Civil Procedure Rules 62 71DEC 19Posted byMagzRule 62
Interpleader1. Interpleader
1. Original action
2. Presupposes that the plaintiff has no interest in the subject
matter of the action or has an interest therein which, in whole or
part, is not disputed by the other parties to the action;
3. Complaint in interpleader must be answered 15 days from
service of summons.
Rule 63 Declaratory Relief and Similar Remedies1. Requisites for
action for declaratory relief:
1. Subject matter of controversy is a deed, will, contract, or
other written instrument, statute, executive order, or regulation,
or ordinance;
Court may refuse to adjudicate where decision would not
terminate the uncertainty or controversy which gave rise to the
action OR where the declaration is not necessary and proper at the
time;
2. Terms and validity thereof are doubtful and require judicial
construction;
3. No breach of the document, otherwise ordinary civil action is
the remedy;
Must be before breach is committed, as in the case where the
petitioner paid under protest the fees imposed by an ordinance.
Declaratory relief still proper because the applicability of the
ordinance to future transactions still remains to be resolved,
although the matter could be threshed out in an ordinary suit for
the recovery of the fees paid.
4. There is an actual justiciable controversy between persons
whose interests are adverse;
5. The same is ripe for adjudication;
6. Adequate relief is not available through other means or other
forms of action or proceeding.
Rule 64 Review of Judgments and Final Orders or Resolutions of
the Commission on Elections and The Commission on Audit For
petition for review of judgments and final orders of the COMELEC
and COA period to file is 30 days to be counted from notice of the
judgment or final order or resolution sought to be reviewed and not
from the receipt of the denial of the Motion for Reconsideration;
the period to file petition is merely interrupted by the filing of
the Motion for Reconsideration and continues to run again for the
remaining periodwhich shall not be less than 5 days from notice of
denial.Rule 65 Certiorari, Prohibition and Mandamus1. 1.
Certiorari
1. Purpose to correct an act performed by respondent;
2. Act sought to be controlled discretionary acts;
3. Respondent one who exercises judicial functions and acted
with grave abuse of discretion or in lack or excess of
jurisdiction.
4. Generally directed against an interlocutory order of the
court prior to appeal from the judgment in the main case;
5. Need merely be filed seasonably (within 60 days), without
undue delay and before the act, order, or proceedings, sought to be
reviewed or set aside has becomefait accomplisuch that any reversal
thereof shall have become academic;
6. Unless a writ of preliminary injunction shall have issued,
does NOT stay the challenged order;
7. Parties are the aggrieved parties against the lower court or
quasi-judicial agency and the prevailing parties;
8. Motion for reconsideration is a condition precedent, subject
to certain exceptions;
9. Higher court exercises original jurisdiction under its power
of control and supervision over the orders of lower courts.
If CA reverses the judge, the latter may not go the SC via a
petition for certiorari. He is merely a nominal party, and he
should not seek the reversal of a decision that is unfavorable to
the action taken by him.
Professional Regulation Commission vs. CA It is well settled
that the remedies of ordinary appeal and certiorari are mutually
exclusive, not alternative or successive. However, it has also been
held that after a judgment has been rendered and an appeal
therefrom had been perfected, a petition for certiorari relating to
certain incidents therein may prosper where the appeal does not
appear to be a plain, speedy and adequate remedy. In this case, the
SC noted that, while petitioners tried to justify their recourse to
both an appeal and to a petition for certiorari by claiming that
their appeal would not constitute a plain, speedy and adequate
remedy, they did not see fit to withdraw or abandon said appeal
after filing the petition. Thus, both the CA and SC are reviewing
the same decision of the RTC at the same time. Such a situation
would lead to absurdity and confusion in the ultimate disposition
of the case.
1. 2. Prohibition
2. 3. Mandamus
3. 4. When SC allows the writ of certiorari even when appeal is
available and proper:
4. 5. Cases where Motion for Reconsideration is NOT condition
precedent for certiorari:
1. 6. The period for filing any of the 3 actions is not later
than 60 days from notice of judgment, order, or resolution sought
to be reviewed.
1. Purpose to prevent the commission or carrying out of an
act;
2. Act sought to be controlled discretionary and ministerial
acts;
3. Respondent one who exercises judicial or non-judicial
functions.
1. Purpose to compel the performance of the act desired;
2. Act sought to be controlled ministerial act;
3. Respondent one who performs judicial or non-judicial
functions.
1. Appeal does not constitute a speedy and adequate remedy;
2. Orders were issued either in excess of or without
jurisdiction;
3. For certain special considerations, such as public welfare or
policy;
4. Where in criminal actions, the court rejects rebuttal
evidence for the prosecution, as in acquittal;
5. Where the order is a patent nullity;
6. Where the decision in the certiorari case will avoid future
litigation.
1. Order is a patent nullity;
2. Questions raised in the certiorari proceeding were duly
raised and passed upon by the lower court, or are the same as those
raised and passed upon in the lower court;
3. Urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the government;
4. Under the circumstances, a motion for recon would be
useless;
5. Petitioner was deprived of due process and there is extreme
urgency for relief;
6. Where in a criminal case, relief from order or arrest is
urgent and the granting of such relief by the trial court is
improbable;
7. Proceedings in the lower court are null for lack of due
process;
8. Proceeding wasex parteor in which petitioner had no
opportunity to object;
9. Issue raised is one purely of law or where public interest is
involved.
In case a motion for reconsideration or new trial is timely
filed, whether such motion is required or not, the 60-day period
shall be counted fromnoticeof the denial of said motion. (SC
Circular 56-2000,effectiveSeptember 1, 2000)
No extension of time to file the petition shall be
grantedexceptfor compelling reason and in no case exceeding 15
days. (SC Circular 56-2000)
Rule 66 Quo Warranto1. 1. Quo Warranto distinguished from
Election Contest:
Quo WarrantoElection Contest
Basis is that occupant is disqualified from holding office by
reason of ineligibility or disloyaltyChallenge rights of a person
to hold office on the ground of irregularities in the conduct of
the election
If successful, respondent is ousted but petitioner shall not
automatically assume the office vacatedSuccessful protestant will
assume office if he had obtained plurality of valid votes
Rule 67 Expropriation
1. In expropriation, the complaint must be verified.
2. The defendant can only file an answer instead of a motion to
dismiss
1. The final order of expropriation is appealable, but the lower
court may determine the just compensation to be paid.
The power of eminent domain is exercised by the filing of a
complaint which shall join as defendants all persons owning or
claiming to own, or occupying, any party of the expropriated land
or interest therein. If a known owner is not joined as defendant,
he is entitled to intervene in the proceedings; or if he is joined
but not served with process and the proceeding is already closed
before he came to know of the condemnation, he may maintain an
independent suit for damages.
Rule 70 Forcible Entry and Unlawful Detainer1. 1. Forcible entry
distinguished from Unlawful detainer
Forcible entryUnlawful detainer
Possession of land is unlawful from the beginning due to force,
intimidation, threat, strategy or stealthPossession of defendant is
inceptively lawful but becomes illegal by reason of termination of
right of possession
No requirement of previous demand for defendant to vacate
premisesDemand is jurisdictional
Plaintiff must prove that he was in prior physical possession
until he was deprived thereof by defendantPlaintiff need not have
been in prior physical possession
1-year period counted from date of actual entry or when
plaintiff learned thereof.1-year period from date of last
demand
2. When prior demand in unlawful detainer actions not
required;
1. When purpose of action is to terminate lease because of
expiry of term and not because of failure to pay rental or to
comply with terms of lease contract;
2. Purpose of suit is not for ejectment but for enforcement of
terms of contract;
3. When defendant is not a tenant but a pure intruder
In all other cases, there must be a demand:
1. To pay or to comply with the conditions of the lease; AND
2. To vacate by written notice on the person in the premises or
by posting such notice on the premises if no person is found
thereon and this is a condition precedent to the filing of the
case; ORAL demand is not permitted.
1. If demand is in the alternative (pay OR vacate), this is NOT
the demand contemplated by the Rules.
3. When the defendant raises the issue of ownership in his
pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the latter issue shall be resolved
only to determine the issue of possession.
A forcible entry/unlawful detainer action has an entirely
different subject matter from that of an action for reconveyance.
The former involves material possession, and the latter, ownership.
Thus, the pendency of an action for reconveyance does not divest
the MTC of its jurisdiction over an action for FE/UD, nor will it
preclude execution of judgment in the ejectment case where the only
issue involved is material possession.
Rule 71 Contempt1. 1. Criminal contempt
2. 2. Civil Contempt
3. 3. Direct Contempt (contempt infacie curiae)
4. 4. Indirect Contempt
1. Purpose is to vindicate public authority;
2. Conduct directed against the dignity or authority of the
court.
1. Purpose is to protect and enforce civil rights and remedies
for the litigants;
2. Failure to do something ordered by the court for the benefit
of a party.
1. Committed in the presence of or so near a court or judge;
2. Punished summarily without hearing;
3. No appeal may be taken but the party adjudged in contempt may
avail himself of actions of certiorari or prohibition which shall
stay the execution of the judgment, provided a bond fixed by the
court is filed.
1. Not committed in the presence of the court;
2. Punished only after hearing complaint in writing or motion or
party or order of court requiring person to appear and explain,
opportunity to appear and show cause.
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60DEC 19Posted byMagzRule 51 Judgment1. Memorandum decisions are
permitted in the CA.
2. After judgment or final resolution of the CA and dissenting
or separate opinions if any, are signed by the Justices taking
part, they shall be delivered for filing to the clerk who shall
indicate thereon the date of promulgation and cause true copies to
be served upon parties or counsel.
3. Date when judgment or final resolution becomes executory
shall be deemed as date of entry.
RULE 56 Procedure in the Supreme Court1. 1. Original cases
cognizable exclusive list:
1. Petitions for certiorari, prohibition, mandamus,quo warranto,
habeas corpus;
2. Disciplinary proceedings against judges and attorneys;
3. Cases affecting ambassadors, other public ministers, and
consuls.
2. An appeal to SC can only be taken by petition for review on
certiorari,exceptin criminal cases where the penalty imposed is
death,reclusion perpetua,or life imprisonment.
3. Grounds for dismissal of appeal by SC
1. Failure to take appeal within the reglementary period;
2. Lack of merit in the petition;
3. Failure to pay the requisite docket fee and other lawful fees
or to make deposit for costs;
4. Failure to comply with the requirements regarding proof of
service and contents of and the documents which should accompany
the petition;
5. Failure to comply with any circular, directive or order of
the SC without justifiable cause;
6. Error in choice or mode of appeal
7. Case is not appealable to the SC.
1. Discretionary upon SC (and CA) to call for preliminary
conference similar to pre-trial.
2. General Rule: Appeal to SC by notice of appeal shall be
dismissed.
Exception:In criminal cases where the penalty imposed is life
imprisonment, or when a lesser penalty is imposed but involving
offenses committed on the same occasion or arising out of the same
occurrence which gave rise to the more serious offense for which
the penalty of death or life imprisonment is imposed (Section 3,
Rule 122)
1. Appeal by certiorari from RTC to SC submitting issues of fact
may be referred to the CA for decision or appropriate action,
without prejudice to considerations on whether or not to give due
course to the appeal as provided in Rule 45.
Provisional RemediesProvisional remedies
(ancillary/auxiliary)
Writs and processes available during the pendency of the action
which may be resorted to by a litigant to preserve and protect
rights and interests therein pending rendition, and for the purpose
of ultimately affecting a final judgment in the case.
PROVISIONAL constituting temporary measures availed of during
the pendency of the action.
ANCILLIARY incidents in and dependent on the result of the main
action.
Rule 57 Preliminary Attachment1. 1. Preliminary Attachment
1. Available even if the recovery of personal property is only
an incidental relief sought in the action;
2. May be resorted to even if the personal property is in the
custody of a third person;
3. Extends to all kinds of property, real or personal or
incorporeal;
4. To recover possession of personal property unjustly detained,
presupposes that the same is being concealed, removed, or disposed
of to prevent its being found or taken by the applicant;
5. Can still be resorted to even if the property is incustodia
legis, as long as the property belongs to the defendant, or is one
in which he has proprietary interests, AND with permission of the
court
2. Grounds
1. Recovery of specified amount of money and damages,exceptmoral
or exemplary, where party is about to depart from the Phils with
intent to defraud creditors;
2. Action for money or property embezzled or for willful
violation of duty by public officers, officers of corporation,
agent, or fiduciary;
3. Recovery of possession of property (both real and personal)
unjustly detained, when the property is concealed or disposed of to
prevent is being found or taken;
4. Action against party guilty of fraud in contracting the debt
or incurring the obligation or in the performance thereof;
5. Action against party who is concealing or disposing of
property, or is about to do so, with intent to defraud
creditors;
6. Action against party who is not a resident of the Phils and
cannot be found therein or upon who service by publication can be
made.
3. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
Enforcement of writ of preliminary attachment must be preceded
by or simultaneously accompanied by service of summons, copy of
complaint, application and affidavits for the attachment and the
bond upon the adverse party; BUT the requirement of prior or
contemporaneous service of summons shall not apply where the
summons could not be served despite diligent efforts, or the
defendant is a resident of the Phils temporarily absent therefrom,
or the defendant is a non-resident of the Phils or the action isin
remorquasi in rem.
1. 4. When preliminary attachment is discharged
1. a. Debtor posts a counterbond or makes requisite cash
deposit- if attachment to be discharged is with respect to
particular property, counterbond or deposit shall be equal to the
value of the property as determined by the court; in all other
cases, amount of counterbond should be equal to the amount fixed in
the order of attachment.
CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY
JUDGMENT THAT ATTACHING PARTY MAY RECOVER
1. b. Applicants bond is insufficient or sureties fail to
justify;
2. c. Attachment was improperly or irregularly issued;
3. d. Property attached is exempt from execution;
4. e. Judgment is rendered against attaching party;
5. f. Attachment is excessive discharge is with respect to the
excess
5. Application for discharge may only be filed with the court
where the action is pending and may be filed even before
enforcement of the writ so long as there has been an order of
attachment.
6. When to apply for damages against the attachment bond
1. Before trial;
2. Before appeal perfected;
3. Before judgment becomes executory;
4. In the appellate court for damages pending appeal, before
judgment becomes executory.
1. 7. When judgment becomes executory, sureties on counterbond
to lift attachment are charged and can be held liable for the
amount of judgment and costs upon notice and summary hearing. There
is no need to first execute judgment against the judgment obligor
before proceeding against sureties.
2. 8. Claims for damages cannot be subject of independent
actionexcept:
1. a. When principal case is dismissed by the trial court for
lack of jurisdiction without giving the claiming party opportunity
to prove claim for damages;
2. b. When damages sustained by a third person not a party to
the action.
Rule 58 Preliminary Injunction1. 1. Preliminary injunction
distinguished from Prohibition
Preliminary InjunctionProhibition
Generally directed against party to the action but may be
against any personDirected against a court, tribunal, or person
exercising judicial powers
Does NOT involve the jurisdiction of the courtMay be on the
ground that the court against whom the writ is sought acted without
or in excess of jurisdiction;
May be main action itself or just a provisional remedy in the
main actionAlways a main action
2. Grounds for Preliminary Injunction
1. Plaintiff is entitled to relief sought which consists in
restraining or requiring the performance of acts (latter is
preliminary mandatory injunction);
2. The commission of acts or non-performance during pendency of
litigation would probably work injustice to the plaintiff;
3. Defendant is doing or about to do an act violating plaintiffs
rights respecting the subject of the action and tending to render
judgment ineffectual.
3. Injunction may be refused or dissolved when:
1. Complaint is insufficient;
2. Defendant is permitted to post a counterbond it appearing
that he would sustain great and irreparable injury if injunction
granted or continued while plaintiff can be fully compensated;
3. Plaintiffs bond is insufficient or defective
4. No Preliminary Injunction or TRO may be issued without
posting of bond and notice to adverse party and hearing.
5. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after NOTICE to and IN THE PRESENCE of the
adverse party or the person to be enjoined. In any event, such
notice shall be preceded, or contemporaneously accompanied by
service of summons, together with a copy of the complaint and the
applicants affidavit and bond, upon the adverse party in the Phils;
BUT the requirement of prior or contemporaneous service of summons
shall NOT apply where the summons could not be served despite
diligent efforts, or the defendant is a resident of the Phils
temporarily absent therefrom, or the defendant is a non-resident of
the Phils
Difference with principle in preliminary attachment In
attachment, the principle applies only in the implementation of the
writ, while in applications for injunction or TRO, this principle
applies before the raffle and issuance of the writs or TRO.
6. TRO good for only 20 days from service; 60 days for CA; until
further orders from SC.
7. TRO can be issuedex parteonly if matter of grave urgency and
plaintiff will suffer grave injustice and irreparable injury. Good
for 72 hours from issuance, within which judge must comply with
service of summons, complaint, affidavit and bond, and hold summary
hearing to determine whether TRO should be extended for 20 days. In
no case can TRO be longer than 20 days including 72 hours.
8. No TRO, preliminary injunction or preliminary mandatory
injunction may issue against the government in cases involving
implementation of government infrastructure projects. (Garcia vs.
Burgos, reiterated in Administrative Circular no.
7-99,promulgatedJune 25,1999)
Rule 59 Receivership1. 1. When receiver may be appointed:
2. 2. When receivership may be denied/lifted
1. Party has an interest in the property or fund subject of the
action and such is in danger of being lost, removed, or materially
injured;
2. Action by mortgagee for foreclosure of mortgage when the
property is in danger of being wasted or materially injured and
that its value is probably insufficient to discharge the mortgage
debt, OR that the parties have stipulated in the contract of
mortgage;
3. After judgment, to preserve the property during the pendency
of the appeal, or to dispose of it, or to aid in execution when
execution has been returned unsatisfied or the judgment debtor
refuses to apply his property to satisfy judgment, or to carry out
the judgment.
4. When appointing one is the most convenient and feasible means
to preserve, administer, or dispose of the property in
litigation.
1. Appointment sought is without sufficient cause;
2. Adverse party files sufficient bond for damages;
3. Applicant or receivers bond is insufficient.
3. Both the applicant for the receivership and the receiver
appointed must file separate bonds.
4. In claims against the bond, it shall be filed, ascertained
and granted under the same procedure as Section 20, Rule 57,
whether is be damages against the applicants bond for the unlawful
appointment of the receiver or for enforcing the liability of the
sureties of the receivers bond by reason of the receivers
management (in the latter case, no longer need to file a separate
action).
Rule 60 Replevin1. 1. Replevin
2. 2. Defendant entitled to return of property taken under writ
if:
1. Available only where the principal relief sought in the
action is the recovery of possession of personal property;
2. Can be sought only where the defendant is in the actual or
constructive possession of the personal property involved.
3. Extends only to personal property capable of manual
delivery;
4. Available to recover personal property even if the same is
NOT being concealed, removed, or disposed of;
5. Cannot be availed of if property is incustodia legis, as
where is it under attachment, or was seized under a search warrant
or distrained for tax assessment.
1. He seasonably posts redelivery bond
2. Plaintiffs bond is insufficient or defective
3. Property is not delivered to plaintiff for any reason.
Replevin bond is only intended to indemnify defendant against
any loss that he may suffer by being compelled to surrender the
possession of the disputed property pending trial of the action.
Thus, surety not liable for payment of judgment for damages
rendered against plaintiff on a counterclaim for punitive damages
for fraudulent or wrongful acts committed by the plaintiffs which
are unconnected with the defendants deprivation of possession by
the plaintiff.
Special Civil Actions1. Types of Special Civil Actions
1. Mandamus
2. Interpleader
3. Certiorari
4. Contempt
5. Prohibition
6. Eminent Domain
7. Declaratory Relief
8. Quo warranto
9. Partition of real estate
10. Foreclosure of mortgage
11. Unlawful detainer
12. Forcible Entry
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50DEC 19Posted byMagzRule 41 Appeal from the RTC1. Appeal may be
taken from a judgment or final order that completely disposes of
the case or of a particular matter therein.
2. No appeal may be taken from:
1. Order denying a motion for new trial or recon;
2. Order denying a petition for relief or any similar motion
seeking relief from judgment;
3. Interlocutory order;
4. Order disallowing or dismissing an appeal;
5. Order denying a motion to set aside a judgment by consent,
confession, compromise on the ground of fraud, mistake, or duress,
or any other ground vitiating consent;
6. Order of execution;
Not appealable because execution is only the result of the
judgment. If order of execution is not in accord with the
dispositive portion, remedy is certiorari under Rule 65.
7. Judgment or final order for or against one or more of several
parties or in separate claims, while the main case is pending,
unless the court allows an appeal therefrom;
8. Order dismissing an action without prejudice;
In all these cases, aggrieved party may file an appropriate
civil action under Rule 65.
1. Ordinary appeal from RTC (in the exercise of original
jurisdiction) to CA is by filing notice of appeal with the RTC
within 15 days from notice of its judgment. Record on appeal
required only for special proceedings and where multiple appeals
allowed filed within 30 days.
2. Motion for extension of time to file a motion for new trial
or reconsideration is prohibited.
3. Contents of Notice on appeal:
1. Names of the parties to the appeal;
2. Specify judgment or final order or part thereof appealed
from;
3. Court to which the appeal is being taken;
4. Material dates showing timeliness of appeal;
6. Contents of Record on appeal:
1. Full names of all parties to the proceedings shall be stated
in the caption;
2. Include judgment or final order from which appeal taken;
3. In chronological order, copies of only such pleadings,
petitions, etc. and all interlocutory orders as are related to the
appealed judgment;
4. Data showing that appeal perfected in time material data
rule;
5. If an issue of fact is to be raised, include by reference all
the evidence, oral or documentary, taken upon the issues
involved.
7. Appeal from decision of RTC in appellate jurisdiction is by
petition for review filed with CA.
8. Where only questions of law are raised, by petition for
review on certiorari with SC.
9. Notice of Appeal and Record of Appeal distinguished:
Notice of AppealRecord of Appeal
Partys appeal by notice of appeal deemed perfected as to him
upon the filing of the notice of appeal in due timeDeemed perfected
as to appellant with respect to the subject matter upon the
approval of the record on appeal filed in due time
Court loses jurisdiction over case upon perfection of the
appeals filed in due time and expiration of time to appeal of other
partiesCourt loses jurisdiction only over subject matter upon
approval of records on appeal filed in due time and expiration of
the time to appeal of other parties.
10. Failure to pay appellate docket fees within the reglamentary
period is ground for dismissal of appeal.
11. General Rule: An ordinary appeal stays the execution of a
judgment
Exceptions: a. Decisions of quasi-judicial body appealed to the
CA
b. Executions pending appeal
c. Cases covered by Summary Procedure
Rule 42 Petition for Review from the RTC to the CA1. 1. Form and
contents of petition for review (from RTC to CA)
In 7 legible copies:
1. Full names of parties to case, without impleading the lower
courts or judges thereof;
2. Indicate specific material dates showing it was filed on
time;
3. Concise statement of matters involved, issues raised,
specification of errors of fact or law, or both allegedly committed
by the RTC, and the reasons or arguments relied upon for the
allowance of the appeal;
4. Accompanied by clearly legible duplicate originals or true
copies of the judgments or final order of both MTC and RTC;
5. Certification under oath of non-forum shopping.
1. 2. Contents of comment
In 7 legible copies, accompanied by certified true copies of
material portions of record and other supporting papers:
1. State whether or not appellee accepts the statement of
matters involved in the petition;
2. Point out such insufficiencies or inaccuracies as he believes
exists in petitioners statement of matters;
3. State reasons why petition should not be give due course.
3. CA may:
1. Require respondent to file a comment; or
2. Dismiss the petition if it finds:
1. Patently without merit
2. Prosecuted manifestly for delay
3. Questions raised are to insubstantial to require
consideration
Rule 43 Appeals from the CTA and Quasi-Judicial Agencies to the
CA1. 1. Appeals from judgments and final orders of the Court of Tax
Appeals and quasi-judicial agencies in exercise of quasi-judicial
functions (unless otherwise provided by law and the Labor Code
[NLRC decisions]) shall be by petition for review to the CA, to be
taken within 15 days from notice of award or judgment or from
notice of the denial of the motion for reconsideration. Only 1
Motion for reconsideration allowed
2. 2. Quasi-judicial agencies covered:
1. Civil Service Commission;
2. Central Board of Assessment Appeals;
3. Securities and Exchange Commission;
4. Office of the President;
5. Land Registration Authority;
6. Social Security Commission;
7. Civil Aeronautics Board;
8. Bureau of Patents, Trademarks and Technology Transfer;
9. National Electrification Administration;
10. Energy Regulatory Board;
11. National Telecommunications Commission;
12. Department of Agrarian Reform under RA No. 6657;
13. GSIS;
14. Employees Compensation Commission;
15. Agricultural Inventions Board;
16. Insurance Commission;
17. Construction Industry Arbitration Commission;
18. Voluntary arbitrators
St. Martins Funeral Home vs. NLRC DECISIONS OF THE NLRC ORIGINAL
ACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SCFabian
vs. Desierto Appeals from decisions of the Office of the Ombudsman
in administrative disciplinary cases should be taken to the CA
under Rule 43.
According to A.M. no. 99-2-02-SC (promulgatedFebruary 9, 1999),
any appeal by way of petition for review from a decision, final
resolution or order of the Ombudsman, or special civil action
relative to such decision, filed with the SC after March 15, 1999
shall no longer be referred to the CA, but shall bedismissed.Rule
45 Appeal by Certiorari to the Supreme Court1. Question of Law
exists when doubt or difference arises as to what the law is, based
on a certain state of facts
Question of Fact exists when doubt or difference arises as to
the truth or the falsehood of alleged facts
2. Findings of fact of the CA may be reviewed by the SC on
appeal by certiorari when:
1. The conclusion is a finding grounded entirely on
speculations, surmises, or conjectures;
2. The inference made is manifestly mistaken, absurd, or
impossible;
3. There is grave abuse of discretion;
4. The judgment is based on misapprehension of facts;
5. Findings of fact of trial court and CA are conflicting;
6. The CA, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions made;
7. CA manifestly overlooked certain relevant facts not disputed
by the parties and which, if properly considered, would justify a
different conclusion.
3. Certiorari as mode of appeal:
From judgment or final order of the CA, Sandiganbayan, RTC on
pure questions of law, or other courts whenever authorized by law,
by filing a petition for review on certiorari with the SC within 15
days from notice of judgment.
4. Rule 45 and Rule 65 distinguished:
Rule 45Rule 65
No need for Motion for ReconMotion for Recon generally
required
Relates to final judgmentsApplies to interlocutory orders
rendered in excess/lack of jurisdiction
An appealNot an appeal in the strict sense
15 days from notice of judgment60 days from notice of
judgment
Kho vs. Camacho: An RTC judge has no right to disapprove a
notice of appeal on the ground that the issues raised involve a
pure question of law, and that the mode of appeal is erroneous.
That is the prerogative of the CA, not the RTC judge. A notice of
appeal need not be approved by the judge, unlike a record on
appeal.
Rule 47 Annulment of Judgments or Final Orders and Resolutions1.
Grounds for annulment of judgment of RTC in civil cases:
1. Petition for annulment available only if ordinary remedies of
new trial, appeal, petition for relief or other appropriate
remedies no longer available through no fault of the
Petitioner.
1. Extrinsic fraud not available as a ground if availed of
earlier in a motion for new trial or petition for relief
2. Lack of jurisdiction.
3. Periods:
1. For extrinsic fraud four years from discovery;
2. Lack of jurisdiction must be filed before action barred by
laches.
4. Effects of judgment of annulment gives the CA authority to
order the trial court on motion to try the case if the ground for
annulment is extrinsic fraud, but not if it is lack of
jurisdiction.
Prescriptive period for refiling the original action is
suspended unless the extrinsic fraud is attributable to the
plaintiff in the original action.
Rule 50 Dismissal of Appeal1. 1. Grounds for dismissal of appeal
by the CA:
1. Failure of the record on appeal to show on its face that the
appeal was taken within the reglamentary period;
2. Failure to file the notice of appeal or record on appeal
within the period;
3. Failure of the appellant to pay the docket and other lawful
fees;
4. Unauthorized alterations, omissions, or additions in the
approved record on appeal;
5. Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within the time
provided;
6. Absence of specific assignment of errors in appellants brief
or page references to the record;
7. Failure of the appellant to take necessary steps for the
completion or correction of the record within the time limited by
the order;
8. Failure of appellant to appear at the preliminary conference
or to comply with orders, circulars, or directives of the court
without justifiable cause
9. Judgment or order appealed from is not appealable.
Reference:Remedial Law (Civil Procedure) Memory AidAteneo
Central Bar Operations 2001Posted inCivil ProcedureLeave a
commentTags:Civil Procedure - Rules 41 - 50Civil Procedure Rules 31
40DEC 19Posted byMagzRule 31 Consolidation or Severance1. 1.
CONSOLIDATION the court may order a joint hearing or trial of any
or all matters in issue when actions involving a common question of
law or fact are pending before the court.
2. 2. BUT the court may order a separate trial of any claim,
cross-claim, counterclaim, or third-party complaint, in furtherance
of convenience or in the interest of justice.
Rule 32 Trial by CommissionerTrial by commissioner:
1. 1. Reference by consent of both parties
2. 2. Reference by motion of one of the parties ormotu
proprio:
1. Trial requires examination of a long account of either
side
2. Taking of an account is necessary for the information of the
court before judgment or for carrying a judgment order into
effect
3. Question of fact, other than upon the pleadings, arises upon
motion or otherwise, in any stage of the case.
Rule 33 Demurrer to EvidenceDemurrer to evidence is made by the
defendant after the plaintiff has completed the presentation of his
evidence where the defendant moves for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to
relief.
1. 1. If motion denied defendant has the right to present
evidence
2. If motion granted, but reversed on appeal defendant deemed to
have waived the right to present evidence.
Rule 34 Judgment on the Pleadings1. Judgment on the Pleadings is
proper:
1. If answer fails to tender an issue; or
2. If answer otherwise admits the material allegations of the
adverse partys pleading
Then court may, on motion of that party, direct judgment on the
pleadings
2. However, the material facts alleged in the complaint shall
always be proved in actions for:
1. Declaration of nullity of marriage
2. Annulment of marriage
3. Legal separation
Rule 35 Summary JudgmentsSummary judgment:
1. 1. Proper if no genuine issue as to any material fact
(exceptas to damages recoverable) and if moving party is entitled
to a judgment as a matter of law
2. 2. Based not only on pleadings but also on affidavits,
deposition, and admissions of the parties showing that,exceptas to
the amount of damages, there is no genuine issue.
3. 3. Motion shall be served at least 10 days before the time
specified for the hearing.
1. 4. May be asked for by a party seeking to recover upon a
claim, counterclaim, cross-claim or to obtain a declaratory
relief.
5. Although Rule does not specifically provide, also unavailable
in actions for annulment of and declaration of nullity of marriage,
and for legal separation since Sec. 1 refers to actions to recover
upon a claim, or to recover a debt or a liquidated demand for
money, or to obtain declaratory relief.
6. Judgment on the pleadings and summary judgment
distinguished:
Judgment on the PleadingsSummary judgment
Proper when there is no genuine issue between the partiesProper
even if there is an issue as to the damages recoverable
Based exclusively on the pleadings without introduction of
evidenceBased not only on pleadings but also on affidavits,
depositions and admissions of the parties
Available in any action,exceptthe 3 exceptionsProper only in
actions to recover a debt, or for a liquidated sum of money, or for
declaratory relief
Motions for summary judgment may be filed by the claimant or by
the defending party. The defending party may file such motion,
pursuant to Rule 35, 2at any time, as distinguished from 1 where
the claimant may file the motion at any time after the answer is
filed.
Rule 36 Judgments, Final Orders and Entry Thereof1. 1. The date
of the finality of the judgment or final order shall be deemed to
be the date of its entry. The judgment or final order shall be
entered by the clerk in the book of entries of judgments if no
appeal or motion for new trial or consideration is filed within 15
days
2. 2. Several Judgments
In action against several defendants, the court may render
judgment against one or more of them, leaving the action to proceed
against the others.
1. 3. Separate judgments
Judgment rendered to dispose of one of the several claims for
relief presented in an action, made at any stage, upon a
determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is
the subject matter of the claim, which terminates such claim.
Action shall proceed as to other claims
Rule 37 New Trial or Reconsideration1. 1. Motion for new trial
or reconsideration filed within 15 days from notice of judgment and
resolved by the court within 30 days from submission for
resolution.
2. 2. Grounds: Motion for New Trial
1. Fraud, accident, mistake, or excusable negligence;
2. Newly discovered evidence
Requisites:
1. Discovered after trial
2. Could not have been discovered and produced at trial despite
the exercise of reasonable diligence
3. If presented, could probably alter the result of the
action
3. Grounds: Motion for Reconsideration
1. Damages awarded are excessive
2. Evidence is insufficient to justify the decision or final
order
3. Decision is contrary to law
4. Motion for new trial shall be in writing, and supported by
affidavits of merit if the ground is FAME; for newly-discovered
evidence, it must be supported by affidavits of witnesses by whom
such evidence is expected to be given, or by duly authenticated
documents to be introduced.
Motion for reconsideration shall specifically point out the
findings or conclusions of the judgment which are unsupported by
evidence or contrary to law, with express reference to the
testimonial or documentary evidence or the provisions of law
alleged to be contrary to such findings.
5.Pro formamotion for new trial or reconsideration shall not
toll the period for appeal.
6. No second motion for reconsideration allowed. Second motion
for new trial must be based on a ground not existing or available
when the first motion was made, which may be filed during the
remainder of the 15-day period.
Rule 38 Relief From Judgments, Orders, or Other Proceedings1. 1.
Petition for relief from judgment filed within 60 days after
learning of judgment and not more than 6 months after such
judgment
Must be supported by affidavit showing the FAME and the facts
constituting the petitioners good or substantial cause of action or
defense
1. 2. Party who has filed a timely motion for new trial cannot
file a petition for relief after the former is denied. The two
remedies are exclusive of one another.
2. 3. Grounds:
1. Judgment or final order is rendered and party has been
prevented by FAME from taking an appeal
1. Judgment or final order entered against a party by FAME;
or
For fraud to be extrinsic, the losing party must never have had
a chance to controvert the adverse partys evidence.
Uniform procedure for relief from judgments of MTC and RTC
1. 4. After petition is filed, court shall order adverse parties
to answer within 15 days from receipt. After answer is filed or
expiration of period therefor, court shall hear the petition.
2. 5. If granted, judgment set aside and court shall proceed as
if timely motion for new trial has been granted; if granted against
denial of appeal, court shall give due course to appeal.
Rule 39 Execution, Satisfaction and Effect of Judgments1. 1.
Execution as a matter of right
On motion with notice, upon a judgment or order that disposes of
the action or proceeding upon the expiration of the period to
appeal therefrom if no appeal has been duly perfected.
For so long as there is a certificate of entry of judgment,
execution may already be issued by the court of origin or directed
to do so by the CA.
1. 2. Discretionary execution pending period to appeal or during
appeal; may issue only upon good reasons to be stated in a special
order after hearing.
1. By trial court even after the perfection of the appeal for so
long as the motion for execution was filed while the TC has
jurisdiction over the case and is in possession or the records,
upon motion of the prevailing party with notice to the adverse
party
2. Appellate court after the TC has lost jurisdiction
Example:
P receives judgment: June 3
D receives judgment: June 1
D files notice of appeal: June 5
When does trial court lose jurisdiction? June 18
BUT, if P also files a notice of appeal on June 10, trial court
loses jurisdiction on that date.
Execution with respect to appealed cases- there is no need to
await remand of the records.
Execution with respect to consequential and exemplary damages
should be postponed until such time as the merits of the case have
been finally determined in the regular appeal, as the amounts
remain uncertain and indefinite pending resolution.
3. a. Motion for execution of final and executory judgment
should be served on adverse party and set for hearing;
b. In case of appeal, motion is filed with court of origin
supported by certified true copies of final judgment of appellate
court.
3. Appellate court may on motion order court of origin to issue
writ of execution (SC Circular No. 24-94, 4/18/94)
4. Judgments NOT stayed by appeal (immediately executory, unless
court provides otherwise)
1. Actions for injunction
2. Receivership
3. Accounting
4. Support
5. Judgments declared immediately executory
5. A final and executory judgment may be executed on motion
within 5 years from entry. May be revived and enforced by action
after lapse of 5 years but before 10 years from entry. Revived
judgment may be enforced by motion within 5 years from entry and
thereafter by action before barred by statute of limitations file
motion within 10 years from the finality of the revived
judgment.
6. Execution in case of partys death:
1. Death of judgment obligee application of his executor or
administrator or successor-in-interest
2. Death of judgment obligor
1. Against his executor,etc.if the judgment be for recovery of
real or personal property or the enforcement of a lien thereon.
2. If death after execution is actually levied upon his
property, it may be sold for satisfaction of the obligation.
If the judgment obligor dies after the entry but before levy,
execution will issue if it be for the recovery of real or personal
property. However, if judgment is for a sum of money, and the
judgment obligor dies before levy, such judgment cannot be enforced
by writ of execution but must be filed as a claim against his
estate.
7. Writ of execution:
1. Shall issue in the name of the Republic of the Phils from
court which granted the motion
2. State the name of the court, case number and title,
dispositive portion of the judgment order
3. Require the sheriff or other proper officer to whom it is
directed to enforce the writ according to its terms
8. Manner of executing writ:
1. If judgment against property of the judgment obligor out of
real or personal property with interest
2. If against his real or personal property in the hands of the
personal representatives, heirs, devisees, legatees, tenants, or
trustees of the judgment obligor out of that property, with
interest
3. If for sale of real or personal property to sell property,
describing it and apply the proceeds in conformity with
judgment.
4. If for delivery of possession of property deliver possession
of the same to the party entitled to it, describing it, and to
satisfy any costs, damages, rents, or profits covered by the
judgment out of the personal property of the person against whom it
was rendered, and out of real property if sufficient personal
property cannot be found.
5. In all cases, writ of execution shall specifically state the
amount of the interest, costs, damages, rents, or profits due as of
date of issuance of writ, aside from principal obligation.
Judgment obligor is given option to choose which property may be
levied on sufficient to satisfy the judgment.
9. Property exempt from execution
1. Family home as provided by law, homestead in which he
resides, and land necessarily used in connection therewith;
2. Tools and implements used in trade, employment, or
livelihood;
3. 3 horses, cows, or carabaos or other beasts of burden used in
his ordinary occupation;
4. Necessary clothing and articles for ordinary personal use,
excluding jewelry;
5. Household furniture and utensils necessary for housekeeping
not exceeding P3,000;
6. Professional libraries and equipment of judges, lawyers,
physicians, etc. not exceeding P300,000;
7. One fishing boat and accessories not more than P100,000 owned
by a fisherman and by which he earns his living;
8. Salaries, wages, or earnings for personal services within the
4 months preceding the levy which are necessary for the support of
the family;
9. Lettered gravestones;
10. Money, benefits, annuities accruing or in any manner growing
out of any life insurance;
11. Right to receive legal support or any pension or gratuity
from the government;
12. Properties especially exempted by law.
Exemption does not apply if execution upon a judgment for its
purchase price or for foreclosure of mortgage.
Right of Exemption is a personal right granted to the judgment
creditor. The sheriff may thus not claim it.
10. Third party claims:
1. Purpose of bond filed by judgment obligee or plaintiff is to
indemnify third-party claimant, not the sheriff or officer;
2. Amount of bond not less than value of property levied on;
3. Sheriff not liable for damages if bond is filed;
4. Judgment obligee or plaintiff may claim damages against
third-party claimant in the same or a separate action.
5. 3rdParty claimant may vindicate his claim to property levied
in a separate action because intervention is no longer allowed
since judgment already executory; in preliminary attachment and
replevin, 3rdparty claimant may vindicate his claim to the property
by intervention since the action is still pending.
11. Who may redeem real property sold:
1. Judgment obligor or his successor in interest in the whole or
any part of the property;
2. Creditor having lien by virtue of an attachment, judgment, or
mortgage on the property sold subsequent to the lien under which
the property was sold. (Redeeming creditor is termed a
redemptioner).
12. Judgment obligor has one year from the date of the
registration of the certificate of sale to redeem property sold by
paying the purchaser the amount of his purchase, with 1% per month
interest plus any assessments or taxes which he may have paid
thereon after purchase with interest on said amount at 1% per
month.
Redemptioners have one year to redeem from the date of
registration of the certificate of sale. They may also redeem
beyond one-year period within 60 days after the last redemption,
with 2 % interest on the sum to be paid on the last redemption. The
judgment obligors right to redeem within 60 days from last
redemption is limited to the one-year period, beyond which he can
no longer redeem.
Purchaser or redemptioner not entitled to receive rents and
income of property sold inasmuch as these belong to the judgment
obligor until the expiration of the period of redemption.
13. Effect of judgment or final orders
1. In case of judgment against a specified thing, probate of
will, or administration of estate or legal condition or status, it
is conclusive on the title or condition, status, relationship, will
or administration.
2. In other cases/matters directly adjudged, or matters relating
thereto that could have been raised subsequent to commencement of
action, judgment is conclusive between parties and their successors
in interest.
3. In any other litigation, that only is deemed to have been
adjudged in a former judgment or which was actually and necessarily
included therein.
14. Effect of foreign judgment
1. Judgment upon a specific thing, conclusive upon title to the
thing;
2. If against a person, judgment is presumptive evidence of a
right as between the parties and their successors in interest;
15. When foreign judgment may be repelled
1. Evidence of want of jurisdiction
2. Want of notice to party
3. Collusion
4. Fraud
5. Clear mistake of law.
16. Requisites forres judicata1. Final former judgment
2. Judgment is on the merits
3. Rendered by a court of competent jurisdiction
4. Between first and second actions, identity of subject matter,
parties and cause of action.
17. When quashal of writ of execution proper
1. Improperly issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties renders execution
inequitable
7. Controversy was never validly submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against property exempt from
execution
10. Ambiguity in the terms of the judgment
18. SPECIAL JUDGMENT requires the performance of any other act
than the payment of money or the sale or delivery of real or
personal property.
19. Remedies against executory judgments or orders:
1. Petition for relief
2. Direct attack
3. Collateral attack judgment is null on its face or court had
no jurisdiction
20. When court may order execution even before an executory
judgment and pending an appeal
1. a. Lapse of time would make the ultimate judgment
ineffective;
2. b. Appeal is clearly dilatory;
3. c. Judgment is for support and the beneficiary is in need
thereof;
4. d. Articles subject of the case are perishable;
5. e. Defendants are exhausting their income and have no other
property aside from the proceeds from the subdivision of lots
subject of the action;
6. f. Movants were in extreme need of the premises subject of
the suit and the bond to answer for damages in case of reversal on
appeal (supersedeasbond) was posted by them;
7. g. Judgment debtor is in imminent danger of insolvency;
8. h. Prevailing party is of advanced age and in a precarious
state of health and the right in the judgment is non-transmissible
being for support;
9. i. Prevailing party posts sufficient bond to answer for
damages in case of reversal of judgment
But in most cases, the mere filing of a bond is not sufficient
justification for discretionary execution.
21. Order granting writ of execution ONLY appealable when:
1. Order varies terms of the judgment
2. When vague and court renders what is believed to be wrong
interpretation.
22.Garnishment act of appropriation by the sheriff if the
property involved is money, stocks, or other incorporeal property
in the hands of third persons; merely sets apart such funds but
does not constitute the creditor the owner of the garnished
property.
23. Persons disqualified from participating in the execution
sale:
1. Officer conducting the execution sale or his deputy;
2. Guardian with respect to the property under his
guardianship;
3. Agents, the property entrusted to them, unless with
principals consent;
4. Executors and administrators, the property of the estate
under administration;
5. Public officers and employees, the property of the State or
any subdivision thereof, or any GOCC, the administration of which
has been entrusted to them;
6. Justices, judges, prosecuting attorneys, clerks of courts,
and other officers and employees connected with the administration
of justice, the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or territory
they exercise their respective functions;
7. Lawyers, the property and rights which may be the subject of
litigation in which they take part by virtue of their
profession;
8. Others specifically disqualified by law. (e.g.seller of goods
who exercise right of resale of goods).
Rule 40 Appeal from MTC to RTC1. Appeal from judgment or final
order of MTC taken to RTC exercising jurisdiction over the area to
which MTC pertains. File notice of appeal with the MTC which
rendered decision appealed from within 15 days after notice of such
judgment.
2. Record on appeal is filed within 30 days and required only
for special proceedings
3. Appellate docket fees paid to clerk of court of MTC payment
not a condition precedent for perfection of appeal but must
nonetheless be paid within the period for taking appeal;
4. Procedure for appeal from cases dismissed without trial for
lack of jurisdiction:
1. If affirmed because the MTC has no jurisdiction, RTC will try
case on the merits as if it has original jurisdiction;
2. If reversed, the case shall be remanded to the MTC;
3. If the first level court tried the case on the merits without
jurisdiction, the RTC should not dismiss the case but shall decide
it in the exercise of original jurisdiction.
Reference:Remedial Law (Civil Procedure) Memory AidAteneo
Central Bar Operations 2001Posted inCivil Procedure2
CommentsTags:Civil Procedure - Rules 31 - 40Civil Procedure
Rules21-30DEC 19Posted byMagzRule 21 Subpoena1. 1. Subpoena issued
by:
1. The court before whom witness is required to attend;
2. The court of the place where the deposition is to be
taken;
3. The officer or body authorized by law to do so in connection
with its investigations;
4. Any Justice of the SC or CA in any case or investigation
pending within the Phils
2. No prisoner sentenced to death,reclusion perpetua, or life
imprisonment and who is confined in any penal institution shall be
brought outside said institution for appearance or attendance in
any court unless authorized by the SC.
1. 3. Grounds for quashing subpoenaduces tecum2. 4. Ground for
quashing subpoenaad testificandum1. It is unreasonable or
oppressive
2. The articles sought to be produced do not appear to be
relevant
3. Person asking for subpoena does not advance cost of
production
1. The witness is not bound thereby if witness resides more than
100 km from the place where he is to travel by the ordinary course
of travel, or if he is a detention prisoner and no permission is
obtained from the court in which his case is pending
This is known as the viatory right of the witness;NOTE, however,
that the right is available only in CIVIL cases
2. Witness fees and kilometrage allowed by rules not tendered
when subpoena served.
1. 5. Service of subpoena made in the same manner as personal or
substituted service of summons.
2. 6. Person present in court before a judicial officer may be
required to testify as if he were in attendance upon a
subpoena.
3. 7. Failure by any person without adequate cause to obey a
subpoena served upon him shall be deemed a contempt of the court
from which subpoena issued.
Rule 22 Computation of Time1. 1. Computing for any period of
time: day of the act or event from which designated period of time
begins to run is to be excluded and the date of performance
included.
2. 2. If last day of period falls on Saturday, Sunday or legal
holiday in place where court sits, the time shall not run until the
next working day.
3. 3. If there is effective interruption of period, it shall
start to run on the day after notice of the cessation of the cause
of the interruption. The day of the act that caused the
interruption is excluded in the computation of the period.
Rule 23 Depositions Pending ActionDEPOSITIONSDE BENE ESSE taken
for purposes of pending action
1. 1. Depositions pending action
1. 2. Scope of examination deponent may be examined regarding
any matter not privileged relevant to the subject of the action
2. 3. Examination and cross-examination proceeds as in
trials
3. 4. Depositions and Affidavits distinguished
1. Taken by leave of court after court obtains jurisdiction over
any defendant or property subject of the action
2. Taken without leave after an answer has been served
3. Upon the instance of any party
4. May be deposition upon oral examination or written
interrogatories
DepositionsAffidavits
Written testimony of witness in course of judicial proceedings,
in advance of trial and hearingMere sworn written statements
Opportunity for cross-examinationNo cross-examination
Can be competent testimonial evidenceLittle probative value
(hearsay)
1. 5. Use of depositions
Any part or all of a deposition which is admissible in evidence
may be used against any party who was present or represented during
the taking of the deposition or who had notice thereof as
follows:
Deposition ofMay be used byPurpose
A witnessAny partyTo contradict or impeach the deponents
testimony as a witness
Any party, or anyone who at the time of taking the deposition
was an officer, director, or managing agent of a public or private
corporationAn adverse partyFor any purpose
Of any witness, whether a party or notAny partyFor any purpose,
IF court finds that:
1. Witness is dead;
2. b. Witness resides at a distance more than 100 km from place
of trial, UNLESS absence procured by party offering the
deposition
3. c. Witness is unable to testify because of age, sickness,
infirmity, or imprisonment;
4. d. Party offering the deposition has been unable to procure
the attendance of the witness by subpoena; OR
5. e. Other exceptional circumstances make it desirable to allow
deposition to be used.
Deponent is made the witness of the party offering the
deposition.
If only part of the deposition is introduced, adverse party may
require that all of it which is relevant to the part introduced be
introduced.
6. Persons before whom depositions may be taken
a. Within the Philippines
1. Judge
2. Notary public
3. Any person authorized to administer oaths if the parties so
stipulate in writing
b. In foreign countries
1. On notice, before a secretary of any embassy or legation,
consul-general, consul, vice-consul, consular agent of the
Phils
1. Before such person or officer as may be appointed by
commission or under letters-rogatories
2. Any person authorized to administer oaths if the parties so
stipulate.
Commission addressed to any authority in a foreign country
authorized therein to take down depositions; the taking of such
depositions is subject to the rules laid down by the court issuing
the commission
Letters Rogatory addressed to judicial authority in the foreign
country; the taking of the depositions is subject to the rules laid
down by such foreign judicial authority.
7. Persons disqualified to take depositions
1. Relative within 6thdegree of consanguinity or affinity of any
party
2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of partys counsel
5. Employee of partys counsel
6. Anyone financially interested in the action
8. Depositions upon written interrogatories
Party desiring to take such deposition shall serve them upon
every other party with a notice stating the name and address of the
person who is to answer them and the name and descriptive title of
the officer before whom the deposition is to be taken;
Party so served may serve cross-interrogatories upon the
proponent within 10 days thereafter
Re-direct interrogatories served within 5 days
Re-cross interrogatories served within 3 days
9. Effects of errors and irregularities in the depositions
1. As to notice waived unless written objection is promptly
served upon the party giving the notice
2. As to disqualification of officer waived unless made before
the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with
reasonable diligence
3. As to competency or relevancy of evidence NOT waived by
failure to make them before or during the taking of the deposition,
unless ground is one which might have been obviated or removed if
presented at that time
4. As to oral exam and other particulars Errors occurring at the
oral exam in the manner of taking the deposition, in the form of
questions and answers, in oath or affirmation, or in conduct of
parties, and errors of any kind which might be obviated, removed,
cured if promptly prosecuted are waived unless reasonable objection
is made at the taking of the deposition.
5. As to form of written interrogatories waived unless served in
writing upon party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within 3 days
after the service of the last interrogatories authorized.
6. As to manner of preparation errors as to manner in which the
testimony is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed or otherwise dealt
with by the officer are waived unless a motion to suppress the
deposition or some part of it is made with reasonable promptness
after such defect is, or with due diligence might have been,
ascertained.
A deposition, in keeping with its nature as a mode of discovery,
should be taken before and not during trial. IN fact, the rules on
criminal practice particularly on the defense of alibi states that
when a person intends to rely on such a defense, that person must
move for the taking of the deposition of his witness within the
time provided for filing a pre-trial motion.
Rule 24 Depositions Pending ActionDEPOSITIONSIN PERPETUAM REI
MEMORIAM taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case or appeal.
1. 1. Depositions before action
A person desiring to perpetuate his own testimony or that of
another person regarding any matter that may be cognizable in any
court of the Phils may file a verified petition in the court of the
place of the residence of any expected adverse party, which
petition shall be entitled in the name of the petitioner and shall
show:
1. That petitioner expects to be a party to an action in a court
of the Phils but is presently unable to bring it or cause it to be
brought;
2. The subject matter of the expected action and his interest
therein;
3. The facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it;
4. The names or description of the persons he expects will be
the adverse parties and their addresses so far as known;
5. The name and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from
each.
1. 2. Use of deposition
If deposition to perpetuate testimony is taken under this rule
or if not so taken is still admissible in evidence may be used in
any action involving the same subject matter subsequent brought in
accordance with the provisions of Rule 23.
Rule 25 Interrogatories to Parties1. Interrogatories and the
answers thereto should be filed in court and served on adverse
parties, so that the answers may constitute judicial
admissions.
2. Effect of failure to serve written interrogatories a party
not served with such may NOT be compelled by the adverse party to
give testimony in open court or deposition pending appeal.
Rule 26 Admission by Adverse Party1. 1. Request for
admission
A written request for the admission of the other party of the
genuineness of any material or document or request for the truth of
any material and relevant matter of fact set forth in the request
may be filed and served upon the other party at any time after
issues have been joined.
1. 2. Implied admission
Each of the matter requested to be admitted shall be deemed
admitted within a period designated in the request, which shall not
be less than 15 days after service thereof or within such further
time as the court may allow on motion, UNLESS, party requested
serves upon the party requesting a sworn statement either
specifically denying or setting forth in detail the reasons why he
cannot truthfully either admit or deny those matters.
1. 3. Effect of admission
Admission is only for the purpose of the pending action and
shall NOT constitute an admission for any other person nor may it
be used against him in any other proceeding.
1. 4. A party who fails to file and serve a request for
admission on the adverse party of material facts within the
personal knowledge of the latter shall not be permitted to present
evidence thereon,
Rule 27 Production or Inspection of Documents or Things1. Any
party may move for the court in which the action is pending to
order any party to:
1. Produce and permit the inspection and copying or
photographing of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, not privileged,
which:
1. Constitute or contain evidence material to any matter
involved in the action AND
2. Are in his possession, custody or control.
3. Permit entry upon designated land or other property in his
possession or control for the purpose of inspecting, measuring,
surveying, or photographing the property or any designated relevant
object or operation thereon.
2. The order:
1. Shall specify the time, place and manner of making the
inspection and taking copies AND
2. May prescribe such terms and conditions which are just.
Rule 28 Physical and Mental Examination of Persons1. If the
mental or physical condition of a party is in controversy, the
court may order him to submit to a physical or mental examination
by a physician.
2. The party examined waives any privilege he may have in that
action regarding the testimony of the person who has examined or
may examine him with respect to that same mental or physical
examination by:
1. Requesting and obtaining a report of the examination so
ordered OR
2. Taking the deposition of the examiner.
Rule 29 Refusal to Comply with the Modes of Discovery1. If a
party/deponent refused to answer:
1. The examination may be completed on other matters
2. The examination may be adjourned
3. The proponent may apply to the court for order to compel
answer
The court may then order:
1. The refusing party or his counsel to pay the expenses
incurred in obtaining the order, including the attorneys fees (if
it finds the refusal to answer without substantial
justification)
2. The proponent or his counsel to pay the expenses incurred in
opposing the application, including attorneys fees (if it finds the
application to be without substantial justification)
2. If a party/witness refuses to be sworn or to answer after
being directed to do so by the court, the refusal may be considered
contempt of that court.
1. If a party/officer or managing agent of a party refuses to
obey an order requiring him:
a. To answer designated questions
b. To produce a thing for inspection or to permit entry upon
property
1. To submit to a physical or mental examination
the court may order:
1. That the matters regarding which the questions were asked, or
the character of the land or the thing, or the physical and mental
condition of the party be taken to be established.
2. The disallowance of the disobedient partys claims
3. The prohibition of the disobedient party to present
evidence
4. The striking out of the pleadings or parts thereof
5. The dismissal of the action or parts thereof
6. Rendering judgment by default against the disobedient party
OR
7. The arrest of any party or agentEXCEPTin disobeying an order
to submit to a physical or mental examination.
4. If a party refuses to attend or serve answers, the court
may:
1. Strike out all or any part of any pleading of that party.
2. Dismiss the action or any part thereof.
3. Enter a judgment by default against that party, OR/AND
4. Order that party to pay reasonable expenses incurred,
including attorneys fees.
5. The Republic of the Philippines cannot be required to pay
expenses and attorneys fees under this Rule.
Rule 30 Trial1. 1. Order of trial
Trial shall be limited to the issues stated in the pre-trial
order and shall proceed as follows:
1. The plaintiff shall adduce evidence in support of his
complaint;
2. The defendant shall adduce evidence in support of his
defense, counterclaim, cross-claim, and third-party complaint;
3. The 3rd-party defendant, if any, shall adduce evidence of his
defense, counterclaim, cross-claim, and 4thparty complaint;
4. The 4thparty and so forth, if any, shall adduce evidence of
the material facts pleaded by them;
5. The parties against whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of their defense, in
the order to be prescribed by the court;
6. The parties may then respectively adduce rebutting evidence
only, unless the court, for good reasons and in the furtherance of
justice, permits them to adduce evidence upon their original case;
and
7. Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further
pleadings.
1. 2. Judge should personally receive evidenceEXCEPTthat in
default orex partehearings and in any case where the parties so
agree in writing, the court may delegate the reception of evidence
to its clerk of court who is a member of the bar. The clerk shall
have no power to rule on objections to any question or to the
admission of exhibits, which objections shall be resolved by the
court upon submission of his report and the transcripts within 10
days from the termination of the hearing.
Reference:Remedial Law (Civil Procedure) Memory AidAteneo
Central Bar Operations 2001Posted inCivil Procedure1
CommentTags:Civil Procedure - Rules 21-30Civil Procedure
Rules11-20DEC 19Posted byMagzRule11 When to File Responsive
Pleadings1. 1. Answer to complaint 15 days from service, unless
different period fixed by the courts;
2. 2. Answer of defendant foreign private juridical entity when
service of summons is made on the government official designated by
law, answer to be filed within 30 days from receipt of summons by
such entity.
3. 3. Answer to amended complaint if amended as a matter of
right, 15 days from being served with copy thereof
If amended not as a matter of right, 10 days from notice of
order admitting the same
Answer earlier filed may be answer to amended complaint, if no
new answer is filed
Applicable to amended counterclaim, cross, third, etc,
1. 4. Answer to counterclaim or cross-claim within 10 days from
service.
2. 5. Answer to 3rdparty complaint 15 days from service
3. 6. Reply may be filed within 10 days from service of the
pleading responded to.
Rule 12 Bill of Particulars1. 1. Bill of particulars
1. Period of filing motion before responding to a pleading; if
pleading is a reply, within 10 days from service thereof;
2. Order for bill must be complied with in 10 days from notice
OR period fixed by court
3. After service of bill or denial of motion party has balance
of time he was entitled to file responsive pleading, but not less
than 5 days
Motion for Bill of Particulars may NOT call for matters which
form part of the proof of the complaint. Thus, motion should not be
granted if the complaint, while not very definite, nonetheless
already states a sufficient cause of action.
Rule 13 Filing and Service of Pleadings, Judgments and Other
Papers1. 1. Kinds of service of pleadings:
1. Personal service to be done whenever practicable (Most
preferred mode)
2. Service by mail (ordinary if no registered mail)
3. Substituted service (delivering copy to clerk of court with
proof of failure of 1st2 modes)
Exceptwith respect to papers emanating from the court, a resort
to other modes must be accompanied by a written explanation why the
service or filing was not done personally.
Violation of rule may be cause to consider the paper as not
filed.
1. 2. Kinds of service of final orders:
1. Personal
2. Registered mail
3. Publication (if summons by publication)
3. Proof of personal service
1. Written admission of party served;
2. Official return of the server; or
3. Affidavit of party serving, containing a full statement of
the date, place and manner of service.
Rule 14 Summons1. 1. Contents of summons
2. 2. Kinds of service of summons:
3. Handing a copy to the defendant in person; OR
1. If he refuses to receive and sign for it, by tendering it to
him
2. Substituted:
1. Leave copies at his residence, with person of suitable age
and discretion residing therein; OR
2. Leave copies at defendants office/regular place of business,
with competent person in charge thereof.
3. 3. By whom served:
4. 4. When extraterritorial service allowed:
5. 5. Kinds of extra territorial service
6. 6. When service by publication in a newspaper of general
publication allowed:
1. Signed by the clerk under the seal of the court
2. Name of the court and that parties to the action
3. Direction that the defendant answer within the time fixed by
these rules
4. Notice that unless defendant so answers, plaintiff will take
judgment by default
1. Personal:
3. By publication
1. Sheriff
2. Other proper court officer
3. Any suitable person specially authorized by the judge
1. Defendant is a non-resident and is not found in the
Philippines and action affects plaintiffs personal status
2. Subject of action is property within the Philippines in which
the defendant has or claims a lien or interest
3. Where relief demanded consists in whole or in part in
excluding the defendant from any interest in such property
4. When property of defendant has been attached within the
Philippines
1. Personal service
2. Publication and summons sent by registered mail to last known
address
3. Any other matter the court may deem sufficient
1. Identity of defendant unknown
2. Whereabouts of defendant unknown and cannot be ascertained by
diligent inquiry
(a) and (b), applies to ANY action, even actionsin personam3.
Defendant is non-resident and the suit isquasi in rem4. Defendant
is temporarily out of the country and the suit isquasi in rem1. 7.
Service upon private domestic juridical entity refers to
corporation, partnership, or association organized under Phil. Laws
with a juridical personality:
2. 8. Service upon private foreign juridical entity transacting
business in the Phils:
1. President
2. Managing partner
3. General manager
4. Corporate secretary
5. Treasurer
6. In-house counsel
1. Resident agent designated in accord with Law
2. If no such agent, on government official designated by law
OR
3. On any of its officers or agents within the Phils
NOTE:IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON
THE SEC.
1. 9. Newspaper of general circulation (RA 4883, PD 1079)
1. Published for the dissemination of local news and general
information
2. Has a bona fide subscription list of subscribers
3. Published at regular intervals
4. Not published for nor devoted to the interest of a particular
group of persons
5. Must have been regularly published for at least 2 years
before the date of the publication in question.
Mere filing of an answer per se should not be automatically
treated as a voluntary appearance by the defendant for the purpose
of sumons. It should be noted that when the appearance of the
defendant is precisely to object to the jurisdiction of the court
over his person, it cannot be considered as an appearance in
court.
Rule 15 Motions1. 1. All motions must be in writingexcept:
2. 2. Exceptionsto the three-day notice rule:
1. Those made in open court; OR
2. Those made in the course of a hearing or trial.
1. Ex partemotion
2. Urgent motion
3. When court sets hearing on shorter notice for good cause
4. Motion for summary judgment (must be served at least 10 days
before the hearing)
A prudent judge would, in the absence of the opposing party in
the hearing of a motion, inquire from the other party or inquire
from the records the proof of the service of notice rather than
proceed with the hearing. He should not rely on a partys
undertaking to notify the adverse party of a scheduled hearing. The
judge must demand what the rule requires,i.e., proof of such notice
on the adverse party. Otherwise, a contentious motion should be
considered a mere scrap of paper which should not have even been
received for filing.
Subsequent service of the motion on the adverse party may be
considered substantial compliance with the Rule 15, 6. Failure to
attach to the motion proof of service thereof to the adverse party
is not fatal when the adverse party had actually received a copy of
the motion and was in fact present in court when the motion was
heard.
Rule 16 Motion to Dismiss1. 1. Motion to Dismiss must be filed
within the time for and before the filing of an answer to
complaint.
2. 2. Grounds for motion to dismiss:
1. Court has no jurisdiction over the person of the defendant-
unlike old rule, inclusion in motion to dismiss of other grounds
aside from lack of jurisdiction over the person does NOT constitute
a waiver of the said ground or voluntary appearance;
2. Court has no jurisdiction over the subject matter of the
claim;
3. Venue is improperly laid;
4. Plaintiff has no legal capacity to sue;
5. There is another action pending between the same parties for
the same cause;
Requisites oflitis pendentia:
1. Identity of parties/interest
2. Identity of rights asserted and prayed for/relief founded on
the same facts;
3. Identity of the 2 cases (such that judgment in one would
amount to res judicata in the other)
6. Cause of action is barred by a prior judgment or by statute
of limitations;
Requisites ofres judicata:
1. Final judgment or order
2. Rendered by court of competent jurisdiction
3. On the merits (even without trial, such as cases decided by
Judgment on the Pleadings, Summary Judgment, or dismissed for
failure to prosecute or for refusal to obey an order of the
court)
4. Identity of the parties
7. Pleading asserting claim states no cause of action;
8. Claim or demand in the plaintiffs pleading has been paid,
waived, abandoned, extinguished;
9. Claim on which action is founded is unenforceable under the
statute of frauds;
10. Condition precedent for filing has not been complied with
(this includes prior recourse to barangay conciliation, or failure
to make attempts to reach a compromise in cases between members of
the same family)
The court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable.
3. Actions that court may take on a Motion to Dismiss:
1. Grant it remedy: appeal
2. Deny NOT appealable; but may avail of certiorari, prohibition
and mandamus
3. Order amendment of the pleading
4. If denied, defendant must file answer within the balance of
the 15-day period, but not less than 5 days from the time he
received notice of the denial;
5. Subject to the right to appeal, dismissal based on the
following grounds will be bar to refiling:
1. a.Res judicata2. Extinguishment of claim or demand
3. Prescription
4. Unenforceability under the Statute of Frauds
6. The dismissal of the complaint shall be without prejudice to
the prosecution in the same or separate action of a counterclaim
pleaded in the answer.
A motion to dismiss on the ground of failure to state a cause of
action in the complaint must hypothetically admit the truth of the
facts alleged in the complaint. The admission, however, is limited
only to all material and relevant facts which are well pleaded in
the complaint. The demurrer does not admit the truth of mere
epithets charging fraud; nor allegations of legal conclusions; nor
an erroneous statement of law; nor matters of evidence; nor to
legally impossible facts.
Rule 17 Dismissal of Actions1. 1. Dismissal by the plaintiff
1. Notice of dismissal any time before service of the answer or
a motion for summary judgment;
Dismissal is without prejudiceEXCEPTon 2ndnotice of dismissal,
which operates as adjudication on the merits when filed by same
plaintiff who has once dismissed an action based on or including
said claim.
1. If answer or motion for summary judgment already served,
dismissal by a Motion for Dismissal, which shall require approval
of the court; shall be without prejudice unless otherwise specified
by the court
If counterclaim has been pleaded by a defendant prior to the
service upon him of plaintiffs motion to dismiss, dismissal is
limited to the complaint; dismissal is without prejudice to
defendants right to prosecute counterclaim in a separate action or,
if he makes a manifestation within 15 days from notice of the
motion, to prosecute CC in same action.
1. 2. Dismissal due to plaintiffs fault the following must be
without justifiable cause
1. If plaintiff fails to appear on the date of presentation of
his evidence in chief;
2. Plaintiff fails to prosecute claim for an unreasonable length
of time
3. Plaintiff fails to comply with the Rules of Court or any
order of the court
Complaint may be dismissed upon defendants motion ormotu
proprio. Unless otherwise declared by the court, dismissal has
effect of adjudication upon the merits.
RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal
action upon plaintiffs motion or due to plaintiffs fault does not
necessarily carry with it the dismissal of the compulsory CC;
defendant is also given option to prosecute the same in same or
separate action.
1. 3. Dismissal of counterclaim, cross-claim, or 3rd-party
complaint must be made by claimant before a responsive pleading or
a motion for summary judgment is served, or if there is none,
before the introduction of evidence.
Rule 18 Pre-Trial1. What to consider in pre-trial (with notice
to counsel or party without counsel)
1. Possibility of amicable settlement or arbitration
2. Simplification of the issues
3. Amendments to the pleadings
4. Stipulations or admissions of facts and documents
5. Limitation of number of witnesses
6. Preliminary reference of issues to a commissioner
7. Propriety of judgment on the pleadings, summary judgments, or
dismissal of action
8. Other matters for the prompt disposition of the action
1. 2. It is the duty of the plaintiff to moveex partefor the
setting of the case for pre-trial. However, if plaintiff answers
the defendants counterclaim, it will be the latters duty to set the
pre-trial.
2. 3. Failure of plaintiff to appear shall be cause for
dismissal of the action. Non-appearance of defendant is cause to
allow plaintiff to present evidenceex parteand the court to render
judgment on basis thereof.
3. 4. Non-appearance of party excused only if:
1. 5. Must file pre-trial brief so as to ensure that other party
receives it at least 3 days before pre-trial. Failure to file brief
has same effects as failure to appear at pre-trial.
2. 6. Proceedings recorded, and court shall issue an order
reciting in detail matters taken up.
1. A valid cause is shown therefor OR
2. If representative shall appear in his behalf fully authorized
in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents,
Rule 19 Intervention1. 1. Grounds for int