Civil Procedure 2

Notes in Civil Procedure
By: Biboy INTRODUCTION

The bar exam in remedial law require your ability to connect one principle to another principle that is several rules away from another rule. That makes remedial law difficult. But if you know the story that remedial law has YOU CAN ANSWER the question. KNOW THE RULES! CONNECT THE RULES! KNOW TO Substantive Law Family Code Article 68. Obligation of husband and wifeThe husband and wife are obliged to live, together, observe mutual love, respect and fidelity, and render mutual help and support. When substantive law is violated like if the husband has a mistress, then the wife files for concubinage, Procedural law will come in when the wife files concubinage. Substantive Law: Presumptive death. Procedural Law: go to SPECIAL PROCEEDINGS Substantive Law: Adoption Procedural Law: How to ADOPT Substantive law: Negligent driver. In Civil Law those in the performance of their obligation guilty of fraud, delay and negligence or in any manner contravene the tenor thereof is liable for damages. Procedural Law: When the criminal complaint is initiated or filing for damages The Rules of Court are not penal laws and are not to be given retroactive effect. Rules of Procedure however, may be made applicable to actions pending at the time of their promulgation. Such rules are retroactive only in this sense. The Rules of Court shall not apply to (a) election cases, (b) land registration, (c) cadastral, (d) naturalization, and (e) insolvency proceedings except by analogy or in a suppletory character and whenever practicable and convenient. Example: As a rule, affidavits are hearsay but the argument that the affidavits attached to the case are hearsay because the affiants
Sample question: A judgment was rendered against a defendant but the losing party fears that the court rendered in a decision on the case despite the absent of jurisdiction. He questioned the jurisdiction and files certiorari to the higher court. After 20 days, the winning party files execution. The trial court grants the execution. Certiorari does not stop the running of the period for appeal. The period for appeal lapsed making the judgment final and executory after 15 days. The certiorari was a mistake because it does not stop the running of the period. CIVIL PROCEDURE which is a procedural law is from substantive law. No remedial law if there is no substantive law. We cannot separate the two. Procedural law is from rights and obligations established from substantive law. Remedial law is not really a law. They are rules. We dont have procedural laws but we have procedural rules except those rules found in the constitution. Remedial law is procedural. Remedial law has force and effect of rules. Another name for Remedial law is Adjective Law aside from Procedural Law. EXAMPLE:

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were not presented in court for cross examination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only. Rules that prevail in judicial proceedings are not controlling before the labor arbiter and the NLRC A cause of action involves a right. There was an act or omission that violates that right. So a cause of action involves a right then it involves the violation of that right. CC Article 1169. Obligation to pay a debt, there must be a demand. The cause of an action arise when there is a demand. Cause of action requires the following else NO CAUSE OF ACTION then Motion to Dismiss. Civil Law Article 1169 demand Civil Law Earnest Efforts. Political Law Exhaustion of Remedies Brgy. Concilation Ground for above condition to motion to dismiss Present Rule: RULE 16 SECTION 1j FAILURE TO COMPLY WITH CONDITION PRECEDENT B) VENUE- RULE 4 C) JURISDICTION one which is a substantive law RA 7691, BP#129. Jurisdiction is not procedural or adjective law D) PARTIES RULE 3 Know if you are the real party in interest before filing a complaint. E) PREPARATION OF COMPLAINT Master RULES 6, 7, 8, 9 F) RULES ON FILING OF COMPLAINT/ PAYMENT OF DOCKET FEES The complaint is now in court. The Supreme Court held in Manchester Devt Corp. vs. CA, when you file you have to pay the docket fees. No payment, no jurisdiction. Although if you cannot pay it would be a lien on the judgment.
THE FRAMEWORK OF CIVIL PROCEDURE

I. Complaint AWAKENS THE CIVIL PROCEDURE In SPECIAL PROCEEDINGS complaint is called PETITION A) RIGHT OF ACTION/ CAUSE OF ACTION RULE 2 Who files a complaint? The one whose right is violated. Example is the right to be safe when one safety is violated he go to court to file a complaint. Before going to file a complaint, do you have a right to complaint? This is the right of action. May karapatan ka bang magdemanda. Kailan ka magkakaroon ng karapatan. When you have a right of action you must have a cause of action to have a right to complain. RULE 2 SECTION 2: A CAUSE OF ACTION IS THE ACT OR OMISSION BY WHICH A PARTY VIOLATES A RIGHT OF ANOTHER.

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If you cannot pay, apply as an indigent litigant. If approved by the court you can file an action without paying docket fees and you can have the transcript of stenographic notes for free. If your win the case, that would be the time that youll pay the docket fees. While the complaint is filed and the subject matter is in accordance with the jurisdiction of the court, the court acquires jurisdiction of the complaint. The moment a complaint is filed, the court automatically acquires jurisdiction over the person of the plaintiff. REASON: the plaintiff goes to court and asks for affirmative relief. The plaintiff voluntarily submit himself to the jurisdiction of the court. The running of the prescriptive period for the cause of action stops when the complaint has been filed. Question: A plaintiff residing in Melbourne, Australia had business partners in the Philippines who dont give him financial statement of the business. He hired a lawyer in the Philippines. The lawyer filed an action for accounting and damages. In 1981, there is no need to sign a certification of forum shopping. The defendants in the Philippines filed a motion to dismiss on the ground that the court did not acquire jurisdiction over the plaintiff. Should the motion to dismiss be granted? Answer: The motion to dismiss should be denied. It is well settled procedural principle that jurisdiction over the plaintiff is acquired by the filing of the complaint. The facts of the case clearly indicate that the complaint was filed. Hence, the court acquires jurisdiction over the plaintiff. REMEMBER THE RULE! MAGPALITO! GANDAHAN PRESENTATION! WAG ANG
G) DISMISSAL BY THE PLAINTIFF RULE 17 H) AMENDMENT RULE 10 OF COMPLAINT
II. SUMMONS RULE 14 Who files the complaint? PLAINTIFF Who sends summons? CLERK OF COURT. The clerk of court sends the summons. Why do you need summons? So that the court can have jurisdiction over the person of the defendant and to comply with the constitutional requirement of procedural due process through valid service of summons. A) Section 6 Rule 14 Service in the person of the defendant NOT personal service. Personal service appears in Rule 13 but not in summons. It would be wrong to say service of summons by personal service. B) Substitute service Section 7 Rule 14 C) Summons by publication Section 14, 12, 16 Rule 14 What does summons tell you? Summons tell you to file an answer within the reglamentary period.
III. ANSWER RULE 6

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An answer is a pleading in which a defending party sets forth his defenses. POSSIBILITIES WHEN RECEIVING A SUMMON a) defendant fails to answer effect is DEFAULT Section 3 Rule 9 b) defendant files an answer but admits to all material allegations in the complaint effect is No issue. There is no need for trial. JUDGMENT ON THE PLEADING under RULE 34 is proper c) defendant answer but issue is not genuine SUMMARY JUDGMENT IN RULE 35 d) MOTION FOR BILL PARTICULAR IN RULE 12 purpose of clarification of pleading. Details are needed in complaint. OF for the the 3. answer with counterclaim (a complaint filed by a defendant against the plaintiff) 4. answer with cross-claim (a complaint filed by a defendant against his co-defendant) 3rd party complaint filing a complaint to a person who is not yet a party to the complaint. Intervention Rule 19 a third party interested in the case intervened in the case between the plaintiff and defendant. f) REPLY Plaintiff answers to the ANSWER. Reply is the last possible pleading that could be filed before the trial. When the defendant does not file an answer upon receiving summons, the effect is Default On the other hand, as a general rule, failure to make a reply has no effect. Reply is not mandatory.
e) MOTION TO DISMISS RULE 16 Question: Give two remedial measures to abbreviate a civil proceeding. Answer: 1. File a motion to dismiss 2. File a judgment on the pleading In filing an answer, these are included: 1. negative defense (specific denials) 2. affirmative defense (grounds for motion to dismiss)
IV. PRE-TRIAL RULE 18 It is the duty of the plaintiffs lawyer to file on ex-parte motion to set the case to next procedural steps which is the PRE-TRIAL. The court will not set the PRETRIAL in a civil proceeding unlike in the criminal proceedings. THE PLAINTIFF MUST MAKE A MVOE AFTER THE LAST PLEADING HAS BEEN FILED section 1 Rule 18 Note: If the plaintiff did not call for pretrial, the defendant after reasonable time, have come can file a motion to dismiss on the ground of failure to

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prosecute. Section 3 Rule 17 because of the fault of the plaintiff. Remedies to be availed in pre-trial stage DISCOVERY PROCEDURE RULE 23 to 29 After finality: a) Petition for Relief Rule 38 b) Action to Annul Judgment Rule 47 c) Certiorari Rule 65 in extra ordinary circumstances
V. TRIAL RULE 30 Plaintiff presents the evidence first. Next is the defendant who presents evidence. Sometimes, defendant does not present evidence because he feels that the plaintiff did not lift up to his burden of proof. INSUFFICIENT EVIDENCE, NO RIGHT TO RELIEF. Hence, he files a motion to dismiss which is DEMURRER TO EVIDENCE RULE 33 (know the effect by heart)
VIII. EXECUTION of JUDGMENT RULE 39 Provisional Remedies Support Pendente Lite, Attachment, Preliminary Injunction Special Civil Actions Summary Procedures
ACTION/SUIT
I. REAL ACTION Elements: 1) Is there a real property involve or an interest in real property In every real action, there is either a real property involve as a subject matter or an interest in real property. But is does not mean that when there is a real property or interest in real property, it is always a real action. 2) What is the issue? Is it title to real property, ownership, possession of real property, partition of real property or interest therein, condemnation of real property, foreclosure of real estate mortgage. Then the action is real. Example: Condemnation of real property, foreclosure of real estate mortgage. Is the action real or personal? PERSONAL because although there is a real property involved, the second element is lacking.
VI JUDGMENT
VII REMEDIES AGAINST JUDGMENT/ POST JUDGMENT REMEDIES The losing party may avail the following remedies to protect his rights. Before finality of judgment: a) Motion for Reconsideration RULE 37 b) Motion for New Trial RULE 37 c) Appeal RULES 40-44 etc. When does a judgment become final and executory? Upon the lapse of the period for appeal normally 15 days. Sometimes 30 days when record on appeal is needed. Lapse of such time, the judgment will become final and executory. Within 15 days, Motion for Reconsideration, Motion for New Trial & Appeal can be availed.

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Action to recovery possession of the apartment plus damages, is the action real or personal? REAL ACTION because aside from there is a real property involve, the second element is present which is recovery of possession of the apartment as it is an action for unlawful detainer. Note: Not all ejectments are unlawful detainer UNLAWFUL DETAINER can be a Forcible Entry. What is involved in an unlawful detainer? Real property Land or building or dwelling. Is there an issue of possession in an unlawful detainer case? Yes then real action. In FORCIBLE ENTRY there is a real property involve and the issue also is always possession In ACCION PUBLICIANA, there is a real property involved. Accion Publiciana is filed when unlawful detainer or forcible entry has prescribed. This is a plenary action to recover. Action to recover ownership of real property, action to remove a cloud over the real property There is a contract to sell. Agreement you will execute a notarized deed of sale if I paid you. CORONEL vs. CA, I paid you but you did not deliver the land. Hence, I filed an action for specific performance for the execution of the deed of sale. The action is a REAL ACTION because the execution of the deed of sale is the act that will deliver the land to me or transfer ownership to the buyer. Article 1498 of the New Civil Code states that the execution of a public instrument is equivalent to delivery. DELIVERY IS THE ACT TRANSFERS OWNERSHIP. THAT
If the action is a specific performance for the execution of the deed of sale, ask if the land has been previously delivered. If yes, then personal action because it is the delivery of the land that transfers ownership. If there is no delivery of the land, then such action is a real action there will be an issue of ownership because the execution of the deed of sale will be the act of delivery to transfer ownership.
II. PERSONAL ACTION In an action for collection of sum of money amounting 2M, is the action real or personal? Personal because there is no real property involved. You took my car. I want it back Is it real or personal action? It is a Personal action, because there is no issue of real property. Is an action for annulment of marriage real or personal action? It is a personal action because there is no real property involved. We entered into an oral contract of sale involving a land. You allowed me to live in the land because I paid. I want the title to be registered but you failed to deliver a notarized deed of sale. Hence, an action for specific performance is filed. This is a personal action because the land had been delivered already. What is being asked is for the deed of sale. What is the purpose of knowing whether the action is real or personal? The

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purpose is to determine the correct venue. Hence, the motion to dismiss is untenable. The venue is improperly laid. The venue should be in Manila or Quezon City at the option of the plaintiff. Note: In civil procedure where venue is the issue, never include jurisdiction in your answer. THAT IS A FATAL MISTAKE because venue is only venue in civil procedure. Venue is never jurisdictional. Venue becomes jurisdictional only in criminal proceedings because under criminal proceedings a criminal action must be instituted in the place where the crime was committed or where any of its essential elements occurred. If it was filed in Quezon City and the crime happened in Manila, you dont file a motion to quash based on improper venue. You file a motion to quash on the ground that the court has no jurisdiction over the offense charged. BAR This involved a farm land being leased to defendant who resides in Laguna. The land is located in Cavite. Plaintiff, the owner of the land is from Batangas. Defendant violated the terms of the lease. Hence, plaintiff filed for ejectment and unlawful detainer in MTC of Batangas. MTC Batangas dismissed the case alleging no jurisdiction. Is the court correct? The MTC Batangas is wrong because the ground for dismissal is wrong. The ground should be improper venue not jurisdiction. JURISDICTION IS NOT AFFECTED BECAUSE ALL MTC HAS JURISDICITON OVER UNLAWFUL DETAINER CASE.
VENUE
What is venue? It is where the case shall be filed. To determine the correct venue analyze if the action is real or personal. The venue of personal action is where the plaintiffs residence or defendants residence at the option of the plaintiff. This is the reason why personal action is also called transitory action. Domicile is not considered in personal action but residence. The venue of a real action is where the property is situated or a portion of it is located. Illustration: In a Contract of lease, the lessors residence is in Manila. The Lessees residence is in Quezon City. Rentals due amounted to 1.5M. Demand was made for payment but was ignored. Hence, a suit for recovery of rentals plus interest and damages was filed in Makati City. Will a motion to dismiss be tenable under the circumstances? In order to determine the correct answer, check if the action is real of personal? The action in this case is a personal action. The venue is either Manila or Quezon City at the option of the Lessor.

By: Biboy
In unlawful detainer case, the MTC has jurisdiction regardless of the amount of damages and rentals to be recovered. If the case is filed in the RTC of Batangas, there are two grounds for dismissal, namely: improper venue and lack of jurisdiction. HENCE, DO NOT INCLUDE VENUE IN JURISDICTION. DISTINCTION BETWEEN VENUE AND JURISDICTION VENUE 1. it is the place, the geographical location in filing the action 2. it is procedural 3. it can be waived 4. can be stipulated 5. it is a relation between the parties JURISDICTION 1. refers to the court which has authority to try the action 2. it is substantive 3. it cannot be waived 4. cannot be stipulated upon 5. it is the relationship between the parties, subject matter and the court 6. The court can motu proprio dismiss a complaint/case for lack of jurisdiction over the subject matter. relationship of the parties. It would be a grave abuse of discretion for the court to dismiss a case on the ground of improper venue when there is no motion to dismiss filed by the other party. The exception to the rule is when the case falls under summary proceeding like unlawful detainer and forcible entry. In this case, the court can motu proprio dismiss the case on the ground of improper venue. However, when the issue is lack of jurisdiction, it is the duty of the court to be aware of its jurisdiction because if the court has no jurisdiction, its proceeding is null and void. Hence, the rules authorized the courts to dismiss an action motu proprio based on lack of jurisdiction. Question: An action for damages for 1M was filed with the RTC of Quezon City. The residences of the parties are both in Manila. Defendant filed a motion to dismissed based on lack of jurisdiction over the subject matter. The judge said that the court has jurisdiction but the venue is wrong. The court motu proprio dismissed the motion on the ground of improper venue. Did the court act correctly? Answer: No, the court is not correct because there was no motion to dismiss filed by the defendant. The case does not fall under summary proceeding. Thus, the court cannot motu proprio dismiss the case without the motion to dismiss of the defendant. Question: In an action to collect a sum of money filed before the RTC, defendant filed a motion to dismiss based on improper
6. the court cannot motu proprio dismiss a complaint/case based on an improper venue except in summary proceedings
Note: No matter how wrong the venue is, if the defendant did not complain by filing a motion to dismiss, the court shall continue trying the case. The reason is that venue is simply for the convenience and

By: Biboy
venue. The said venue was correct but the case was dismissed based on lack of jurisdiction because the sum demandable amounted only to 100T. The court dismissed the case motu proprio. Is the court correct is dismissing the case? Answer: The court is correct because the court can motu proprio dismiss the case based on jurisdiction. GENERAL RULE: The court cannot motu proprio dismiss a complaint/case based on improper venue EXCEPTION: When the action is within summary proceeding like unlawful detainer and forcible entry. Note: The court can motu proprio dismiss a complaint/case on the ground of lack of jurisdiction. 3. The exclusive stipulation must be
The parties cannot stipulate the venue when the case is already pending. Any stipulation of venue must be made before filing of any action. The stipulation which is a valid stipulation must be in writing. The stipulation must be EXCLUSIVE. When the it is exclusive, the venue is the STIPULATED VENUE. Illustration: Mr. A and Mr. B entered into a contract of services for delivery of two tons of taho every Sunday. Assume that the plaintiff is a resident of Malolos, Bulacan. Defendant is from Nueva Ecija. The contract stipulated that any action of the contract shall be filed in Batangas where the wife of either the party resides. Plaintiff filed an action for damages arising from a breach of contract in Bulacan. Defendant filed a motion to dismiss based on improper venue arguing on the stipulated venue in Batangas. The court dismissed the action. Is the court correct? The court is not correct. The stipulation on venue was not exclusive. The possible venue of Bulacan and Nueva Ecija was not disregarded by the stipulation. Hence, the plaintiff can file it in Bulacan as it is his right as plaintiff to opt for the venue. What happens if the stipulated venue is not exclusive? The stipulated venue becomes only an additional venue. It will not result to the disregarding of the normal rules in the rules of court. Supposed the contract says shall be filed only. Hence, this is now an EXCLUSIVE STIPULATION.
STIPULATION ON VENUE When there is a valid stipulation on venue, the rules on venue will not apply. What will apply will be the stipulation. RULE 4. WHEN RULE NOT APPLICABLE: SEC 4b Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. REQUISITES ON STIPULATION ON VENUE 1. The stipulation must be in writing 2. The stipulation must have been agreed upon before the filing of the action

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Illustration: There is a contract of lease involving a property located in Caloocan. An action for unlawful detainer was filed. The contract stipulated that the case shall only be filed only in Batangas City. Can you file a case in Caloocan? In the normal rules in venue a case for unlawful detainer shall be filed where the property or any portion thereof is located or situated. However, since the stipulation is exclusive, you cannot file the case in Caloocan. Question: Will a stipulation on venue have the effect of disregarding the rules on venue? Answer: It will depend upon the following assumption: Where the stipulation is by nature exclusive, it will have the effect of changing the rules on venue. But where the stipulation on venue is not exclusive, the rules on venue will still be applicable but with an additional venue. If you where the defendant and you want to question the venue, what is the earlier stage for you to question the venue? The earliest opportunity is before you file your answer to the complaint. File a motion to dismiss under RULE 16 SECTION 1 invoke the ground that the venue is improperly laid.. Nevertheless, if you failed to file a motion to dismiss based on improper venue, such defense is not yet deemed waived. Improper venue can still be invoked as an affirmative defense in the answer. Section 6 Rule 16 Pleading grounds as affirmative defense 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 an 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. RULE 16 Section 16 can only be invoked if no motion to dismiss is filed. If no motion to dismiss is filed, can you still invoke improper venue and other defenses as a defense? YES in an ANSWER in an affirmative defense if you did not file a motion to dismiss. ASPECT OF AN ANSWER: Negative defense Affirmative defense GROUNDS FOR MOTION TO DISMISS UNDER RULE 16 SECTION 1 (MEMORIZE) 1. That the court has not jurisdiction over the person of the defending party; 2. That the court has not jurisdiction over the subject matter of the claim; 3. That venue is improperly laid; 4. That the plaintiff has no legal capacity to sue;
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5. That there is another action pending between the same parties for the same cause; 6. That the cause of action is barred by a prior judgment or by the statute of limitations; 7. That the pleading asserting the claim states no cause of action; 8. That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; 9. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and 10. That a condition precedent for filing the claim has not been complied with. Illustration: A motion to dismiss was filed with the following grounds: Failure to state a cause of action, Violation of statute of fraud, lack of jurisdiction over the person of the defendant. Improper Venue was not invoked. You forgot it. The motion to dismiss was denied. The normal remedy when the motion to dismiss is denied is to file an ANSWER and include all your affirmative defense including improper venue. The court said improper venue cannot be invoked because it is already waived. Can you apply Section 6 RULE 16 where you can use the defense as an affirmative defense in an answer? No, because Rule 16 Section 6 can only be invoked if NO motion to dismiss has been filed. From the facts, a motion to dismiss was invoked. The defense is waived because when a motion to dismiss is filed; you have the obligation to invoke all the grounds available at the time the motion is filed. At the time you filed a motion to dismiss, improper venue was already a defense available but you did not invoke it. Hence, it is waived. REASON: because of the omnibus motion rule. In that case, where a motion to dismiss is filed, you automatically invoke and use Rule 15 Section 8. But if the motion to dismiss was not filed then the improper venue can be used as an affirmative defense in the answer because there is nothing to be waived. The waiver will only be applied if a motion to dismiss is filed. Note: OMNIBUS MOTION RULE RULE 15 SECTION 8 Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections when available, and all objections not so included shall be deemed waived. An omnibus motion is a motion that attacks a pleading. A motion to dismiss is an omnibus motion since it attacks a complaint which is a pleading. If you file an omnibus motion, you have to use all grounds available at the time the motion is filed. But if you do not use all grounds that is available, such grounds, as a general rule, is deemed waived. Rule 15 Section 8 makes reference to the 2nd sentence of Section 1 Rule 9 SECTION 1 RULE 9
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Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for judgment or by statute of limitations, the court shall dismiss the claim. General Rule: defenses and objections not raised in a motion to dismiss or in the answer are deemed waived. Exception: a) Lack of jurisdiction over the subject matter; b) Litis Pendencia Pendency of anther action between the same parties for the same cause; c) Res Judicata bar by prior judgment d) Prescription statute of limitations The exception can be invoked in any stage of the proceeding. Illustration: You filed a motion to dismiss. The grounds are improper venue, failure to state a cause of action, statute of frauds, prescription, res judicata. The motion was denied. You filed an answer and invoke as an affirmative defense litis pendencia and lack of jurisdiction over the subject matter. Can you do that? Yes, because of the exception provided in the 2nd sentence of Section 1 Rule 9 What is the difference between filing and not filing a motion to dismiss? If you did not file a motion to dismiss, all the defenses can be used as an affirmative defense. Nothing will be waived. If you filed a motion to dismiss, there is a possibility that the defenses available that you did not use may be waived /except: Lack of jurisdiction over the subject matter; Litis Pendencia Pendency of another action between the same parties for the same cause; Res Judicata bar by prior judgment; or prescription
IN REM/ IN PERSONAM An action that is personal or real is not necessarily in rem or in personam. DISTINCTION BETWEEN PERSONAL OR REAL ACTION FROM AN ACTION IN REM OR IN PERSONAM PERSONAL OR REAL ACTION It is a classification of action according to the property involved which is the foundation of the action ACTION IN REM OR IN PERSONAM It is a classification according to its object.
In personam directed to a particular person In rem directed to the whole world. Illustration: 1) Aileen Tan is a lessee. Dean Rufus is the Lessor. The lessee violated the contract of lease. Hence an action for unlawful detainer was filed. Where will be the proper venue? What is the action? Is it in rem or personam? The venue is where the property is located. It is a real action because there
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is a property involved and there is an issue of possession. It is an action in personam because it is directed to a certain person. 2) Annulment of marriage/ Declaration of nullity of marriage are actions in rem because it refers to the status of a person. However, an action for recognition is an action in personam because although it involves the status of a particular individual, it is directed to a person for recognition which is unlike annulment of marriage. Note: The purpose in knowing whether an action is in rem or in personam is to determine the jurisdiction over the person of the defendant. Kinds of jurisdiction 1. over the subject matter; 2. over the parties; 3. over the issues; and 4. over the res/thing Jurisdiction over the parties Whenever the plaintiff files a complaint in court; the court automatically acquires jurisdiction over the plaintiff. But we dont always need jurisdiction over the defendant. In an action IN PERSONAM jurisdiction over the defendant is needed. Hence, the defendant should be notified. The defendant must read the notice so that the court can acquire jurisdiction over him. If the action is IN REM or QUASI IN REM, the defendant need not be notified or an individual notice be given because an action IN REM or QUASI IN REM is directed to the whole world. Simple publication would be enough. Examples of QUASI IN REM 1. Foreclosure of real estate mortgage 2. Attachment 3. Preliminary Injunctition
How does the court acquire jurisdiction over the person of the resident defendant in an action in personam? By voluntary appearance or valid service of summons.
2 Kinds of Defendants I. Resident of the Philippines a) Voluntary Appearance it arise when the defendant voluntarily submits himself to the jurisdiction of the court. SECTION 20 RULE 14 VOLUNTARY APPEARANCE The defendants voluntary appearance in an action shall be equivalent to service of summons. Example: When before the service of summons, the defendant files an answer or a motion for extension of time to file an answer. Such action is equivalent to voluntary appearance. b) Valid service of Summons Types of Summons: 1. Service in the person of the defendant Section 6 Rule 14 Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he
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refuses to receive and sign for it, by tendering it to him Tendering is an element of service in person when the defendant refuses to receive and sign for it. Before tendering, the sheriff should exert earnest effort to locate the defendant person. 2. Substituted Service Section 7 Rule 14 (exception to Section 6 Rule 14) If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected by: (a) leaving copies of the summons at the defendants residence with some persons of suitable age and discretion then residing therein, or (b) leaving the copies at the defendants office or regular place of business with some competent in charge thereof. General Rule: No summons by publication is allowed in an action IN PERSONAM. Publication can only be used in QUASI IN REM and IN REM. Example: ACTION FOR DAMAGES need jurisdiction over the person of the defendant because it is an action IN PERSONAM. So to acquire jurisdiction over the person of the defendant, there must be a valid service of summons which can either be service in person or substituted service of summons. Exception (Publication can be authorized) 1. Residence is Unknown 2. Identity is Unknown 3. Resident is known but is temporarily our of the Philippines. 1. Section 14 Rule 14 Service upon defendant whose identity or whereabouts are unknown In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. The phrase in any action makes no distinction whether such rule is applicable only to an action in rem or in personam. Hence, the rule is applicable to both. Correlate Section 14 Rule 14 to Section 14 Rule 3 Unknown identity or name of defendant Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require when his identity or true name is discovered, the pleading must be amended accordingly. Example: John Doe or Jane Doe 2. Section 16 Rule 14 Residents temporarily out of the Philippines When any action is commenced against a defendant who ordinarily resides
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within the Philippines, but who temporarily out of it, service may, leave of court, be also effected out the Philippines, as under Section Rule 14 is by of 15
To justify summons by publication, an action IN PERSONAM can be converted into an action QUASI IN REM when there is a motion for writ of execution
If the summons is not valid, the remedy is to file a motion to dismiss. One can still invoke the ground even if he did not file a motion to dismiss by filing an answer. If I filed a motion to dismiss and failed to invoke the ground of lack of jurisdiction over the person of the defendant, can I still invoke such a defense when I filed an answer? No, because it is waived. Why? Because it is not prescription, litis pendencia, res judicata, lack of jurisdiction over the subject matter. Justice Vitug made a landmark in the case of La Naval Drug giving justice to Section 20 Rule 14 xxx The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Thus, in the present doctrine, the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Other grounds can be added if so desired. There is no submission to the jurisdiction of the courts. Section 15 Rule 14 Extrateritorial Service When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or
How does the court acquire jurisdiction over the person of the non-resident defendant in an action in personam? By Voluntary appearance or valid service of summons within the Philippines
Can you be a non-resident defendant even if you are in the Philippines? Yes, as a tourist in the Philippines. II. Non-resident Defendant a) Voluntary Appearance in Section 20 Rule 14 b) Valid service in person within the state (within the Philippines) In this case, there is absolutely no summons by publication and no substituted service because he is not a reside. Note: Summons by publication can only be applied in an action IN REM or QUASI IN REM. Can the court validly render judgment to an action for annulment of marriage assuming all procedures were followed even if the summons is by publication? Yes, because annulment of marriage is an action IN REM. There is no need for the jurisdiction over the person of the defendant. What is needed is only the jurisdiction over the res which is the status of the individuals.
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contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or in property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. Elements of Extrateritorial Service 1. defendant is a non-resident 2. defendant is outside the Phils. 3. the action involves the status of the plaintiff; 4. relates to the property of the plaintiff or defendant in the Phils. 5. when the defendants property is attached. EXTRATERITORIAL SERVICE applies only in an action either in QUASI IN REM or IN REM but NOT IN PERSONAM The PURPOSE of the summons is to comply with the basic requisite of due process to give NOTICE to let the person know he has a suit. Summonses that can be used extraterritorial service 1. Personal service as in Section 6 in 2. Summons by publication coupled with registered mail; or 3. in any manner which the court may deem sufficient Illustration: Ms. Frando is an American who came to the Phils. to visit her friends. She borrowed money from her friend in the Phils. She used to be a Filipino, who owned a parcel of land as an inheritance. She gave collateral for the money she borrowed. The parcel of land became the security for her debt. She executed a real estate mortgage. Suppose Ms. Frando leave the country without paying the debt, a) what would be your advice to the creditor? b) what is the nature of the action? Advice to file an action for foreclosure of real estate mortgaged over the parcel of the land so that the court will have the jurisdiction over the RES so that it will be an action quasi in rem.
JURISDICTION
Jurisdiction is the authority of the court to hear, to try, to decide the case and to execute its decision. Kinds of jurisdiction: 1. jurisdiction over the subject matter; 2. jurisdiction over the parties 3. jurisdiction over the issues; and 4. jurisdiction over the res A. Jurisdiction Matter Over the Subject
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Jurisdiction over the subject matter is not procedural. Jurisdiction is of substantive law which is BP 129 as amended by RA 7691. Thus, jurisdiction over the subject matter cannot be stipulated and be waived but can be prevented from being questioned because of estoppel. DISTINCTION BETWEEN ERROR OF JURISDICTION AND ERROR OF JUDGMENT ERROR OF JUDGMENT 1. It is an act of the court arising from its decision of a case which does not amount to lack or excess of jurisdiction; 2. It is correctible by appeal; and ERROR OF JURISDICTION 1. It pertains to acts of the court committed with grave abuse of discretion amounting to lack or in excess or jurisdiction; 2. It is correctible or reviewable in an original action for certiorari or a special civil action under Rule 65 3. It renders the decision of the court void, or at least voidable. A case is filed in the RTC but it should be filed in the MTC Is there an instance where the court initially has jurisdiction over the case filed could commit an error in jurisdiction? When the court who initially has jurisdiction over the case in the proceeding acted in grave abuse of discretion tantamount to lack of jurisdiction Is there another situation where a court may act without jurisdiction even if it initially has jurisdiction? If the court with jurisdiction act however in excess of its jurisdiction because excess in jurisdiction is tantamount to lack of jurisdiction Error of judgment is committed by the courts: 1. In the appreciation of facts; 2. In the appreciation of evidence; and 3. In the application of law Note: An error of judgment could not make a judgment void. It could be validly executed where the losing party failed to question the judgment on the basis of a timely appeal. But the moment it becomes an error of jurisdiction, the proceedings are null and void; because jurisdiction is very important for the court to act and that is the reason why the court is allowed by jurisprudence to motu proprio to dismiss the complaint on the ground of lack of jurisdiction over the subject matter. Illustration:
3. There are grounds for reversal only if it is shown that prejudice has been caused thereby
When is there a situation that there is an error of jurisdiction where the court initially does not acquire jurisdiction? When the court has no jurisdiction and continues a case without jurisdiction. Example:
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An action for damages in the RTC of Pasig City. The plaintiff won. Defendant was compelled to pay moral damages as a result of the breach of contract. Defendant filed for petition for certiorari at the Court of Appeals. During the 30 days pendency of petition for certiorari, the plaintiff filed a motion for a writ of execution of the judgment which was granted by the RTC. Is the granting of the motion for the issuance of the writ of execution correct? Yes, correct. The certiorari proceedings did not stop the running of the 15 days period of the appeal. What was questioned is the error of judgment. Hence, the correct remedy should be the filing of appeal not certiorari. How is jurisdiction conferred? Jurisdiction is conferred by law General Rule: Jurisdiction is determined by the allegation on the complaint. The plaintiff decides which court has jurisdiction because it is the plaintiff who makes the allegation in the complaint Illustration: .Balmes filed a 1M collection suit against Mr. Bituin at the RTC. Mr. Bituin filed a motion to dismiss on the ground of jurisdiction on the part of the RTC. He attached a promissory note of P100,000 which was signed also by the plaintiff. Can the judge during the hearing said there is no doubt to the authenticity of the P100,000 promissory note and grant the motion to dismiss. Is the court correct? The court is wrong. Jurisdiction is determined by the allegation on the complaint of the plaintiff. The truth or the falsity of the allegations of the plaintiff is totally irrelevant for purposes of determining jurisdiction. If the evidence shows later that the plaintiff is telling a lie then the court will render judgment for the defendant. But the court has no right to dismiss on the basis of the allegation of the defendant. Exception: If during the proceedings, the evidence shows that it is indeed a tenancy case, then it will be dismiss to be brought to the DARAB Continuity of Jurisdiction Once jurisdiction has been attached by virtue of the allegation of the complaint, then the jurisdiction of that court will remain until the end of the proceedings Illustration: You file a 5M damage suit with the RTC. During the trial of the case, the court found evidence that the damage did not amount to 5M but only 100,000 an amount within the jurisdiction of the MTC. Is it proper for the court to dismiss the case on the ground of lack of jurisdiction? No, jurisdiction has already attached. Once, attached it shall remain until the end of the proceedings. So, what will happen to the finding that the damage is only 100,000? Then, the court will render judgment of 100,000 but the court will not dismiss the case for lack of jurisdiction. Illustration: Mr. X was sued for in a criminal case for violation of Anti-Graft & Corrupt Practices Act before the Sandiganbayan because he is a public officer with a salary grade of 27 up. During the pendency of the proceedings, he resigned
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as a public officer. Mr. X filed a motion to quash on the ground that he is no longer a public officer within the jurisdiction of the Sandiganbayan. Is Mr. X correct? No, jurisdiction has already attached. Once attached, it shall remain until the end of the proceedings. Note: Even a new law changing jurisdiction will not affect a pending action. Once jurisdiction had been attached, it shall remain until the end of the proceedings unless when the law itself says that the court no longer has jurisdiction. The law will provide for the exception. General Rule: The jurisdiction over the subject matter can be questioned or raised at any stage of the proceeding even on appeal (Calilim vs. Ramirez) Illustration: In a main suit for 2M, the case was filed at the MTC. There was no motion to dismiss. No invocation of lack of jurisdiction in the answer as an affirmative defense. During the trial, the defendant remembered that the jurisdiction should be in the RTC. The court said that there was a waiver. Is the court correct? The court is wrong. It is well settled principle in procedural law that jurisdiction as a defense cannot be waived for it can be raised at any stage of the proceeding even on appeal. Exception: When the court declares estoppel (Tijam vs. Sibonghanoy) It happens when a party already knows before hand that the court has no jurisdiction but did not question the jurisdiction. But when the time came that the party felt losing the case, he questioned the jurisdiction. Then that would be estoppel.
B. Jurisdiction Over the Parties How does the court acquire jurisdiction over the plaintiff? Upon filing of the complaint by the plaintiff. BAR A, a resident of Melbourne, Australia, presented a complaint against B, a resident of Manila before the Court of First Instance of Manila (now RTC) for accounting and damages. A never came to the Philippines to file the suit and is only represented in this case by counsel. B files a motion to dismiss the complaint on the ground that the court acquired no jurisdiction over the person of A. Should the case be dismissed on this ground? The suit should no be dismissed on the ground invoked by B. It is a recognized procedural rule that jurisdiction over the plaintiff is acquired by his filing of the complaint in court. By filing of the complaint through his counsel, A invoked the jurisdiction of the court over his person. How does the court acquire jurisdiction over the defendant? The acquisition over the defendant depends whether the defendant is a resident or non-resident.
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Section 20 Rule 14 Voluntary st Appearance (1 sentence) The defendants voluntary appearance in the action shall be equivalent to service of summons Examples: Filing of an answer, filing a motion for extension of time to file an answer, motion to lift the order of default Section 20 Rule 14 Voluntary Appearance (2nd sentence) xxx The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Examples: Motion to dismiss based on lack of jurisdiction over your person and other grounds How does the court acquire jurisdiction over the RES? It depends upon the case Illustration: In declaration of nullity of marriage/annulment of marriage, the filing of the complaint already makes the court acquire jurisdiction over the status of the parties. Illustration: In an action for foreclosure of mortgage which is an action quasi in rem, the mere filing of the complaint alleging foreclosure makes the court acquire jurisdiction over the property/res/ thing to be foreclosed. Illustration: In an action coupled with preliminary attachment of property, the court will only acquire jurisdiction over the property upon the issuance of the writ of attachment over the property. What is jurisdiction over the RES relevant? Relevant only in an action IN REM & QUASI IN REM. JURISDICTIONAL AMOUNT MONEY CLAIM Metropolitan Trial Court, MTC & MCTC (within Metro Manila) (outside Metro Manila) not exceeding 400,000 MTC not exceeding 300,000 MTC exceeding 400,000 RTC exceeding 300,000 RTC
C. Jurisdiction Over the Issue Jurisdiction over the issue is the power of the court to try and decide issues RAISED in the pleadings of the parties. May the court have jurisdiction over the issue even if not raised in the pleading? Yes, if that issue was not objected by the other party. It is as if the issue was raised in the pleading, because it is as if it was amended. This is known as IMPLIED AMENDMENT OF THE PLEADING (Section 5 Rule 10) D. Jurisdiction Over the Res Jurisdiction over the res is the power or authority of the court over the thing or property under litigation.
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Pursuant to Section 1 of RA 7691, the determination of the jurisdictional amount does not include Damages of whatever kind, Interest, Attorneys Fees, Litigation Expenses, & Cost An administrative circular provides that the exclusion of damages of whatever kind applies to cases where damages are merely incidental to or a consequence of the main cause of action. In cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of damages shall be considered in determining the jurisdiction of the court. Example: Principal Loan P350,000 in Metro Manila. The plaintiff wanted to claim on: Interest 25,000 Damages 15,000 Atty. Fees 50,000 Litigation Expenses & Cost 1,000 P441,000 The action was filed in the MTC. The defendant filed a motion to dismiss alleging that it should be filed in the RTC. The court granted the motion to dismiss. Is the court correct? The court is wrong. The MTC should not dismiss the action. The MTC has jurisdiction. In determining the jurisdictional amount, exclude damages of whatever kind, interest, attorneys fees, litigation expenses & cost. Include only the principal amount of the loan (RA 7961). However, the damages of whatever kind is excluded if the action is not primary for damages when it is merely incidental to or a consequence of the main cause of action Where do you file an action for replevin? It depends at the value of the personal property as alleged by the plaintiff basing from the jurisdictional amount. BAR What courts have jurisdiction over the following cases filed in Metro Manila? xxx c) an action for replevin of a motorcycle valued at P150,000 An action for replevin of a motorcycle valued at P150,000 falls within the jurisdiction of the Metropolitan Trial Courts in Metro Manila. Is it possible for an MTC to handle cases involving probate, allowance or disallowance of will? Yes, depending on the gross value of the estate basing from the cut-off 300,000 outside Metro Manila and 400,000 within Metro Manila Is it now possible for MTC to handle special proceedings? Yes, probate, allowance or disallowance of a will is a special proceeding Is there any cases falling under special proceedings other than probate of a will that the MTC can handle? Yes, habeas corpus (Rule 102) provided that all the judges in the RTC in the province or city are absent DISTINCTION BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER FORCIBLE ENTRY UNLAWFUL DETAINER Issue of Possession
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Deprivation of It is legal initially possession is illegal but became illegal from the beginning later because of due to fraud, violation of the intimidation, provision of the strategy or stealth. contract Demand to vacate NOT MANDATORY General Rule: MANDATORY requirement, absence would affect the cause of action Exception: NOT MANDATORY when the ground is expiration of the lease Illustration: An action for unlawful detainer was filed. The allegation says that the defendant is the lessee to pay 50 thousand per month as rent. 12 months have lapse and still no payment despite repeated demands. The prayer demanded the payment of the unpaid rent. Can the defendant filed a motion to dismiss? Yes, the MTC has no jurisdiction because the case is not an unlawful detainer case based from the allegation. There was no demand to vacate, only to pay rentals. In the absence of the demand to vacate, the case falls as an action for the collection of a sum of money. The case should be filed before the RTC. Note: PAY AND VACATE UNLAWFUL DETAINER PAY OR VACATE COLLECTION OF MONEY HOWEVER, IF THE LEASE CONTRACT HAS ALREADY EXPIRED, THERE IS NO NEED TO DEMAND, THE CASE IS STILL AN UNLAWFUL DETAINER CASE. Which court has jurisdiction over real actions? If you are referring to real action of the unlawful detainer & forcible entry, the MTC has always jurisdiction. But if it is based on other real action, look at the ASSESS value of the property. ASSESS Value which is not market value Within Metro Manila not exceeding MTC; exceeding Outside Metro Manila not exceeding; exceeding RTC the fair 50,000 RTC 20,000
In an action for Unlawful Detainer and damages, which court has jurisdiction? MTC, because the main case is unlawful detainer. Damages is only incidental. Within what period shall you file and unlawful detainer & forcible entry from the time of the accrual of the cause of action? For unlawful detainer Within one year from the last demand For forcible entry within one year from the deprivation of the possession depending if knowledge is by fraud. Suppose the one year period has lapse? Then it will fall now as accion publiciana. One must look at the ASSESS VALUE. If within Metro Manila and such value does not exceed 50,000, the MTC has jurisdiction. Otherwise, the RTC has jurisdiction. If outside Metro Manila and such value do not exceed 20,000, the MTC has jurisdiction. Otherwise, the RTC has jurisdiction.
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When two or more person have conflicting claims, a person files an action for interpleader in order to know who between them is entitled to a property whether if by personal or real. Example: In a warehouse, if two person claims as the owner of a particular goods. If there is a question of ownership, the warehouseman should not delivery it to anyone. Let the court decide who the owner is. The warehouseman should file for interpleader. Which court has jurisdiction over an action for interpleader? The value of the property involved and the nature of the property involved should be checked. Is the subject of interpleader a personal or real property? In the warehouse receipt law, it is personal property because it is goods. Check the value basing from the 300,000 or 400,000 requirement. BAR What courts have jurisdiction over the following cases filed in Metro Manila? xxx d) An action for interpleader to determine who between the defendants is entitled to receive the amount of P190,000 from the plaintiff? Look at the amount of assessed value basing from the P300,000 or P400,000 requirement. The answer is P190,000. Hence, such falls within the jurisdiction of the Metropolitan Trial Court. Suppose it is a real property? Check the assessed value basing from P50,000 or P20,000 Action to remove a cloud on real property? Check the assessed value being from P50,000 or P20,000 Which court has jurisdiction in an action for unlawful detainer and forcible entry? MTC When you file for a main action for support, you sometimes ask for support pendent elite. Which court has jurisdiction in an action for support? Which court in an action for support would order the support pendent elite? RTC because an action for support is incapable of pecuniary estimation. Also RTC, because the support pendent elite is only a provisional remedy which is attached to the main action of support. Action for rescission of a contract where should it be filed? RTC because it is incapable of pecuniary estimation. Annulment of a contract? RTC because it is incapable of pecuniary estimation. Action for specific performance? RTC, because it is generally incapable of pecuniary estimation. Action for specific performance AND damages of P150,000? RTC because the main action is specific performance regardless of damages. Action for specific performance damages of P150,000? OR
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LOOK at the amount of the DAMAGES because this is a case in the alternative. BAR What court has jurisdiction over the following cases filed in Metro Manila? xxx a) An action for specific performance or in the alternative, for damages in the amount of P180,000? An action for specific performance or, in the alternative, for damages in the amount of P180,000 falls within the jurisdiction of Metropolitan Trial Courts in Metro Manila. Although an action for specific performance is incapable of pecuniary estimation, since the alternative demand for damages is capable of pecuniary estimation, it is within the jurisdiction of the Metropolitan Trial Courts in Metro Manila. Action for specific performance &/OR damages of P150,000? Still MTC because of OR< alternative nature. An action for injunction arises when you want to stop a person from performing acts that is damaging you. Which court will issue the writ of preliminary injunction in an action for injunction? RTC because the main action of injunction is incapable of pecuniary estimation. Hence, the same court has jurisdiction over the main action will issue the writ of preliminary injunction. Which court has jurisdiction to issue a writ of preliminary injunction in an action for damages? Determine the amount of damages. Determine the court which has jurisdiction over the main action for damages. If the damages is 1M, then the RTC will issue the writ of preliminary injunction. If the damages is 300,000, then the MTC will issue the writ of preliminary injunction. BAR A filed with the Metropolitan Trial Court of Manila an action for specific performance against B, a resident of Quezon City, to compel the latter to execute a deed of conveyance covering a parcel of land situated in Quezon City having an assessed value of P19,000.00. B received the summons and a copy of the complaint of 02 January 20032. On 10 January 2003, B filed a motion to dismiss the complaint on the ground of lack of jurisdiction contending that the subject matter of the suit was incapable of pecuniary estimation. The court denied the motion. In due time, B filed in the Regional Trial Court a Petition for Certiorari praying that the said order be set aside because the Metropolitan Trial Court had jurisdiction over the case. On 13 February 2003, A filed with the Metropolitan Trial Court a motion to declare B in default. The motion was opposed by B on the ground that his Petition for Certiorari was still pending. Was the denial of the Motion to Dismiss the complaint correct? Answer:
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The denial of the Motion to Dismiss the complaint was not correct. Although the assessed value of the parcel of land involved was P19,000 within the jurisdiction of the Metropolitan Trial Court of Manila, the action filed by A for Specific Performance against B to compel the latter to execute a deed of conveyance of said parcel of land was not capable of pecuniary estimation and, therefore, the action was within the jurisdiction of the RTC. (RUSSEL VS. VESTIL, 304 SCRA 738) Alternative answer: If the action affects title of or possession of real property, then it is a real action and jurisdiction is determined by the assessed value of the property. It is within the jurisdiction therefore of the Metropolitan Trial Court. (Go Chan vs. Go Chan) When will be a specific performance incapable or capable of pecuniary estimation? Illustration: INCAPABLE OF PECUNIARY ESTIMATION Cristina sold a land orally. The buyer resides now in the said lot after buying it from Cristina. There is already an actual delivery of the land. There is already transfer of ownership because the act of delivery transfers ownership ownership; it is the act of actual or constructive delivery. What if the buyer compels the seller through a specific performance to deliver the deed of conveyance? This is a case of incapable of pecuniary estimation, because there is no involvement of transfer of ownership. The ownership had already been transferred. Illustration: REAL ACTION I promise to pay her land on a certain day. She promised to execute a deed of sale over her land in my favor in a public instrument at the end of the month. I pay the land. She has not delivered the land to me. She said she is going to deliver to me a public instrument, a deed of sale. She refused. I sue her for specific performance for her to give me a notarized deed of conveyance. It this a real action or one incapable of pecuniary estimation? REAL ACTION, because there no delivery of the land. If the notarized deed of sale is delivered, the ownership is then delivered. The specific performance will involve a transfer of ownership to the buyer. It is a real action, look at the assessed value. Can the MTC handle land registration or cadastral proceedings? Yes, when DELEGATED by the Supreme Court. The SC delegated when the land involved is without controversy. And if there is controversy, the value of the land does not exceed P100,000. Action for injunction is filed in the RTC. Do you need jurisdiction over the person of the defendant in an action for injunction? Can he a resident be summoned by publication as a rule?
1477 CC The ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof.
When the land was delivered, the buyer became the owner of the land. What if not fully paid? Payment does not transfer
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Yes & No because it is an action in personam. Which court has jurisdiction in an action for specific performance? RTC Do you need jurisdisdiction over the person of the defendant? Yes because it is an action in personam I borrowed money from you. I did no pay despite demand. You sued me. What is the basis of you cause of action? THE CONTRACT OF LOAN Mr. Star is a driver of Estrella Lines, Ms. Javier is the passenger. Mr. Star sings while he drives and sings with feelings and closes his eyes. Mr. Star hit a meralco post. The passenger was injured. The passenger sued Estrella Lines. What is her basis for suing? THE CONTRACT OF CARRIAGE. It is immaterial that Ms. Javier failed to prove that Estrella Lines was negligent because article 1756 of the Civil Code presupposes that the common carrier was negligent. Can the passenger sue Mr. Star based on contract? No, however, Mr. Star can be sued for QUASI DELICT or contra extra contractual or culpa aquiliana. In this case, Ms. Javier must prove that Mr. Star was negligent because the driver is not the carrier. Elements of cause of action in a breach of contract (1) existence of a contract (2) breach of such contract Note: The issue of the negligence is irrelevant in a suit of a breach of contract. Whether the defendant be a private or common carrier, negligence is totally not involve. But when the suit is based on quasi-delict, negligence is an element of the cause of action. Reason: Quasi delict refers to an act or omission constituting fault or negligence causing damage to another there being no contractual relationship between the parties. Mr. Star is a drive of Estrella Lines, Ms. Javier is the passenger. Mr. Star sings
CAUSE OF ACTION
In order for you to have a right to file a complaint against another, you must have a cause of action. It is found in substantive law In order for one to have a cause of action, the following elements must appear: (a) a right of the plaintiff; (b) an obligation on the part of the defendant to respect or not to violate such right; (c) an act on the part of the defendant violating the right of the plaintiff resulting to damages on the latter. Sources of causes of action: a) law b) contract c) quasi contract d) delict e) quasi delict Illustration: I am working. I ma supposed to pay my taxes. I did not pay. The BIR will sue for collection of taxes. The BIR has the right of action. What is that source of that right of action? THE LAW Illustration:
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while he drives and sings with feelings and closes his eyes. Mr. Star hit a meralco post. The passenger was injured. The passenger sued Estrella Lines based on the cause of action of quasi delict. Is it possible? Yes, based on quasi delict due to bicarious liability. Estrella Lines being the employer of the driver for its negligence on the supervision and selection of its employees. There are instances when your case of action is dependant upon the performance of condition precedent. Example: If I sue Ms. Frando who is my wife before I sue my wife, there is a condition precedent that I must do as a husband. Family Code Section 151 No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. Examples as a ground for dismissal based on condition precedent (Rule 16 Section 1) 1. failure to exhaust administrative remedies 2. failure to comply with the lupon barangay tagapamayapa proceedings 3. earnest effort FC Sec. 151 Note: If one has a cause of action, it means that he has suffered injury or damages. If one has a cause of action, he must state his cause of action accurately in the complaint. If you failed to state your cause of action, your case may be dismissed on the ground of failure to state a cause of action. Illustration: Ms. Javier was a passenger coming from Cubao on the way to Balic2x. The bus hit a meralco post. Ms. Javier was injured. Hence, she filed a suit to demand from the driver to pay hospitalization expenses and damages. The driver filed a motion to dismiss for failure to state a cause of action for failure to allege negligence. The court granted the motion to dismiss because the driver is not the common carrier Note: If there is one cause of action, only one complaint should be filed. If you make it two complaints, it is prohibited. The rules of court prohibit the splitting of a single cause of action. Illustration: I filed an action for unlawful detainer because you did not pay the rentals for the past 6 months. May main prayer is for you to be ordered by the court to leave the premises and turn over the possession of the premises to me. Plaintiff won the case. The defendant left the case. The plaintiff filed an action to recover the unpaid rentals. Can the plaintiff do so? The plaintiff cannot file a new case. What the plaintiff did was to split a single cause of action. The plaintiff should have claimed the unpaid rental in the case of unlawful detainer. Note: In connection with the illustration, the remedy of the defendant is to file a motion to dismiss on the ground that the
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case is barred by prior judgment/ RES JUDICATA. The recovery of unpaid rental is an integral part in the case of unlawful detainer. On the other hand, if the case for unlawful detainer is still pending, the defendant can file a motion to dismiss on the LITIS PENDENCIA there is a pending action between the same parties for the same cause. The remedy of the plaintiff to avoid the motion to dismiss by the defendant is to amend his complaint with leave of court if there is already an answer. If there is no answer, amend your complaint without leave of court because it is a matter of right. Illustration: An obligation that is performed by installment or an obligation which is divisible or periodic payment. Let us say, I am a lessee and you are a lessor, rental 50,000 a month. Traditional jurisprudence states that each failure to pay, each default for every month is a cause of action separate from a default from each month. Hence, you can file a separate action for each month. If the lessee failed for three consecutive months i.e. January to March, and I decided to file an action in April, I must incorporate all the default in one complaint. Illustration: You promised to deliver to me 120 drums of gasoline. Every month, 10 drums should be delivered to me but before the first delivery, you cancelled the delivery for all 120 drums. There is a total breach. In this case, you must file only a single cause of action in accordance with the doctrine of anticipatory breach. At the outset, the defendant already manifested his refusal to perform his periodic obligation. Section 4 Rule 2 Splitting a single cause of action If two or more suits are instituted on the basis of the same cause of action, the filing of one or judgment upon the merits in any one is available as a ground for the dismissal of the others. If you split a single cause of action, could the other action be dismissed? Yes, the grounds are Litis Pendencia if the previous action is not yet over and Res Judicata if the previous action is over. Section 5 Rule 2 Joinder of Causes of Action A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may against an opposing party, subject to the following conditions: (a) The party joining the causes of action shall comply with the rules on joinder of parties; (b) The joinder shall not include special civil actions or actions governed by special rules; (c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of
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said court and the venue lies therein; and (d) Where the claims in all the causes of action are principally for recovery of money the aggregate amount claimed shall be the test of jurisdiction. 1st Situation one-on-one 1p vs. 1d 2nd Situation free for all 1 or more p vs 1 or more d If there are several transactions involving one defendant and one plaintiff, never mind if the causes of action aroused out of different transactions or occurrences as long as they are governed by the rules on ordinary civil actions. Illustration: With respect to the previous illustration, we shall add a sixth cause of action involving an action for damage amounting to 1M. Can you join the last action with the other 5 action? Yes because the action for damages is still an ordinary civil action. If you file the 5 causes of action separately, the court having jurisdiction over the case is the MTC. However, if you join all the 5 causes of action in one action, the resulting sum would fall within the jurisdiction of the RTC. Illustration: Can you join an action for unlawful detainer with the 6 causes of action? No, because unlawful detainer is a special civil action under Rule 70 which is not an ordinary civil action. Section 6 Rule 2 Misjoinder of causes of action Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. If there is a misjoinder of causes of action and you are the defendant, what is you remedy? Your remedy is not to ask a motion to dismiss, but to ask the court that it be
1st Situation 1 plaintiff against 1 defendant Illustration: There is one defendant and one plaintiff but the defendant owes the plaintiff several amounts namely: PN 300T, PN 250T, PN 350T, PN 100T, PN 180T. All the PN where subject to different due dates, all are due and demandable and demand had been duly made by the plaintiff against the defendant. How many causes of actions does the plaintiff have against the defendant? 5 causes of actions because each PN is an independent cause of action. Can the plaintiff file a separate action for each promissory note? Yes. Can the plaintiff file one action to file for all the 5 causes of action? Yes, this is a case of joinder of causes of action. However, the plaintiff can not be compelled or obliged to file one cause of action because joinder is not compulsory nor mandatory. It is only permissive. Note:
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drafted and separated because a Misjoinder of causes of action is not a ground for dismissal. 2nd Situation 1 or more plaintiffs against 1 or more defendants Illustration: Defendant 1 owes plaintiff P300T, Defendant 2 owes plaintiff P250T, Defendant 3 owes plaintiff P250T and Defendant 4 owes plaintiff P300T. All debts are due and demandable. Demand has been made. Everybody pretended no to know about the demand. Everybody ignore the demand. Plaintiff was advised by the lawyer to file a single action against the defendants. Plaintiff filed the action in the RTC. Is the advise of the lawyer correct. No, the lawyer is not correct. The action cannot be filed in a single action. There are several defendants with separate causes of action. If you file a single action, would a motion to dismiss be a proper remedy? No because misjoinder is not a ground for dismissal. Note: If there are several parties involved, follow the rules in joinder of parties under Section 6 Rule 3 which applies when there are 1 or more plaintiffs against 1 ore more defendants. Requisites for Joinder of Parties 1. Their transactions must be a common transactions or occurrence; and 2. Common question of law or fact. Illustration: Mr. Star is a driver of Estrella Lines, Ms. Javier is the passenger. Mr. Star sings while he drives and sings with feelings and closes his eyes. Mr. Star hit a meralco post. The passenger was injured. Can Ms. Javier sue the driver based on quasi delict? Yes, negligence in driving. Can Ms. Javier sue Estrella Lines based on a quasi-delict even if there is a contract? Yes, Estrella Lines will be sued as an employer based from Art. 2180 (Bicarious Liability) - negligence in the selection and supervision of employees. Can Ms. Javier sue them under one complaint of quasi-delicts? Yes, because it arose out of the same transaction or accident even if the causes of action are different. There was a single accident that gave rise to two liabilities of two persons. The cause of action against the driver is his negligence in driving. The cause of action to the employer is its negligence in the selection and supervision of an employee, if they are sued in a quasi delict. Illustration: The promissory note was signed by 5 makers, ABCDE. The 5 makers promised to pay 1M on August 1, 2005. There has been a demand but still no payment. Is there already a cause of action? Yes, because there is already delay. How many debts are there? 5 debts. Reason: Under the civil code, when the situation is silent, the obligation is presumed to be joint. The credit or debt shall be presumed to be divided into as many equal shares as there are creditors or debtors, the credits or debts being considered distinct from one another. (Art. 1208 of the Civil Code)
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If there are 5 debts, what are the debtor and creditor relationship Payee vs. A 200T Payee vs. B 200T Payee vs. C 200T Payee vs. D 200T Payee vs. E 200T 1M IN THIS CASE, THERE ARE 5 CAUSES OF ACTION Can there be 5 suits that will be filed by the payee if he likes? YES, individually, he can collect 200T from each maker. In a joinder of causes of action, can the payee file a single suit against all the makers? Yes, because it arose out of a single transaction or a single promissory note. ALTERNATIVE CAUSES OF ACTION One can avail of this when he doesnt know what is his cause of action is. Illustration: A couple has 3 minor children. They rode a bus. When they arrived at the terminal, the father left a package in the bus. He went back to the bus not knowing that his youngest child followed him. The child was rolled over by the bus resulting to his death. The lawyer filed a complaint based on the alternative causes of action. First cause of action was on quasi delict or in the alternative, breach of contract of carriage. Section 2 Rule 8 Alternative causes of action or defenses A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them, if made independently would be sufficient, the pleading is not made insufficient by the sufficiency of one or more of the alternative statements. Section 13 Rule 3 Alternative defendants Where the plaintiff is uncertain against who of the several persons he is entitled to relief, he may join nay or all of them as defendants in the alternative, although a right to relief against one maybe inconsistent with a right of relief against the other. Example: While walking along Recto Avenue, two jeepney collided. As a result of the collision, a piece of glass flew towards you causing you injuries. You can SUE UNDER THE ALTERNATIVE CAUSES OF DEFENDANTS. Is it possible to have ALTERNATIVE PLAINTIFFS? Yes, under the joinder of parties. Section 6 Rule 3 all persons in WHOM OR AGAINST whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant
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from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. Note: In order to know the nature of a cause of action, one must look at the allegations of the complaint. The title given to the case is not the determinative factor of the cause of action. Illustration: The title of the case is UNLAWFUL DETAINER. The allegations are as follows: 1. The plaintiff is the owner of the apartment, leased by the lessee 2. The lessee defaulted in paying the rental for six months. 3. The lessee prevented the plaintiff lessor from entering the premises due to FITSS. From the allegations, the action is not really unlawful detainer but an action for forcible entry. The shortcut given by the Supreme Court is FAILURE TO STATE A CAUSE OF ACTION. Rule 16 Section 1(g) is different from absence of a cause of action. How would you know if there is a FAILURE TO STATE A CAUSE OF ACTION? It is determined by the pleading. Note: The absence of a personality to sue means that he is not a real party in interest. A real party in interest is the party two stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Illustration: Ms. Frando is Dean Rufuss daughter. She married Mr. Star under circumstances of duress. Dean was mad with him and filed an action for annulment. Can Mr. Star file for the dismissal of the case on the ground that Dean is not the party in interest. Yes, but there is no ground that say not a real party in interest. The correct ground is Rule 16 Section 1(g) that the pleading asserting the claim states no cause of action. FAILURE TO STATE A CAUSE OF ACTION. How do you know that there is no cause of action, that there is an absence of a cause of action? The evidence will tell you. This is actually a motion to dismiss called a demurrer to evidence, absence of evidence under Rule 33. If you are not a juridical person, natural person or an entity authorized by law, what is the ground for dismissal? NO LEGAL CAPACITY TO SUE
PARTIES
A suit must be defended and prosecuted in the name of the real party in interest. (Section 2, Rule 3) A violation of this rule will result in dismissal of the complaint for failure to state a cause of action. Section 1 Rule 16 Motion to Dismiss (g) That the pleading asserting the claim states no cause of action
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Illustration: A corporation but not a true corporation, one can file a motion to dismiss on the ground of no legal capacity to sue. In the hearing, present evidence. Note: A motion to dismiss is subject to a hearing. In the hearing, you present evidence. Section 15 Rule 3 Entity without juridical personality as defendant When two or more persons not organized as an entity with juridical personality entered into a transaction, they may be sued under the name by which they are generally or commonly known In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. Can oceanquest be a plaintiff under the name of oceanquest? No, it can only be a defendant pursuant to Section 15 Rule 3. If ocenquest sues, the remedy is a motion to dismiss on the ground of lack of capacity to sue. Illustration: Mr. O owns a house and he is at the same time, the lessor. Mr. D is the lessee Mr. T, a third party occupy the premises under the circumstances of forcible entry. Mr. O filed an action for forcible entry against Mr. T. Mr. O goes to you to seek for legal advice. What would be your advice? I would object to the suit. The owner is not the real party in interest so he fails to state a cause of action. Even if Mr. O is the owner, he is not the possessor of the premises. At that time, the possessor is Mr. D, the lessee. The right of the owner is not affected. What was affected was the possession of the property. But if the apartment was destroyed, then Mr. O can sue for damages. Mr. O now has the legal capacity to sue because the issue now is his right to his property. His property was affected. Section 7 Rule 3 Compulsory joinder indispensable parties Parties in interest without whom final determination can be had of action shall be joined either plaintiffs or defendants of no an as
Philippine Fishing Gear Corporation case A, B, C, D, E have not actually formed a corporation. But they actually called themselves Oceanquest Corporation. They obtained a loan for the purpose of acquiring fishing nets. They failed to pay. The plaintiff creditor sue them under the name Oceanquest Corporation.
Can they be sued under the name oceanquest? Yes under the name they are commonly known as a corporation by estoppel. But when the defendant will file an answer, the answer should not be in the name of oceanquest. It should identify the names of each and every individual together with addresses because they are the ones liable not oceanquest. Oceanquest is not a person.
Section 8 Rule 3 Necessary party A necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete
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determination or settlement claim subject of the action. of the state the reasons why such plaintiff is made a defendant. Section 12 Rule 3 Class Suit When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the courts finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. Requisites of a class suit: 1. The subject matter is one of common or general interest to many persons, and 2. The persons are so numerous that it is impracticable to join all of them as parties
Illustration: A & B are the makers of the promissory note. They promise to pay. The payee can sue either A or B. When payee sues A alone, is he bound to include B? No, because in a suit by the payee against A, B is not an indispensable party because the payee can collect from A his share of the debt without including B. However, in order to collect the entire amount of the debt, he must include B in the complaint because be is a necessary party. Suppose that the obligation is solidary, can the payee sue A alone and collect the entire amount of the debt? Can the payee sue B alone and collect all the amount of the debt? What kind of party is B? Yes, because the obligation is solidary. B is neither a necessary or indispensable party. B is not a necessary party because complete relief can be had without B. B is not an indispensable party because the payee can collect the entire amount without B. Section 10 Rule 3 Unwilling co-plaintiff 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 therefore shall be stated in the complaint. In this instance, one does not have a cause of action against the other plaintiff because he is a plaintiff like you but the trouble is that he doesnt want to join you as a plaintiff so he must implead such plaintiff as the defendant. But one must
Mathay vs. Consolidated Bank A land owned by A, B, C, and so on. Land was seized by XYZ Corp and claimed it as its own. Can all of them file a class suit against XYZ Corp.? No, there is no common or general interest. The reason is that the interest of A is confined to his land and it is not shared by B and so on. Newsweek vs. IAC There was a Newsweek Article about the sugar planters of Negros wherein the authors described the sugar planters as feudal lords, exploiters, cruel etc. The sugar planters of Bocolod filed a libel suit against the Newsweek in a class suit. Is there a class suit?
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There is no class suit because of the absence of general or common interest. Reputation is personal. If one is a sugar planter, he is not concerned with the reputations of others. He is only concerned with his own reputation.
BAR Four hundred residents of Barrio Ramos initiated a class suit through Albert, a former mayor of the town, to recover damages sustained due to their exposure to toxic wastes and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation located in the town? Is the class suit proper? The class suit is not proper. An essential element of a class suit is that the subject matter of the controversy must be of common or general interest to many persons. This requirement is not met by the facts under consideration. Each of the plaintiffs has a separate and distinct injury not shared by other members of the class and as a consequence each supposed plaintiff has to prove his own injury suffered. BAR An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All the passengers and crew perished. Twenty relatives of the fatalities of all those who perished in the mishap filed a class suit for damages totaling P5 million against the airplane. The propriety of the class suit is questioned by the defendant. Resolve the issue. The class suit is not proper. An essential element of a class suit, among others, is that the subject matter of the controversy must be of common or general interest to many persons. This requirement is not met by the facts under consideration. Each of the plaintiffs has a separate and distinct injury not shared by other members of the class and as a consequence, each supposed plaintiff has to prove his own injury suffered.
Borlasa vs. Polistico Friends contributed money. Each of them contributed 1,000 in a common fund every week. After a year, one of them stole it. Hence, the remaining individual filed a class suit. Is the class suit proper? The class suit is proper because it does not involved land, reputation, toxic fumes. It involves money which is a proper subject of a class suit?
How can you distinguish Barlosa vs. Polistico from the Mathay & Newsweek cases? In the Barlosa case, upon the contribution of the amounts every week, the same cannot be identified anymore. It resulted to the merger of the interest of one contributor with the others. One cannot identify the actual money contributed. On the other hand, with respect to the Mathay & Newsweek cases, the interest of each of the plaintiffs can be identified. What happens if during the pendency of the action and before the entry of
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judgment, the defendant in the action dies? One must combine Sections 16 and 20 of Rule 3 From the point of view of the lawyer, he has an obligation to notify the court about the death of his client. His failure to make a report within 30 days could result to his being subjected to disciplinary action. Upon the death of his client, there is no longer existing attorney-client relationship. The court shall then ask itself if the death of the defendant extinguished the suit or not. If the suit survives, the court is going to make an order of substitution. The heirs may be the representatives and the case will go on. If the defendant loses, it will be claimed and presented in the settlement of the estate. Note: When there is an order of substitution by reason of death of a party, the substitute does not have to be summoned. The court will acquire jurisdiction over his person through order of substitution. What is required is that the person he substituted has been summoned by the court. The substitute needs order of substitution no summons. BAR When the father dies, the court ordered the amendment of the pleading to implead the son. Is the court correct? No! The court did not have jurisdiction over the son because there is a difference between an order to amend the pleading and order of substitution. Note: While the trial court is empowered to name an heir of a deceased litigant as a substitute litigant, the person so directed to appear as a substitute litigant has the prerogative to accept or not to accept the role as a substitute litigant. So a court cannot compel anyone of the heirs to go to court and to play the role of a substitute litigant. If none of the heirs accept, the court can require the adverse party to secure the appointment of an executor or administrator who cannot refuse to accept the designation as substitute litigant because his duty is to represent the estate of the deceased person.
PLEADINGS
Pleadings are written statements or allegations of the cause or defenses submitted to the court for judgment. It must contain allegations presented in methodical and logical form. That is, in concise and direct language stating the cause of action or defenses. Generally, pleadings consist of three parts, namely: caption, body, signature and address. A caption sets forth the name of the court, the title of the action and the docket number if assigned. The body of the pleading sets forth its designation, the allegations of the partys claims or defenses, the relief prayed for and the date of the pleading. What is the other name for the Relief? Prayer. Is the prayer an integral part of the complaint? It is but it is not
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substantial. The nature of the allegations will prevail over the prayer. General Rule: You can have more than what is prayed for in the pleading when: (a) authorized by the evidence not objected upon by the other party; and (b) by the general prayer Exception: When there is a judgment of default under Sec. 3 Rule 9 letter d. Section 3 Rule 9 Default; declaration of xxx (d) Extent of relief to be awarded A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. Who will sign the pleading? Can a party sign the pleading? Yes. Can the counsel sign the pleading? Yes, but there must be an address which is not a post box office address. The significance of the signature of counsel in the pleading is that it constitutes a certificate by him that he has read the pleading, that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay. As a general rule, pleadings need not be verified or under oath unless the law or rules say so. Examples of pleadings that needed to be verified (1) certiorari (2) prohibition (3) mandamus (4) habeas corpus (5) quo warranto (6) cases falling under special proceedings (7) all pleadings under summary procedure like unlawful detainer and forcible entry. Note: Failure to verify is only a formal defect. One can ask the court to correct the mistake but of course one must explain to the court that it is done inadvertently and not intended for delay. The reason for the oath is to enable the court to have the assurance that you are telling the truth and running the risk of false testimony because you are very sure of the truth of the pleading. How do you verify the pleading? You must prepare it in the form of an affidavit. What are the contents in the affidavit? You have read the pleading that the allegations therein are true and correct of your personal knowledge or based on authentic documents. Certification against forum shopping Undertakings in the certification against forum shopping (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other action or claim is pending thereon; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid
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complaint or initiatory pleading has been filed. The doctrine is that the certification against forum shopping must be certified by the plaintiff and not the lawyer. The certification against forum shopping is needed in initiatory pleadings like complaint, cross claim, permissive counter claim, 3rd party complaint and complaint in intervention. I filed a complaint and I forgot to include a certification against forum shopping. The court upon noticing it, mentioned it to me. I asked leave of court to amend to include the certification. The court granted the motion for leave to amend the complaint. Is the court correct? No! 2nd paragraph of Section 5 states that failure to comply with the foregoing requirements shall not be curable by amendments. Note: Even if the amendment is a matter of right, the specific provisions of Section 5 Rule 7 will prevail over the general provisions of Section 1 Rule 10 and such provision supplies a new ground for a motion to dismiss aside from Rule 16. Can the court dismiss the complaint motu proprio for failure to attach the certification against forum shopping? No! it is not motu proprio. There must be a motion, there must even be a hearing upon motion. If a complaint is dismissed for failure to comply with the rules against forum shopping, what does failure to comply mean? (1) There is no certification (2) There is a certification but the contents are not those required by Sec. 5 and (3) it is signed by someone else not authorized to sign. When a complaint is dismissed on the ground of failure to comply with the rules against forum shopping, the plaintiff can still re-file the complaint because such dismissal is without prejudice. What if you complied with the rules but the court still dismisses the complaint, can you appeal the case? No, because the dismissal made by the court is without prejudice and the dismissal without prejudice is not appealable. The remedy is to file a petition for certiorari on the ground of grave abuse of discretion. However, when the dismissal is with prejudice, the plaintiff can appeal (memorize Section 1 Rule 41)
MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Evidentiary facts have no place in the complaint because under Rule 8, Section 1, a complaint must only contain the ultimate facts. Evidentiary facts are found only during the trial. If there are evidentiary facts contained in the complaint, the remedy is to file a motion to strike out. With respect to conditions precedents that must be complied with, a general averment is sufficient. Illustration: If the suit is between members of a family, there must be an allegation that earnest efforts have been attempted but have failed. In such case, all one must state in the complaint is that I have filed
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an action against my wife and that earnest efforts were attempted but she refused so the earnest efforts failed. However, there are certain allegations that must be stated with particularity. These are circumstances of fraud or mistake. Section 5 Rule 8 Fraud, mistake, condition of the mind In all averments constituting fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. xxx Illustration: I entered into a contract with a Japanese rice dealer. He is going to deliver to me 100 sacks of Class A Japanese rice at 10,000 pesos per sack. He showed me the sacks of the rice and I noticed that authenticity. We agreed to the price. Delivery was to be made two weeks after. In order to defraud me, half of the sack was filed with Class B rice and were delivered to me. Was there fraud? Yes, but that fraud did not affect the validity of the contract because there was nothing in the agreement. What was wrong is the fulfillment of the contract and the fraud is incidental to the contract. Hence, I must write in my complaint the circumstances as to how I was defrauded. But conditions of the mind need not be alleged with particularity, only generally. Illustration: I claimed that Miss X is insane, I do not have to say why and how is Miss X insane. Such details would have to be for the trial. All I have to say is that Miss X is insane. Section 7 Rule 8 Action or defense based on document Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with the like effect be set forth in the pleading. Section 8 Rule 8 How to contest such documents When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party in the instrument or when compliance with an order for an inspection of the original document is refused. When a complaint is based on an actionable document it means that either basis of your action or defense is a document. The document does not refer only to a complaint but also refers to a defense or an answer. It may be the basis of a counterclaim or cross-claim or thirdparty claim or answer to a complaint or answer to a counterclaim and an answer to a cross-claim, answer to a third-party complaint.
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Methods of pleading a document as a basis of ones complaint or defense (1) State the substance of that document in your plead and then attach the copy of the original Example: Mr. X borrowed from me 200,000 pesos payable in Baguio City on October 1, 1999 and he signed a promissory note, the copy of which is hereto attached to form an integral part of the complaint as Annex A (2) To have to copy set forth in the pleading. From the above example, it means one must copy entire promissory note in verbatim in the pleading. If one wishes to deny the actionable document, one must specifically deny it under oath. Failure to do so is tantamount to admitting the genuineness and due execution of the document. However, the requirement under oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. Illustration: Before my father died, he was sued for a promissory note for 5 million pesos but he died. He was the defendant. I was ordered to be the substitute. When I looked into the promissory note, I noticed that the signature was a forgery. So I filed an answer as a substitute denying the signature of my father and denying the genuineness of that signature. But I did not deny under oath. The court said that I have deemed to have admitted to the genuineness and the due execution of the document. I argued in court. Do I have an argument? Yes, the denial under oath applies only to a party to the document. My name was not in the document, I was not even a party. So I do not have the obligation to deny it under oath. Allegation of usury in a complaint to recover usurious interest is another denial which must be under oath aside from an actionable document. Section 11 Rule 8 Allegations not specifically denied deemed admitted xxx. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. Suppose it is an allegation of usury in a counterclaim to recover usurious interest, should you deny it under oath? Yes, because the counterclaim has the effect of a complaint. The word complaint is used in the generic sense.
AMENDMENTS TO PLEADINGS
Amendment to pleadings arises whenever the plaintiff, upon filing of the complaint, realizes that he has something to change thereto. One can amend his complaint even without leave of court provided that it is done before the defendant serves his responsive pleading. A responsive pleading to a complaint is called an answer. Hence, the plaintiff can amend his complaint as a matter of right before the defendant serves his answer. Note: When the amendment is a matter of right, it means that it does not matter whether the amendment is substantial or
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not because of the tenor of Sec, 3 Rule 10. This is an effective way of thwarting a motion to dismiss Section 3 Rule 10 Amendments by leave of court Except as provided in the preceding section, substantial amendments may be made only upon leave of court. xxx Amendment as matter of right cannot be denied. If rejected, one can compel the court or clerk of court through the extraordinary remedy of mandamus because there is no discretion involved. However, the moment a responsive pleading has been served, leave of court is required to make an amendment to ones complaint especially when the amendments are substantial. Could you amend your complaint as a matter of right to correct a jurisdictional error? Yes, provided it is done as a matter of right. Example: A claim for damages amounting to 300,000 was filed with the RTC of Manila. The defendant filed a motion to dismiss based on lack of jurisdiction. The plaintiff amended the complaint and added 400,000 in order to place the claim within the jurisdiction of the RTC. The RTC said that plaintiff should have asked for its leave of court Leave of court is not required because a motion to dismiss is not a responsive pleading.
vacate. It was filed in the lower court and the amount of rentals to be recovered was within the jurisdiction of the then CFI. The defendant filed a motion to dismiss on the ground of lack of jurisdiction because the allegations make out a collection of sum of money and the amount is beyond the jurisdiction of the lower court. The plaintiff filed an amendment and placed therein the demand to vacate. The trial court granted the amendment. The court acted correctly because the motion to dismiss is not a responsive pleading.
Example: A claim for damages amounting to 300,000 pesos was filed before the RTC. The defendant, instead of filing a motion to dismiss, filed an answer including therein lack of jurisdiction as an affirmative defense. In this case, the plaintiff must ask for leave of court because the amendment ceases to be a matter of right. However, the court will not grant the leave because it has no jurisdiction over the claim for damages. Hence, what the court will do is to dismiss the complaint.
Solidad vs. Mamangun This was an unlawful detainer case anchored on the recovery of nonpayment of rentals but there is no demand to
Campos Rueda Corporation vs. Bautista The plaintiff, a former employee of the defendant filed a complaint against the latter before the then Court of Industrial Relations for recover of compensation for alleged overtime, Sunday and holiday services rendered. The defendant filed a motion to dismiss on various grounds and later a supplementary motion to dismiss alleging lack of jurisdiction over the subject matter because the complaint did not seek for reinstatement of the plaintiff who had ceased to be employed by the defendant. There was hence, an absence
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of employee-employer relationship. The motion to dismiss having been denied, the defendant filed his answer to the complaint alleging lack of jurisdiction as one of the affirmative defenses. The defendant, realizing that the Court of Industrial Relations had no jurisdiction over the claims, filed a motion for leave to amend his complaint and to admit his amended complaint. In his amended complaint, he alleged illegal dismissal and as a consequence, he claimed being entitled to reinstatement. The amendment was to make his case fall within the jurisdiction of the court. The Supreme Court ruled that a complaint cannot be amended to confer jurisdiction on the court in which it was filed, if the cause of action originally set forth was not within the courts jurisdiction.
BAR On May 12, 2005, the plaintiff filed a complaint in the Regional Trial Court of Quezon City for the collection of P250,000.00. The defendant filed a motion to dismiss the complaint on the ground that the court had no jurisdiction over the action since the claim amount of P250,000.00 is within the exclusive jurisdiction of the Metropolitan Trial Court of Quezon City. Before the court could resolve the motion, the plaintiff, without leave of court, amended this complaint to allege a new cause of action consisting in the inclusion of an additional amount of P200,000.00, thereby increasing his claim to P450,000.00. The plaintiff thereafter filed his opposition to the motion to dismiss, claiming that the Regional Trial Court had jurisdiction over his action. Rule on the motion of the defendant with reasons. The motion to dismiss should be denied. Basic is the rule that a motion to dismiss is not a responsive pleading. So the amendment is still a matter of right. The court in allowing the amendment is not acting without jurisdiction because allowing an amendment as a matter of right does not require the exercise of judicial discretion. The court therefore would not be acting and could not have acted without jurisdiction. Note: When a motion to dismiss is filed for lack of jurisdiction and the court grants the motion. The plaintiff can amend his complaint as a matter of right before the finality of judgment. It means you can amend your complaint within 15 days from the dismissal. This is the opinion of Regalado and Feria. There is also an implied amendment. It arises whenever, one raise an issue during trial which is not included in the pleading and not objected upon to by the other party. Dismissal of Action upon Notice by plaintiff Under Rule 17, the plaintiff can dismiss his complaint by notice 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 court does not have to approve the dismissal; it merely issues an order confirming the dismissal The plaintiff can dismiss the same complaint twice provided that the defendant has not yet filed a responsive
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pleading. Afterwards, he cannot refile same complaint. Once a responsive pleading has been served, one must ask for leave of court. If you want to dismiss the complaint, you must file a motion to dismiss, not a notice of dismissal. Note: The dismissal of the complaint at the instance of the plaintiff does not carry with it the dismissal of the counterclaim. BAR An answer was filed but was with a compulsory counterclaim. The plaintiff decided to have his case dismissed. He filed a motion to dismiss. The court dismissed the complaint in accordance with the plaintiffs motion. Will the dismissal of the complaint also carry with it the dismissal of the counterclaim? No, according to Section 2 of Rule 17, the dismissal of the complaint does not carry with it the dismissal of the counterclaim even if it is compulsory. The defendant who filed the counterclaim has the option to whether or not to continue with it. Motu proprio dismissal of action on the part of the court due to the fault of the plaintiff Grounds for motu proprio dismissal on the part of the court 1. Plaintiff does not appear during the presentation of evidence. (Sec 3 Rule 17) 2. Plaintiff fails to prosecute his case for an unreasonable length of time. (Sec 3 Rule 17) 3. Plaintiff does not comply and follow with the Rules of Court (Sec 3 Rule 17) 4. Plaintiff does not comply with the order of the court (Sec 3 Rule 17) 5. Litis pendencia (Sec 1 Rule 16) 6. Res judicata (Sec 1 Rule 16) 7. Prescription (Sec 1 Rule 16) 8. Lack of jurisdiction over the subject matter (Sec 1 Rule 16) 9. Cases covered by the rules on summary procedure (Sec 4. of the Revised Rules on Summary Procedure)
SUMMONS
It is the clerk of court who issues the corresponding summons to the defendant upon the filing of the complaint and the payment of the requisite legal fees. When an amendment to a complaint is allowed the question on whether or not new summons shall be issued will depend upon the nature of the amendments. If the amendments are clerical, no new summons shall be served. If the amendments are substantial, new summons must be served unless the defendant voluntarily appears before the court. Whenever the plaintiff files a complaint in court; the court automatically acquires jurisdiction over the plaintiff. But we dont always need jurisdiction over the defendant. In an action IN PERSONAM jurisdiction over the defendant is needed. Hence, the defendant should be notified. The defendant must read the notice so that the court can acquire jurisdiction over him. If the action is IN REM or QUASI IN REM, the defendant need not be notified or an individual notice be given
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because an action IN REM or QUASI IN REM is directed to the whole world. Simple publication would be enough. Examples of QUASI IN REM 1. Foreclosure of real estate mortgage 2. Attachment 3. Preliminary Injunctition refuses to receive and sign for it, by tendering it to him Tendering is an element of service in person when the defendant refuses to receive and sign for it. Before tendering, the sheriff should exert earnest effort to locate the defendant person. 2. Substituted Service Section 7 Rule 14 (exception to Section 6 Rule 14) If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected by: (a) leaving copies of the summons at the defendants residence with some persons of suitable age and discretion then residing therein, or (b) leaving the copies at the defendants office or regular place of business with some competent in charge thereof.
How does the court acquire jurisdiction over the person of the resident defendant in an action in personam? By voluntary appearance or valid service of summons.
2 Kinds of Defendants I. Resident of the Philippines a) Voluntary Appearance it arise when the defendant voluntarily submits himself to the jurisdiction of the court. SECTION 20 RULE 14 VOLUNTARY APPEARANCE The defendants voluntary appearance in an action shall be equivalent to service of summons. Example: When before the service of summons, the defendant files an answer or a motion for extension of time to file an answer. Such action is equivalent to voluntary appearance. b) Valid service of Summons Types of Summons: 1. Service in the person of the defendant Section 6 Rule 14 Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he
BAR In a suit for damages filed in the RTC of Manila, the sheriff, one early morning, went to the residence of the defendant in San Miguel but he was told that the latter was in another city for a business meeting and would be back before the noon on the same day. There and then, the sheriff served summons together with a copy of the complaint on the defendants son, a 25
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year old married man who is the Ds house on a mere visit. (a) May a subsequent judgment on default be successfully assailed? If so, on what grounds (b) May the motion to dismiss be anchored on personal jurisdiction (Lack of jurisdiction over the person of the defendant), prescription, and violation of the statute of frauds without being construed as a voluntary appearance? Answer: (a) Yes. No jurisdiction over the person of the defendant because there was no valid service of summons. Why? 1. There was no showing that earnest efforts were made in finding the person of the defendant. 2. If ever there was a justification for a substitute service. The substituted service is procedurally defective. It was served upon the person who does not reside in the house of the defendant. (b) Yes, Sec. 20, 2nd sentence. Section 20 Rule 14 Voluntary appearance xxx. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. General Rule: No summons by publication is allowed in an action IN PERSONAM. Publication can only be used in QUASI IN REM and IN REM. Example: ACTION FOR DAMAGES need jurisdiction over the person of the defendant because it is an action IN PERSONAM. So to acquire jurisdiction over the person of the defendant, there must be a valid service of summons which can either be service in person or substituted service of summons. Exception (Publication can be authorized) 1. Residence is Unknown 2. Identity is Unknown 3. Resident is known but is temporarily out of the Philippines. 1. Section 14 Rule 14 Service upon defendant whose identity or whereabouts are unknown In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. The phrase in any action makes no distinction whether such rule is applicable only to an action in rem or in personam. Hence, the rule is applicable to both. Correlate Section 14 Rule 14 to Section 14 Rule 3 Unknown identity or name of defendant Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require when his identity or true name is discovered, the pleading must be amended accordingly. Example: John Doe or Jane Doe 2. Section 16 Rule 14 Residents temporarily out of the Philippines When any action is commenced against a defendant who ordinarily resides
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within the Philippines, but who temporarily out of it, service may, leave of court, be also effected out the Philippines, as under Section Rule 14 is by of 15
To justify summons by publication, an action IN PERSONAM can be converted into an action QUASI IN REM when there is a motion for writ of execution Banco vs. Brazil A ship anchored at La Union for repair. The ship captain is authorized to look for the repairer. The captain and Mr. X, the ship repairer entered into a contract of services to repaid the ship. The ship was registered in Panama hence it is of Panamanian foreign ship. The Bureau of Custom claimed that the ship was a Philippine Ship which was hijacked in the high seas. The government seized the ship. Mr. X was not paid with the contract of repaid. Mr. X filed a suit in the RTC for collection of $1million plus interest and damages against the government and ship owners who are in the Philippines and those who are not in the Philippines one of them was Banco Du Brazil. The RTC held the ship owners and Banco Du Brazil liable for the amount. Only Banco Du Brazil and international bank hired a Phil. Lawyer who questioned the validity of the RTC judgment on the ground of jurisdiction over the person of the defendant. Is there legal basis for Banco Du Brazil to question the judgment? Yes, Banco Du Brazil has legal ground. This is an action IN PERSONAM. Banco Du Brazil is a non-resident defendant hence, summons by publication is not allowed. The remedy would be to file for a preliminary attachment aside from the collection of money to the ship since it was in the Philippines. The attachment would convert the action IN PERSONAM to an action QUASI IN REM if there is a writ of attachment granted by the court.
How does the court acquire jurisdiction over the person of the non-resident defendant in an action in personam? By Voluntary appearance or valid service of summons within the Philippines
Can you be a non-resident defendant even if you are in the Philippines? Yes, as a tourist in the Philippines. II. Non-resident Defendant a) Voluntary Appearance in Section 20 Rule 14 b) Valid service in person within the state (within the Philippines) In this case, there is absolutely no summons by publication and no substituted service because he is not a reside. Note: Summons by publication can only be applied in an action IN REM or QUASI IN REM. Can the court validly render judgment to an action for annulment of marriage assuming all procedures were followed even if the summons is by publication? Yes, because annulment of marriage is an action IN REM. There is no need for the jurisdiction over the person of the defendant. What is needed is only the jurisdiction over the res which is the status of the individuals.
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If already attached, PUBLICATION can be possible because the jurisdiction now is over the res not over the person of the defendant. Lecarus vs. Lecarus An action for annulment of marriage was filed here in the Philippines. Summons by publication is possible even if one of the parties is abroad. Annulment of marriage is an action In Rem. Gomez vs. CA Two siblings one resides in Bohol, Philippines and others are resident of New Jersey were sued for action for specific performance because of the land sold by their parents. Before the parents died, the land was paid and delivered to the seller except the notarized deed of sale was not delivered. By operation of law, the siblings became the heir of the land. The plaintiff asked the court for summons by publication which was granted by the court. Judgment was rendered to the two siblings ordering them to execute a deed of sale. Can they be compelled to execute the deed of sale? No, the two siblings cannot be compelled to execute the deed of sale. Applying the Rules of Court for resident defendant, summons by publication cannot be allowed except in case where the defendants identity is unknown, defendants whereabout is unknown and he is temporarily out of the Philippines. For non-resident defendant, there is no exception, summons by publication is absolutely not allowed. Further provided in the rules, jurisdiction over the person of the resident defendant can be acquired through valid service in person in the absence of voluntary appearance. And the jurisdiction over the person for the non-resident defendant can only be acquired in the absence of voluntary appearance through valid service in person in the Philippines. Hence, the court did not acquire jurisdiction over the person of the defendants through the summons by publication
If the summons is not valid, the remedy is to file a motion to dismiss. One can still invoke the ground even if he did not file a motion to dismiss by filing an answer. If I filed a motion to dismiss and failed to invoke the ground of lack of jurisdiction over the person of the defendant, can I still invoke such a defense when I filed an answer? No, because it is waived. Why? Because it is not prescription, litis pendencia, res judicata, lack of jurisdiction over the subject matter. Justice Vitug made a landmark in the case of La Naval Drug giving justice to Section 20 Rule 14 xxx The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Thus, in the present doctrine, the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Other grounds can be added if so desired. There is no submission to the jurisdiction of the courts. Section 15 Rule 14 Extrateritorial Service
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When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or in property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. Elements of Extrateritorial Service 1. defendant is a non-resident 2. defendant is outside the Phils. 3. the action involves the status of the plaintiff; 4. relates to the property of the plaintiff or defendant in the Phils. 5. when the defendants property is attached. EXTRATERITORIAL SERVICE applies only in an action either in QUASI IN REM or IN REM but NOT IN PERSONAM The PURPOSE of the summons is to comply with the basic requisite of due process to give NOTICE to let the person know he has a suit. Summonses that can be used in extraterritorial service 1. Personal service as in Section 6 2. Summons by publication coupled with registered mail; or 3. in any manner which the court may deem sufficient Illustration: Ms. Frando is an American who came to the Phils. to visit her friends. She borrowed money from her friend in the Phils. She used to be a Filipino, who owned a parcel of land as an inheritance. She gave collateral for the money she borrowed. The parcel of land became the security for her debt. She executed a real estate mortgage. Suppose Ms. Frando leave the country without paying the debt, a) what would be your advice to the creditor? b) what is the nature of the action? Advice to file an action for foreclosure of real estate mortgaged over the parcel of the land so that the court will have the jurisdiction over the RES so that it will be an action quasi in rem. Service of summons juridical entities upon domestic
Under the new rules, when one serve summons to juridical domestic entities, he must serve the summons upon the person of the president, managing partner or general manager, corporate secretary, corporate treasurer, or in-house counsel. (Sec 11 Rule 14)
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Illustration: Lacoste Corporation, is a French Corporation. It has no agent in the Philippines. The only reason why Rustans sells its products is because Rustans goes abroad and buys. But Lacoste has no agent and direct distributor in the Philippines. Lacoste realized that it had a lot of shirts in the Philippines courtesy of the traders of Baclaran and Divisoria. Can it sue in the Philippines even if it has not license? Yes, because it is not engaged in business and to protect its trade mark and brand name. A trade name is a right in rem enforceable all over the world. When one received summons, he is asked to answer within the reglementary period of 15 days. The service of summons necessarily includes the copy of the complaint. The essence of summons is to direct the defendant to answer and with a warning that failure to do so, judgment will be rendered against him but answering is not immediately mandatory.
Note: The rules on summons upon juridical entities now follow the rule of strict interpretation. Hence, summons cannot be served upon any person other than those mentioned in Section 11 Rule 14 of the Rules of Court. Service of corporations summons upon foreign
With respect to foreign corporations, service must be made upon the resident agent. Every foreign corporation in the Philippines has a resident agent. If they have not resident agent, service shall be made upon the proper government agency which is normally the SEC, but if the corporation is a banking corporation, one can serve it with the governor of the Bangko Sentral. In insurance corporations, you can serve it with the Philippine Insurance Commissioner. Note: Foreign corporations are corporations organized under laws other than that of the Philippines. It means that they have got their certificate of incorporation in a foreign country. A foreign corporation may sue in the Philippines depending on the circumstances. If the foreign corporation is engaging in business, it must have a license to engage in business. If it has a license, it can sue and can be sued. If it is engaged in business without a license, it can be sued but it cannot sue. If it is a foreign corporation not engaged in business and without a license, it can sue to protect its name in an isolated transaction.
PROCEEDINGS AFTER SERVICE OF SUMMONS

After service of summons, the following situations may arise. The defendant may file a motion of bill of particulars in order to clarify allegations in the complaint which are not alleged with particularity. The defendant may file a motion to dismiss. The defendant may refuse to answer in which case a judgment of default may be rendered against him. Lastly, the defendant may answer within the reglamentary period.
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I. Motion of Bill of Particulars The defendant files a motion for bill of particulars in order to clarify some facts or parts of a complaint or any other pleading which are not alleged with particularity. Ambiguity is not a ground for a motion to dismiss. This is not one of the grounds stated in Rule 16. But if the ambiguity of the allegations results to an absence or failure to state a cause of action, then file a motion to dismiss based on failure to state a cause of action. Contents of a Motion of Bill of Particulars 1. The defects complained of 2. The paragraphs in which they are contained 3. The particulars desired. Note: The importance of stating these contents in a motion of bill of particulars is to avoid the filing of a pro-forma motion. If your motion for bill of particulars does not contain these matters which should be contained in the motion, the motion will only be considered a motion in form and it will not be a motion on the substance. If it is not a motion on the substance, it will not have the effect of interrupting the running of the 15 day period for filing the answer. II. Motion to Dismiss Kinds of Motion to Dismiss: 1. Motion to Dismiss on the part of the defendant (Rule 16) 2. Motion to Dismiss on the part of the plaintiff (Sec 1 & 2 Rule 17) 3. Motu prorio dismissal on the part of the Court (Sec. 3 Rule 17 and Sec 1[b, e, f, and i] Rule 16) 4. Demurrer to Evidence (Rule 33) A. Motion to Dismiss on the part of the defendant The motion to dismiss under Rule 16 is a motion filed by the defendant. He files this before he files a responsive pleading. He also has the same period to file a motion to dismiss which is fifteen days. A motion to dismiss is not a pleading. It is an omnibus motion because the rule requires that all the grounds available at the time of the filing of the motion must be invoked. If not, they are waived except: lack of jurisdiction, litis pendencia, prescription, and res judicata. GROUNDS FOR MOTION TO DISMISS UNDER RULE 16 SECTION 1 (MEMORIZE) (a) That the court has not jurisdiction over the person of the defending party; (b) That the court has not jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived,
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abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. B. Dismissal of Action upon Notice by plaintiff Under Rule 17, the plaintiff can dismiss his complaint by notice 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 court does not have to approve the dismissal; it merely issues an order confirming the dismissal The plaintiff can dismiss his own complaint twice provided that the defendant has not yet filed a responsive pleading. After the second dismissal, he cannot refile the same complaint. The second dismissal is deemed adjudication upon the merits. Once a responsive pleading has been served, one must ask for leave of court. If you want to dismiss the complaint, you must file a motion to dismiss, not a notice of dismissal. BAR An answer was filed but was with a compulsory counterclaim. The plaintiff decided to have his case dismissed. He filed a motion to dismiss. The court dismissed the complaint in accordance with the plaintiffs motion. Will the dismissal of the complaint also carry with it the dismissal of the counterclaim? No, according to Section 2 of Rule 17, the dismissal of the complaint does not carry with it the dismissal of the counterclaim even if it is compulsory. The defendant who filed the counterclaim has the option to whether or not to continue with it. C. Motu proprio dismissal of action on the part of the court Grounds for motu proprio dismissal on the part of the court 1. Plaintiff does not appear during the presentation of evidence. (Sec 3 Rule 17) 2. Plaintiff fails to prosecute his case for an unreasonable length of time. (Sec 3 Rule 17) 3. Plaintiff does not comply and follow with the Rules of Court (Sec 3 Rule 17) 4. Plaintiff does not comply with the order of the court (Sec 3 Rule 17) 5. Litis pendencia (Sec 1 Rule 16) 6. Res judicata (Sec 1 Rule 16) 7. Prescription (Sec 1 Rule 16) 8. Lack of jurisdiction over the subject matter (Sec 1 Rule 16) 9. Cases covered by the rules on summary procedure (Sec 4. of the Revised Rules on Summary Procedure) Note: A case falls under the rules of summary proceedings in all other cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed 100,000 or 200,000 in Metropolitan Manila exclusive of interest and cost; and actions for unlawful detainer & forcible entry.
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General Rule: No motion to dismiss is required in summary proceedings. Exception: (1) lack of jurisdiction over the subject matter and (2) failure to comply with the barangay conciliation proceedings. Note: Since a motion to dismiss is not allowed in cases covered by the rules on summary proceeding except when the grounds are lack of jurisdiction over the subject matter or failure to comply with the barangay conciliation proceedings, the remedy of the defendant whenever there are other grounds available (i.e. improper venue) is to file an answer and invoke such grounds as an affirmative defense. A denial of a motion to dismiss under Rule 16 is an interlocutory order. Hence, it cannot be appealed from. The remedy of the defendant is to file a petition for certiorari under Rule 65 alleging lack of jurisdiction or a grave abuse of discretion or acting in excess of jurisdiction amounting to lack of jurisdiction. On the other hand, if the motion to dismiss is granted and the complaint was dismissed, the plaintiff can avail of the following remedies: he can re-file the complaint unless the grounds are res judicata, prescription, payment, waiver, abandonment, extinguishment of the obligation, or failure to comply with the statute of frauds. III. Default Whenever the defendant fails to file an answer within the reglementary period, he may be declared in default. It does not arise when the defendant fails to appear in a trial. Should the defendant failed to appear in a trial, the court would consider it to be a waiver on his part to defend himself. General Rule: There can be no declaration of default when the defendant files an answer Exception: In case the defendants answer has been stricken out for failure to file a bill of particulars despite the order of the court; and failure to comply with the modes of discovery. The court must wait a motion from the plaintiff in order to declare the defendant in default. The motion must allege that the Defendant has received summons properly and proof that he has failed to file an answer The effect whenever a defendant is declared in default is that he can no longer participate in the proceedings AS A PARTY, so he cannot present his evidence. However, the rules do not prevent him from appearing as a witness and he is still entitled to all notices of subsequent proceedings. In order for the defendant to regain his status in court after he has been declare in default, he must file a motion under oath to set aside the order declaring him in default alleging fraud, accident, mistake or excusable negligence; and that he has a meritorious defense, through an affidavit of merit. Note: Although the defendant regains his standing in court whenever a filed motion to set aside the order of default was granted, he is not allowed to crossexamine the pieces of evidence presented before the order of default was lifted.
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The defendants standing in court has no retroactive effect. Furthermore, there is no default in proceedings like annulment of marriage, declaration of nullity, and in legal separation Section 3(e) Rule 9 Where no defaults allowed If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. Should the defendant learn that he has been declared in default after judgment has been rendered, he can avail of several remedies. If the judgment is not yet final and executory, the can file a motion for new trial under Rule 37 on the grounds of fraud, accident, mistake or excusable negligence. If the judgment is final and executory, the defendant can file a Petition for Relief under Rule 38 on the grounds of fraud, accident, mistake or excusable negligence within 60 days from the knowledge of the judgment and within 6 months from the entry of judgment; or he can avail of the remedy of Annulment of Judgment under Rule 47 on the grounds if extrinsic fraud. Whenever a party is declared in default, the court has the option of rendering judgment even without requiring the party to produce evidence ex parte. Section 3 Rule 9 Default; declaration of xxx. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence, Illustration: In case of breach of contract and there is liquidated damages previously stipulated upon in the contract, the court is not required to hear the amount of damages because the amount thereof is agreed in the contract itself as the basis of liability. On the other hand, in case of motor vehicle accidents, the court is required to hear the evidence, in order for the plaintiff to recover the amount of unliquidated damages. Note: Under the revised rules on summary procedure, the plaintiff is prohibited to file a motion to declare the defendant in default under Sec. 19(h) of RRSP. Illustration: A complaint for damages amounting to 200,000 was filed in the MeTC of Q.C. The defendant was duly served with summons but failed to file an answer. Hence, the plaintiff filed a motion to declare the defendant in default. Is the plaintiff correct? No, the plaintiff is not correct because the case falls under the rules of summary procedure. The allowable motions under this rule are: lack of jurisdiction and failure to comply with barangay conciliation proceedings. What the plaintiff should do is to file a motion to render judgment. However, the rendition of judgment need not be by
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motion, the court itself can motu propio render judgment for failure to answer. Sec 6 RRSP Should the defendant fail to answer the complaint within the period above provided, the court, motu propio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein, IV. Answer This arises whenever the proceeding in a motion of bill of particulars or motion to dismiss is over. An answer is a pleading which contains two parts; namely: (a) affirmative defense and (b) negative defense. A negative defense is a specific denial There are instances that despite the fact that the defendant files an answer, there is no need for trial. This arises whenever the defendant admits the allegations in the complaint or when the denials are general. In these instances, the plaintiff can file a motion for judgment of the pleadings under Rule 34. Modes of Specific Denial (a) Absolute denial This is done by denying the allegations in the complaint paragraph by paragraph. Illustration: In the complaint, it was stated that the defendant borrowed 10,000 from the plaintiff. In his answer, the defendant stated therein that he specifically denies the allegations in par. 4 of the complaint, the truth of the matter being that it was the plaintiff who borrowed from the defendant. (b) Partial denial This is done by admitting to some part of the allegations contained in the complaint and denying the rest. Illustration: The plaintiff says that the defendant borrowed 10M from me. In his answer, the defendant says that he admitted that he borrowed money from the plaintiff as alleged in par. 5 in the complaint; however, it has been paid. (c) Avowal of lack of knowledge It means that the defendant has no information as to the truth of the allegations in the complaint. In order to avail of this mode of specific denial, the defendant must do it in good faith. An example is that in case of an actionable document, the defendant did not deny his signature appearing thereon but stated that he has knowledge of information as to the truth thereof. The plaintiff in addition of filing an answer, can attach thereto, a counterclaim. The filing of a counterclaim presupposes that the defendant in the complaint has a claim against the plaintiff. Hence, the original defendant assumed the character of the plaintiff and the original plaintiff becomes the defendant with respect only to the claim of the original defendant. The filing of a counterclaim is not mandatory. However, when the counterclaim is related to the subject matter of the complaint, the defendant is advised to file a counterclaim because in that case, the counterclaim will become a
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compulsory counterclaim especially if it is within the jurisdiction of the court. Failure to file a compulsory counterclaim with the answer will forever bar that counterclaim by res judicata. Illustration: You sue me for damages, then I file an answer denying the acts of negligence you are imputing against me, and by way of counterclaim, I say that because of you unjust counterclaim and demands which have no factual basis, I was forced to litigate and hire a lawyer paying him 150,000 and I incurred the following expenses because of the complaint you filed. In this case the counterclaim is an offshoot of the complaint. This is a compulsory counter claim. Note: Even if the counterclaim is related to the subject matter of the complaint, but if my counterclaim is above the jurisdiction of the court and this usually happens in the MTC where jurisdiction is below 400,000 and the counterclaim is 700,000, the counterclaim is not a compulsory counterclaim but a permissive counterclaim. Hence, the defendant should file his case separately. If the defendant wants to make this permissive counterclaim compulsory, he must waive the difference. It is different in the RTC. If ones counterclaim is only 300,000 in the RTC of Manila, it is still a compulsory counterclaim because the jurisdiction of a bigger amount covers the jurisdiction of the lesser amount with respect to a counterclaim. DISTINCTION BETWEEN PERMISSIVE AND COMPULSORY COUNTERCLAIM COMPULSORY COUNTERCLAIM 1. It has a relation to the subject matter of the complaint 2. It is not an initiatory pleading 3. The payment of docket fees is not required even if it is a counterclaim filed by the defendant 4. It does not need a certification against forum shopping 5. It will be barred if not invoked in the same action 6. Does not need to be answered. PERMISSIVE COUNTERCLAIM 1. It normally has no relationship to the claims of the plaintiff 2. It is considered a initiatory pleading 3. Since it is an initiatory pleading, the payment of docket fees is required 4. It requires a certification against forum shopping. 5. It does not have to be raised and can be a subject of a separate action 6. There must be an answer; otherwise, the plaintiff may be declared in default as to the permissive counterclaim.
Example: If you file an ejectment case against me because of the land I am renting from you but if I already placed improvements on the land, I must claim the improvements I spent on the land in the same action because a claim for ejectment is deemed to be a compulsory counterclaim. It must be invoked; otherwise, barred. Note: If you have a compulsory counterclaim and you have a ground for a motion to dismiss the complaint, do not file a motion to dismiss if you want to invoke your
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counterclaim because if you invoke your motion to dismiss before you invoke you counterclaim, there is no more counterclaim to invoke since the complaint has already been dismissed. The better remedy for the defendant is to file an answer and raise therein his grounds for a motion to dismiss and attach a compulsory counterclaim. There are other pleadings which the defendant can use aside from an answer and counterclaim. He can make use of a cross claim which may arise whenever the defendant has a claim against his codefendant in the case. He can also use a third party complaint whenever the defendant wants to join a third party in the case. Reply After an answer has been filed, the plaintiff may file a reply. Filing a reply is not mandatory. The reason is that the rules of court provide that in case the plaintiff fails to file a reply, all new matters alleged in the answer are deemed controverted. However, a reply is advisable whenever the answer alleges an actionable document as a defense. It is imperative that in the reply, one must specifically deny under oath the allegations contained in the answer which has as a defense, an actionable document. Otherwise, the defense based on the actionable document is deemed admitted as to its genuiness and due execution. Unwilling co-plaintiff (Sec 10 Rule 3) You dont have a cause of action against him because like you, he is a plaintiff but the trouble is that he doesnt want to join you as a plaintiff so you implead him as a defendant. But you have to state the reasons why you are going to make him as a defendant.
PRE-TRIAL
This stage arises after the last pleading has been filed and served. Pre-trial is mandatory in civil as well as in criminal cases. The clerk of court has no power to set the case for pre-trial. A pre-trial in a civil case is set by the plaintiff who has to file a motion ex parte. When one says an ex parte motion, it means that it is not a litigated motion; hence, there is no need for trial. Note: In case the plaintiff fails file a motion to set the case for pre-trial, the remedy of the defendant is to file a motion to dismiss for failure to prosecute within a reasonable time because the motion to set the case for pre-trial is a part of Ps prosecutional duties of his cause of action. Nature and Purposes of Pre-trial (Sec 2 Rule 18) (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses;
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(f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment n the pleadings, or summary judgment or of dismissing the action should a valid ground therefore be found to exist; (h) The advisability or necessity of suspending proceedings; and (i) Such other matters as may aid in the prompt disposition of the action Note: It is not justifiable for the court to terminate the pre-trial conference simply because the plaintiff refuses to enter into an amicable settlement, because amicable settlement is not the only purpose for a pre trial. After the pre-trial conference, the court must wait for a motion in order to render a judgment on the pleadings should there be no issues found to exist. The reason is that the court has only the authority to determine the propriety of judgment on the pleadings or summary judgment, his authority does not include motu propio rendition of a judgment on the pleadings. The parties as well as their counsel must attend the pre-trial conference. Should a party cannot appear in a pre-trial conference, such non-appearance must be for a valid cause or he must especially authorize a person to appear for him. The authorization is normally called in jurisprudential terms as special power of authority. Contents of a Special Power of Attorney (a) The representative must have the power to enter into an amicable settlement; (b) The representative must have the power to enter into alternative modes of dispute resolution; (c) The representative must have the power to enter into stipulation or admission of facts. Effects if a party fails to appear in the pre-trial conference If the plaintiff fails to appear without justifiable cause or without a representative duly authorized, the remedy of the defendant is to ask the court to dismiss the complaint. This is a special type of a motion to dismiss because it is not covered in Rule 16 and such dismissal is with prejudice unless the court ordered otherwise. On the other hand, if the defendant fails to appear in the pre-trial conference without representative or without valid cause, the plaintiff must file a motion to the court to be allowed to present his pieces of evidence ex parte. Note: Despite of the presence of the parties in a pre-trial conference, the complaint may still be dismissed for failure to file a pretrial brief since the failure to file a pretrial brief is the same as failure to appear. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASES AND PRE-TRIAL AND CRIMINAL CASES PRE-TRIAL IN CRIMINAL CASE 1. It does not require a motion from the prosecution. PRE-TRIAL IN CIVIL CASE 1. It requires a motion from the plaintiff
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2. It is the court that sets the case for pre-trial within a period of 30 days at the time the court acquires jurisdiction over the accused 3. A compromise and amicable settlement are not purposes of a pretrial because a criminal case cannot be compromised. If there would be a compromise, it will only relate to the civil liability of the accused 4. All admissions and stipulation of facts as a result of the pre-trial have to be signed by the counsel and his attorney; otherwise it will not be admissible. 2. A pre-trial is set upon a motion by the plaintiff after the last pleading has been filed and served. What are the requisites of motion to postpone trial on the ground of absence of evidence? There must be an affidavit showing (a) the materiality or relevance of such evidence; and (b) that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence even if he object or reserves the right to object in their admissibility, the trial shall not be postponed. (Rule 30, Sec. 3) What are the requisites of motion to postpone trial on the ground of illness of party or counsel? It must appear upon the affidavit that the (a) the presence of such party or counsel at the trial is indispensable; and (b) the character of his illness is such as to render his non-attendance excusable (Rule 30, Sec. 4) Demurrer to Evidence In trial, the prosecution first presents his evidence. After the prosecution, the defendant then presents his evidence. In certain cases, the defendant does not have to present evidence if he feels that after listening to the plaintiff, the plaintiff is not entitled to relief based on the facts and on the law. Hence, the defendant must file a demurrer to evidence. A demurrer to evidence is a form of motion to dismiss. Note: The defendant can only file a demurrer to evidence after the plaintiff has finished the presentation of his evidence. When a demurrer of evidence is granted, the dismissal is final in nature for the plaintiff. Hence, it is appealable. Once the
3. Amicable settlement and compromise is normal.
4. After pre-trial, the court will issue a pre-trial order; the parties do not have to sign the results of the pretrial conference.
TRIAL
This topic does not appear Procedure but in Evidence. in Civil
One cannot do postponement by mere oral invocation. What is required is an affidavit or sworn statement under Rule 30 Sections 3 and 4. BAR
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appeal was granted and the appellate court reversed the order of the trial court and remanded the case, the plaintiff can present his evidence while the defendant cannot present his evidence because it is waived. On the other hand, if the trial court denied the defendants motion to file a demurrer to evidence, the defendant can still present his evidence. DISTINCTION BETWEEN DEMURRER TO EVIDENCE IN CIVIL CASE AND DEMURRER TO EVIDENCE IN CRIMINAL CASE CIVIL CASE 1. Filed without leave of court 2, If your demurrer is denied, the defendant has the right to present evidence CRIMINAL CASE 1. There is no need for leave of court 2. If he filed it without leave of court, he cannot present evidence if the demurrer is denied. If he filed it with leave of court, the defendant can still present his evidence. 3. If the criminal action is dismissed, the prosecution cannot appeal because of the principle of double jeopardy. 4. The specific ground is insufficiency of evidence.
JUDGMENT
In order to determine whether the judgment is final or not, one must determine the entry of judgment. Under Rule 36, the date of finality is deemed to be the date of entry regardless of the date of the physical act of entry was done. This is done to prevent graft and corruption. Some Types of Judgment A. Judgment Sin Perjuicio This is judgment without prejudice. B. Judgment Nun Pro Tunc It is a permissible procedural act or amendment made later than the time at which it should have been made, and treated as though it had been made at a proper time. C. Judgment upon a Compromise It is a judgment based on a compromise by the parties to the litigation by giving reciprocal concessions to each order for the purpose of avoiding litigation or to stop a litigation that has already commenced. A compromise between the parties has the effect of res judicata between the parties. However, a compromise agreement between the parties cannot be executed unless the court adopts it by way of a judgment upon the compromise. A judgment upon compromise is final and executory and not appealable. The remedy of the aggrieve party is to file a motion to set aside the judgment upon the compromise on any ground vitiating the
3. If the demurrer is granted, the case is dismissed. The plaintiff can appeal
4. The specific ground is that no right to relief based on the law and on the facts
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consent like fraud, mistake, duress or force and intimidation. On the other hand, should the court deny a partys motion to set aside the judgment upon compromise, the aggrieved partys remedy is to file special civil action under Rule 65 Matters that cannot be subject to a compromise (a) Civil status of a person (b) Legal separation (c) Jurisdiction of the courts (d) Criminal aspect of the case the notice of judgment because it is a tedious work. The appellant has to reconstruct pleadings and motions fro the lower courts and file them together and send them up to the appellate court. Instances where a record of appeal is needed: (a) When the case involves a special proceeding (b) When the case is one involving multiple appeals Note: When the case involves multiple appeals, it means special civil actions where there are several stages in the judgment. Examples: (a) foreclosure of mortgage (b) eminent domain I. Remedies Before a Becomes Final and Executory (A) Motion for Reconsideration Grounds for Filing a Motion for Reconsideration (a) damages are excessive; (b) evidence is insufficient; or (c) the decision or order is contrary to law When a motion for reconsideration is filed, the period for appeal is interrupted. If a filed motion for reconsideration is denied (e.g. on the 15th day), the aggrieved party still has a fresh period of 15 or 30 days within which to file an appeal. (Neypes Case) The motion must be in writing and notice thereof must be given to the adverse party. It must also contain a notice of Judgment
POST JUDGMENT REMEDIES

I. Remedies Before a Judgment Becomes Final and Executory (a) Motion for Reconsideration (b) Motion for New Trial (c) Appeal II. Remedies After a Judgment has Become Final and Executory (a) Petition for Relief of Judgment (b) Annulment of Judgment (c) Special Civil Action of Certiorari under Rule 65 In order to determine what kind of remedy one must avail, he must know whether a judgment has become final and executory. A judgment is not final and executory if the period of appeal, which is 15 or 30 days from notice of judgment, is still on. When an appeal requires a notice of appeal, the appellant only has 15 days from the notice of judgment. When an appeal requires a notice and record of appeal, the appellant has 30 days from
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hearing. If it does not comply, it will be considered a pro forma motion and will not have the effect of suspending or interrupting the period to appeal. The motion shall point out specifically the findings or conclusions of the judgment not supported by the evidence or which are contrary to law. Mere general assertions that a ground for reconsideration exists will not suffice, otherwise, the motion shall be deemed a pro forma motion. If the motion for reconsideration is granted, the court may amend the judgment or final order accordingly. If the motion is denied, appeal is not allowed. An order denying a motion for reconsideration is not appealable. Remedies to an Order Denying a Motion for Reconsideration (a) appeal from the judgment or the final order pursuant to the provisions of Sec. 9 Rule 37;or (b) file the appropriate special civil action under Rule 65. A second motion for reconsideration is not allowed under Rule 37, Sec. 5. The prohibition applies to a motion for reconsideration of a judgment or final order and does not include a motion for reconsideration of an interlocutory order where the court may allow even more than one motion for reconsideration. Note: A motion for reconsideration under Rule 37 cannot be used as a vehicle to introduce new evidence. If you want to introduce new evidence, the remedy is to file a motion for new trial (B) Motion for New Trial Grounds for Filing a Motion for New Trial (a) Fraud, Accident, Mistake or Excusable Negligence (FAMEN) Note: Fraud in a Motion for New Trial refers to extrinsic fraud, not intrinsic fraud. This fraud must be one employed to prevent the movant from ventilating his side in the proceedings. The use of forged document by a party is not the fraud contemplated as extrinsic and cannot therefore, be a ground for a motion for new trial. (b) Newly discovered evidence which could not have been discovered and produced at the trial. When the ground in FAMEN, the motion must be supported by an affidavit of merit. When the ground relied upon is newly discovered evidence, no affidavit of merit is required. Instead, it shall be supported by affidavits of witnesses or by duly authenticated documents. If the motion for new trial is granted, the original judgment shall be vacated and the action shall stand for trial de novo. The recorded evidence in the former trial shall be used at the new trial without need for retaking the same as long as that evidence is material and competent to establish the issues. If the motion is denied, one must not appeal the order denying the motion for new trial. This is because the order is not appealable. The remedy is either to appeal from the judgment or final order or to
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file the appropriate special civil action like certiorari under Rule 65. (C) Appeal Appeal from Judgment of MTC (Rule 40) An appeal from a judgment or final order of an MTC shall be taken to the RTC exercising jurisdiction over the area. The appeal is taken by filing a notice of appeal with the court that rendered the judgment, which is the MTC. Copies of the notice of appeal or record of appeal shall be served on the adverse party. Within the period for appeal, the appellant shall pay to the clerk of the MTC the full amount of the appellate docket fee and other lawful fees. After payment, the clerk of court of the MTC shall elevate the records of the case to the RTC. The RTC clerk of court is going to notify the parties that the records have been already elevated already to the RTC together with the notice to the appellant, notifying him to file his memorandum within the period of time to appeal. If the appellant does not file a memorandum, it will be a ground for the dismissal of the appeal. The appellee may also file his own memorandum within 15 or 30 days from receiving the memorandum of the appellant. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeal in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties. Doctrine of Residual Jurisdiction If the trial court loses jurisdiction over the case in accordance with the preceding paragraph, it does not mean that the trial court can no longer issue orders in relation to the case. The trial court may still issue orders as long as they are done PRIOR to the transmittal of the original record or the record on appeal. Prior to such transmittal, the trial court may order an execution of the judgment pending appeal, approve compromises, permit appeals of indigent litigants or allow withdrawal of appeal. It may dismiss the appeal for having been taken out of time or for failure to pay the docked fees. These rules apply also to appeals from the judgment of the RTC. Appeal From The RTC To The CA or SC Kinds: (a) ordinary appeal under Rule 41; (b) petition for review under Rule 42; or (c) appeal by certiorari/petition for review on certiorari under Rule 45 (a) Ordinary Appeal (Rule 41) It is one made from a judgment of the RTC in the exercise of its original jurisdiction. This type of appeal is made by filing a notice of appeal with the RTC within fifteen (15) days from notice of the judgment. If record on appeal is required, the appeal period is 30 days. (b) Petition for Review (Rule 42) This mode of appeal applies when the decision of the RTC appealed from is one decided by it in the exercise of its appellate jurisdiction. This means that
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the case originated from the MTC and appealed to the RTC. In filing a petition for review, a notice of appeal is not required. The appeal is done by filing a verified petition for review directly with the Court of Appeals. (c) Appeal by Certiorari (Rule 45) When the appeal raises purely questions of law, the appeal should be addressed to the Supreme Court if the case is within the original jurisdiction of the RTC. If the case raises purely questions of law and is within the appellate jurisdiction of the RTC, the aggrieved party must file a petition for review through the CA under Rule 42. The CA is also authorized to decide on pure questions of law as long as it comes from the RTC in the exercise of its appellate jurisdiction. Should the aggrieved party feel dissatisfied with the decision of the CA, he may file an appeal by certiorari to the SC under Rule 45. General Rule: It is not possible to jump from the MTC to the CA without passing to the RTC. Exception: When the MTC decides a case under its delegated jurisdiction like cadastral and land registration cases. The MTC when acting in pursuant to its delegated jurisdiction is not acting as an MTC but as an RTC. Hence, its decisions are appealable to the CA. Appeals from quasi-judicial bodies Appeals from judgments and final orders of quasi-judicial bodies/agencies like the Civil Service Commission are now required to be brought to the Court of Appeals under Rule 43 by petition for review. Judgments and final orders of the COA and COMELEC are brought to the SC within 30 days under Rule 65 pursuant to Section 2 Rule 64 of the Rules of Court. Appeals from the NLRC Judgments of the NLRC are to be brought first to the CA by way of petition for certiorari under Rule 65. Should the appellant lose, he may appeal his case to the SC by way of Rule 45 raising pure questions of law. (St. Martins Funeral Case) Appeals from the Court of Tax Appeals Final orders and judgments of the CTA decided in division should be appealed to the CTA en banc. From the decision of the CTA en banc, one can appeal his case before the SC by using Rule 45. DISTINCTION BETWEEN CERTIORARI UNDER RULE 45 AND CERTIORARI UNDER RULE 65 RULE 45 1. raises questions of law; 2. it is a mode of appeal; 3. it is directed against final judgments or orders; 4. it is filed within fifteen (15) days from notice of judgment; 5. requires no prior motion for reconsideration RULE 65 1. raises questions on jurisdiction; 2. it is a special civil action; 3. it may be directed even against interlocutory orders; 4. it is filed within sixty (60) days from the notice of judgment 5. Generally requires prior motion for reconsideration
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Note: If the MTC dismisses a case pursuant to a motion to dismiss for lack of jurisdiction, the dismissal is made without trial on the merits. The plaintiff may appeal from the order of dismissal because an order dismissing the action is final in character. If on appeal, the RTC finds that the MTC correctly dismissed the complaint because it is the RTC which has jurisdiction, the RTC shall affirm the dismissal but is mandated to TRY the case on the merits AS IF it was originally filed with it. (Sec 8, Rule 40). The same applies where the case was tried on the merits in the lower court without jurisdiction over the subject matter. This means that the court shall also assume jurisdiction over the case as if it was originally filed with it. The RTC may however, allow amendment of the pleadings and admit additional evidence despite the previous trial in the court below. Any party aggrieved by the decision of the RTC, may appeal his case to the CA by filing a notice of appeal. II. Remedies After a Judgment has Become Final and Executory (A) Petition For Relief This remedy is availed only when the petitioner can no longer appeal because the period for appeal has already lapsed. Furthermore, the party availing this remedy must also include therein an affidavit of merit which is indispensable. Grounds for Filing a Petition for Relief: (a) Fraud (b) Accident (c) Mistake (d) Excusable Negligence When Filed: This verified petition is filed within sixty (60) days after the petitioner learns of the judgment and not more than six (6) months after such judgment or final order was entered. Note: The filing of a petition for relief and petition for certiorari does not automatically stay the execution of the judgment. To stay execution, a writ of preliminary injunction should be availed of under Sec. 5 of Rule 38. A petition for relief will not be entertained where the failure of the petitioner to appeal is due to his fault or negligence. (B) Annulment of Judgment This remedy is available only where the ordinary remedies of new trial, appeal, petition for relief or appropriate remedies are no longer available through no fault of the petitioner Grounds for Filing an Annulment Judgment: (a) Extrinsic Fraud (b) Lack of Jurisdiction of
When Filed: If the ground is based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If the ground is based on lack of jurisdiction, it must be brought before the action is barred by laches or estoppel. BAR
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I lost the case in the RTC because Ms. Milan, my opponent, has used a counterfeit document. Can I file a motion for new trial within the 15 day period on the grounds of fraud? No! Extrinsic fraud as a ground for setting aside default, as a ground for new trial, as a ground for petition for relief, as a ground for annulment of judgment refers to a fraud used outside the court, outside the trial. It does not refer to an intrinsic fraud which is employed inside the trial. It refers to deprivation of a party of his day in court. (C) Certiorari Otherwise called a supervisory or superintending writ, this remedy is availed to annul or modify the proceedings of a tribunal, board or officer exercising judicial or extra-judicial functions which has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction. For this petition to prosper, it is necessary to allege and show that there is no more appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law. When filed: It is filed no later than sixty (60) days from notice of the judgment, order, or resolution. In case a motion for reconsideration was filed, the 60-day period starts not from the notice of judgment but from the notice of the denial of the motion for reconsideration. General Rule: A motion for reconsideration is required before filing a petition for certiorari under Rule 65. Exceptions: (a) when the order is a patent nullity; (b) where the issue raised has been passed upon in the court below; (c) in case of urgency because any delay would prejudice the rights of the petitioner; (d) where the subject matter is perishable. Note: In filing for a petition for certiorari, the hierarchy of courts must be observed. Hence, even though the Supreme Court has concurrent jurisdiction with the CA and the RTC to issue a writ of mandamus, prohibition or certiorari, litigants are advised against taking direct recourse to the SC without initially seeking proper relief from the lower courts.
EXECUTION OF JUDGMENTS
The court cannot provide for the execution of its own judgment motu propio. A judgment shall be issued upon motion. The court has to wait for a motion for execution. Sec. 1, Rule 39 Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon expiration of the period to appeal therefrom if no appeal has been duly perfected. Execution is the last aspect of the jurisdiction of the court. The moment a judgment has become final and executory, execution shall follow as a matter of right. Therefore, the winning party is entitled to execution. If the court denies an execution, the court can be compelled by mandamus. Mandamus will only be
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applicable if the court has no valid reason to deny execution. Instances when the court can deny execution (a) The parties have entered into a compromise agreement on the judgment. (b) The parties have voluntarily executed the judgment without a motion. (c) If you file the motion beyond the reglementary period. Note: One can file a writ of execution for a period of five years from the entry of judgment. If you filed it after 5 years, the court will deny it. General Rule: A judgment cannot be the subject of execution if it is not yet final and executory Examples: (a) When the period for appeal has not yet lapse, so the judgment is not yet final. (b) If there is a pending appeal Exception: Discretionary Execution In this instance, judgment has not yet become final and executory; hence, judgment cannot be executed unless the court in the exercise of its discretion grants execution. Ground for discretionary execution: The ground is good reasons which the court must state in its special order. Note: In order to stay a discretionary execution, the party against whom the discretionary execution is directed should file a supersedeas bond conditioned upon the performance of the judgment allowed to be executed in case it is finally sustained. Should the judgment executed pending appeal is reversed totally or partially on appeal, the trial court, upon motion, shall issue an order of restitution or reparation as equity and justice may warrant. Judgment which may not be stayed: (a) Judgments in actions for injunction; (b) Judgments in actions for receivership; (c) Judgments in actions for accounting; and (d) Judgments in actions for support. (e) Other judgments as are now or may hereafter be declared immediately executory Ways of executing a judgment: (a) If the execution of the judgment is made within 5 years from the time of entry of judgment, on can have the judgment executed by a mere motion for execution. (b) If the five year period has lapsed, the winning party must file an independent action to revive the judgment. Note: An independent action to revive the judgment should be filed with the Regional Trial Court because it is an action incapable of pecuniary estimation.
How to execute a money judgment: The sheriff who has a writ of execution and money judgment goes to the losing party and asked him if he has money. If you have money sufficient to satisfy the claim, the sheriff will take you money. If his money is insufficient, the sheriff will look for his personal property. The sheriff has no right to choose. Only the judgment-debtor has the right to choose what can be taken. Later, the personal
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property taken will be sold at a public auction. Once sold, there can be no right of redemption. The right of redemption is only available in cases of real property within one year from the registration of the certificate of sale. Execution of judgments for specific acts The writ of execution in ejection cases cannot be enforced on the same date the sheriff receives the writ. The writ is carried out by giving the defendant notice of such writ and making a demand that the defendant peaceably vacate the premises within a reasonable period of 3 working days under Rule 39, and it is only after such period that the sheriff enforces the writ by the bodily removal of the defendant and his belongings. BAR A writ of execution was served by a sheriff upon the defendant so that the plaintiff may be placed in possession of the property held by the former. The defendant refused to vacate and surrender the premises to the plaintiff. Can the defendant be held for indirect contempt for disobedience of, or resistance to a lawful writ issued by the court? The defendant cannot be cited in contempt. The mere refusal or unwillingness on the part of the judgment debtors to relinquish the properties would not constitute contempt. The writ of possession is directed to the sheriff and not the judgment debtors. Under the writ, the sheriff was directed to deliver the properties to the prevailing parties. As the writ did not command the judgment debtors to do anything, they cannot be held guilty of the acts described in Rule 71 which are grounds for contempt. The proper procedure is not for the court to cite them in contempt. The sheriff should dispossess them of the properties and deliver the possession thereof to the judgment creditors. If after the dispossession, the judgment debtors execute acts of ownership or possession over the said properties. Properties exempt from execution (a) The judgment obligors family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (c) Three horses, or three, cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for oridinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months;
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(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempted by law. But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. BAR In a judgment rendered by the MTC of Manila X was ordered to pay BB the sum of P459.00. A writ of execution was issued but was not fully satisfied. In order to fully satisfy the judgment, the sheriff now seeks to levy on certain household furniture worth P250.00 X moves for exemption from execution, which the MTC denies. X moves for reconsideration, which was also denied. The sheriff threatens to carry out the execution and sale right away. X institutes a petition for Certiorari. Will this petition prosper? The petition will prosper. The court committed a grave abuse of discretion amounting to lack of jurisdiction when it denied the motion for reconsideration thereby allowing the Sheriff to levy and sell the subject property in a manner contrary to the Rules of Court. Under the Rules, the household furniture necessary for housekeeping and used for that purpose by the judgment obligor and his family is exempt from execution. Proceedings where property is claimed by a third person This claim by a third person is called by jurisprudence as terceria (third party claim). If you are the party that claims it, you execute an affidavit of adverse claim. That is called terceria. You give it to the sheriff, judgment creditor, and to the court. The sheriff will now not touch the property anymore. Note: Another remedy for the third party is to file in another court an action for damages against the sheriff with preliminary injunction. In that case, you
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are enjoining the sheriff for getting the property that is not of the judgment debtor. The sheriffs authority is limited to the property of the judgment debtor. If he gets the property of someone else, he exceeds his authority. If the judgment creditor insists on touching the property, the sheriff will demand from him a bond. BAR What if the sheriff goes to the property or to the place of the debtor, and after looking for the property of the debtor, he did not find any property. What will the winning party do? He should file a motion in court to order the losing parties to appear in court and be examined as to where his properties are in accordance with Sections 36 and 37 of Rule 39 of the Rules of Court. Note: According to the last sentence of Section 32 Rule 39 of the Rules of Court, during the period of redemption, all rents, earnings and income derived from the property shall belong to the judgment obligor until the expiration of his period of redemption. provided to meet a particular need or exigency. The provisional remedies are: (1) Preliminary attachment; (2) Preliminary injunction; (3) Receivership; (4) Replevin (5) Support Pendent elite Rule 57 PRELIMINARY ATTACHMENT When: At the commencement of the action or at any time before entry of judgment
If judgment has already been entered, a writ execution and not a writ of attachment is proper.
Purpose: To hold the property of the adverse party as security for the satisfaction of any judgment. Cases when available: (1) In an action for recovery of specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi contract, delict, or quasi delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (2) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty;
PROVISIONAL REMEDIES
WHAT IS A PROVISIONAL REMEDY? It is a collateral proceeding, permitted only in connection with a regular action as one of its incidents. It is a remedy
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(3) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person (4) In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (5) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; (6) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. DOES THE ISSUANCE OF A WRIT OF ATTACHMENT REQUIRE HEARING? No. thus, it may be issued without jurisdiction over the adverse party having been acquired. However, the court may require prior haring, in which case, summons must be served. There is no lifetime stated in the Rules but its character being interlucotory and ancillary, it is necessarily lifted when the case is dismissed. It is terminated, of course, when it is satisfied. CAN A WRIT OF ATTACHMENT BE ISSUED AGAINST A FOREIGN CORPORATION DULY LICENSED TO DO BUSINESS IN THE PHILIPPINES, WITHOUT ANY ALLEGATION OF FRAUD OR INTENT TO ABSCOND (IN OTHER WORDS, UNDER GROUND # 6)? No. First, the corporation necessarily has an agent in the country; it cannot be considered non-resident. Second, summons need not be served by publication as the same can be served upon the agent. Third, foreign corporations issue securities upon registration precisely to safeguard against their absconding. WHAT PROPERTIES FROM ATTACHMENT? ARE EXEMPT
But levy on attachment requires service of summons

MAY THE DEFENDANT OBTAIN A WRIT OF PRELIMINARY ATTACHMENT? Yes. In case he sets up a counterclaim. WHAT IS THE LIFETIME OF A WRIT OF ATTACHMENT?
Properties exempt from execution Property in custodia legis is exempt in attachment and execution because it is under the control of the court. Property of the deceased in the hands of a judicial administration is also exempt because it is in cusotodia legis. The creditors remedy is to file a money claim against the estate.
But the defendants interest in the property belonging to the estate of the deceased may be
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attached by serving the executor with a copy of the writ.
WHAT IS THE ATTACHMENT? NATURE OF is issued, not exempt from execution, and sufficient to satisfy the demant. (4) The sheriff attaches the property a. IMPT: Actual attachment must be accompanied or preceded by service of summons together with: i. a copy of the complaint ii. the application for attachment iii. the affidavit iv. the bond v. the order vi. the writ
Attachment is a proceeding in rem and the lien it creates over the property is enforceable against the world and only to liens already existing. HOW IS PROPERTY ATTACHED? (1) The applicant must file an affidavit either by him or by another person with personal knowledge, showing that: (a) The case is one of those where attachment is available; (b) There is no other sufficient security; (c) The amount due to the applicant is as much as the amount for which the order is granted. (2) The applicant must file a bond in the amount fixed by the court conditioned that he will pay all the costs and damages which may be adjudged to the adverse party should the court finally adjudge that the applicant was not entitled to the attachment (3) The court issues an order of attachment a. Upon motion i. ex parte ii. OR with notice and hearing by 1, the court where the action is pending 2. or the CA 3. or the SC b. Requiring the sheriff to attach the property of the party against whom it
b. Service of summons is not required where; i. summons could not be served personally or by substituted service despite diligent efforts. ii. OR the defendant is a resident of the Philippines temporarily absent. iii. OR the defendant is a non-resident iv. OR the action is in rem or quasi in rem.
An action in personam may be converted into an action quasi in rem by attaching property of the defendant, in which case, summons may be served by publication. The attachment will precede the service of summons.
HOW DOES THE ADVERSE PREVENT THE ATTACHMENT? PARTY
He may file a counterbond or make a deposit equal to the amount in the order of attachment.
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The purpose of the deposit or the counterbond is to secure the payment of any judgment which the attaching party may recover in the action. IN WHAT MANNER DOES SHERIFF ATTACH PROPERTY? THE WHAT IS THE PROCEDURE IF THE GARNISHEE DENIES THE INDEBTEDNESS? Payment by the garnishee upon judicial order will extinguish his debt to his creditor. However, if he denies the indebtedness, he may be required to appear in court and be examined on oath regarding the same. CAN THE GARNISHEE BE COMPELLED TO PAY OR DELIVER THE PROPERTY IN THE EVENT HE DENIES THE DEBT? No; to do so would be to deprive him of property with due process. A separate action must be instituted. WHEN MAY THE PROPERTY BE SOLD BEFORE ENTRY OF JUDGMENT? Upon notice and hearing (1) When the property is perishable (2) OR when the sale would be beneficial to both parties. The proceeds will be deposited in court to be applied according to the judgment. WHEN MAY DISCHARGED? ATTACHMENT BE
(1) Real property filing in the registry of deeds a copy of the order; (2) Personal property capable of manual delivery taking and keeping it; (3) Stock or shares by leaving with the president or managing agent a copy of the writ; (4) Bank deposits, debts, credits, and other personal property not capable of manual delivery (garnishment) by leaving with the garnishee a copy of the writ;
only salary DUE may be attached, subject to the rule that wages earned for personal service in the four months preceding the attachment and necessary for support are exempt from execution/attachment
(5) The interest of the adverse party as an heir by serving the executor/administrator with a copy of the writ (6) Property in custodia legis - by serving the court with a copy of the writ.
Property is custodia legis is supposed to be exempt from attachment. But is suppose if the court where the property is deposited agrees to the attachment, it can be done. Ex. Payment to a debtor/defendant consigned in court and attached by a creditor/complainant
(1) By the adverse partys filing of a counterbond; (2) By the dismissal of the case; (3) by the appointment of an assignee over the adverse partys property under the Insolvency Law;
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(4) By filing a motion for the discharge of the attachment on the ground that: a. It was improperly or irregularly issued such as in the following circumstances: i. the complaint states no cause of action; ii. The attaching creditor fails to prove the ground on which the attachment is based; iii. The plaintiffs affidavit and bond are not in accordance with the Rules. b. OR that the bond is IN WHAT ORDER DOES THE SHERIFF SATISFY THE JDUGMENT OUT OF PROPERTY ATTACHED? (1) Cash (2) Sell property (3) Garnish HOW ARE THE PROCEEDS OF THE ATTACHMENT APPLIED (1) Cash of the proceedings (2) Judgment debt; (3) Return to the judgment debtor any excess HOW IS THE COUNTERBOND/ CASH DEPOSIT PROCEEDED AGAINST? CounterbondWhen the judgment becomes executory, the sureties on the counterbond shall be bound to pay the judgment after NOTICE AND SUMMARY HEARING IN THE SAME ACTION. Deposit paid to the judgment obligee HOW AND WHEN IS A CLAIM FOR DAMAGES ON ACCOUNT OF IRREGULAR, IMPROPER OR EXCESSIVE ATTACHMENT MADE? An application for damages must be made (a) before trial as a matter of right (b) before judgment becomes executory as a matter of discretion (c) before appeal is perfected probably also a matter of discretion because judgment is not yet executory with due notice to the sureties The damages will be awarded only after hearing and will be included in the judgment on the main case.
insufficient;
i. The attachment will be reduced to correspond to the bond. WHAT ARE THE PROCEEDING WHEN THE PROPERTY IS CLAIMED BY A THIRD PERSON? The sheriff shall not be bound to keep the property under attachment if: (1) The property attached is claimed by a third person (2) The third person makes an affidavit of his right to the property (3) Serves the affidavit upon: a. the sheriff b. AND the attaching party (4) The sheriff demands a bond form the attaching party to indemnify the third person claimant (5) The attaching party fails to file the bond This is different from the bond filed to indemnify the adverse party
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This applies even if judgment in the main case is against the adverse party. Just because the adverse party was truly liable doesnt cure any defect in the attachment. WHAT IS THE PROCEDURE FOR THE RECOVERY OF DAMAGES AGAINST THE BOND FOR ILLEGAL ATTACHMENT? (1) There is a judgment in the main action even if judgment is against the adverse party; (2) IMPT: The application for damages is filed in the SAME ACTION before trial, before appeal is perfected, or before judgment becomes executory; SEC 1. A preliminary injunction is an ORDER granted at ANY STAGE of the proceeding PRIOR TO THE JUDGMENT or final order, requiring a party or a court, agency or a person to REFRAIN from a particular act or acts. It may also REQUIRE THE PERFORMANCE of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. WHAT ARE TH CLASSES PRELIMINARY INJUNCTION? FO
If damages are not claimed in the same action, they are barred, except: (a) Where the principal action is dismissed for lack of jurisdiction over the subject matter (b) In forcible entry or unlawful detainer, where the amount of damages exceeds the jurisdiction of the MTC, it is necessaryu that the claim be filed in the RTC
(3) Notice is given to the attaching party and his sureties; (4) There is proper hearing regarding the damages and the award was included in the final judgment.
(1) Preventive or Prohibitory a. the purpose is to require one to refrain from a particular act. b. the act to be enjoined is alleged to be illegal and has not yet been performed. It is enjoined because it would cause irreparable injury. c. the situation is preserved in status quo. (2) Mandatory a. Its purpose is to require the performance of an act. b. The party in whose favor it is issued is placed in the same situation he was before the commission of the illegal act. c. The status quo to be restored is the last actual peaceable uncontested status (LAPUS) which preceded the pending controversy. WHEN MAY PRELIMINARY INJUNCTION BE ISSUED? Preventive or Prohibitory When the plaintiffs principal action is an ordinary action of injunction (to restrain the commission of an act perpetually or
RULE 58 PRELIMINARY INJUNCTIN WHAT IS INJUNCTION? PRELIMINARY
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for a limited period) and the grounds in SEC. 3 are present: SEC. 3 Grounds (alternative): (a) that the applicant to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) that the commission, continuance of non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) that a party, court, agency, or person is doing, threatening, or attempting to do, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. Mandatory Mandatory injunction may be issued if the following requisites are present (concurrent): (1) the complainant has a clear legal right the right must be clear and ummistakable because unlike in prohibitory injunction; mandatory injunction requires the performance of a particular act and does more than maintain the status quo; (2) his right has been violated and the invasion is material and substantial; and (3) there is an urgent and permanent necessity to prevent serious damage. HOW IS PRELIMINARY INJUNCTION DISTINGUISHED FROM FINAL INJUNCTION? See definition of preliminary injunction (SEC. 1) Final injunction is a judgment rendered after trial which (1) perpetually restrains the party or person enjoined from the commission or continuance of the act or acts, OR (2) confirms the preliminary mandatory injunction. HOW IS PROHIBITORY INJUNCTION DISTINGUISHED FROM PROHIBITION? Prohibitory injunction order requiring a party to refrain from a particular act Prohibition judgment commanding a tribunal, board, corporation, officer, or person, whether exercising judicial, quasi judicial, or ministerial functions, to desist from further proceeding in the action or matter because it is in excess of jurisdiction or because it acts with grave abuse of discretion amounting to lack or excess of jurisdiction. HOW IS MANDATORY INJUNCTION DISTINGUISHED FROM MANDAMUS? Mandatory injunction order requiring a party to perform a particular act in order to restore the last peaceable actual uncontested status which preceded the pending controversy. Mandamus judgment commanding a tribunal, corporation, board, officer, or person either (1) unlawfully neglecting the performance of an act required by law or
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(2) excluding another from the use and enjoyment of a right or office, to do such acts required to be done. DOES PRELIMINARY INJUNCTION APPLY TO CONSUMMATED ACTS? As a general rule, when defendants are required to merely abstain or desist from performing certain acts, they are under no duty to perform positive acts. The exception is when they are specifically ordered to perform positive acts such as the removal of the impediment complained of as being prejudicial to the plaintiffs rights. Ex: The destruction of a dam built without necessary permits. The reconnection of an electrical line disconnected arbitrarily. The restoration to possession of a party unlawfully deprived thereof by forcible entry. RULES ON JURISDICTION OF COURTS TO ISSUE PRELIMINARY INJUNCTION: (A) A judge in charge of a branch of a trial court has jurisdiction to issue a preliminary injunction in a case pending in that branch notwithstanding the fact that a similar injunction had been denied by another judge in another branch of the court. Ex: A case is pending in Branch 1 or the Makati RTC. Branch 2 of the same RTC denies a petition for preliminary injunction. Branch 1 may still issue the writ despite the denial by Branch 2. (B) The RTC has no authority to restrain or enjoin acts being perpetrated or to be perpetrated outside the territorial boundaries of its region. (C) Where the main action is the annulment of the respondents action and injunction is merely corollary, the trial court of the locality where the questioned act is to be implemented has jurisdiction. Ex: An order of dismissal issued by the LTO Commissioner in Manila but to be enforced by a subordinate officer in Dagupan may be enjoined by the Dagupan courts despite the fact that the original action for mandamus was filed in Manila. (D) In cases of corporations, the court with jurisdiction over the locality of principal office of the corporation has the authority to issue preliminary injunction, despite the fact that the act sought to be enjoined are to be performed elsewhere. (E) A court cannot interfere by injunction JUDGMENT of a co-equal court WHAT ARE SOME SPECIFIC CASES WHERE PRELIMINARY INJUNCTION LIES? (1) In petitions for relief from judgment entered through FAME. (2) In actions for annulment of judgments obtained through extrinsic fraud. (3) In petitions for CPM (4) To restrain continued breach of valid negative obligations.
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(5) To restrain a city from abating a nuisance per accidens without a judicial order. (6) To restrain voting on disputed shares of stock. (7) To restrain sheriff from selling property on execution not belonging to the judgment obligor. (8) To prosecutions. restrain criminal (b) AND filing of a bond to answer for damages which the party enjoined may sustain if the court should finally decide that the applicant was not entitled thereto. (c) With notice and hearing. CAN PRELIMINARY INJUNCTION BE GRANTED WITHOUT NOTICE? General Rule: No. The general procedure follows: (1) If appears from facts shown by the affidavits or by the verified application that (2) great or irreparable injury would result to the applicant before the matter can be heard on notice, (3) the court to which the application for preliminary injunction was made, may issue a temporary restraining order (4) to be effective only for a period of 20 days from service on the party or person sought to be enjoined. (5) Within the said 20 day period, the court must: a. order said party or person to show cause why the injunction should not be granted. b. determine within the same period whether or not the preliminary injunction shall be granted, c. and accordingly issue the corresponding order.
WHAT ARE SOME SPECIFIC CASES WHERE PRELIMINARY INJUNCTION DOES NOT LIE? (1) To take property out of the possession of one party and place it into that of another whose title has not clearly been established by law. (2) Where an action for damages would adequately compensate the injuries caused- remember, there must be a probability of irreparable injury. (3) To prevent directors from discharging their offices and restoring former directors. (4) To restrain a criminal prosecution except to prevent oppression and to protect constitutional rights. HOW IS A PRELIMINARY INJUNCTION OR TEMPORARY RESTRAINING ORDER GRANTED? (a) Upon verified application showing facts entitling the applicant to the relief demanded;
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Exception: (1) If the matter is of extreme importance (2) and the applicant will suffer grave injustice and irreparable injury (3) the executive judge of a multiple-sala court or the presiding judge of a single sale court may issue an ex parte temporary restraining order (4) effective only 72 hour from issuance (5) Within the 72 hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. (6) In no case shall the total period of temporary restraining order exceed 20 days including the original 72 hours. WHAT ARE THE GROUNDS FOR OBJECTION TO OR DISSOLUTION OF A TEMPORARY RESTRAINING ORDER OR AN INJUNCTION? (1) Insufficiency; (2) Other grounds as shown in affidavits; (3) If its issuance would cause irreparable damage to the person enjoined while the applicant can be fully compensated for such damages as he may suffer AND the person to be enjoined files a bond that he will pay such damages;
court.
This is discretionary upon the
(4) It may be reduced if its extent is too great. WHEN SHOULD DAMAGES UPON THE BOND BE CLAIMED? Just like preliminary attachment, damages upon the bond should be claimed, heard and awarded in the principal action. WHEN IS GRANTED? FINAL INJUNCTION
If after trial it appears that the applicant is entitled to have the acts complained of permanently enjoined, the court shall grant a final injunction.
RULE 59 RECEIVERSHIP Sec. 1 UPON A VERIFIED APPLICATION, one or more receivers of the PROPERTY SUBJECT OF THE ACTION OR PROCEEDING may be appointed by the COURT WHERE THE ACTION IS PENDING, or by the CA, or by the SC, or a member thereof, in the following cases: (a) WHEN IT APPEARS FROM THE VERIFIED APPLICATION, and such other proof as the court may require that: 1. The PARTY APPLYING for the appointment if a receiver has AN INTEREST IN THE PROPERTY or fund which is the subject of the action or proceeding,
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2. AND that such property is in DANGER OF BEING LOST, removed or materially injured UNLESS A RECEIVER BE APPOINTED to administer and preserve it. (b) WHEN IT APPEARS IN AN ACTION BY THE MORTGAGEE FOR THE FORECLOSURE OF A MORTGAGE that: 1. THE PROPERTY IS IN DANGER OF BEING WASTED or dissipated or materially injured, AND that is VALUE IS PROBABLY INSUFFICIENT to discharge the mortgage debt, 2. OR that the PARTIES HAVE SO STIPULATED in the contract of mortgage. (c) AFTER JUDGMENT 3. to PRESERVE the property DURING THE PENDENCY OF AN APPEAL, 4. OR to DISPOSE of ACCORDING TO THE JUDGMENT, it During the pendency of an appeal, the appellate court may allow an application for the appointment if a receiver to be filed in an decided by the court of origin and the receiver appointed to be subject to the control of said court. WHAT IS A RECEIVER?
A receiver is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendent elite, when it does not seem reasonable to the court that either party should hold it.
He is an officer of the court, exercising his function in the interest of neither party litigant but for the common benefit of all parties in interest.
5. OR to AID EXECUTION when the execution has been returned UNSATISFIED or the JUDGMENT OBLIGOR REFUSES to apply his property in satisfaction of the judgment, 6. OR OTHERWISE to carry the judgment into effect. (d) WHENEVER IN OTHER CASES IT APPEARS THAT THE APPOINTMENT of a receiver IS THE MOST CONVENIENT AND FEASIBLE MEANS OF PRESERVING, ADMINISTERING, OR DISPOSING OF THE PROPERTY in litigation.
Since he is an officer of the court, property held by him is considered as being held in custodia legis for the benefit of whoever may establish title thereto.
WHO MAY APPOINT A RECEIVER (1) MTC (2) RTC (3) CA (4) SC, or a member thereof.
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DOES A PARTY HAVE A VESTED RIGHT TO HAVE A RECEIVER APPOINTED BY THE COURT? No. It is DISCRETIONARY on the court where application is made, just like the grant of preliminary injunction. This is true even if there is a stipulation for receivership. WHAT IS THE REMEDY DENIED APPLICATION RECEVERSHIP? FOR A FOR
BE APPOINTED preserve it.
to
administer
and
Since it is interluocutory, CERTIORARI, not appeal is the proper remedy. WHAT IS THE NATURE OF THE POWER TO APPOINT A RECEIVER; HOW SHOULD IT BE EXERCISED? The power should be exercised with great caution because receivership is THE MOST DRASTIC AND FAR REACHING OF THE EXTRAORDINARY REMEDIES. CASES WHEN APPOINTED: RECEIVER MAY BE
(a) WHEN IT APPEARS FROM THE VERIFIED APPLICATION, and such other proof as the court may require, that: 1. the PARTY APPLYING for the appointment if a receiver has AN INTEREST IN THE PROPERTY or fund which is the subject of the action or proceeding, 2. AND that such property is in DANGER OF BEING LOST, removed or materially injured UNLESS A RECEIVER
Receivership is NOT PROPER IN ACTIONS INVOLVING TITLE TO REAL ESTATE where the effect of the appointment is to take the property court of the possession of the defendant before a final adjudication of the rights of the parties can be made EXCEPT IN EXTREME CASES AND ON A CLEAR SHOWING OF NECESSITY TO SAVE THE PLAINTIFF FROM GRAVE AND IRREMEDIABLE LOSS or damage. Receivership IS PROPER TO REMEDY MALADMINISTRATION of property owned in common and differences among co-owners. PARTY APPLYING for receivership SHOULD HAVE ACTUAL, EXISTING INTEREST in the property in litigation o Where the land has no improvements that produce income and only standing crops, the appointment of a receiver was not proper because the possible damage was converable by a bond. The standing crops belong to he who planted them.
(b) WHEN IT APPEARS IN AN ACTION BY THE MORTGAGEE FOR THE FORECLOSURE OF A MORTGAGE that:
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1. THE PROPERTY IS IN DANGER OF BEING WASTED or dissipated or materially injured, AND that is VALUE IS PROBABLY INSUFFICIENT to discharge the mortgage debt, 2. OR that the PARTIES HAVE SO STIPULATED in the contract of mortgage.
IF THE PARTIES HAVE STIPULATED FOR RECEIVERSHI IN THE CONTRACT, IS IT A MATTER OF RIGHT? No, it is still within the courts discretion despite the existence of a stipulation. CAN THE COURT ORDER THE SALE OF THE MORTGAGED PROPERTIES DESPITE THEIR STILL BEING UNDER RECEIVERSHIP? Yes, the properties are considered to be under custodia legis and the court has control over them. It was the court that ordered their placement under receivership it did not relinquish control over the property. (c) AFTER JUDGMENT, Yes; although the perfection of the appeal deprives the RTC of jurisdiction over the case, it still retains jurisdiction over the preservation of the property under litigation and involved in the appeal. In such a case, the action may be regarded as yet pending for the appointment of a receiver because such appointment is merely to preserve the property and thus effectuate the courts decree. May a receiver be appointed when execution of a judgment remains unsatisfied? Yes; Rule 39 Section 41 provides for the appointment of a receiver to insure that the judgment obliges rights to the property would be protected.
1. to PRESERVE the property DURING THE PENDENCY OF APPEAL, 2. OR to DISPOSE of it ACCORDING TO THE JUDGMENT. 3. OR to AID EXECUTION when the execution has been returned UNSATISFIED or the JUDGMENT OBLIGOR REFUSES to apply his property in satisfaction of the judgment, 4. OR OTHERWISE to carry the judgment into effect
Appeal from the judgment of the RTC has been perfected does it still have jurisdiction to appoint a receiver?
(D) WHENEVER IN OTHER CASES IT APPEARS THAT THE APPOINTMENT of a receiver IS THE MOST CONVENIENT AND FEASIBLE MEANS OF PRESERVING, ADMINISTERING, OR DISPOSING OF THE PROPERTY in litigation. Where A purchased and took possession of the property from X in an unregistered sale and B also purchased the property in a foreclosure sale where B was the mortgagee, the appointment of a receiver over the property was proper as the best way to conserve and administer the property pending the action.
Is a stipulation authorizing a mortgagee to take possession of the mortgaged property upon foreclosure valid?
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Yes; such stipulation is a convenient and feasible means of preserving and administering the property under litigation WHAT MUST THE COURT DO BEFORE ISSUING THE ORDER APPOINTING A RECEIVER? SEC. 2 Before issuing the order appointing a receiver, the court shall: (a) require the applicant to file a bond executed to the party against whom the application is presented, In an amount to be fixed by the court, To the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause (b) and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. MAY AN ORDER FOR RECEIVERSHIP BE ISSUED EX PARTE? No; a hearing is necessary and a bond is required from the applicant. Who should be made parties to the suit for the appointment of a receiver? Interested parties should be included (indispensable and necessary parties). WHO SHOULD BE APPOINTED AS THE RECEIVER; CAN IT BE THE PLAINTIFF? An impartial person should be appointed as the receiver. However, the plaintiff can be appointed as the receiver under special circumstances. In such a case, he receives no compensation but is entitled to be reimbursed for expenses incurred in caring for the property. WHAT IS A COMMON-LAW RECEIVER AND WHAT IS HIS LIABILITY? One who assumes the receivership without judicial appointment and is bound to account for the properties under his care. Though he cannot be compelled to furnish a bond, if he does so and the properties under his care are later dissipated, destroyed etc. the bond may be executed upon ON WHAT GROUNDS MAY THE APPLICATION FOR RECEIVERSHIP BE DENIED? Other than for reasons that it is not among the cases in SEC. 1, an application may be denied when the adverse party files a bond executed to the applicant, in an amount fixed by the court, to cover all damages that may be suffered by reason of the acts, omissions, or other matters specified in the application as ground for the appointment. ON WHAT GROUNDS MAY RECEIVER BE DISCHARGED? THE
He may be discharged if it is shown that his appointment was obtained without sufficient cause. WHAT MUST THE RECEIVER DO BEFORE HE ENTERS UPON HIS DUTIES?
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He must: (1) SWEAR to perform them faithfully (2) AND file a BOND Executed to such person and in such sum as the court may direct, To the effect that he will faithfully discharge his duties and obey the orders of the court. Adverse partys bond If the bond is found to be insufficient or the surety or sureties fail to justify, and such failure is not rectified, the receiver shall be appointed or reappointed, as the case may be. WHAT ARE THE GENERAL POWERS OF THE RECEIVER? Subject to the control of the court where the action is pending, the receiver shall have the following power: (a) To bring and defend, in such capacity (as receiver), actions in his own name; (b) To take and keep possession of the property in controversy; (c) To receive rents; (d) To collect debts due to himself as receiver of the fund, property, estate, person, or corporation of which he is the receiver; (e) To compound for and compromise the same; (f) To make transfers; (g) To pay outstanding debts: (h) To divide the money and other property that shall remain among the persons legally entitled to receive the same; (i) And generally, to do such acts respecting the property as the court may authorize
DIFFERENTIATE BETWEEN THE BOND FILED BY THE APPLICANT AND THE BOND FILED BY THE RECEIVER. Applicants bond answers for all damages that the adverse party may sustain by reason of the appointment of the receiver in case the appointment was procured without sufficient cause. Receivers bond answers for damages suffered by reason of the failure of the receiver to discharge his duties faithfully or to obey the orders of the court. WHAT MUST THE APPLICANT AND THE RECEIVER DO WITH REGARD TO THEIR RESPECTIVE BONDS? The person filing a bond must serve a copy thereof on each interested party, who may accept to its sufficiency or of the surety or sureties thereon. Applicants/ suretys bond If the bond is found to be insufficient or the surety or sureties fail to justify, and such failure is not rectified, the bond shall be denied or the receiver discharged, as the case may be.
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MAY THE RECEIVER INVEST FUNDS IN HIS HANDS? THE Those with claims must appear in the same proceedings and assert their claims. FUNDS IN THE SHERIFFS CUSTODY may be within the reach of processes coming from other judicial proceedings. Note: Authorization of court is not necessary in mortgage foreclosure suit when mortgage was constituted before appointment of receiver. WHAT IS THE PROCEDURE IN PRESENTATION OF CLAIMS AGAINST RECEIVERSHIP? (1) By motion or petition proceeding in which the discharges his duties. in same receiver
Funds in the hands of the receiver may be invested only by order of the court upon the written consent of all parties to the action. HOW IS AN ACTION AGAINST THE RECEIVER? BROUGHT
No action may be filed by or against a receiver without leave of court which appointed him. This applies only when the receivership is pending. MAY THE RECEIVER ENTER INTO A CONTRACT WITH RESPECT TO THE PROPERTY HELD BY HIM? Yes, but only with court approval. Unauthorized contracts are the receivers personal obligations. DISTINGUISH THE FUNCTIONS OF A RECEIVER FROM THOSE OF A SHERIFF. A RECEIVER is a special officer appointed in relation to and within a certain case or action, and whose duties are limited to his sphere of action, and do not extend further than the case in which he was appointed. A SHERIFF is a court officer of a general character who is not appointed for a certain judicial case. He exercises his functions within the limits of his jurisdiction. FUNDS IN THE RECEIVERS CUSTODY are not within the reach of processes coming from other judicial proceedings.
(2) By filing complaints-in-intervention in accordance with section 1 of Rule 19 (3) Notice must be given to all the parties in interest. WHAT IS THE LIABILITY FOR REFUSAL OR NEGLECT TO DELIVER PROPERTY TO THE RECEIVER? Such person may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. HOW IS THE TERMINATED? RECEIVERSHIP
It is terminated when the court, motu propio or on motion of either party:
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(1) determines that the necessity for a receiver no longer exists, after due notice and hearing to all interested parties, (2) settles the accounts of the receiver, and (3) directs the delivery of funds and other property in his possession to the person adjudged to be entitled to receive them, and (4) orders the discharge of the receiver as such. WHEN SHOULD REMOVED? A RECEIVER BE WHAT IS THE PURPOSE FOR SUCH? For the recovery personal property of possession of
WHO HAS JURISDICTION TO ISSUE WRIT OF REPLEVIN? If the value of the personal property sought to be recovered is more then 300K, and in Metro Manila 400K, the RTC has jurisdiction. WHERE MAY THE WRIT OF REPLEVIN BE ENFORCED? Anywhere in the Philippines. WHAT IS REPLEVIN? Delivery of personal property as a provisional remedy consists in the delivery, by order of the court, of a personal property by the defendant to the plaintiff, who shall give a bond to assure the return thereof of the payment of damages to the defendant if the plaintiffs action to recover possession of the same property fails, in order to protect the plaintiffs right of possession of said property, or prevent the defendant from damaging, destroying or disposing of the same during the pendency of the suit. WHAT IS THE MAIN DIFFERENCE BETWEEN REPLEVIN FROM PRELIMINARY ATTACHMENT? If the purpose of the action is for the recovery of personal property belonging to the plaintiff = replevin. If the property belongs to the defendant and is sought to be attached by the plaintiff to secure
When he asserts ownership over the property in his hands as a receiver and refuses to submit an accounting of the financial status of the property. WHEN SHOULD OBJECTION TO THE ACCOUNTS OF THE RECEIVER BE MADE? They should be made timely. They cannot be made when no objection was interposed prior to the courts approval and after receipt of benefits. NOTE: The judgment should include recovery against the sureties. Damages not claimed in the same action is barred. RULE 60 REPLEVIN WHEN MAY AN APPLICATION FOR REPLEVIN BE MADE? At the commencement of the action or at anytime before the answer.
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satisfaction of any judgment that the may recover from the defendant = Preliminary attachment WHAT IS THE MAIN DIFFERENCE BETWEEN REPLEVIN AND RECEIVERSHIP? The order of the court authorizing the plaintiff corporation to take possession of the personal property in litigation upon the filing of a bond sufficient to secure the conservation or value of the same does not constitute a delivery of the personal property, but only a deposit of the property in litigation applied for by said plaintiff corp. which became a receiver by authority of the court, it being the party most interested in the conservation and care of said property. HOW SHOULD ATTACHMENT BE CASE OF DOUBT? PRELIMINARY CONSTRUED IN WHAT IF THE POSSESSION IS HELD BY A 3RD PARTY, WHO SHOULD BE IMPLEADED? The indispensable parties in action to recover possession as a preliminary to sale on foreclosure are the 3rd party and the chattel mortgagor. WHAT IS THE BASIS FOR JURISDICTION IN AN ACTION BY CHATTEL MORTGAGE? The value of the money claim and the value of the personal property combined. IF A MORTGAGEE IN INSTALLMENT SALES OF PERSONAL PROPERTY CHOOSES THE REMEDY OF SPECIFIC PERSON IS HE ENTITLED TO DEFICIENCY JUDGMENT? Yes, it is only when the vendor-mortgagee chooses the remedy of foreclosure of chattel mortgage that the mortgagor is not liable for any deficiency. WHAT ARE EXPENSES OF SUIT THAT NOT TAKEN OUT OF THE PROCEEDS OF THE FORECLOSURE SALE BUT DIRECTLY RECOVERABLE FROM THE MORTGAGOR? Repayment for the premium on the replevin bond it filed, the sheriffs fees, costs of suit, and a reasonable sum as attys fees. WHO MAY FILE AN APPLICATION FOR A WRIT OF REPLEVIN? The applicant plaintiff or some other person who personally knows the facts.
If the subject matter is personal property, then it should be treated as replevin in case there is conflict or doubt. IF THE MORTGAGOR REFUSES TO SURRENDER PROPERTY, WHAT SHOULD THE MORTGAGEE DO? He should institute an action either to effect a judicial foreclosure directly or to secure possession as a preliminary to the sale by a writ of replevin. He should implead the mortgagor in the complaint for the recovery of the encumbered property. He cannot lawfully take the property by force against the will of the mortgagor.
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WHAT SHOULD THE APPLICATION FOR A WRIT OF REPLEVIN CONTAIN? (1) That the applicant is the owner of the property claimed or is entitled to the possession thereof. 1.1) particularly describing it. (2) That the property is wrongfully detained by the adverse party. 2.1) Alleging the cause of detention according to the best of his knowledge, information, and belief. (3) That the property has not be distrained or taken for a tax assessment or a fine pursuant to law. 3.1) or seized under a writ of execution to preliminary attachment, 3.2) or otherwise placed under custodia legis 3.3) if so seized that it is exempt from such seizure or custody. (4) the actual market value of the property (5) A bond must be given, executed to the adverse party in double the value of the property WHY SHOULD THE BOND BE DOUBLE THE VALUE OF THE PROPERTY? Depreciation IS THE WRIT OF REPLEVIN LIMITED AS A REMEDY TO THE PLAINTIFF? No, the defendant may obtain such in a counterclaim for foreclosure of chattel mortgage because in a counterclaim, the defendant is actually the plaint seeking this provisional remedy. WHAT DOES THE ORDER OF THE WRIT OF REPLEVIN CONTAIN AND WHEN IS IT ISSUED? Upon filing of the affidavit and bond, the court shall issue such writ, describing the personal property alleged to be wrongfully detained and requiring the sheriff to take such property in his custody. WHAT IS THE DUTY OF THE SHERIFF UPON RECEIPT OF SUCH ORDER? He must serve a copy on the adverse party of the affidavit and bond and must take the property if it be in the possession of the adverse party, or his agent, and retain it in his custody. WHAT IF THE CONCEALED IN A ENCLOSURE? PROPERTY BUILDING IS OR
The sheriff must demand its delivery, and if it is still refused, he must cause the building or enclosure to be broken open and take the property into his possession. The sheriff must then keep such property in a secure place and shall be responsible for its delivery to the party entitled after receiving his fees and necessary expenses for taking and keeping the same. CAN THE COURTS ORDER THE SHERIFF TO DELIVER PERSONAL PROPERTY WHEN SUCH IS UNDER ATTACHMENT? No, they do not have jurisdiction to order the delivery of personal property to the applicant if the property is under attachment, it being in custodia legis.
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WHAT IF THE PROPERTY IS SUBJECT OF A SEARCH WARRANT, CAN IT BE THE SUBJECT OF A WRIT OF REPLEVIN? No, if it is in the custody of another public officer by virtue of a search warrant, then it cannot, be subjected to a writ of replevin. Only the court that issued the warrant may order its release. WHAT IF THE ADVERSE PARTY OBJECTS TO THE SUFFICIENCY OF THE BOND OF THE APPLICANT? The adverse party cannot immediately require the return of the property WHAT IF HE DOES NOT OBJECT THERETO? He may at anytime before the delivery of the property to the applicant require the return thereof, by filing with same court a bond executed to the applicant, in double the value of the property as stated in the applicants affidavit. WHAT IS BOND? THE PURPOSE OF THE PROPERTY TO HIM UPON PAYMENT OF THE BOND? At anytime before the delivery of the property, or within 5 days after the taking of the property of the sheriff provided that it was not yet delivered. WHAT DOES THE DEFENDANTADVERSE PARTY HAVE TO DO IF HE WANTS THE PROPERTY RETURNED TO HIM? (1) Put up a counter bond in double the amount of the chattel, and 2) furnish the plaintiff with a copy of the counter-bond within 5 days from the date the sheriff took possession of the property. Both these requirements are mandatory. WHEN DOES THE FURNISHING OF A COPY OF THE COUNTER-BOND HAVE TO BE ACCOMPLISHED? It has to be accomplished within the prescribed period if the plaintiff is to have an opportunity to contest the redelivery of the property sought by the defendant. WHAT DOES THE FURNISHING OF A COPY OF THE COUNTER-BOND HAVE TO BE ACCOMPLISHED? It has to be accomplished within the prescribed period if the plaintiff is to have an opportunity to contest the redelivery of the property sought by the defendant. WHAT IF THE JUDGE APPROVES A COUNTER-BOND BEYOND THE 5 DAY PERIOD?
To enable the defendant possession of the property
to
retain
WITHIN WHAT TIME MUST THE SHERIFF RETURN THE PROPERTY TO THE APPLICANT-PLAINTIFF? Within 5 days after the taking of the property. WHEN MAY THE ADVERSE PARTY REQUIRE THE RE-DELIVERY OF THE
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The act would be GADALEJ. Certiorari will lie. IF THE PROPERTY TAKEN IS CLAIMED BY ANY PERSON OTHER THAN THE DEFENDANT-ADVERSE PARTY, WHAT HAPPENS? The sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond, approved by the court, to indemnify the 3rd party claimant in a sum not less than the value of the property under replevin. WHEN MAY A CLAIM FOR DAMAGES BE MADE AGAINST THE BOND? It must be claimed in an action for such within 120 days from the date of the filing of the bond. But if the claim is spurious or patently frivolous then nothing herein shall prevent such claimant from claiming damages. WILL THE SHERIFF BE LIABLE FOR THE CLAIM OF THE 3RD PERSON? No, if a bond was filed. If no bond is filed by the applicant to secure the claim of a 3rd party intervenor, then he would be liable. WHAT IF THE SHERIFF IS SUED FOR DAMAGES WHEN THE WRIT IS ISSUED IN FAVOR OF THE REPUBLIC OF THE PHILIPPINES? The filing of the bond is not required because the State replevined it. The sheriff shall be represented by the Solicitor General, and if he held liable therefore, the actual damages, adjusted by the court shall be paid by the National Treasurer. HOW MAY A 3RD PARTY VINDICATE HIS CLAIM By filing a complaint in intervention, because he has a legal interest in the matter in litigation. AFTER THE TAKING OF THE PROPERTY BY THE SHERIFF, WHAT SHOULD HE DO? The sheriff must file the order, with his proceedings indorsed with the court within 10 days. WHAT DOES THE JUDGMENT IN THESE CONTEMPLATED SITUATION STATE? After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove. WHAT DOES THE RE-DELIVERY BOND COVER? Although a replevin re-delivery bond does not in terms require the property to be returned in substantially good condition as when taken, such an obligation is always implied by law. In other words, the bond covers the deterioration or depreciation of such personal property. WHEN MAY THE PREVAILING PARTY REFUSE TO TAKE THE LITIGATED PROPERTY?
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When judgment is rendered for the articles or their value and they cannot be returned in substantially the same condition, it is settled that the prevailing party may: 1.) Refuse to take them and instead sue on the redelivery bond, or 2.) Execute on the judgment for value IS THIS RIGHT CONFINED AT THE TIME OF JUDGMENT? No, if the prevailing party has this right after judgment, it is at once obvious that he must also have the same right when, asking for the delivery pendent lite of the same property, he afterwards finds them in a substantially depreciated condition. HOW IS THIS RIGHT TO REJECT ASSURED? By the provision that the judgment in a suit for replevin must be in the alternative so as to afford a measure of relief where the property cannot be returned. CAN THE PREMIUMS PAID TO THE SURETY FOR THE COUNTER BOND BE CLAIMED AS DAMAGES BY THE ADVERSE PARTY? No, it constitutes an expense purely voluntary due to his desire to retain possession of the chattel pending the suit and his refusal to rely on the replevin bond for indemnity? WHAT SHOULD THE JUDGMENT INCLUDE? It should include the claim for damages against the applicant or adverse party, as the case may be and the surety thereon. The rule stands that damages must be claimed in the same action otherwise barred. MAY A PARTY CLAIM DAMAGES AGAINST A SURETY PRIOR TO THE DELIVERY OF THE PROPERTY PURSUANT TO THE WRIT OF REPLEVIN? No, a replevin bond is simply to indemnify the defendant against any loss that he may suffer by being compelled to surrender the possession of the property pending trial, he can not recover on the bond as for reconversion when he has failed to have judgment entered for the return of the property. WHY IS THE ORDER TO RETURN PROPERTY A CONDITION PRECEDENT TO RECOVER DAMAGES FROM SURETY? Damages must result from the refusal or inability of the plaintiff to redeliver the property in pursuance of a judgment. Unless there is an adjudication, there is no duty to return the personal property in question, and there being no duty to return it, there can be no damages for non-restitution RULE 61 SUPPORT PENDENTE LITE When: at the commencement of the action or while case is pending. Requirements: (1) Grounds for the claim (2) Financial condition of the parties; (3) Affidavits, etc.
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WHO ARE BOUND TO GIVE SUPPORT Family Code, Art. 105. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article. (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brother and sisters, whether of full or half-blood Order: issued after consideration of the following (1) probable outcome of the case; (2) necessity of applicant; (3) means of adverse party; (4) terms of payment. How enforced: writ of execution may issue while action is pending. Support is one of the exceptions to the rule that only final judgments may be executed. Different means of enforcing reimbursement and restitution Reimbursement of support provided by third party: may obtain writ execution in the same case Restitution when final judgment finds him not liable for support: file a separate action (because the first action is already terminated) In criminal cases, support pendent elite for child born of the crime may be applied for by the offended party, her par4ents, grand parents, guardian, State (in that order)
SPECIAL CIVIL ACTIONS

What makes special civil different from the rest? actions
They are actions whose rules provide for their own procedure different from ordinary civil actions. RULE 62 INTERPLEADER Grounds: (1) Conflicting claims upon the same subject matter (2) Against a person who claims no interest or an interest not disputed by claimants (3) Compel claimants to interplead and litigate their claims among themselves. Fees: docket and lawful fees, as well as costs paid by party who filed the complaint shall constitute a lien upon the subject matter of the action, unless the court otherwise orders.
RULE 63 DECLARATORY RELIEF Who may file: Any person: (1) interested under a deed, will, contract or other written instrument; (2) or whose rights are affected by a statute, executive order, ordinance, or other governmental regulation. When: before breach
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Where: RTC 3. Duplicate original or CTC of judgment/ order and material portions of the record; 4. Proof of service; 5. CNFS; 6. Fees and costs Grounds for dismissal 1. Insufficient in form/substance 2. For delay 3. Questions are too unsubstantial to warrant further proceedings Respondents will be required to comment No other pleading allowed Filing petition does not stay execution unless the SC direct otherwise on just terms Unless set by SC for oral argument, considered submitted upon the filing of the comment or other required pleadings or upon expiration of the period to file.
Relief: construction, validity, declaration of rights/duties Reformation, quieting of title, removal of cloud, consolidation may also be brought under Rule 63 No reformation if there is mistake of law (only mistake of fact is allowed) Cloud, apparently valid but is in fact not valid and casts cloud.
Notice to government Case involves validity of statute etc, notice to Solicitor General Case involves validity of local government ordinance notice to prosecutor or counsel for LGU involved Unconstitutionality of law or ordinance notice to Solicitor General Action of court: If for reformation, quieting, consolidation judicial power must be exercised If for declaratory relief proper court may refuse to declare rights where decision is not necessary or proper or would not terminate the controversy Conversion into ordinary action: where there is breach RULE 64 REVIEW OF COMELEC AND COA Rule 65 to the SC applies 30 day reglementary period; MR suspends; not less than 5 days. Petition, contents: 1. Material dates; 2. Facts, grounds, prayer;
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the judgment WHAT ARE THE REQUISITES FOR CERTIORARI? WHAT IS A WRIT OF CERTIORARI? It is a prerogative writ (takes precedence over other civil cases), never demandable as a matter of right, never issued except in the exercise of judicial discretion DISTINGUISH RULE 45 FROM RULE 65 RULE 45 Questions or errors of law decided by the lower court RULE 65 Acts of lower court, body or officer exercising judicial functions when with or in excess of jurisdiction or with GADALEJ Errors of jurisdiction Inferior court, board or officer is the public respondent; appellee is private respondent Annulling or modifying the act (1) Tribunal, board, or officer exercises judicial or quasi judicial functions; (2) Acted without or in excess of jurisdiction or with GADALEJ; (3) There is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. WHEN MAY CERTIORARI BE INVOKED (IN RELATION TO APPEAL)? (1) When appeal is not available ex. NLRC decisions are not appealable but may be taken to the CA under Rule 65 (2) When the right to appeal has been lost with or without the petitioners negligence and the decision appealed from is void for lack or excess of jurisdiction (3) When appeal is available but the order complained of is a patent nullity Even if appeal is available, certiorari can still lie if appeal is not equally, speedy, adequate, etc. Even if appeal has already been perfected, certiorari can still be availed of if the latter proves to be the adequate remedy and its filing will not be construed as an abandonment of the appeal. MOTION FOR NECESSARY PETITION FOR
WHAT IS REVIEWED?
PARTIES?
Errors of judgment Same partie
DECISION
Affirming, reversing, or modifying
IS A PREVIOUS RECONSIDERATION BEFORE FILING A CERTIORARI? General Rule: yes
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Exceptions: (1) where the issue is purely legal (2) where public interest is involved (3) in case of urgency (4) where the question of jurisdiction was squarely raised, submitted to and met and decided by the lower court. (5)) where the order is a patent nullity DISTINGUISH INJUNCTION PROHIBITION FROM COMPEL THE PERFORMANCE DISCRETIONARY ACTS? OF
Yes; what is compelled is action on the part of the respondent in using his discretion. A good example is a petition for mandamus to compel a judge to render judgment on a case he has been sitting on beyond the period allowed by law. The court issuing the writ of mandamus will command him to decide but will not decide for him. WHAT RIGHT MUST PETITIONER HAVE FOR MANDAMUS TO LIE? He must have clear and certain legal rights to the action being compelled. Mandamus will not issue in doubtful cases. DISTINGUISH INJUNCTION MANDAMUS FROM
Prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim Injunction is directed only to party litigants, without interfering with the court. WHAT ARE SOME LIMITATIONS ON THE SCOPE OF PROHIBITION? (1) It does not apply to political functions (2) It applies only to threatened and not consummated acts; (3) It does not apply to errors and irregularities in procedure where the proper remedy is probably certiorari TO WHAT ACTS/DUTIES MANDAMUS APPLY? DOES
Mandamus is remedial; injunction preventive. Mandamus is employed redress grievances; injunction is used prevent injury. Mandamus is to set motion; injunction is to restrain motion. CAN MANDAMUS ADMINISTRATIVE STILL AVAILABLE? General Rule: No
is to to in
ISSUE WHEN REMEDIES ARE
Ministerial acts to compel performance of the act required by law Discretionary acts to compel the exercise of discretion DO YOU MEAN TO SAY THAT MANDAMUS CAN BE USED TO
Exception: Mandamus will issue even if administrative remedies are available if: (1) The respondent is in estoppel if by his conduct, he led the other party to believe that immediate judicial recourse is available. (2) Pure questions of law are raised since these questions cannot be decided by an administrative officer with finality
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DISTINGUISH THE SECOND GROUND FOR MANDAMUS FROM QUO WARRANTO. Mandamus is proper if the respondent excludes the petitioner from an office to which the latter is entitled without claiming such office for himself. Quo warranto is proper if the respondent usurps the office. They may be combined if one respondent unlawfully excludes without usurping while the other usurps DISTINGUISH PROHIBITION CERTIORARI FROM Motion for Reconsideration is required or not. ARE THERE EXTENSIONS OF TIME TO FILE THE PETITION? Yes, but only for compelling reasons and in no case exceeding 15 days. WHERE SHOULD THE PETITION BE FILED? (1) Supreme Court (2) RTC with territorial jurisdiction over the area (3) CA whether or not in aid of its appellate jurisdiction (4) Sandiganbayan if in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi judicial agency, the general rule is that the CA has exclusive jurisdiction. WHAT IS THE DUTY OF PRIVATE RESPONDENTS IN DEFENDING AGAINST A PETITION? The private respondents must appear and defend, both himself and the public respondent. Costs awarded are for the account of the private respondent alone. The public respondent should not intervene in the case. The joinder of the private respondent interested in sustaining the action complained of is MANDATORY WHAT IS THE PROCEDURE (1) Petition if filed
Certiorari is a CORRECTIVE remedy used to re-examine the action of a lower body directed at the proceedings in such body. Prohibition is a PREVENTIVE remedy issued to restrain future function, and is directed to the court itself. DISTINGUISH MANDAMUS PROHIBTION FROM
Prohibition has for its object that of preventing an inferior tribunal from executing an act in excess of its jurisdiction. Mandamus has for its object to compel an inferior tribunal to comply with a function which the law specially prescribes as a duty resulting from its office. WHEN SHOULD THE PETITION BE FILED? Not later than 60 days from notice of the judgment or notice of denial of the Motion for Reconsideration, whether such
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(2) If petitions is sufficient, order requiring respondents to comment shall be issued; This order is equivalent to summons. (3) Respondent must file comment within 10 days from receipt of such order. In petitions for certiorari before the SC and the CA, before giving due course to the petition, respondents may be required to comment. (4) After the comment is filed or the period for filing expires, the court may hear the case or require submission of memoranda. (5) The court can render judgment as is appropriate. DOES FILING THE PETITION INTERRUPT THE RUNNING OF THE APPEAL PERIOD? General Rule: No. Under Sec. 7 of Rule 65, the petition shall not interrupt the course of the principal case. Exception: . Unless a TRO or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. WHEN CAN DISMISSED? A PETITION BE After comment: (1) Manifestly without merit (2) Intented merely for delay (3) Unsubstantial questions that dont require consideration. WHAT RELIEF IS THE PETITIONER ENTITLED TO? Certiorari: (1) A judgment annulling or modifying the proceedings of the tribunal, board or officer taken without or in excess of jurisdiction or with GADALEJ. (2) Costs
Prohibition: (1) A judgment commanding the defendant to desist from further proceeding in the action or matter where the proceedings were without or in excess of jurisdiction or with GADALEJ (2) Costs Mandamus: (1) Judgment commanding the respondent to do the act required to be done (2) Costs (3) Exemplary damages WHY ARE DAMAGES NOT AWARDED IN CERTIORARI AND PROHIBITION? The question of damages can only be determined in an adjudication of the merits of the case. In certiorari and prohibition, all that is determined is whether there is lack or excess of jurisdiction. Molina vs. CA: In Rule 65, it is not necessary to implead the trial judge by name. It is sufficient that the tribunal be
Before comment: (1) Defective in form and substance; (a) Non-joinder of private respondents; (b) No proof of service; (c) No certificate of non-forum shopping; (d) Without merit from allegations in the complaint.
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impleaded, by doing so, the petitioner necessarily refers to the judge who rendered the decision. RULE 66 QUO WARRANTO WHAT IS QUO WARRANTO: Section 1 An action for the usurpation of a public officer, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. HOW MANY WAYS ARE THERE TO INSTITUTE QUO WARRANTO? By the Solicitor General Mandatory When directed by the President When he has good reason to believe that the grounds can be established by proof Discretionary At the request of a relator, with the courts permission, provided that the relator may be required to provide indemnity By an individual: who claims to be entitled to a public office or position usurped by another. The individual must show a clear right to that office. WHERE SHOULD BROUGHT? General Rule: respondent THE ACTION BE
SC, CA, RTC by the
Exception: Solicitor General files in SC, CA, RTC of Manila (seat of power) WHAT ARE THE RIGHTS OF THE PERSON ADJUDGED TO BE ENTITLED TO THE OFFICE (SEC. 10) After taking the oath, and executing the bond required by law, if any, the person adjudged to be entitled may: (a) take upon himself the execution of the office (perform the functions); (b) demand from the respondent all the books and papers in the latters custody appertaining to the office, refusal of which is punishable by contempt. (c) bring an action for damages (back salaries and other damages) sustained by reason of usurpation. WHAT ARE THE LIMITATIONS ON AN ACTION FOR QUO WARRANTO (SEC. 11) (1) The action itself must be commenced: a. One year from ouster; or b. One year from the time the right of the petitioner to the office arose. (2) An action for damages by reason of the usurpation must be
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commenced within one year after ENTRY of the judgment establishing the petitioners right to the office in question. after a final order condemning the property except on such terms as the court deems just and equitable. NHA vs. Guivelondo: If action is still pending, even if in possession, government may still withdraw. If judgment is final, government can no longer withdraw unless there are just or equitable reasons. The high value of the property was not considered a just or equitable reason. Agrarian Reform: Same process as in expropriation but before DAR Adjudicator. If there is a question on the determination of just compensation go to the Land Reform Court. Determination of compensation: by commissioners after examining the property and hearing the parties Formula of compensation: consequential damages consequential benefits = just compensation but in no case shall consequential benefits exceed consequential damages
In (1), both criteria must be met. Ex: If the petitioners right to hold the office has existed for more than one year, the petition will be dismissed although the usurper had been occupying the office for less than a year. In (2), the claim for back salaries and damages is INCIDENTAL to the principal action and must be brought within one year.
RULE 67 EXPROPRIATION How: By verified complaint Parties are the Republic of the Philippines and owners/ occupants of property Objection/no objection: If defendant has no objection, he files a notice of appearance and manifestation after which he shall be entitled to notice of proceedings. If the defendant has objections, he shall file an answer (no counterclaims allowed). TWO STAGES OF EXPROPRIATION: (1) condemnation after a finding of public purpose or use and (2) determination of just compensation Each stage results in a final judgment which may be appealed; failure to appeal makes the judgment final and executory Section 4 of Rule 67 prohibits the discontinuation of the proceedings
Recording of judgment: certified copy recorded in Register of Deeds where the property is located; effect is to vest title in the Republic of the Philippines. Reason to avoid paying transfer taxes, doc. Stamp taxes, etc. RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE Foreclosure is either Judicial under Rule 68 or Extrajudicial under Act. No. 3135
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TO INITIATE: Verified complaint setting forth the details of the obligation, the REM, the parties etc. Notice of sale: But Rule 68 states that confirmation is crucial to vest rights the period can thus go beyond 120 days.
Perishable post in 3 public places for reasonable period; Personal property post in 3 public places for not less than 5 days; Real property post in 3 public places for 20 days; If assessed value exceeds P50K, publish notice in newspaper for once a week for two consecutive weeks. In all cases written notice given to judgment obligor at least three days before sale (when perishable, anytime before sale); Contents: place, date and time; from 9am to 2pm
Lesson: If you dont have money, ask sheriff to delay confirmation. George Limpin v CA: Under the old rules, the period was 90 days to confirmation; but the new rules, its is 90 to 120 days but always to rights of redemption allowed by law (GBL. Sec 47) Under the GBL, the following rules apply:
DBP v CA: Where the sale of real property was postponed, it was held that there must be a republication of the notice of sale, with the correct date, in order for a subsequent sale to be valid. The practice now is to indicate two dates in the notice, with the later date as back-up, and have a clause stating that if the sale is not made on the first date, it will be held on the second date without need for notice (OCA Cir. 7-2002).
Natural person mortgages property to bank; period is one year from registration Judicial person mortgages property to bank; period is before certificate of sale is recorded in the Register of Deeds but not more than three months after foreclosure, whichever is earlier.
During redemption period, the rules on possession under Rule 39 apply the judgment debtor is entitled to possession and fruits. If purchaser is evicted because of irregularities or because the judgment was reversed or property exempt, he may recover from the judgment obligee the price with interest, or have the judgment revived against the judgment obligor.
EQUITY OF REDEMPTION Judgment against defendant will include an order that the debt be paid within a period of 90 to 120 days from judgment. If the judgment obligor fails to pay, the property will be sold at public auction.
Korean Exchange Bank vs. Philcor: The award did not indicate that in case the amount was not paid, the property would be foreclosed it only said that payment
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should be made. SC: it was foreclosure as indicated in the body of the complaint. Ex. What if there is a suspension order (receivership/rehab) but properties are sold? A diligent lawyer would file a petition to enjoin setting of sale. If sale took place, petition to nullify the sale. Dont wait for the suspension order. Don; wait for confirmation because it would vest title. RULE 69 PARTITION (REAL AND PERSONAL) Lesson: It is better to resort to extrajudicial partition, which is cheaper. Procedure: (1) File a complaint for partition in the court where the property is located. (2) Court will order partition (a) If parties agree court will confirm (b) If parties dont agree commissioners will be appointed. (3) Court will confirm commissioners report Commissioners may assign the property to one of the parties subject to reimbursement; or the property may be sold at public auction with the proceeds divided accordingly. Section 12 states that paramount rights cannot be delegated. RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER DISTINCTION BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER FORCIBLE ENTRY Based on entry effected by force, intimidation, threat, strategy, or stealth UNLAWFUL DETAINER Based on unlawful detention by a person who has acquired possession rightfully, but who detains the property after the right to keep possession is ended. The possession is legal at the start but becomes illegal after the right to keep it has ended
The action is to recover possession founded upon illegal possession from the beginning
WHO MAY FILE THE ACTION? For Forcible Entry: Anyone deprived of the possession of any land or building by force, intimidation, threat strategy or stealth. For Unlawful Detainer: 1. Any landowner, vendor, or vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or determination of the right to hold possession, by virtue of any contract, express or implied; and
Effect of judgment: It vests in each party the portion assigned to him. Deliver copy to the Register of Deeds who will cancel the old and issue new TCTs. WHAT IF CO-OWNERS CONDUCT JUDICIAL PARTITION BUT EXCLUDE SOME CO-OWNERS
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2. The legal representatives or assigns of any such landlord, vendor, vendee, or any other person. WHAT ARE THE KINDS OF ACTION TO RECOVER POSSESSION OF REAL PROPERTY? In forcible entry: from the date the entry or taking of possession by force, intimidation, threat, or strategy. If entry is by means of stealth, count from the date of discovery. In illegal detainer: 1. from the date of the last demand to vacate in case of non-payment of rent or non-compliance with the conditions of the lease. 2. from the date of the notice to quit, in case of a tacit renewal of the lease; 3. from the date of the revocation of the permit in case of occupancy on mere tolerance or under temporary permit. WHEN IS DEMAND NECESSARY? TO VACATE
1. Forcible entry and detainer an action which is brought in the MTC within 1 year from the unlawful deprivation or withholding of possession. The object is the recovery of physical possession (possession de facto) 2. Accion Publiciana a plenary action for possession which should be filed in the RTC within 10 years from the date of dispossession. The object is recovery of the better right to possession (possession de jure). 3. Accion Reinvidicatoria an action to recover ownership and possession, which may be brought in the RTC within 10 years, if possession is in good faith, and 30 years if possession is in bad faith.
Only in unlawful detainer. The demand should always contain a demand to vacate on the ground of failure to pay or breach. PROCEDURE IS SUMMARY: Verified Complaint o Court may dismiss outright or issue summons Answer within 10 days o Failure to answer: no motion to declare in default because it is a prohibited pleading. Court will render judgment without need of motion Pleadings allowed: compulsory counterclaim, cross-claim, answers thereto Preliminary conference scheduled after a period of 30 days from date last answer is filed
So if A is dispossessed of his property through force, intimidation, threat, strategy, or stealth, he should file an action for forcible entry. He should file within one year from the date of dispossession. If after the expiration of one year, he does not file an action for forcible entry, the proper action is accion publiciana, which should be filed in the RTC within 10 years from dispossessin
FROM WHAT DATE IS THE ONEYEAR PERIOD COUNTED?
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o Pre-trial brief? Some judges require, some dont. The provisions dont require Preliminary Conference Preliminary Conference order within 5 days Parties submit affidavits 10 days from receipt of order Affidavits must be based on personal knowledge Judgment within 30 days from last affidavit. But may require more affidavits/evidence, hearing to clarify if so done 15 days from last affidavit/hearing terminated; ratio had enough time to case. Nayve v CA: MTC judgment appealed to the RTC, in FEUD cases, may be stayed only by compliance with Section 19 of Rule 70. On the other hand, the RTCs decision, which was rendered under its appellate jurisdiction, is immediately executory under Section 21 of Rule 70, without prejudice to an appeal, via petition for review before the CA or SC RULE 71 CONTEMPT WHEN TO FILE Direct no need to file; no notice Indirect within reasonable time HOW Direct motu propio Indirect: (1) motu proprio upon order [explain/show cause] or formal charge (2) verified petition docketed and file separately; may be consolidated with main case Torcende vs. Sardido: Indirect contempt. The first procedure applies only where contempt is committed against a court with contempt powers; the second applies if the contempt was committed against a body without such power. WHERE TO FILE Direct where the case is pending Indirect MTC, RTC, Superior Court WHAT GROUNDS Direct:
After o o
o o
CAN PLAINTIFF TAKE IMMEDIATE POSSESSION AFTER WINNING IN THE MTC? Immediately executory but stayed by: perfected appeal, bond (for rents, damages, costs up to judgment), deposit of rent after judgment due from time to time. o If you dont mind that plaintiff take possession, just post bond and perfect appeal
PRELIMINARY MANDATORY INJUCTION (to restore possession to plaintiff): In MTC: within 5 days from filing of complaint In RTC: within 10 days from perfection of appeal
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Misbehavior in the presence of or so near a court as to obstruct proceedings, refusal to be sworn, answer, subscribed when required to do so. Indirect: (1) Misbehavior of officer of court in performance of duties (2) Disobedience of a lawful order, process/ party ejected by court enters property to execute acts of ownership (3) Abuse with proceedings not considered direct contempt (4) Improper conduct tending to obstruct administration of justice (5) Assuming to be an attorney (6) Failure to obey subpoena (7) Rescue or attempt to rescue person in custody by virtue of a court order REMEDY Direct certiorari/ prohibition; immediately executory but may stay by posting a bond Indirect appealed as in criminal cases; may stay by filing bond PENALTY Direct: RTC P 2,000.00 a/o 10 days imprisonment MTC - P 200 a/o 1 day imprisonment Indirect RTC P 30,000 a/o 6 months imprisonment MTC P 5,000.00 a/o 1 month imprisonment WHY IS PENALTY HIGHER FOR INDIRECT CONTEMPT? Because you know there is an order, directive, etc. but you still disobey; also, theres opportunity to be heard.
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What is the difference between substantive law and procedural law?

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Notes in Civil Procedure

By: Biboy INTRODUCTION

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THE FRAMEWORK OF CIVIL PROCEDURE

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G) DISMISSAL BY THE PLAINTIFF RULE 17 H) AMENDMENT RULE 10 OF COMPLAINT

III. ANSWER RULE 6

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MANNER OF MAKING ALLEGATIONS IN PLEADINGS

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Notes in Civil Procedure

Notes in Civil Procedure

Notes in Civil Procedure

Notes in Civil Procedure

Notes in Civil Procedure

PROCEEDINGS AFTER SERVICE OF SUMMONS

Notes in Civil Procedure