appointed or the clerk of court.
2. Written interrogatories - Ex. an air controller officer off Masbate and Cebu said that the airplane
overshot the runway. The defendant asks for a subpoena sent to the air controller and because
of the distance, he cannot be compelled to go there. But he is a material witness. Remedy>
Move to be allowed to take his deposition. With counsel because a deposition is like a trial.
NOTE: A deposition is submitted to court and furnished to parties. Process: There are questions on
direct, cross-examination, based on the questions on redirect, recross, it is completed and sent to
the place where the deponent is to be read to him and he answers. Then it, too, shall be submitted.
It normally takes 3 days.
Q: Objections? Does the person taking the deposition have authority to rule?
A: No. He will note down the deposition and whoever wants to use it in court can ask the court to
rule on the objections.
Natazia Therese D. Grimares|
NOTE: If plaintiff applied for the deposition. Can he not use it? Yes. Use only a part? Yes. If plaintiff
uses it (proponent), the effect is that the deponent becomes his witness. If the defendant also uses
the same, the deponent does not become his witness and he may use it only to impeach or
contradict the testimony of the the deponent.
SCOPE - any matter material provided it is not privileged (LAKAS). In general, a depositn is like
taking a testimony not in open court. Useful when somebody is outside of the country.


Q: When used? Who my use it?
A: Any party, for the purpose of impeaching or contradicting the testimony of a witness. Usually used
when the person is an officer or employee of jurisdiction, deponent is dead (subsequent death), lives
g> 100 km, he is sick or physical impossibility.
RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
Used to be Rule 134: Perpetuation of Testimony. Purpose: To perpetuate/preserve testimony.
Example: Sps. state: “We, petitioners are already of advanced age and we’re going to USA for
treatment and medicine. We want to file a case against our son, the would be prospective
defendant. We own a property - a 4 board apartment, which we leased to our son who is
occupying it now. But without our knowledge, he transferred the property in his name. We want to
preserve our testimony before we leave.” Immediately serve notice to would be defendant right after
filing petition or notice of hearing on the application itself. Would be members of the family issue
subpoenas (reset to another). If the son does not appear, the request is granted. and the
deposition process begins. The notary public is named. The time and date to reset and prospective
defendant is notified and personally served.
Procedure:
1. Allege facts
2. Who will be sued
3. Before whom the deposition is to be taken
4. Who are the witnesses
5. Date & time
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