Civil Procedure Memory Aid

ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER 3. Special Proceedings – remedy by which a party seeks to establish a status, a right, or a particular fact.

CIVIL PROCEDURE

CLASSIFICATION OF ACTIONS (A) As to nature

RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are not penal statutes. They cannot be given retroactive effect. They can, however, be made applicable to cases pending at the time of their passage and therefore are retroactive in that sense. Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations: 1. It must provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade; and 3. Shall not diminish, increase or modify substantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed by one court of justice. against another. One party prosecutes The moment said claim is another for the filed before a court, the enforcement or claim is converted into an protection of a right or action or suit. QuickTime™ and a the prevention or redress TIFF (Uncompressed) decompressor are needed to see this picture. of a wrong.

ORDINARY ACTION Governed by rules.

ordinary

Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court for by the law.

SPECIAL CIVIL ACTION Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71). Special features not found in ordinary civil actions.

(B) As to object ACTION IN REM Direct against the thing itself. Jurisdiction over the person of the defendant is NOT required.

ACTION IN PERSONAM Directed against particular persona Jurisdiction over the person of the defendant IS required.

A proceeding to determine the state or condition of a thing.

An action to impose a responsibility or liability upon a person directly.

Judgment is binding on the whole world.

Judgment is binding only upon parties impleaded or their successors in interest. Ex. Action for specific performance; action for breach of contract.

APPLICABILITY: 1. Civil Action – one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. 2. Criminal Action – one by which the Stake prosecutes a person for an act or omission punishable by law.

CIVIL

Ex. Probate proceeding; cadastral proceeding.

ACTION QUASI IN REM Directed against particular persons. Jurisdiction over the person of the defendant is NOT required as long as jurisdiction over the res is acquired. A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it.

Judgment binding upon particular persons.

Ex. An action for partition; action to foreclose real estate mortgage.

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The distinction is important in determining whether or not jurisdiction over the persons of the defendant is required.

The Rules of Court are applicable by analogy or in a suppletory character and whenever practicable and convenient.

(C) As to cause REAL ACTION PERSONAL ACTION Ownership or Personal possession of property is real property is sought to be involved. recovered or where damages for breach of contract are sought. Founded on Founded on privity of real privity of estate. contract. Filed in the Filed in the court where the court where the property or any plaintiff or any part thereof is of the situated defendants resides, at the option of the plaintiff Ex. Accion Ex. Action for a reinvidicatoria sum of money.

Section 5. Commencement of action MIXED ACTION Both real and personal properties are involved.

Founded both.

on

The rules on venue of real actions shall govern.

A civil action is commencement by: 1. The FILING OF THE COMPLAINT (when an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such LATER PLEADING); and Cabrera v. Tiano 8 SCRA 54 (1963) Civil actions are deemed commenced from the date of the filing and docketing of the complaint, without taking into account the issuance and service of summons 2. The PAYMENT OF DOCKET FEES (determined not only in the amount of the claim but also by the amount of damages). NOTE: The amount of damages should be specified not only in the body of pleading but also in the prayer.

Ex. Accion publicana with a claim for damages

The distinction is significant in determining the venue of an action. (D)As to place of filing LOCAL ACTION TRANSITORY ACTION Must be brought in a Dependent on the place particular place where the party resides where the subject regardless of where the property is located, cause of action arose subjec unless there is an to Section 4, Rule 4. agreement to the contrary (Section 4, Rule 4). Ex. Action to recover QuickTime™ Ex. Action to recover sum and a decompressor real property. TIFFare(Uncompressed) money neededof to see this picture.

The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive or reglementary period. An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing and not the date of the receipt thereof by the clerk of court. Section 6. Construction GENERAL RULE: Liberal construction EXCEPTIONS: 1. reglementary periods; 2. rule on forum shopping.

RULE 2 CAUSE OF ACTION

Section 4. In what cases not applicable Section 1. Ordinary Civil Actions, basis of NOT APPLICABLE TO: 1. Election Cases; 2. Land registration/cadastral cases; 3. Naturalization; 4. Insolvency proceedings; 5. Other cases not provided in the Rules of Court.

Section 2. Cause of action defined CAUSE OF ACTION – is the act or omission by which a party violates the right of another.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The essential requisite of a cause of action 1. LEGAL RIGHT of the plaintiff. 2. CORRELATIVE OBLIGATION of the defendant to respect plaintiff’s right; and 3. Act or omission of the defendant in VIOLATION of the plaintiff’s legal right. RIGHT OF ACTION – right of a person to bring and prosecute action to obtain judgment. The essential requisites of a right of action: 1. There must be a GOOD CAUSE; 2. Compliance with all the CONDITONS PRECEDENT; and 3. Action, must be instituted by the PROPER PARTY. CAUSE OF ACTION Delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. The reason action.

for

the

The formal statement of the operative facts that gives rise to remedial right. A matter of procedure and depends on the pleadings filed by the parties. Not affected by affirmative defenses (fraud, prescription, estoppel, etc.). RELIEF

REMEDY

RIGHT OF ACTION Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him. The remedy or means afforded or the consequent relief. The remedial right given to a person because of the occurrence of the alleged facts. A matter of right and depends on substantive law. Affected by defenses.

affirmative

SUBJECT MATTER The procedure The thing The redress, or appropriate wrongful act, protection, legal form of contractor award or relief QuickTime™ of action property which is coercive and a TIFF (Uncompressed) decompressor which bepicture. directly involved measure are neededmay to see this availed of by in the action, which the the plaintiff as concerning which plaintiff prays the means to the wrong has the court to obtain the been done and render in his desired relief. with respect to favor as which the consequence controversy has of the delict arisen. committed by the defendant.

Section 3. One suit for a single cause of action Section 4. Splitting a cause of action, effect of SPLITTING OF CAUSE OF ACTION – is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is NOT ALLOWED. PURPOSE: To avoid multiplicity of suits and unnecessary vexation and harassment of defendants. Applies NOT only to complaints counterclaims and cross-claims.

but also to

Remedies against splitting a single cause of action: A. Motion to dismiss on the ground of: 1. Litis pendentia (Rule 16, Section 1 [e]); or 2. Res judicata (Rule 16, Section 1 [f]). B. An answer alleging either as affirmative defense. (Rule 16, Section 6) GENERAL RULE: A contract embraces only one cause of action even if it contains several stipulations. EXCEPTION: A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. (e.g., promissory not payable in several installments so long as there is no acceleration clause) Blossom & Co. v. Manila Gas Corp., 55 Phil.226 (1930) DOCTRINE OF ANTICIPATORY BREACH An UNQUALIFIED and POSITIVE REFUSAL to perform a contract, though the performance thereof is not yet due, may, if the renunciation goes into the whole contract, be treated as a complete breach which will entitle the injured party to bring his action at once. Section 5. Joinder of causes of action Joinder of causes of action is purely permissive. The plaintiff can always file separate actions for each cause of action.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REQUISITES FOR JOINDER OF CAUSES OF ACTION: 1. The party joining the causes of action must comply with the rules on joinder of parties. 2. The joinder shall not include special and actions or actions governed by special rules. 3. Where the causes of action are between the same parties but pertain to different venues or jurisdiction is with the Regional Trial Court, provided that: a. One of the causes of action falls within the jurisdiction of the RTC; and b. venue lies thereon. 4. Where the claims in the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Totality Rule) NOTE: The following are the elements for a joinder of parties (Section 5, Rule 3); - A right to relief in respect to or arising out of the same transaction or series of transaction and - A common question of law TOTALITY RULE UNDER BP129 [Section 33(1)] Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all causes of action, irrespective of whether the causes of action arose out of the same or different transaction. NOTE: We will follow the totality rule in BP 129 because it is elementary in statutory construction that in case of conflict, substantive law prevails over procedural laws. SPLITTING OF A JOINDER OF CAUSES CAUSE OF ACTION OF ACTION There is a single cause Contemplate several of action. causes of action. PROHIBITED. It causes ENCOURAGED. It multiplicity of suits and minimizes multiplicity of double vexation on the suits and inconvenience QuickTime™ and a TIFF (Uncompressed)on decompressor part of the defendant the parties. are needed to see this picture. Section 6. Misjoinder of causes of action

There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action.

RULE 3 PARTIES TO CIVIL ACTIONS Section 1. Who may be parties; plaintiff and defendant PARTIES TO A CIVIL ACTION 1. A natural person 2. A juridical person; or 3. An entity authorized by law. PLAINTIFF – one having an interest in the matter of the action or in obtaining the relief demanded. DEFENDANT - one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The term defendant may include: 1. An unwilling plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto (Section 10, Rule 3); 2. The original plaintiff becoming a defendant to original defendant’s counterclaim; and 3. One necessary to a complete determination or settlement of the questions involved therein: Section 2. Parties in interest REAL PARTY IN INTEREST – the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. INDISPENSABLE PARTIES

NECESSARY PARTIES

Must be joined under any and all conditions, their presence being a sine qua non for the exercise of judicial power. No valid judgment if indispensable party is not joined.

Should be joined whenever possible, the action can proceed even in their absence.

Not a ground for dismissal of an action. A misjoined case of action may be severed and proceeded with separately. They are those with such an interest in the

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined. They are those whose presence is necessary to Page 6 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 controversy that a final would necessarily affect their rights so that the court cannot proceed without their presence.

adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them.

Tuason v. Bolanos 95 Phil 06 (1954) Section 2, Rule 3 of the Rules of Court requires that an action must be brought in the name but not necessarily by the real party in interest. In fact, the practice is for an attorney in fact to bring the action, i.e., to file the complaint in the name of the plaintiff. CLASSIFICATION OF PARTIES IN INTEREST: 1. Indispensable parties-those without whom and final determination can be had of an action (must be joined under all conditions). 2. Necessary (or proper) parties – those who are not indispensable but ought to be joined as parties if complete relief is to be accorded as to those already parties, of for a complete determination or settlement of the claim subject of the action (may or may not be joined) 3. Representative parties – those acting in fiduciary capacity such as trustees, guardians, executors, or administrators. The beneficiary shall be included in the title of the case and shall be deemed to be real part in interest. 4. Pro forma parties- those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Section 4. 5. Quasi parties – those in whose behalf a class or representative suit is brought. QuickTime™ and a

TIFF (Uncompressed) decompressor Section 3. Representative aspicture. parties are needed to see this

Section 4. Spouses as parties Section 5. Minor or incompetent Under the present rules, a suit may be brought by or against a minor or incompetent but with the assistance of his parents or his guardian. A person NEED NOT be judicially declared incompetent, it

being sufficient that his incompetency be alleged in the corresponding pleadings. Section 6. Permissive joinder of parties PERMISSIVE JOINDER - the rule on permissive joinder of parties is that they can be joined in one single complaint or may themselves maintain or be sued in separate suits. Requisites of permissive joinder of parties: 1. Right to relief arises out of the same transaction or series of transactions; 2. There is a question of law or fact common to all the plaintiffs or defendants; and 3. Such joinder is not otherwise prescribed by the provisions of the rules on jurisdiction and venue. SERIES OF TRANSACTIONS – transactions connected with the same subject matter of the suit. Section 7. Compulsory joinder of Indispensable parties Section 8. Necessary party JOINT DEBTORS – indispensable party in a suit against him but necessary party in a suit against his co-debtor. Section 9. Non-joinder of necessary parties to be pleaded Duty of a pleader whenever a necessary party is not joined or impleaded: 1. State the name of the necessary party, if known; and 2. State why said necessary arty is omitted in the pleading Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-defendant. NOTE: The failure to comply with the court’s order to include or join a necessary party without justifiable cause shall be deemed a waiver of the claim against such party. Section 10. Unwilling co-plaintiff

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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. Section 11. Misjoinder and non-joinder of parties Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action NOTE: Objections to defects in parties should be made at the earliest opportunity, i.e., the moment such defect becomes apparent, by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded. Objections to misjoinder cannot be raised for the first time on appeal. The non joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non compliance with the said order would be a ground to the dismissal of the action (Feria, 2001). Section 12. Class suit CLASS SUIT An action where one or more may sue for the benefit of all, implying that if the parties are numerous and it is impracticable to bring them to court, one or more may sue for their benefit. NOTE: An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class suit depends upon the attending facts. REQUISITES OF A CLASS SUIT: 1. Subject matter of the controversy is one of common or GENERAL INTEREST to many persons; 2. The persons are so NUMEROUS that it is impracticable to join them all as parties; and 3. Parties bringing the class suit are SUFFICIENTLY NUMEROUS AND REPRESENTATIVE of the class and can fully QuickTime™ and a protect the TIFF interests of all concerned; (Uncompressed) decompressor are needed to see this picture. 4. The representative sues or defends for the benefit of all. NOTE: Any party in interest shall have the right to intervene to protect his individual interest. (This is an instance when a person may intervene as a matter of right.)

CLASS SUIT There is one single action pertaining to numerous persons. Community of interests.

PERMISSIVE JOINDER OF PARTIES There are multiple causes of action separately belonging to several perons.

Section 13. Alternative Defendants Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any OR all of them in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other. Section 14. defendant

Unknown

identity

or

name

of

REQUISITES: 1. There is a defendant 2. His identity or name is unknown; 3. Fictitious name may be used because of ignorance of defendant’s true name an said ignorance is alleged in the complaint; 4. Identifying description may be used; sued as unknown owner, heir, devisee, or other designation; 5. Amendment to the pleading when identify of true name is discovered; and 6. Defendant is the defendant being sued, not a mere additional defendant. NOTE: Service of summons upon a defendant whose identify is unknown may be made by publication in a newspaper of general circulation in accordance with Section 14of Rule 14. The action must however be converted into an action in rem or quasi by attaching the defendant’s property in the Philippines. Section 15. Entity without juridical personality as defendant REQUISITES: 1. There are two or more persons not organized as a juridical entity; 2. They enter into a transaction; and 3. A wrong or delict is committed against a third person in the course of such transaction. NOTE: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known, but they cannot sue under such name. The service of summons may be effected upon all the defendants by serving upon any of them, or upon the Page 8 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 person in charge of the office or place of business maintained under such name (Sec. 8, Rule 14).

C. Section 18. Incompetency or Incapacity

INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER:

In case a party becomes incompetent or incapacitated, the action survives and may be continued by against the incompetent incapacitated assisted by his legal guardian or guardian ad litem who is his legal representative.

A. Section 16. Death of party; duty of counsel This provision applies where the claim is NOT thereby extinguished as in cases involving property and property rights such as: 1. Recovery of real and personal property against the estate; 2. Enforcement of client on such properties and; 3. Recover for an injury to person or property by reason of tort or delict committed by the deceased. In this case, the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. In case of minor heirs, the court may appoint a guardian ad litem for them. The substitute defendant need not be summoned. The ORDER OF SUBSTITUTION shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party.

B. Section 17. Death or separation of a party who is a public officer REQUISITES: 1. Public officer is a PARTY TO AN ACTION in his official capacity; 2. During the pendency of the action, he either DIES, RESIGNS, OR OTHERWISE CEASES to hold office; 3. It is satisfactorily shown to the court by any party, within 30 days after the successor takes office, the there is a SUBSTANTIAL NEED for continuing or maintaining the action; 4. That the successor ADOPTS ORCONTINUES OR THREATENSQuickTime™ TO ADOPT OR CONTINUE and a TIFF (Uncompressed) decompressor the action of hisneeded predecessor; are to see this picture. and 5. The party or officer affected has been given REASONABLE NOTICE of the application therefore and accorded an opportunity to be heard.

D. Section 19. Transfer of Interest NOTE: The transfer of interest that is obviously referred to in this section is a transfer that occurs during the pendency of the action. The transferor would no longer be the real party in interest if the transfer is made before the commencement of the suit. GENERAL RULE: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him. EXCEPTION: When the substitution by or joinder of the transferee is ordered by court. The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there are several plaintiffs, in which case, the remaining plaintiffs can processed with their own cause of action. Section 20. Action on contractual money claims REQUISITES 1. The action must primarily be for RECOVERY OF MONEY, DEBT, OR INTEREST thereon; 2. The claim, subject of the action, AROSE FROM CONTRACT, express or implied; and 3. Defendant dies BEFORE THE ENTRY OF FINAL JUDGMENT in the court in which the action was pending NOTE: Under this section, the death of the defendant will not result in the dismissal of the action. The deceased shall be substituted by his legal representatives in the manner provided for in Section 16 of Rule 3 and the action continues until the entry of final judgment. However, execution shall not issue in favor of the winning party. It should be filed as a claim against the estate of the decedent without need of proving the claim. Section 21. Indigent party

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Indigent – one who has no money or property sufficient and available for food, shelter, and basic necessities. He need not be a pauper to entitle him to litigate in forma pauperis

In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rules.

While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered.

Examples of qualifying or restrictive words: Æ ‘’Only’’ Æ ‘’Solely’’ Æ ‘’Exclusively in this court’’

If one is authorized to litigate as an indigent, such authority shall include: 1. An exemption from the payment of docket fees; 2. An exemption from the payment of transcript of stenographic notes.

Section 1. Venue of real actions

Section 22. Notice to the Solicitor General

RULE 4 VENUE OF ACTIONS VENUE – the place trial or geographical location in which an action or proceeding should be brought. VENUE Place where the action is instituted. Maybe waived

Procedural. May be changed by the written agreement of the parties.

JURISDICTION Power of the court to hear and decide a case. Jurisdiction over the subject matter over the nature of the action is conferred by law and cannot be waived. Substantive. Cannot be the subject of the agreement of the parties.

The rule on VENUE IS NOT APPLICABLE in cases: 1. Where a specific rule or law provides otherwise (i.e. an action for damages arising from libel); or 2. The parties have validly agreed in writing before the filing of the action in the exclusive venue thereof (Section 4). QuickTime™ and a

The venue is the place where the real property or any portion thereof is located. If property is located at the boundaries of two places: File case in either place at the option of the plaintiff. If case involves two properties located in two different places: 1. if the properties are the object of the same transaction, file it in any of the two places; 2. If they are the subjects of two distinct transactions, separate actions should be filed in each place unless property joined. Section 2. Venue of personal actions Raymond v. Court of Appeals 166 SCRA 50 (1988) RESIDENCE –should be viewed or understood in its popular sense, meaning the personal, actual, or physical habitation of a person, actual residence or place of abode. VENUE OF PERSONAL ACTIONS: 1. Where the plaintiff or any of the principal plaintiffs resides; 2. Were the defendant or any of the principal defendants resides; or 3. In the case of a non-resident defendant, the action may be brought in the place where he may be found. NOTE: ALL AT THE ELECTION OF THE PLAINTIFF.

REQUISITES FOR VENUE TO BE EXCLUSIVE: 1. A valid written agreement; 2. Executed by the parties before the filing of the action; and 3. Exclusive nature of the venue.

Means of waiving venue: 1. Failure to object via motion to dismiss; 2. Affirmative relief sought in the court where the case is filed; 3. Voluntary submission to the court where the case is filed; or 4. Laches.

Polytrade Corp. v. Banco 30 SCRA 187 (1969)

Section 3. Venue of actions against non-residents

TIFF (Uncompressed) decompressor are needed to see this picture.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. NON-RESIDENT FOUND IN THE PHILIPPINESa. for personal actions – where the plaintiff resides; and b. for real actions – where the property is located. 2. NON-RESIDENT NOT FOUND IN THE PHILIPPINES – An action may be filed only when the case involves: a. Personal status of plaintiff – venue: where plaintiff resides; b. Any property of said defendant located in the Philippines – venue: where the property or any portion thereof is situated or found. The Supreme Court has the power to order a change of venue to prevent miscarriage of justice. Dacoycoy v. IAC 195 SCRA 641 (1991) The Court may not motu proprio dismiss a complaint on the ground of improper venue. (). An exception is provided in Section 4 of the Rule on summary Procedure.

RULES ON SUMMARY PROCEDURE SUMMARY PROCEDURE IN CIVIL CASES Filing of verified complaint with the MTC

Court may summon the defendant

Within 10 days from receipt of summons defendant answers incorporating compulsory counterclaims or crossclaim & serves a copy on plaintiff

Answer to counterclaim and crossclaim within 10 days

Section 4. When Rule not applicable

RULE 5 UNIFORM PROCEDURE IN TRIAL COURT

Preliminary conference within 30 days after last answer is filed

Section 2. Meaning of terms

If Defendant fails to answer in 10 days—the court motu propio or on plaintiffs own motion, may render judgment based on facts alleged in the complaint without prejudice to RULE 9 Sec 3 (c)

If plaintiff fails to appear n preliminary conference, complaint may be dismissed. Defendant entitle to decision based on his counterclaim. All crossclaim dismissed

If sole defendant fails to appear, plaintiff entitled to judgment based on complaint and what is proved therein

Section 1. Uniform Procedure The procedure in the MTC shall be the dame as in the RTC, except: 1. where a particular provision expressly or impliedly applies only to either of said courts or; 2. in civil cases governed by the Rule on Summary Procedure

Court may dismiss the case outright

Within 5 days after conference, court issues record of preliminary conference

Within 10 days from receipt of order submission by the parties of affidavits and position papers

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Rendition of judgment within 30 days from receipt of last affidavit or within 15 days after last clarificatory paper

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 their position papers setting forth the law and the facts relied upon by them. PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE 1. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with prior barangay conciliation (referral to the Lupon); 2. Motion for a bill of particulars; 3. Motion for a new trial or for reconsideration of a judgment or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits, or any other paper; 6. Memorandum; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare defendant in default; 9. Dilatory motions for postponement; 10. Reply; 11. Third party complaints; 12. Interventions. The filing of a prohibited pleading will not suspend the period to file an answer or to appeal Heirs of Olivas v. Flor 161 SCRA 393 (1988) Although a motion to dismiss is a prohibited pleading, its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay. NOTE: While a motion to declare the defendant in default is prohibited by the rules on summary procedure, the plaintiff may nevertheless file a motion to render judgment as may be warranted when the defendant fails to file an answer. The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten0day period to submit the affidavitsQuickTime™ and other evidence. and a TIFF (Uncompressed) decompressor are needed to see this picture.

TRIAL PROCEDURE IN CIVIL CASES No testimonial evidence is required nor cross examination of witnesses allowed. All that is required is that within (10) days from receipt by the parties of the court’s pre-trial order, they shall submit: 1. The affidavits of their witnesses; and 2. Other evidence on the factual issues set forth in the pre-trial order, together with

Judgments of inferior courts in cases governed by summary procedure are applicable to the RTC. The decision of the RTC (on appeal) in civil cases under this rule, including ejectment cases, are IMMEDIATELY EXECUTORY. KATARUNGANG PAMBARANGAY LAW (Title One, Book III, RA 7160) No complaint petition, action, or proceeding involving any matter within the authority of the lupon shall be fired or instituted directly in court or any other government office for adjudication UNLESS 1. There has been CONFRONTATION BETWEEN THE PARTIES before the lupon chairman or pangkat; and 2. That no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto. CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW (SUBSTANTIVE EXCEPTIONS): 1. Where one party is the government or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee, and the disputer relates to the performance of his official functions; 3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00; 4. Offenses where there is no private offended party (i.e. genocide); 5. Where the dispute involves real properties located indifferent cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 6. Disputes involving parties who actually reside in barangays of different cities or municipalities, EXCEPT: a. where such barangay units adjoin each other; and b. the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 7. Such other classes of disputes which the President may determine in the interest of justice; 8. The court may, at any time before trial, motu proprio refer the case concerned to the lupon for amicable settlement, non criminal cases Page 12 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 not falling within the authority of the latter; and 9. Where one of the parties is a juridical entity. While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing or the complaint with the punong barangay. Such interruption shall not exceed 60 days from the time of the filing of the complaint with the punong barangay. THE PARTIES MAY GO DIRECTLY TO COURT IN THE FOLLOWING INSTANCES (PROCEDURAL EXCEPTIONS): 1. Where the accused is under police CUSTODY or detention; 2. Where the person has otherwise been deprived of personal liberty calling for HABEAS CORPUS proceeding; 3. Where the ACTIONS are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; 4. Where the action may otherwise be barred by the STATUTE OF LIMITATIONS; 5. LABOR Disputes (Montaya v. Escayo 171 SCRA 442)); 6. Any CLASS OF DISPUTE which the President may determine in the interest of justice or upon recommendation of the secretary of Justice; 7. CARL disputes; and 8. Disputes involving the TRADITIONS of indigenous cultural community; 9. Actions to ANNUL JUDGMENT upon a compromise (Sanchez v. Tupac, 158 SCRA 459)

1. Disputes between residents of the same barangay shall be brought for settlement before lupon of said barangay; 2. Residents of different barangays within the same city or municipality – in the barangay where the respondent or any of the respondents reside at the election of the complainant; 3. Disputes involving real property or any interest therein – where real property or larger portion thereof is situated; 4. Disputes arising at the WORKPLACE where the contending parties are employed or at the INSTITUTION where such parties are enrolled for study – in the barangay where such workplace or institution located.

PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. Pleadings defined PLEADINGS – the written statements of the respective claims and defenses of the parties submitted to the court for appropriated judgment. NOTE: A motion to dismiss is not pleading. PLEADING The purpose is to submit a claim or defense for appropriate judgment. May be initiatory

MOTION The purpose is to apply for an order not included in the judgment. Cannot be initiatory as they are always made in a case already filed in court. May be filed even after judgment. Many kinds of motion are allowed.

The parties may at any stage of the proceeding AGREE IN WRITING to have the matter in dispute DECIDED by ARBITRATION either the LUPONG BARANGAT or PANGKAT. In such case arbitrational hearings shall follow order of adjudicative trials.

Always filed before judgment Only 9 kinds of pleading are allowed by the rules

The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office for adjudication.

NOTE: HOWEVER, there are motions that actually seek judgment like a motion for judgment on pleadings (Rule34) and motion for summary judgment (Rule 35).

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

RULES ON VENUE UNDER THE KATARUNGAN PAMBARANAGAY LAW

Section 2. Pleadings allowed 1. Complaint; 2. Counterclaim; Page 13 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. 4. 5. 6. 7. 8. 9.

Cross-claim; Third-party Complaint; Complaint-in-intervention; Answer; Reply; Counter-counterclaim; Counter-Cross claim.

Enumeration is not exclusive Section 3. Complaint COMPLAINT – is the pleading alleging the plaintiff’s cause or causes of action. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause of action, not evidently facts or legal conclusions.

release payment, and any other matter by way of confession and avoidance. 2. NEGATIVE DEFENSES - specific denial of the material facts or facts alleged in the pleading of the claimant essential to his cause of action. Insufficient denial or denial amounting to admissions: 1. General denial; 2. Denial in the form of a negative pregnant. Section 6. Counterclaim COUNTERCLAIM – any claim which a defending party may have against an opposing party.

ULTIMATE FACTS – essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient.

Nature of counterclaim: A counterclaim is in the nature of a cross-complaint. Although it may be alleged in the answer, it is not part of the answer. Upon its filing, the same proceedings are had as in the original complaint. For this reason, it must be answered within ten (10) days from service.

TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT: Determine whether upon the averment of facts, a valid judgment may be properly rendered.

Section7. Compulsory Counterclaim

What are NOT ultimate facts: 1. Evidentiary or immaterial facts; 2. Legal conclusions, conclusions or inferences of facts not stated, or incorrect inferences or conclusions from facts stated; 3. The details of probative matter or particulars of evidence, statements of law, inferences and arguments; 4. An allegation that a contract is valid or void is a mere conclusion of law. Section 4. Answer ANSWER – the pleading where the defendant sets forth his affirmative or negative defenses. It may likewise be the response to a counterclaim on a cross claim. QuickTime™ and a Section 5. Defenses TIFF (Uncompressed) decompressor are needed to see this picture.

2 kinds of defenses that may be set forth in the answer: 1. AFFIRMATIVE DEFENSES- allegation of anew matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. Affirmative defenses include fraud, prescription,

A counterclaim before the MTC must be within the jurisdiction of said court, both as to the amount and nature thereof. Counterclaims may either be: 1. Compulsory; or 2. Permissive NOTE: In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Section 7, Rule 6). Agustin v. Bacalan 135 SCRA 340 (1985) If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived Calo v. Ajax International 22 SCRA 996 (1968) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. COMPULSORY COUNTERCLAIM One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of

PERMISSIVE COUNTERCLAIM It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the opposing party’s claim. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

It is barred it not set up in the action.

It is NOT barred even if not set up in the action.

Need not answered; default.

Must be answered, otherwise, the defendant can be declared in default.

to

be no

Gojo v. Goyola 35 SCRA 557 (1970) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default , principally because the issued raised in the counterclaim are deemed automatically joined by the allegations of the complaint. REQUISITES OF A COMPULSORY COUNTER CLAIM: 1. It must arise out of, or be necessarily connected with, the transaction or occurrence that is the subject matter of the opposing party’s claim; 2. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; 3. It must be within the jurisdiction of the court. GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred. EXCEPTION: If it is a counterclaim which either matured or was acquired by party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. (Section 9, Rule 11) NOTE: the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. In the event that a defending party has around forQuickTime™ dismissal and a and a compulsory (Uncompressed) decompressor counterclaim at TIFF the same time, he must choose only are needed to see this picture. on remedy. If he decide to file must a motion dismiss , he will lose his counterclaim, but if he opts to set up his counterclaim, he may so plead his ground for dismissal as an affirmative defense in his answer. Section 8. Cross-claim

1. A claim by one party against a co-party; 2. It must arise out of the subject matter of the complaint or of the counterclaim; and 3. The cross-claimant is prejudiced by the claim against him by the opposing party. If it is not set up in the action, it is barred except: 1. When, it is outside the jurisdiction of the court; or 2. If the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. In which case, the cross-claim is considered permissive. The dismissal f the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking an affirmative relief. Cross Claim

Counterclaim

Against a coparty

Against an opposing party.

Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein

May arise out of or be necessarily connected with the transaction or that is the subject matter of the opposing party’s claim in which case, it is called a compulsory counterclaim, or it may not, in which case it is called a permissive counterclaim.

3rd party Complaint Against a person not a party to the action. Must be in respect of the opponent’s claim (Plaintiff).

Section 9. Counter-counterclaims and counter cross-claims Counter-Counterclaims – is a claim asserted against an original counterclaimant Counter-Crossclaims – is a claim filed against an original cross-claimant. Section 10. Reply

REQUIREMENTS FOR A CROSS-CLAIM: Page 15 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REPLY – the response of the plaintiff to the defendant’s answer the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters.

Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party complaint, regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the man action.

EFFECT OF FAILURE TO REPLY

NOTE: A third party complaint is no proper in an action for declaratory relief.

GENERAL RULE: Filing a reply is merely optional. New facts that were alleged in the answer are deemed controverted should a party fail o reply thereto. EXCEPTION: Reply is required Where the answer is based on an ACTIONABLE DOCUMENT (Sec. 8, Rule 8.) Section 11. Third (fourth, etc.)- party complaint THIRD – PARTY COMPLAINT – a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim. There could also be a fourth, etc, - party complaint with the same purpose and function. THIRD-PARTY COMPLAINT Brings into the action a third person who was not originally a party. Initiative is with the person already a party to the action.

COMPLAINT IN INTERVENTION Same. Initiative is with a nonparty who seeks to join the action.

TESTS to determine whether the third-party complaint is in respect of plaintiff’s claim: 1. Whether it arises out of the same transaction on which the plaintiff’s claim is based, or although arising out of another or different transaction, is connected with the plaintiff’s claim. 2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant; and QuickTime™ and a TIFF (Uncompressed) decompressor 3. Whether the third party defendant may assert are needed to see this picture. any defenses which the third-party plaintiff has or may have to plaintiff’s claim Summons on third, fourth etc-party defendant must be served for the court to obtain jurisdiction over his person, since he is not an original party. Republic v. Central Surety & Insurance 25 SCRA 641 (1968)

Section 12. Bringing New Parties Distinguish from a 3rd party complaint: A 3rd party complaint is proper when not one of the third party defendants therein is a party to the main action. If one or more of the defendants in a counterclaim or cross-claim is already a party to the action, then the other necessary parties may be brought in under this section.

RULE 7 PARTS OF A PLEADING Section 1. Caption Section 2. The Body PARTS OF A PLEADING The Caption contains the following: 1. The name of the court; 2. The title of the action; and 3. The docket number if assigned. The Body sets forth: 1. Its designation; 2. The allegation of the party’s claims and defenses; 3. The relief prayed for: and 4. The date of the pleading Section 3. Signature and address The signature of the counsel is a certification: 1. That he has read the pleading; 2. That to the best of his knowledge, information or belief, there is good ground to support it; and 3. It is not interposed for delay. NOTE: An UNSIGNED PLEADING produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay. Page 16 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 DISCIPLINARY ACTION ON COUNSEL IN THE FOLLOWING CASES: 1. Deliberately filing an unsigned pleading; 2. Deliberately signing a pleading in violation of the Rules; 3. Alleging scandalous or indecent matter in the pleading; or 4. Failing to promptly report a change of his address.

1. Indirect Contempt 2. Without prejudice to the filing administrative and criminal actions

of

EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING: 1. Shall be ground for summary dismissal of the case with prejudice; 2. Direct contempt, as well as a cause for administrative sanctions.

Section 4. Verification Pleadings need NOT be verified EXCEPT when otherwise provided by the law or rules. HOW A PLEADING IS VERIFIED By an affidavit that the affiant: 1. Has read the pleading; and 2. That the allegations therein are true and correct of his personal knowledge or based on authentic documents.

RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING Section 1. In general Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts.

Section 5. Certification against forum-shopping FORUM SHOPPING – consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief. Test to determine the presence of forumshopping: Whether in the two (or more) cases pending, there is identity of (a) parties, (b) rights or causes of action, and (c) relief sought. The certificate is to be executed by petitioner, and not by counsel. Required ONLY for complaints or initiatory pleadings such as permissive counterclaim, cross-claim, etc. UST Hospital v. Surla 294 SCRA 382 (1998) Certificate of non-forum shopping is not required in a compulsory counterclaim. A counterclaim is not an initiatory pleading QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

EFFECT OF FAILURE TO COMPLY: Not curable by mere amendment of the pleading but shall be cause for dismissal of the case, without prejudice, unless otherwise provided upon motion and after hearing EFFECT OF SUMBISSION FO FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UNDERTAKINGS THEREIN:

ULTIMATE FACTS – those which directly form the bases of the right sought to be enforced or the defense relied upon. If the ultimate facts are NOT alleged, the cause of action would be insufficient. EVIDENTIARY FACTS – those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts. COMPLAINT

ANSWER

Filed by plaintiff

Filed by defendant

Must contain a direct statement of the ultimate facts, omitting statement of mere evidentiary facts

If defense relied is based on law, cite the pertinent legal provisions thereof, as well as its applicability to him

Section 2. Alternative causes of action or defense PLAINTIFFS Alternative allegations – cases where the facts essential to the plaintiff’s cause are within the knowledge of the defendant, yet the plaintiff is so imperfectly informed that he can’t state them with certainty Plaintiff should state the

DEFENDANT Defendant may state hypothetical allegations (affirmative defense)

Defendant

may

Page 17 of 289

also

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 facts within his knowledge with certainty, but to plead in alternative the doubtful facts which are wholly within the defendant’s knowledge and call upon the defendant to make full disclosure of these facts Plaintiff may state alternative causes of action, be they compatible with each other or not

plead as many defenses and counterclaims he may have

-on the other hand, if the defendant wants to raise an issue of his legal capacity to be sued, he should question the jurisdiction of the court over his person Section 5. Fraud, mistake, condition of the mind Fraud or mistake must be stated with particularity while malice or intent must be averred generally.

Inconsistency does not operate as waiver or withdraw of defense in another portion of his answer It is sufficient that each is consistent with itself

Section 3. Conditions Precedent Pleading must state conditions precedent to the cause of action, i.e. failure to compromise, compliance with conciliation process at the barangay level. Failure to state the conditions precedent will make the complaint defective and vulnerable to dismissal, even on appeal, on ground of lack of cause of action. NOTE: Compliance with conciliation process is a condition precedent but not a jurisdictional requirement; however, it may still be a ground for dismissal on reason of non-compliance with condition precedent. Section 4. Capacity Facts showing the capacity to sue and be sued must be averred. A party desiring to raise the issue of lack of capacity to sue must do so by specific denial. -Example of what must be pleaded: -that a foreign corporation (generally not allowed to sue, but can be sued) has license to do businessQuickTime™ in the and country or is not doing a TIFFin (Uncompressed) decompressor business the country are needed to see this picture. -foreign corporation must also aver its capacity to sue or be sued -Example of what the defendant must plead: -if the defendant wants to raise an issue as to the plaintiff’s legal capacity to sue, he should file a motion to dismiss on that ground or set it up as affirmative defense in the answer

The defendant may move for a bill of particulars when the allegations of fraud, etc. are merely conclusions of law, and are without statement of the facts to which such terms have reference. If after the granting the motion for bill of particulars, the plaintiff still refuses to do so, the court may simply dismiss the complaint. Section 6. Judgment The jurisdiction of the court a quo is presumed, it is sufficient to aver the decision or judgment without setting forth matter showing jurisdiction to render it. IN SUMMARY: FACTS THAT MAY BE AVERRED GENERALLY: 1. Conditions precedent; (BUT there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for lack of cause of action) 2. Capacity to sue or be sued; 3. Capacity to sue or be sued in a representative capacity; 4. Legal existence of an organization; NOTE: a party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by SPECIFIC DENIAL which shall include supporting particulars within the pleader’s knowledge; 5. Malice, intent, knowledge, or other condition of the mind; 6. Judgments of domestic or foreign courts, tribunals, boards, or officers; (no need to show jurisdiction) 7. Official document or act. FACTS THAT MUST BE AVERRED PARTICULARLY: Circumstances showing fraud or mistake in all averments of fraud or mistake. Section 7. Action or defense based on document

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Applies to a cause of action or defense that relies on written document. What to do? 1. present the substance of the document in the pleading 2. attach an original or copy of the document as an exhibit 3. but, do not put evidence yet, even if in writing (ex letters, mail) they have no place in a pleading A non-actionable document is some other extraneous document which is not the main object of the action. ex. Demand letter An actionable document is the main object of the action. ex. Promissory note, deed of mortgage, written contract ACTIONABLE DOCUMENT – written instrument upon which the action or defense is based. Two permissible ways of pleading an actionable document: 1. By setting forth the substance of such document in the pleading and attaching said document thereto as an exhibit (contents of the document annexed are controlling, in case of variance in the substance of the document set forth in the pleading and in the document attached); or 2. By setting forth said document verbatim in the pleading. Section 8. How to contest such document HOW TO CONTEST AN ACTIONABLE DOCUMENT: 1. By specific denial under oath; and 2. By setting forth what is claimed to be the facts. Where the actionable document is properly alleged, the failure to specifically deny under oath the same results in; QuickTime™ and a 1. The admission of thedecompressor genuineness and due TIFF (Uncompressed) are needed to see this picture. execution of said document, EXCEPT than an oath is not required: a. When the adverse party was not a party to the instrument; OR b. When compliance with an order for an inspection was refused. 2. The document need not be formally offered in evidence.

GENUINENESS means nothing more than that the instrument is not spurious, counterfeit, or of different import on its face from the one executed by the party or that the party whose signature it hears has signed it and that at the time it was signed, it was in words and figures exactly as set out in the pleadings. DUE EXECUTION mean that the document was signed voluntarily and knowingly by the party whose signature appears thereon, that if signed by somebody else such representative had the authority to do so, that it was duly delivered, and that the formalities were complied. Defenses not waived despite specifically deny under oath: 1. Payment; 2. Want or illegality of consideration; 3. Fraud; 4. Mistake; 5. Compromise; 6. Statute of Limitations; 7. Estopped; 8. Duress; 9. Minority or imbecility

failure

to

The aforementioned defenses are not inconsistent with the genuineness and due execution of the document. BUT the following defenses are waived: 1. Forgery in the signature; 2. Unauthorized signature, as in the case of an agent signing for his principal; 3. The corporation was not authorized under its charter to sign the instrument; 4. Want of delivery; or 5. At the time the document was signed, it was not in words and figures exactly as set out in the pleading. Central Surety v. Hodges 38 SCRA 159 (1971) Failure to specifically deny under oath the genuineness and due execution of an actionable document generally implies an admission of the same by the other party. However, such IMPLIED ADMISSION IS DEEMED WAIVED if the party asserting the same has allowed the adverse party to present evidence contrary to the contents of such document without objection Section 9 Official document or act Section 10 Specific Denial

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. By specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial; 2. Part admission and part denial; and 3. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading. NOTE: this does not apply where the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plain and necessarily within the defendant’s knowledge that his averment of ignorance must be palpable untrue. NEGATIVE PREGNANT – a form of denial which at the same time involves an affirmative implication favorable to the opposing party; it is in effect, an admission of the averment to pregnant with an admission of the substantial facts in the pleading responded to. Section 11. Allegation not specifically denied deemed admitted GENERAL RULE: allegations denied are deemed admitted.

NOT

specifically

EXCEPTIONS: 1. Allegations as to he amount of unliquidated damages; 2. Allegations immaterial as to the cause of action; and 3. Conclusion of law. Section12. Striking out of pleading or matter contained therein Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion.

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. Defenses and objections not pleaded GENERAL RULE: Defenses and objections not raised in MOTION TODISMISS or in the ANSWER are deemed waived.

EXCEPTIONS: 1. 2. 3. 4.

Lack of jurisdiction over the subject matter Litis pendentia; Res Judicata Prescription of the action.

Tijam v. Sibonghanoy 23 SCRA 29 (1968) The court shall dismiss the claim if any of these grounds appears from the pleadings or the evidence on record. These defenses may be raised at any stage of the proceedings even for the first time on appeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches. Section 2. Compulsory Counterclaim, or Crossclaim not set-up barred An AMENDED ANSWER is proper if the counterclaim or cross claim already existed at the time the original answer was filed, but due to oversight, inadvertence, or excusable neglect, it was not set up. A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-clam matures or is acquired after the answer is filed. Section 3. Default, declaration of DEFAULT – the failure of the defendant to answer within the proper period. It is not his failure to appear nor failure to present evidence. ORDER OF DEFAULT Issued by the court, on plaintiff’s motion for failure of the defendant to failure his responsive pleading seasonably. Interlocutorynot appealable

JUDGMENT BY DEFAULT Rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence. Final - appealable

REQUISITES FOR A DECLARATION OF DEFAULT: 1. Defendant FAILS TO ANSWER within the time allowed therefore; 2. There must be a MOTION to declare the defendant in default; 3. There must be NOTICE to the defendant by serving upon him a copy of such motion; and 4. There must be PROOF of such failure to answer. WHERE NO DEFAULTS ARE ALLOWED: Page 20 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. 2. 3. 4.

Annulment of marriage; Declaration of nullity of marriage; Legal Separation; Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed 5. Summary procedure EFFECT OF AN ORDER OF DEFAULT: entitled to notice of 1. Motion to declare him in default; 2. Order declaring him in default; 3. Subsequent proceedings; and 4. Service of final orders and judgments Cavili v. Florendo 154 SCRA 610 (1987) A defendant declared in default cannot take part in the trial, but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint, hence the defendant was entitled to file the answer to the amended complaint as to which he was not in default. PARTIAL DEFAULT: 1. The default asserting a claim states a common cause of action against several defending parties; 2. Some of the defending parties answer and the others fall to do so; and 3. The answer interposes a common defense. EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the one who answered, in which case, it will not benefit those who did not answer. REMEDIES FROM JUDGMENT BY DEFAULT Judgment by default QuickTime™ and a

TIFF (Uncompressed) decompressor Motion for new trial or reconsideration at any time are needed to see this picture. after service of judgment by default and within 15/30 days therefrom

Failure to file a motion for new trial/ denial of said motion Perfect appeal from said judgment by default within the balance of said 15/30 day period

Failure to appeal without defendants fault Petition for relief from judgment within 60 days from notice of the judgment but within 6 months from entry thereof Annulment of Judgment under RULE 47

EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT B DEFAULT: Shall not exceed the amount OR be different in kind from that prayed for NOR award unliquidated damages.

RULE 10 AMENDED AND SUPPLEMENTAL Section 1. Amendments in general Pleadings may be amended: 1. Adding an allegation of a party; 2. Adding the name of a party; 3. Striking out the name of a party; 4. Correcting a mistake in the name of a party; and 5. Correcting a mistake in the name of a party; and 6. Correcting a mistake or inadequate allegation or description in any other respect. Section 2. Amendments as a matter of right Amendment is a matter of right before a responsive pleading is SERVED, or in case of a REPLY, within 10 days after it was SERVED. Such rights can only be exercised ONCE. Subsequent amendments should be made only by leave of court even if the other party has not yet served a responsive pleading. NOTE: a motion to dismiss is not a responsive pleading. As such, an amendment AFTER the denial of a motion to dismiss is still considered as a matter of right. Hence, it may be done without leave of court. Section 3. Amendments by leave of court Leave of court is required: 1. If the amendment is substantial; AND 2. A responsive pleading had already been served. Requisites: 1. There must be a motion filed in court; 2. Notice to the adverse party; and

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Opportunity to be heard afforded to the adverse party. Instances when amendment by leave of court may not be allowed: 1. When cause of action, defense or theory of the case is changed; 2. Amendment is intended to confer jurisdiction to the court; 3. Amendment to cure a premature or non-existing cause of action; and 4. Amendment for purposes of delay.

EFFECT OF AMENDED PLEADING 1. An amended pleadings supersedes the pleading that it amends; 2. Admissions in the superseded pleading can still be received in evidence against the pleader; 3. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may be proved by the party relying thereon by formal offer in evidence. (Regalado, 2002, p.193)

Section 4. Formal Amendments Section 5. Amendment to conform to or authorize presentation of evidence When issues NOT RAISED in the pleadings are tried with the express implied consent of parties 1. They shall be treated as if raised in the pleading; 2. Pleadings may be amended to conform to the evidence; and 3. Failure to amend does not affect the result of the trial of these issues. Section 6. Supplemental pleadings SUPPLEMENTAL PLEADINGS – is one which sets forth transactions, occurrences, or events which have happened since the date of the filing of the complaint. NOTE: The cause of action stated in the supplemental complaint must be the same as that stated in the court should not admit the supplemental complaint (Asset Privatization Trust v. CA 229 SCRA 627) AMENDED PLEADING

SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading.

Refers to facts existing at the time of the commencement of the action. Take the place of the Taken together with the original pleading. original pleading. Can be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) decompressor of right as when no court are needed to see this picture. responsive pleading has yet been filed. When an amended A supplemental pleading pleading is filed, anew does not require the filing copy of the entire of a new copy of the pleading must be filed. entire pleading. Section 7. Filing of amended pleadings

NOTE: Some authors are of the opinion that admissions in superseded pleadings need not be offered in evidence pursuant to Section 4 of Rule 129.

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. Answer to the complaint Section 2. Answer of a defendant foreign private juridical entity Answer to a complaint 1. Within 15 days after service of summons, UNLESS a different period is fixed by the court; 2. In case the defendant is a foreign private juridical entity; a. if it has a resident agent- within 15 days after service of summons to him; b. if it has no resident agent, but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer; c. it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. 3. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 publication, which shall NOT be less than 60 days after notice (rule 14, Section 15) 4. in case of a non-resident defendant on whom extraterritorial service of summons is made, the period to answer should be at least 60 days. The court may extend the time to file the pleadings but may not shorten them. Section 3. Answer to amended pleadings 1. In the filing of an amended complaint is a matter of right—within 15 days from service of amended complaint 2. If the filing of an amended complain is NOT a matter of right—within 10 days counted from notice of the court order admitting the same. NOTE: The rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.- party complaint, and amended complaint-in-intervention) If no new answer is filed, answer to original pleading shall be deemed as answer to the amended pleading.

answering the supplemental complaint in lieu of the10-day reglementary period. Section 8. Existing counterclaim or cross-claim Section 9. Counterclaim or cross-claim arising after answer Section 10. Omitted counterclaim or cross-claim Counterclaims or cross-claims omitted through oversight, inadvertence, or excusable neglect or when justice requires may be set up by the pleader BEFORE JUDGMENT. Leave of court is necessary. Section 11. Extension of time to plead REQUISITES: 1. There must be a motion; 2. With service of such motion to other party; and 3. On such terms as may be just.

RULE 12 BILL OF PARTICULARS

Section 4. Answer to counterclaim or cross-claim Section 1. When applied for; purpose A counterclaim or cross-claim must be answered within 10 days from service. Section 5. Answer to third (fourth, etc.)-party complaint The third party defendant is served with summons just like the original defendant, hence, he also has 15, 30, 60 days from service of summons, as the case may be, to file his answer. Section 6. Reply A reply may be filed within 10 days from service of the pleading responded to. Section 7. Answer to supplemental complaint QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Answer to a supplemental complaint must be filed within 10 days from notice of the order admitting the same. As in the case of the filing of an amended pleading with leave of court, the filing of supplemental complaint requires leave of court. However, unlike the former, the court may fix a different period for

BILL OF PARTICULARS – a more definite statement of any matter which is not averred with sufficient definiteness or particularity. PURPOSE: to aid in the preparation of a responsive pleading. Galeon v. Galeon 60 SCRA 234 (1976) An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. The motion for bill of particulars shall be filed before responding to a pleading. Hence, it must be filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading. The motion shall point out: 1. The defects complained of: 2. The paragraphs wherein contained; and 3. The details desired.

they

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 2. Action by court The court may either: 1. Deny: or 2. Grant it outright: or 3. Allow the parties the opportunity to be heard. Section3. Compliance with order EFFECTS OF MOTION 1. If the motion is granted, in whole or in part, the movant can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading; 2. If his motion is denied, he will still have such balance of the reglementary period to file his responsive pleading; counted from service of the order denying his motion. NOTE: If ether case, he shall have not less than 5 days to file his responsive pleading. The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. It becomes part of the pleading sought to be clarified. Section 4. Effect of non-compliance Effect of non-compliance: 1. If the order is not obeyed or in case of insufficient compliance therewith, the court: a. may order the striking out of the pleading or the portion thereof to which the order is directed; or b. make such order as it may deem just. 2. if the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS otherwise ordered by the court; (Rule 12, Sec. 4; Rule 17, Section 3) QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

3. If defendant fails to obey, hi answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. (Rule 12, Section 4; Rule 17, Section4; Rule 9, Section 3) Section 5. Stay of period to file responsive pleading

Section 6. Bill a part of pleading

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Note: This rule is not arranged per section but per topic. Section 1. Coverage Notice given to a party who is represented by counsel is a nullity, unless service thereof on the party himself was ordered by the court or the technical defect was waived. Where party is represented by more than one counsel of record, service of notice on any of the latter is sufficient. Section 2. Filing and service, defined FILING OF PLEADINGS -Act of presenting the pleading or other paper to the clerk of court a) personally to the clerk of court b) sending them by registered mail

SERVICE OF PLEADINGS Act providing a party with a copy of the pleading or paper concerned -judgment, pleadings and orders are served to counsel, except: 1) when he has no counsel 2) when counsel of record can’t be located 3) when party himself is directed by court to show cause (ex. Contempt) -if represented by 2 counsels, notice may be made either upon both or either of them MODES OF SERVICE a) personally b) mail c) substituted service

Section 3. Manner of Filing FILING – act of presenting the pleasing or other paper to the clerk of court Manner of filing 1. Personal Service; or Page 24 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. Registered mail Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission.

clerk of court, because you must first serve a copy thereof to the plaintiff, signed by him –only then can you file an answer with proof of service. Section 5. Modes of Service

If registry service is not available in the locality of either sender or addressee, service may be done by ordinary mail.

SERVICE OF PAPERS

Benguet Electric Cooperative, Inc. v. NLRC 209 SCRA 55 (1992) If a private carrier is availed of by the party, the date of actual receipt by the court of such pleading and not the date of delivery to the private carrier, is deemed to be the date of the filing of that pleading.

a) personal service b) registered mail c) ordinary mail

PERSONALLY TO THE CLERK OF COURT Clerk of court endorse the date and hour of the filing

SENDING THEM BY REGISTERED MAIL Date of mailing shall be considered as the date of filing Registered mail only -reason: government postal service enjoys the presumption of regularity -date of mailing = date of filing Private letter couriers -not recognized because you can’t apply the presumption of regularity to private entity -nevertheless, the date of actual receipt is the one counted

Section 4. Papers required to be filed and served 1. Pleading subsequent to the complaint; 2. Appearance; 3. Written Motion; 4. Notice; 5. Order; 6. Judgment; 7. Demand; 8. Offer of judgment; QuickTime™ and a TIFF (Uncompressed) decompressor 9. Resolution; orsee this picture. are needed to 10. Similar papers Papers subsequent to complaint must be filed with court and served upon parties. Pleadings subsequent to original complaint and written motions should first be served on the parties before they are filed with court. This simply means that defendant’s answer can’t be filed at once to the

SERVICE OF JUDGMENTS, FINAL ORDERS, RESOLUTIONS a) personal service b) registered mail c) publication

Promulgation of decision in criminal cases = reading of judgment Promulgation of decision in civil cases = date when the copy was served on the counsel by registered mail 3 KINDS OF SERVICE: PERSONAL SERVICE BY SERVICE MAIL Depositing Deliver copy in the personally: 1) party or post office, or counsel residence, with 2) by leaving it instructions of in his office return to with clerk or sender if person undelivered having within 10 days charged thereof 3) leaving it at the residence of either, with a person of sufficient age and discretion residing therein

SUBSTITUTED SERVICE Delivering copy to the clerk of court with proof of failure of both personal and service by mail (different from substituted service under Sec. 7, Rule 14)

Section 6. Personal Service PERSONAL SERVICE- Actual delivery of the processes to him (includes service at the residence or his attorney) Section 7. Service by mail Section 8. Substituted Service

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 9 Service of Judgments, Final Orders or Resolutions Service by publication = only when he absconds and defendant’s address is unknown Section 10. Completeness of Service Service is completed when: Personal Registered service mail Upon actual Upon actual delivery receipt by the addressee or 5 days from the date he received 1st notice from postmaster -1st notice from postmaster needs conclusive proof

Ordinary mail Upon expiration of 10 days after mailing

Completeness begins the running of the period for filing of the responsive pleadings Section 11. Priorities in modes of service and filing Personal service is preferred and written explanation is needed why such was not taken Service by registered mail may be done if the distance from the court to the adverse party is considered Section 12. Proof of filing Filing is proved by its existence in the record of the case. If it is not in the record, and; 1. If filed personally: proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same: or QuickTime™ and a 2. If filed TIFF by(Uncompressed) registered mall: proved by the decompressor are needed to see this picture. registry receipt and the affidavit of the person who did the mailing with a full statement of: a. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court; b. With postage fully paid; and c. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered.

SERVICE- Act of providing a party with a copy of the pleading of paper concerned SUMMARY OF MODES OF SERVICE 1. PERSONAL SERVICE (SECTION 6) a. Delivering personally a copy to the party or his counsel; or b. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof; or c. Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein—if no is person found in his office, or if his office is unknown, or if he has no office. 2. SERVICE BY MAIL (SECTION 7) If no registry service is available in the locality, of either sender or addressee, service may be done by ordinary mail. 3. SUBSTITUTED SERVICE (SECTION 8) Delivering the copy to the clerk of court with proof of failure of both personal and service by mail. Section 13 Proof of Service Proof of personal service: 1. Written admission of the party served; or 2. Official return of the server; or 3. Affidavit of the party serving, containing the date, place and manner of service. Proof of service by ordinary mail: Affidavit of the person mailing showing compliance of Section 7 Rule 13; Proof of service by registered mail: 1. Affidavit of maller showing compliance of Section 7 Rule 13; and 2. Registry receipt issued by the mailing office Section 14. Notice of lis pendens LIS PENDENS – a notice of a pendency of the action between the parties involving title to or right of possession over real property. REQUISITES: 1. Action affects the title or the right of possession of the real property; 2. Affirmative relief is claimed; and

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Notice shall contain the name of the parties and the object of the action or defense an a description of the property affected thereby; 4. Action in rem (AFP Mutual Benefit Association , Inc. v. CA, 327 SCRA 203) NOTE: This serves as a warning to all persons, prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. Notice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated, as section 14 provides that such cancellation may be authorized ONLY upon order of court after proper showing that: 1. The notice is for the purpose of molesting the adverse party; or 2. It s not necessary to protect the rights of the party who caused it to be recorded.

RULE 14 SUMMONS Minucher v. CA 214 SCRA 242 (1992) Jurisdiction over the person of the defendant in a civil case is acquired either by his VOLUNTARY APPEARANCE or SERVICE OF SUMMONS upon him. SUMMONS – is the writ by which he defendant is notified of the action brought against him. PURPOSE OF SUMMONS: 1. To acquireQuickTime™ jurisdiction over the person of and a (Uncompressed) decompressor the TIFF defendant in a civil case; and are needed to see this picture. 2. To give notice to the defendant than an action has been commenced against him (right to due process).

including the judgment by default and the order of execution. One Peng v. Custodio 1 SCRA 780 (1961) Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new cause of action Atkins v. Domingo 44 Phil 680 (1923) But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. GENERAL RULE: When an additional defendant is joined, summons must be served upon him. EXCEPTION: 1. When the administrator of a deceased party defendant substitutes the deceased; 2. Where upon the death of the original defendant his infant heirs are made parties; and 3. In cases of substitution of the deceased under Section16 of Rule 3. NOTE: In these instances, the service of the deceased under Section 16 of Rule 3. Section 1. Clerk to issue summons Summons to be issued: 1. Upon the filing of the complaint; AND 2. Payment of the requisite legal fees. Section 2. Contents Section 3. By whom served Summons may be served by: 1. Sheriff; 2. Sheriff’s deputy; or 3. Other proper court officers; or 4. For justifiable reasons, by any suitable person authorized by the court issuing the summons. Enumeration is EXCLUSIVE Section 4. Return

EFFECT OF NON-SERVICE: Unless the defendant voluntary submits to the jurisdiction of the court, nonservice or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and

Section 5. Issuance of Alias Summons ALIAS SUMMONS – is one issued when the original has not produced its effect because of a defect in Page 27 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 form or in the manner of service, and when issued, superseded the first writ.

C. Publication (Section 14) Requisites:

Section 6. Service in person on defendant

1. The action is in rem or quasi in rem; 2. Defendant’s identity and whereabouts are unknown and cannot be ascertained or diligent inquiry and 3. there must be leave of court

Section 7. Substituted Service Section 8. Service upon entity without juridical personality Section 9. Service upon prisoner Section 10. incompetents

Service

Section 11. Service juridical entity

upon

upon

minors

domestic

and

private

Section 12. Service upon foreign private juridical entity

Citizen Surety v. Melencio-Herrera 38 SCRA 369 (1971) In action in personam where the defendant cannot be served with summons personal or by substituted service, the case must first be converted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. If no property can be found, the action shall be archived but shall not be dismissed,

Section 13. Service upon public corporations Section 14. Service upon defendant whose identity or whereabouts are unknown Section 15. Extraterritorial Service Section 16. Residents temporarily outside the Philippines

SERVICE ENTITIES

OF

SUMMONS

ON

DIFFERENT

Service on entity without juridical personality (Section 8) Upon any or all the defendants being sued under common name; or person in charge of the office

MODES OF SERVICE OF SUMMONS: A. Service in person on defendant (Section 6) 1. By handling a copy of summons to him, OR of he refuses to receive it; 2. By tendering it to him. B. Substituted Service (Section 7) For substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of the personal service of summons within a person reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient QuickTime™ and a and discretion Tage IFF (Uncompressed) decompressor residing in the are needed to see this picture. same place as defendant OR some competent person in charge of his office or regular place of business.

Service upon minors and incompetents (Section 10) In case of minors: by serving upon the minor regardless of age, AND upon his legal guardian, or also upon either of his parents In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless they are his legal guardians In any event, if the minor or incompetent has no legal guardian the plaintiff must obtain the appointment of a guardian ad litem for him.

Spouses Venturanza v. CA 156 SCRA 305 (1987) In substituted service, the sheriff’s return must show that an effort or attempt was exerted to personally serve the summons on the defendant and that the same had failed.

Service upon domestic private juridical entity (Section 11) To the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

Service upon prisoner (Section 9) Serve on officer having management of the jail or prisoner (warden)

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 -

NOTE: Service upon a person other than those mentioned is invalid and does not bind the corporation. The enumeration is EXCLUSIVE.

Service upon foreign private juridical entity (Section 12) Serve on resident agent; or if none; on government official designated by law; or any officer or agent of the corporation within the Philippines Service upon public corporations (Section 13) In case defendant is the Republic of the Philippines: by serving upon the Solicitor General In case of province , city or municipality, or like public corporations: by serving on its executive head or on such other officer or officers as the law or the court may direct Extraterritorial Service (Section 15) Requisites 1. defendant does not reside or is not found the Philippines; 2. The action must be an action in rem or quasi in rem. It either: a) affects the personal status of plaintiff; b) relates to the subject which is property within the Philippines in which defendant has a lien or interest; c) demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Philippines; or d) property of defendant has been attached in the Philippines 3. Mode of Service a) with leave of court, serve outside QuickTime™ and a Philippine by personal TIFF (Unthe compressed) decompressor are needed to see this picture. service; or b) with leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or

c) any other manner the court may deem sufficient Service upon a resident temporarily outside the Philippines (Section 16) Substituted service or with leave of court, personal service out of the Philippines as under extraterritorial service. Service upon an unknown defendant or whose whereabouts are unknown (Section 14) with leave of court, by publication in a newspaper of general circulation Montalban v. Maximo 22 SCRA 1070 (1968) Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant’s residence, even if defendant was abroad at that time. The fact that defendant did not actually receive the summons did not invalidated the service of such summons. Section 17. Leave of Court Section 18. Proof of Service Section 19. Proof of Service by Publication Section 20. Voluntary Appearance Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant. NOTE: 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.

RULE 15 MOTIONS Section 1. Motion, defined Motion - is an application for relief other then by a pleading KINDS OF MOTIONS

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. motion EX PARTE – made without the presence or a notification to the other party because the question generally presented is not debatable. (i.e. motion for extension of time to file pleadings) b. motion OF COURSE – where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court. c. LITIGATED motion – one made with notice to the adverse party to give an opportunity to oppose. (i.e. motion to dismiss) d. SPECIAL motion – motion addressed to the discretion of the court. GENERAL judgment.

RULE:

A

motion

cannot

pray

for

4. Motion and notice of hearing must be served at least 3 DAYS BEFORE THE DATE OF HEARING; (Section 4) and 5. PROOF OF SERVICE.(Section 6) EXCEPTIONS TO THE 3 DAYNOTICE RULE: 1. Ex parte motions; 2. Urgent motions; 3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties; and 4. Motions for summary judgment which must be served at least 10 days before its hearing. NOTE: Any motion that does not comply with Sections 4,5 and 6 of this Rule (requirements 4-5) is a mere scrap of paper. It does not interrupt the reglementary period for the filing of the requisite pleading.

EXCEPTIONS: 1. Motion for judgment on the pleadings; 2. Motion for summary judgment; 3. Motion for judgment on demurrer to evidence.

Section 7. Motion Day

Section 2. Motion must be in writing

Section 8. Omnibus Motion

GENERAL RULE: Motions must be in writing.

Omnibus Motion Rule – A motion attacking a pleading, order judgment or proceeding shall include all objections then available. Objections not included shall be deemed waived except the defense referred in Section 1

EXCEPTIONS: Those made in OPEN COURT or in the COURSE OF HEARING or TRIAL.

Æ Friday afternoon

Section 3. Contents Section9. Motion for leave Contents: 1. The relief sought to be obtained; 2. The ground upon which it is based; and 3. If required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers.

Section 10. Form

RULE 16 MOTION TO DISMISS

Section 4. Hearing of Motion Section 5. Notice of Hearing Section 6. Proof of Service Necessary QuickTime™ and a REQUISITES OF MOTION NOT MADE IN OPEN TIFF A (Uncompressed) decompressor are needed to see this picture. COURT OR IN THE COURSE OF HEARING OR TRIAL: 1. it must be in WRITING; 2. HEARING OF MOTION set by the applicant; 3. NOTICE OF HEARING shall be addressed to all parties concerned not later than 10 days from the filing of the motion; (Section 5)

A MOTION TO DISMISS is NOT a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. GENERAL RULE: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party thereto. EXCEPTIONS: 1. Those cases where the court may dismiss a case motu proprio (Section 1, Rule 9); 2. Section2 Rule 17; (Upon the plaintiff’s own motion) Page 30 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Rule on Summary Procedure (Section 4, 1991 Revised Rule on Summary Procedure) TYPES OF DISMISSAL OF ACTION: 1. Motion to dismiss before answer under Rule 16; 2. Motion to dismiss under Rule 17; Æ Upon notice by plaintiff; Æ Upon motion by plaintiff; Æ Due to fault of plaintiff. 3. Motion to dismiss called a demurer to evidence after plaintiff has completed the presentation of his evidence under Rule 33; 4. Dismissal of an appeal Section 1. Grounds 1. No jurisdiction over the person of the defending party; 2. No jurisdiction over the subject matter of the calm; 3. Improper venue; 4. no legal capacity to sue; 5. Litis pendentia; 6. Res judicata; 7. Prescription; 8. Failure to state a cause of action; 9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished; 10. Claim is unenforceable under the Statute of Frauds; 11. Non-compliance with a condition precedent for filing claim. MOTION TO DISMISS UNDER RULE 16

MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) Based on insufficiency of evidence. May be filed only by the defendant against the complaint of the plaintiff.

Grounded on preliminary objections. May be filed by any defending party against whom a claim is asserted in the action. Should be filed withinQuickTime™ Mayand bea filed only after (Uncompr essed) decompressor the time for but TIFF prior to the plaintiff has are needed to see this picture. the filing of the answer completed the of the defending party presentation of his to the pleading evidence. asserting the claim against him. If denied, defendant If denied, defendant answers, or else he may present evidence may be declared in if granted, plaintiff default. If granted appeals and the order

plaintiff may appeal or if subsequent case is not barred, he may refile the case.

of the dismissal is reversed, the defendant loses his right to present evidence.

NOTE: a motion to dismiss generally partakes the nature of a demurrer. It hypothetically admits the allegations stated in the complaint. However, the admission extends ONLY to material and relevant allegations. REQUISITES OF LITIS PENDENTIA 1. Identify of parties or at least such parties representing the same interests in both actions; 2. There is substantial identity in the cause of action and relief sought, the relief being founded on the same facts; and 3. The identity in the two cases should be such that any judgment that may be rendered in one, regardless of which party is successful, would amount to res judicata in the other case. Motion to dismiss may be filed in either suit, not necessarily in the one instituted first. REQUISITES OF RES JUDICATA 1. Previous final judgment; 2. Jurisdiction over the subject matter and the parties by the court rendering it; 3. Judgment upon the merits; 4. There must be identity of parties, of subject matter and of cause of action between the first and second actions. NOTE: There could be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Section 3 of Rule 17. PRESCRIPTION A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed. PRESCRIPTION Concerned with the fact of delay. A matter of time. Statutory. Applies at law. Based on fixed time.

LACHES Concerned with the effect of delay. A matter of equity. Non-statutory Applies in equity. Not based on fixed time Page 31 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 COMPLAINT STATES NO CAUSE OF ACTION When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint. FAILURE TO STATE A CAUSE OFACTION and NOT LACK ORABSENCE OFCAUSE OF ACTION is the ground for a motion to dismiss. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action. NON-COMPLIANCE WITH A CONDITION PRECEDENT Non-compliance with P.D 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the ground on non-compliance with a condition precedent. EFFECTS OF ACTION ON MTD Order granting motion to dismiss is final order (without prejudice) Order granting motion to dismiss (with prejudice) Order denying the motion to dismiss is interlocutory

REMEDY

Section 4. Time to plead Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss, counted from his receipt o the denial order, but not less than 5 days in any event. Section 5. Effect of dismissal GENERAL RULE: the action or claim may be re-filed EXCEPTION: the action cannot be re-filed if it was dismissed on any of these grounds: 1. Res judicata; 2. Prescription; 3. Extinguishment of the claim or demand; and 4. Unenforceability under the Statue of Frauds.

Refile the complaint.

In these instances, the remedy of the plaintiff is APPEAL.

Appeal

Section 6. Pleading grounds as affirmative defenses

Certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under rule 65

If no motion to dismiss had been filed, any of the grounds for dismissal provided for in rule 16, INCLUDING IMPROPER VENUE, may be pleaded as affirmative defenses and a preliminary hearing may be had thereon in the discretion of the court.

GENERAL RULE: an order denying a motion to dismiss is interlocutory. The ordinary procedure is for the defendant to file hi answer and go to trial and if the decision is adverse, he can appeal from the judgment and assign as error the denial of the motion to dismiss. EXCEPTION: if the court acts without or in excess of jurisdiction or with grave abuse of discretion in denying the motion, CERTIORARI or PROHIBITON QuickTime™ and a TIFF (Uncompressed) decompressor lies. are needed to see this picture. Section 2. Hearing of Motion Section 3. Resolution of Motion The court may order: a. The dismissal of the action; b. Deny the motion; or c. Amend the pleading.

NOTE: if the defendant would want to file a counterclaim, he should NOT file a motion to dismiss. Instead, he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim. A preliminary hearing mat be had thereon, and in the event the complaint too dismissed, the defendant can PROSECUTE his counterclaim. The 2nd par. of Sec. 6 clearly provides that the dismissal of the complaint without prejudice to the prosecution of the counterclaim.

RULE 17 DIMISSAL OF ACTIONS Section 1. Dismissal upon notice by plaintiff

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the SERVICE of: 1. The answer; or 2. A motion for summary judgment. The rule requires a COURT ORDER confirming the dismissal. GENERAL RULE: Such dismissal is WITHOUT PREJUDICE, EXCEPTION: 1. Where the notice of dismissal so provides; 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (TWO-DISMISSAL RULE) Serrano v. Cabrera 93 Phil. 774 (1953) The dismissal is still with prejudice even if the notice of dismissal does not so provide, where such notice is premised on the fact of payment by the defendant of the claim involved

2. When stated to be with prejudice in the order of the court. The approval of the court is necessary in the dismissal or compromise of a class suit. Section 3. Dismissal due to fault of plaintiff CAUSES FOR DISMISSAL 1. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint; 2. Plaintiff fails to prosecute his action for an unreasonable length of time; (NOLLEPRODEQU!) 3. Plaintiff fails to comply with these Rules or any order of the court.

Section 2. Dismissal upon motion of plaintiff

Jalover v. Ytoriaga 80 SCRA 100 (1977) The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case DOES NOT WARRANT the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence

Under this section, the dismissal of the complaint is subject to the DISCRETION of the court and upon such terms and conditions as may be just.

Complaint may be dismissed 1. Upon motion of the defendant; or 2. Upon the court’s own motion.

If a counterclaim has been pleaded by the defendant PRIOR TO THE SERVICE upon hum of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint.

Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA), unless otherwise declared by the court.

Such dismissal shall be without prejudice to the right of the defendant to either: 1. Prosecute his counterclaim in a separate action; OR 2. To have the same resolved in the same action. In this case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss. QuickTime™ and a

TIFF (Uncompressed) These alternative remediesdecompressor of the defendant are are needed to see this picture. available to him REGARDLESS OFWHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE.

Dismissal under this rule is WITHOUT PREJUDICE, EXCEPT: 1. When otherwise stated in the motion to dismiss;

SECTION 2 Dismissal is at the instance of the plaintiff. Dismissal is a matter of procedure, without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless w/in 15 days from notice

SECTION 3 Dismissal is not procured by plaintiff though justified by causes imputable to him. Dismissal is a matter of evidence, an adjudication on the merits.

Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same separate action.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the motion he manifests his intention to have his counterclaim resolved in the same action. Section 4. Dismissal of counterclaim, cross-claim or third party complaint

RULE 18 PRE-TRIAL

6. The advisability of a PRELIMINARY REFERENCE of issues to a commissioner; 7. The property of RENDERING JUDGMENT on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. The advisability or necessity of SUSPENDING THE PROCEEDINGS; and 9. Such OTHER MATTERS as may aid in the prompt disposition of the case.

PRE-TRIAL – a mandatory conference and personal confrontation before the judge between he parties and their respective counsel.

Section 3. Notice of Pre-trial

Section 1. When conducted

When non-appearance of a party may be excused: 1. If a valid cause is shown therefore; 2. If a representative shall appear in his behalf fully authorized in writing to: a. Enter into an amicable settlement; b. Submit alternative modes of dispute resolution; c. Enter into stipulations or admissions of facts and of documents.

The plaintiff should promptly file a motion ex parte that the case be set for pre-trial, and this he must do upon the service and filing of the last pleading. Sarmiento v. Juan 120 SCRA 403 (1983) The “last pleading” need not be literally construed as the actual filing of the last pleading. For purposes of the pre-trial, the expiration of the period for filing the last pleading is sufficient . Section 2. Nature and purpose The court shall consider: 1. The possibility of an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resolution; 2. The SIMPLICATION OF ISSUES; 3. The necessity or desirability of AMENDMENTS TO THE PLEADINGS; 4. The possibility of obtaining STIPULATIONS or ADMISSIONS of facts and documents to avoid unnecessary proof; Filoil Marketing Corp. v. Dy Pac & Co. 160 SCRA 133 (1988) QuickTime™ and a TIFF (Uncompressed) decompressor The process ofneeded securing whether of are to see this admissions, picture. facts or evidence, is essentially voluntary. Whether of facts or evidence, is essentially voluntary. When the parties are unable to arrive at a stipulation of agreed facts, the court must close the pre-trial and proceed with the trial of the case. 5. The limitation WITNESSES;

of

the

number

of

Section 4. Appearance of parties

NOTE: the mere presentation of such written authority is not sufficient, but must be complemented by a showing of valid cause for the non-appearance of the party himself. Section 5. Effect of failure to appear EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal of the action, with prejudice, unless otherwise ordered by the court. EFFECT OF NON-APPEARANCE OF DEFENDANT: Cause the plaintiff to present evidence ex parte and for the court to render judgment on the basis thereof. Section 6. Pre-trial brief Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial. Section 7. Record of pre-trial The contents of the PRE-TRIAL order shall control the subsequent course of the action, UNLESS modified before trial to prevent manifest injustice.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pre-trial order, as well as in cross-examining the witness in regard to said evidence.

2. One who has a legal interest in the success of either of the parties 3. One who has an interest against both parties or 4. One who is so situated as to be adversely affected by distribution of other disposition of property in the custody of the court or of an officer thereof.

PRE-TRIAL No settlement

Amicable Settlement

Failure to appear

If plaintiff is absent, when so required to attend, the court may dismiss the case

Agreements made by parties; Amendments to pleading; Schedule of trial

FACTORS TO BE CONSIDERED BY THE COURT 1. Whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties; and 2. Whether the in intervenor’s rights may be fully protected in a separate proceeding. If defendant is absent, court may hear evidence of plaintiff ex parte

The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. INTERVENTION An ancillary action Proper in any of the four situations mentioned in this Rule.

TRIAL

Court renders

If evidence is sufficient to prove plaintiff’s cause of action or defendant’s counterclaim, court rules in favor of either one or dismisses the case

Defendants are already original parties to the pending suit RULE 19 INTERVENTION Intervention - is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court QuickTime™ and a

TIFF (Uncompressed) decompressor NOTE: Intervention never independent are neededis to see this picture. an proceeding but is ancillary and supplemental to an existing litigation. Hence the final dismissal of the principal action results into dismissal of said ancillary action.

Section 1. Who may intervene 1. One who has legal interest in the matter in litigation

INTERPLEADER An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which in whole or in part is not disputed by the other parties to the action. Defendants are being sued precisely to implead them.

Section 2. Time to intervene The motion to intervene must be filed at any time before the rendition of judgment by the trial court. NOTE: After rendition of judgment, a motion to intervene is barred, even if the judgment itself recognizes the right of the movant. The remedy of the movant is to file a separate action. Section 3. Pleadings-in-intervention 1. Complaint-in-intervention if intervenor asserts a claim against either or all of the original parties. 2. Answer-in-intervention

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if intervenor unites with the defendant in resisting a claim against the latter

Section 4. Answer to a complaint-in-intervention Within 15 days from notice of the order admitting the same REMEDIES FOR THE DENIAL OF INTERVENTION 1. Appeal 2. Mandamus, if there is grave abuse of discretion If there is improper granting of intervention, the remedy of the party is Certiorari.

RULE 20 CALENDAR OF CASES Section 1. Calendar of cases Section 2. Assignment of cases.

RULE 21 SUBPOENA Section 1. Subpoena and subpoena duces tecum TWO KINDS OF SUBPOENA 1. Subpoena duces tecum – process directed to a person which requires him to bring with him a. any books, b. documents, or c. other things under his control. (Section 1) 2. Subpoena ad testificandum – process directed to a person requiring him to attend and to testify a. at the hearing or the trial of an action, or and a b. TIFF conducted by at (Uncompressed) anyQuickTime™ investigation decompressor are needed to see this picture. competent authority, or c. for the taking of his deposition. (Section1) Section 2. By who issued Section 3. Form and Contents WHO ISSUES A SUBPOENA

1. The court before whom witness is required to attend; 2. The court of the place where the deposition is to be taken; 3. The officer or body authorized by law to do so in connection with its investigations conducted by said officer or body; or 4. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. (Section 2) ‚

A subpoena is signed by the Clerk of Court. (Rule 136, Section 4)

Liebnow v. Philippine Vegetable Oil 39 Phil 60 (1918) If a subpoena duces tecum is improperly issued, a proper remedy is motion to vacate or set aside the subpoena. IF SUBPOENA IS ISSUED TO A PRISONER ‚ When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. (Section 2) ‚ No prisoner (1) sentenced to death, reclusion perpetua or life imprisonment and (2) who is confined in any penal institution shall be brought outside the penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (Section 2) ‚ The deposition of a prisoner confined in prison may be taken only by leave of court on such terms as the court prescribes. (Rule 23, Section1) FORM AND CONTENTS OF A SUBPOENA AD TESTIFICANDUM A subpoena shall state: 1. the name of the court and 2. the title of the action or investigation 3. (and) shall be directed to the person required to attend. (Section 3) FORM AND CONTENTS OF A SUBPOENA DUCES TECUM 1. the name of the court and 2. the title of the action or investigation 3. (and) shall be directed to the person required to attend. 4. It must contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. (Section 3) Page 36 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. Quashing a Subpoena GROUNDS FOR QUASHING A SUBPOENA 1. Subpoena duces tecum The court may a. upon motion promptly made and, b. in any event, at or before the time specified therein c. if (grounds) ‚ It is unreasonable and oppressive, ‚ The relevancy of the books, documents or things does not appear, or ‚ The person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. ‚ The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. (Section 4) 2. Subpoena ad testificandum a. The witness is not bound thereby When is witness not bound? ‚ if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, ‚ if he is a detention prisoner and no permission is obtained from the court in which his case is pending. b. Witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. (Section 4) ‚

Section 2 of RA 1405 provides in summary that bank deposits can only be examined when there is: 1. a written permission of the depositor, or 2. in cases of impeachment, or 3. upon order of a competent court in cases of bribery or dereliction of duty of public officials, or 4. in cases where the money deposited or invested is the subject matter of the litigation. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

However, this is subject to the provisions of Section11 of the Anti-Money Laundering Act which gives the Anti-Money Laundering Council the right to examine any particular deposit or investment upon order of any competent court in cases of violation of the AMLA but there is no need for court order if such violation of the AMLA is related to kidnapping for ransom, violations of

the Comprehensive Dangerous Drugs Act of 2002 and hijacking. Section 5. Subpoena for deposition Section 6. Service HOW IS SERVICE OF A SUBPOENA MADE? Service of a subpoena shall be made in the same manner as personal or substituted service of summons. 1. the original shall be exhibited and a copy thereof delivered to the person on whom it is served, 2. tendering to him a. if subpoena ad testificandum, the fees for one day’s attendance and the kilometrage allowed by these rules EXCEPT THAT, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. b. if subpoena duces tecum, ‚ fees for one’s days attendance subject to the same exception as a subpoena ad testificandum ‚ the reasonable cost of producing the books, documents or things demanded if subpoena duces tecum 3. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. (Section 6 SUBPOENA An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage, cost of production fees and attendance Notifies party that a complaint against him has been filed and that he should file an answer within a given period Issued only once at the start, for the court to acquire jurisdiction and for the issues to be joined

SUMMONS Order to answer complaint

a

Served on the defendant Does not need tender of kilometrage and other fees Notice of the date of the hearing of which he is required to attend May be issued more than once at anytime

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Violation: contempt

2. to a detention prisoner if no permission of the court in which his case is pending is obtained. (Section 10)

indirect

Section 7. Personal Appearance in court CAN A PERSON PRESENT IN COURT BE REQUIRED TO TESTIFY? YES. A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. (Section 7) Section8. Compelling Attendance Section 9. Contempt CAN THE COURT COMPEL THE ATTENDANCE OF A PERSON TO WHOM A SUBPOENA HAS BEEN ISSUED? YES. In case of a failure of a witness to attend, the court or judge issuing the subpoena, upon: 1. proof of the service thereof and 2. proof of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required. (Section 8) If the failure to attend was willful and without just cause, 1. the cost of the warrant and seizure of such witness shall be paid by the witness (Section 8) 2. it shall be deemed as contempt of the court from which the subpoena is issued (Section 9) What if the subpoena was not issued by the court? The disobedience to the subpoena shall be punished in accordance with the applicable law or Rule. (Section 9) ARE THERE ANY EXCEPTIONS TO COMPELLING ATTENDANCE OF WITNESSES ISSUED A QuickTime™ and a TIFF (Uncompressed) decompressor SUBPOENA AND FROM BEING HELD IN are needed to see this picture. CONTEMPT OR PUNISHED FOR DISOBEDIENCE? YES. There are two instances: 1. if the witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel (known as viatory right, applicable only in civil cases), or

RULE 22 COMPUTATION OF TIME Section 1. How to compute time HOW IS TIME COMPUTED? In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the first day (or the day of the act or event from which the designated period is to run) shall be excluded while the last day (the date of performance) shall be included. If the last day falls on a Saturday, Sunday or a nonworking legal holiday in the place where the court sits, time shall not run until the next working day. (Section 1) Section 2. Effect of Interruption WHAT IS THE EFFECT OF INTERRUPTION? If period is interrupted, the allowable period after such interruption shall start to run after notice of the cessation of the cause of such interruption. The day of the act that caused the interruption shall be excluded in the computation of the period. QUESTION: If the defendant files a motion to dismiss on the fifth day, what is the balance of his allowable period? ANSWER: 11 days. Since the motion to dismiss filed interrupts the period to file the answer, you exclude that day in the computation of the period and so the allowable period would be 11 days. ‚

When the last day of the period falls on a Saturday, a Sunday, or a legal holiday, and a party is granted an extension of time, the extension should be counted from the last day which is a Saturday, Sunday, or legal holiday. (Re: Computation of Time when the Last Day Falls on a Saturday, Sunday, or Legal Holiday and a Motion for Extension Filed on Next Working Day is Granted, A.M. No. 00-2-14-SC, 2000)

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 MODES OF DISCOVERY (RULES 23-29) DISCOVERY – disclosure of facts resting in the knowledge of the defendant, or as production of deeds, writings, or things in his possession or power, in order to maintain the right or title of the party asking it, in a suit or proceeding. [Insular Life Assurance Co., Ltd. v. CA, 238 SCRA 88, 92 (1994)] PURPOSE OF THE MODES OF DISCOVERY 1. to narrow and clarify basic issues between the parties, 2. as a device for ascertaining the facts relative to those issues 3. to support a motion for summary judgment. (Rule 35) BILL OF PARTICULARS To make ultimate facts more definite, not to supply evidentiary matters To prepare for responsive pleading ‚

MODES OF DISCOVERY To discover evidentiary facts To prepare for (abbreviates trial)

trial

Denial of Bills of Particulars does not bar the use of the Modes of Discovery. It is cumulative.

MODES OF DISCOVERY UNDER THE RULES OF COURT 1. Depositions pending action (Rule 23) 2. Depositions before action or pending appeal (Rule 24) 3. Interrogatories to parties (Rule 25) 4. Admission by adverse party (Rule 26) 5. Production or inspection of documents, or things (Rule 27) 6. Physical and mental examination of persons (Rule 28) LIMITATIONS TO MODES OF DISCOVERY 1. When it can be shown that the examination is being conducted in bad faith 2. When it can be shown that the examination is being conducted in such a manner as to QuickTime™ and a annoy, TIFF embarrass, or oppress the person (Uncompressed) decompressor are needed to see this picture. subject to the inquiry. 3. Irrelevant 4. Privileged matters ‚

Using of the modes of discovery is highly encouraged by the court. “A copy of the order of the court requiring the parties to avail of interrogatories to parties under Rule 25

and request for admission by adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rule 27 and 28 within 5 days from the filing of the answer shall be served upon the defendant together with the summons and upon the plaintiff.” (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures, A.M. No. 03-1-09-SC, Aug. 16, 2004)

RULE 23 DEPOSITIONS PENDING ACTIONS DEPOSITION – is the testimony of a witness taken upon oral examination or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution. It is a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. (People v. Webb, 312 SCRA 573, 1999) PURPOSES OF TAKING DEPOSITIONS 1. It is of great assistance in ascertaining the truth and in checking and preventing perjury. The reasons for this are: a. The witness (including a party) is examined while his memory is fresh: b. The witness (including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous. Where the examination is upon written interrogatories, however, it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare his answers in advance. c. A party or witness whose deposition has been taken at an early stage in the litigation cannot, at a later date, readily manufacture testimony in contradiction to his deposition;

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2. 3.

4. 5.

6.

7.

d. Testimony is preserved, so that if a witness unexpectedly dies or becomes unavailable at the trial, his deposition is available. It is an effective means of detecting and exposing false, fraudulent, and sham claims and defenses. It makes available in a simple, convenient, and often inexpensive way facts which otherwise could not have been proved, except with great difficulty and sometimes not at all. It educates the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements out of court. It expedites the disposal of litigation, saves the time of the courts, and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried. It safeguards against surprise at the trial, prevents delays, and narrows and simplifies the issues to be tried, thereby expediting the trial. It facilitates both the preparation and trial of the cases. (Fortune v. IAC, G.R. No. 108119, 1994)

WHEN MAY DEPOSITIONS BE TAKEN? 1. Deposition De Bene Esse – taken for purposes of pending action 2. Depositions in Perpetuam Rei Memoriam – those taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal

NOTICE AND SERVICE Deposition a party desiring to take a deposition pending shall give reasonable notice in writing action to every other party to the action (Rule 23, Section 15) Deposition the petitioner shall serve a notice before upon each person named in the action petition as an expected adverse party, (Rule 24, together with a copy of the petition stating the time and place. Section 3) At least 20 days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. Deposition pending appeal (Rule 24, Section 7)

CONTENTS OF THE NOTICE 1. For a deposition upon oral examination (Section 15) a. the time and place for the taking of the deposition (upon motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time) and

KINDS OF DEPOSITIONS 1. Depositions on Oral Examinations (Secs. 15-24) 2. Depositions upon Written Interrogatories (Secs. 25-28)

b. the name and address of each person to be examined, if known. If unknown, a general description sufficient to identify him or the particular class or group to which he belongs.

GENERAL PROVISIONS ON DEPOSITIONS (Secs. 1-14) Section 1. Depositions pending action, when may be taken QuickTime™ and a WHAT TO FILETIFF(SECTION 1) ressor (Uncompressed) decomp are needed to see this picture. 1. After jurisdiction has been obtained over any defendant or over property which is the subject of the action but before answer, Motion to Take Oral Deposition or Written Interrogatories (By Leave of Court) 2. After an answer has been served, Notice to take Oral Deposition or Written Interrogatories (Without Leave of Court)

The party must make a motion for leave to take deposition in the court which rendered judgment and give notice in writing to every other party to the action

2. For deposition upon written interrogatories a. The names and address of the person who is to answer and b. The name or descriptive title and address of the officer before whom the deposition is to be taken ‚

Proof of service of a notice to take a deposition as provided in Sections 15 and 25 of Rule 23 shall constitute sufficient authorization for the issuance of subpoenas for the persons named in Page 40 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 said notice by the clerk of court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (Rule 21, Section 5) Section 2. Scope of Examination WHAT IS THE SCOPE OF EXAMINATION? Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule, the deponent may be examined regarding ANY MATTER (should concur) 1. not privileged a. privileged communication (Rule 130, Section 24) ‚ husband and wife ‚ attorney and client ‚ doctor and patient ‚ public officer ‚ priest and confessant b. the list of privileged communication is not exclusive. Ex : secrecy of bank deposits, non-disclosure of trade secrets, result of census, candidate voted for except in an election case 2. relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or tangible things and the identity and location of persons having knowledge of relevant facts (Section 2) 3. not restricted by protective order or motion to limit examination (Secs. 16 and 18) Section 3. Examination and cross-examination may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. DEPOSITION AFFIDAVIT Written testimony of witness Mere sworn written in course of judicial statements proceedings, in advance of trial and hearing QuickTime™ and a TIFF (Uncompressed) decompressor Opportunity for crossEx parte statements are needed to see this picture. examination without formal interrogation and cross-examination Can be competent Not admissible in testimonial evidence evidence except in cases governed by the Rule on Summary Procedure

Section 4. Use of depositions WHAT ARE THE USES OF DEPOSITIONS? Rule 23 Section 4 is applicable in depositions pending action, before action and pending appeal. (Cross reference to Rule 24 Section 6 and 7) ‚ For depositions before action, it may be used in an action involving the same subject matter. (Rule 24, Section 6) ‚ For depositions pending action or pending appeal, depositions may be used at the trial, upon hearing of a motion, or an interlocutory proceeding. (Rule 23, Section 1) ‚ Any part or all of a deposition, which is admissible in evidence, may be used against any party who was present or represented during the taking of the deposition or who had notice thereof in accordance with any one of the following provisions: 1. deposition of a witness – may be used by any party a. to contradict or impeach the deponent’s testimony as a witness b. for any purpose if the court finds that: ‚ Witness is dead; ‚ Witness resides at a distance more than 100 km from place of trial or hearing, or is out of the Philippines, UNLESS it appears that absence of witness is procured by party offering the deposition; ‚ Witness is unable to testify because of age, sickness, infirmity, or imprisonment; ‚ Party offering the deposition has been unable to procure the attendance of the witness by subpoena; or ‚ upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice, and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

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‚

‚

2. deposition of any party, or anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation – may be used by an adverse party for any purpose 3. If only part of the deposition is introduced, adverse party may require that all of it which is relevant to the part introduced be introduced, and any party may introduce any other parts. (Section 4)

Where the witness is available to testify and the situation is not one of those excepted under Section 4, his deposition is inadmissible in evidence and he should be made to testify.

Section5. Effect of Substitution of Parties WHAT IS THE EFFECT OF SUBSTITUTION OF PARTIES TO DEPOSITIONS PREVIOUSLY TAKEN? Rule 23 Section 5 is applicable in depositions pending action, before action and pending appeal. (Cross reference to Rule 24 Section 6 and 7) Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore. (Section 5) Section 6. Objections to admissibility WHEN ARE OBJECTIONS TO ADMISSIBILITY OF DEPOSITION MADE? Objection may be made at the trial or hearing to receive in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (Section 6) And it is also at trial or hearing QuickTime™ and a when any partyTIFFmay rebutdecompressor any relevant evidence (Uncompressed) are needed to see this picture. contained in a deposition whether introduced by him or by any other party. (Section 9) Section 7. Effect of taking depositions ] Section 8. Effect of using depositions

WHAT IS THE EFFECT OF TAKING DEPOSITIONS? A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (Section 7) ‚ Deposition is a mode of discovery and so it is possible that you will not use the deposition as part of your evidence and so by taking depositions, you do not make the deponent automatically your witness. A party may refuse to present witness even if his deposition was taken. ‚ BUT: the introduction in evidence of the deposition or any part thereof makes the deponent the witness of the party introducing the deposition (Section 8) EXCEPTIONS to Section 8: 1. Deposition is used to impeach or contradict 2. Deposition of your opponent does not make him your witness 3. Deposition of an officer of a corporation (par.(b) Section4) ‚

Defendant may present witness even if it was the plaintiff who took the witness’s deposition.

Section 10. Persons before who depositions may be taken within the Philippines Section 11. Persons before who depositions may be taken in foreign countries BEFORE WHOM MAY DEPOSITIONS BE TAKEN 1. Within the Philippines a. Any Judge b. Notary public c. Any person authorized to administer oaths if the parties so stipulate in writing (Section 10) 2. In foreign countries a. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-consul, consular agent of the Philippines; Why is an ambassador not included? Because an ambassador is only concerned with political matters. b. Before such person or officer as may be appointed by commission or under letters rogatory

Section 9. Rebutting depositions

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Any person authorized to administer oaths if the parties so stipulate. (Section 11)

Section 12. Commission or letters rogatory COMMISSION LETTERS ROGATORY Issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate An instrument issued by Instrument sent in the the court of justice or name and by authority of tribunal to authorize a a judge or court to person to take another judge or court depositions or to do any requesting the latter to other act by authority of custody examine upon such court or tribunal interrogatories filed in a case pending in the former, a witness who is within the jurisdiction of the judge or court to whom such letter is addressed Applicable rules of procedure are those of the requesting court Resorted to if permission of the foreign country is given Leave of court is not necessary.

Applicable rules of procedure are those of the foreign court requested to act Resorted to if the execution of the commission is refused in the foreign country Leave of court is necessary.

Autographics, Inc. v. CA, GR No.95863, 1 July 1993 The right of a party to take depositions as means of discovery is not exactly absolute. This is implicit in the provisions of the Rules of Court cited by appellants themselves, sections 16 and 18 of Rule 24. In such instances, these provisions expressly authorize the court to either prevent the taking of a deposition or stop one that is already being taken. Section 15. Depositions upon oral examination; notice; time and place Section 16. Orders for the protection of parties and deponents PROTECTION ORDERS OF PARTIES AND DEPONENTS (Section 16 and Section 28) After notice is served for taking a deposition upon motion seasonably made by any party or by the person to be examined and for good cause shown (which means it will be done before the taking of the deposition)

Section 13. Disqualification by interest WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS? 1. Relative within 6th degree of consanguinity or affinity of any party 2. Employee of any party 3. Counsel of any party 4. Relative within the same degree of any party’s counsel 5. Employee ofQuickTime™ party’sand counsel a TIFF financially (Uncompressed) decompressor 6. Anyone interested in the action are needed to see this picture. GROUNDS FOR NOT TAKING A DEPOSITION 1. not relevant (Section 1) 2. to protect a party or witness from annoyance, embarrassment or opposition (Section 16 and 18)

The court in which the action is pending

Makes an order that: 1. deposition shall not be taken 2. it may be taken only at

MOTION TO TERMINATE OR LIMIT EXAMINATION (Section 18) At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party The court in which the action is pending or the RTC of the place where the deposition is being taken Orders the officer conducting the examination to

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3. 4. 5.

6. 7. 8.

9.

10.

some designated place other than that stated in the notice it may be taken only on written interrogatories or only upon oral examination certain matters shall not be inquired into the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel that after being sealed, the deposition shall be opened only by order of the court that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in a sealed envelope to be opened as directed by the court; or that it shall not be taken before the officer designated in the notice (Section 28) any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression

cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition.

If the order made under Section 18 terminates the examination, it shall be resumed only upon order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may QuickTime™ and a TIFF (Uncompressed) decompressor impose upon either party or upon the witness the are needed to see this picture. requirement to pay such costs or expenses as the court may deem reasonable Section 17. objections

Record

of

Examination;

Section 18. examination

Motion

to

terminate

or

oath;

limit

Section 19. Submission to witness; changes; signing Section 20. Certification and filing by officer Section 21. Notice of Filing Section 22. Furnishing Copies PROCEDURE FOR TAKING ORAL DEPOSITIONS 1. Record of examination; oath; objections (Section 17) The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. 2. Submission to witness; changes; signing (Section 19) When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the facts of the waiver or of the illness or absence of the witness or the fact Page 44 of 289

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the refusal to sign together with the reason given therefore, if any, and the deposition may be used fully as though signed, unless a motion to suppress is filed, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. 3. Certification and filing by officer (Section 20) The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “Deposition of (here insert the name of witness)” and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. 4. Notice of filing (Section 21) The officer taking the deposition shall give prompt notice of its filing to all the parties. 5. Furnishing copies (Section 22) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. Section 23. Failure to attend of party giving notice WHAT HAPPENS IF A PARTY GIVING THE NOTICE OF THE TAKING OF THE DEPOSITION FAILS TO ATTEND AND PROCEED WITH THE TAKING OF DEPOSITION? If the party giving the notice fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attend, including reasonable attorney’s fees. (Section 23) Section 24. Failure of party giving notice to serve subpoena QuickTime™ and a HOW ABOUT IF PARTY FAILS TO SERVE A TIFFTHE (Uncompressed) decompressor are needed to see this picture. SUBPOENA UPON THE WITNESS? If another party attends in person or by counsel because he expects the deposition of that witness to be taken and the witness fails to attend because of the failure of the party giving notice to serve a subpoena upon the witness, then the same consequence as above. (Section 24)

Section 25 interrogatories; interrogatories

Deposition upon written service of notice and

Section 26. Officers to take responses and prepare record Section 27. Notice of filing and furnishing copies Section 28. Orders for the protection of parties an deponents PROCEDURE FOR DEPOSITION UPON WRITTEN INTERROGATORIES 1. After service of notice, within 10 days thereafter, the party so served with the notice may serve cross-interrogatories upon the party proposing to take the deposition. (Section 24) 2. Within 5 days thereafter, the party proposing to take the deposition may serve re-direct interrogatories upon a party who has served cross-interrogatories. (Section 24) 3. Within 3 days after being served with redirect interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition. (Section 24) 4. A copy of the notice and copies of all interrogatories served shall be delivered to the officer designated in the notice who shall proceed promptly, in the manner provided by sections 17, 19, and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the said notice and the interrogatories received by him. (Section 26) 5. When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefore. (Section 27) Section 29. Effect of errors and irregularities in depositions WHAT ARE THE EFFECTS OF ERRORS AND IRREGULARITIES IN THE DEPOSITIONS? 1. As to notice – waived unless written objection is promptly served upon the party giving the notice 2. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

3.

4.

5.

6.

the disqualification becomes known or could be discovered with reasonable diligence As to competency or relevancy of evidence - NOT waived by failure to make them before or during the taking of the deposition, unless ground is one which might have been obviated or removed if presented at that time As to oral examination and other particulars - Errors occurring at the oral examination in the manner of taking the deposition, in the form of questions and answers, in oath or affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition. As to form of written interrogatories waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the service of the last interrogatories authorized. As to manner of preparation - errors as to manner in which the testimony is transcribed or the deposition is prepared, signed,

certified, sealed, indorsed, transmitted, filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (Section 29) RULES ON OBJECTIONS 1. Objections to direct interrogatories can made within 10 days. 2. Objections to cross interrogatories can made within 5 days. 3. Objections to re-direct interrogatories can made within 3 days. 4. Objections to re-cross interrogatories can made within 3 days.

be be be be

Diman v. Hon. Alumbres, G.R. No. 131466, 27 Nov 1998 A trial court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be; it is the law which makes that determination; and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law.

RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Who apply?

DEPOSITIONS BEFORE ACTION A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Section 1)

DEPOSITIONS PENDING APPEAL Any person can perpetuate their testimony for use in the event of further proceedings in the said court (Section 7)

a verified petition, contents of which are: The petition shall be entitled in the name of the petitioner and shall show: 1. that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; QuickTime™ and a TIFF (Un2. compressed) the decompressor subject matter of the expected action and are needed to see this picture. his interest therein; 3. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; 4. the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and 5. the names and addresses of the persons to be examined and the substance of the

motion upon notice and service, contents of which are: 1. the names and addresses of the persons to be examined and 2. the substance of the testimony which he expects to elicit from each; and 3. the reason for perpetuating their testimony (Section 7)

can

What to file?

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

Where to apply? When to file?

Court order and examination

testimony which he expects to elicit from each, and 6. shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (Section 1 & 2) in the court of the place of the residence of any expected adverse party (Section 1) Before the action. Depositions before action is only applicable in civil cases.

the court in which the judgment was rendered (Section 7) At any time before judgment becomes final: 1. If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or 2. before the taking of an appeal if the time therefore has not expired (Section 7) If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, which shall: 1. designate or describe the persons whose deposition may be taken and 2. specify the subject matter of the examination and 3. specify whether the depositions shall be taken upon oral examination or written interrogatories. (Section 4 & 7)

RULE 25 NTERROGATORIES TO PARTIES Section 1 Interrogatories to parties; service thereof WHO CAN APPLY? ANY PARTY desiring to elicit material and relevant facts FROM ANY ADVERSE PARTY shall file and serve upon the latter written interrogatories to be answered by the party served. If the person served is a private or public corporation, partnership or association, then it will be answered by any officer competent to testify in its behalf. (Section 1) DO YOU NEED LEAVE OF COURT FOR WRITTEN INTERROGATORIES? DEPENDS. If an answer has NOT YET BEEN served, QuickTime™ and a decompressor you need leave TIFF ofare(Uncompressed) court, but if the answer HAS BEEN needed to see this picture. served, then you do not need leave of court. (Section 1, cross refer to Rule 23 Section 1) ‚

‚

Interrogatories and the answers thereto should be filed in court and served on adverse parties, so that the answers may constitute judicial admissions. (Rule 129, Section 4)

INTERROGATORIES Disclosure of matters of proof May be made part of the records as evidence

BILL OF PARTICULARS Disclosure only of matters which define the issues Become a part of the pleadings

Section 2. Answer to interrogatories WHAT IS THE FORM OF AN ANSWER TO INTERROGATORIES? 1. answered fully in writing and 2. signed and sworn to by the person making them. (Section 2) Section 3. Objections to interrogatories WHEN DO YOU MAKE OBJECTIONS TO INTERROGATORIES? Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be set at an early time, as practicable. (Section 3) ‚

15 days to answer. 10 days to object. In case objection is denied, you still have 5 days to file an answer. Page 47 of 289

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. Number of interrogatories HOW MANY INTERROGATORIES CAN YOU FILE? No party may, without leave of court, serve more than one set of interrogatories to be answered by the SAME party. (Section 4)

Intervention by the Court

With intervention of the office who is authorized to take the deposition

court No intervention since interrogatories are directed to the party himself

Section 5. Scope and use of interrogatories Section 6. Effect of failure to serve written interrogatories WHAT IS THE EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES? A party not served with written interrogatories may not be 1. compelled by the adverse party to give testimony in open court, or 2. to give a deposition pending appeal. UNLESS thereafter allowed by the court 1. for good cause shown and 2. to prevent a failure of justice (Section 6) WHAT IS THE EFFECT TO FAILURE TO ANSWER INTERROGATORIES? Case may be dismissed or a judgment by default may be given

Procedure

Deponents

Coverage

Uses Interrogatories

Depositions under Written upon Written Interrogatories (Rule 23) Direct, cross, redirect, recross. You just serve QUESTIONS Any person, either party or witness Any matter as long as relevant and not privileged Rule 23, Section 4 No fixed time

Interrogatories to Parties (Rule 25) File and serve questions and the party has to answer them Only a party to the case, particularly the adverse party Same (Rule 25, Section 5) Same (Rule 25, Section 5) 15 days to answer unless extended or reduced by the

RULE 26 ADMISSION BY ADVERSE PARTY

Section 1. Request for admission Purpose of written request for admission To expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry What request may include: 1. Admission of the genuineness of any material and relevant document described in and exhibited with the request 2. Admission of the truth of any material and relevant matter of fact set forth in the request 3. Under this rule, a matter of fact not related to any documents may be presented to the other party for admission or denial Distinguished from Rule on Actionable Documents A request for admission is proper when the genuineness of an evidentiary document is sought to be admitted. If not denied under oath in accordance with Section 2, its genuineness it deemed admitted. If the document is actionable, the original or a copy should be attached to the complaint, or copied therein, and its genuineness and due execution is deemed impliedly admitted unless specifically denied under oath by the adverse party. Po v. Court of Appeals 164 SCRA 668 (1998) A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party’s cause of action or defense. Distinguished from Written Interrogatories Page 48 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WRITTEN INTERROGATORIES

REQUEST FOR ADMISSSION

Adverse party or witness

Adverse party only

NOT required to deny or admit anything

Required to admit or deny something

Written request must be filed in court and served on the adverse party

Written request must be filed in court and served on the adverse party Must be objected within 15 days

Must be objected within 10 days (Rule 25)

Section 2. Implied admission The motion for extension of time to answer the request for admission should be served on the adverse party but need not be set for hearing. Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution. Effect of failure to make a reply to a request for admission Each of the matters of which an admission is requested is deemed admitted. If facts are admitted or deemed admitted, party may move for summary judgment. Remedy of the party File a motion to be relieved of the consequences of the implied admission. The amendment of the complaint per se cannot set aside the legal affects of the request for admission since its materiality has not been affected by the amendment. Section 3. Effect of admission Use of the admission An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings. Section 4. Withdrawal. Section 5. Effect of failure to file and serve request for admission. If an adverse party denies a fact within his personal knowledge, a party may present evidence regarding said fact even if he failed to file a request for admission.

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1. Motion for production or inspection; order Purpose of the rule This rule is not intended for use as a dragnet or any fishing expedition. This rule is also not intended to open all of a party’s records to other party on vague chance than they might contain some material relevant to some theory advanced by the other party. Rule only applicable to: a pending action and the documents or things subject of the motion must be only those within the possession, control, or custody of a party Limitations of the Order 1. Documents should not be privileged 2. Documents constitute or contain evidence material to any matter involved in the action, and which are in his (the party ordered) possession, custody, or control Contents of the Order a. Shall specify the time, place and manner of making the inspection and taking copies AND b. May prescribe such terms and conditions which are just. Æ Paragraph (b) applies to Real/Personal property Distinguished from Subpoena Duces Tecum PRODUCTION OR SUBPOENA DUCES INSPECTION OF TECUM DOCUMENTS OR THINGS Essentially a mode of Means of compelling discovery production of evidence The Rules is limited to the May be directed to a parties to the action person whether a party or not The order under this Rule May be issued upon an is issued only upon motion ex parte application with notice to the adverse party

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS

RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Section 1. When examination may be ordered

Section 1. Refusal to answer. .

This applies only to parties, NOT witnesses.

Refusal to answer If a party or other deponent refuses to answer any question upon oral examination, the examination may be ƒ completed on other matters or ƒ adjourned as the proponent of the question may prefer.

Examples of Mental or Physical Condition of a party in controversy: 1. In an action to recover damages for personal injury, the physical condition of the plaintiff in controversy 2. In a petition for guardianship on the ground of insanity, the mental condition of the ward is in controversy Section 24(b), Rule 130 – Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege. Section 2. Order for examination The order for examination may be made only: ƒ on motion for good cause shown, and ƒ upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and ƒ the person or persons by whom it is to be made. What is good cause When the ends of justice so require and the examination may be made without danger to the party’s life or health or the infliction upon him of serious pain. Section 3. Report of findings Discretion of Court The Court exercises full discretion in regulating physical and mental examinations of a party to a controversy. The defendant seeking physical examination of a plaintiff has no absolute right to choose his own physician. The Court must first determine whether a physical examination is necessary, then determine the physician who shall conduct the examination. Section 4. Waiver of privilege.

The proponent may apply to the court for an order to compel an answer. The court may then order: i. The refusing party or his counsel to pay the expenses incurred in obtaining the order, including the attorney’s fees (if it finds the refusal to answer without substantial justification) ii. The proponent or his counsel to pay the expenses incurred in opposing the application, including attorney’s fees (if it finds the application to be without substantial justification) Where to file for the order to compel RULE 23 Depositions pending actions – application for an order must be filed with the court of the place where the deposition is being taken RULE 25 Interrogatories to parties – application for an order must be filed with the court where the action is pending Remedies 1. Complete other matters 2. Adjourn 3. Apply to court for order Section 2. Contempt of court Contempt of court: If a party or other witness: ƒ refuses to be sworn or ƒ refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken Section 3. Other consequences Other consequences If a party/officer or managing agent of a party refuses to obey an order requiring him:

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. To answer designated questions b. To produce a thing for inspection or to permit entry upon property c. To submit to a physical or mental examination The court may order: a. That the matters regarding which the questions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to be established. b. The disallowance of the disobedient party’s claims c. The prohibition of the disobedient party to present evidence. The striking out of the pleadings or parts thereof d. The dismissal of the action or parts thereof d. Rendering judgment by default against the disobedient party OR e. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination If a party refuses to attend or serve answers, the court may: a. Strike out all or any part of any pleading of that party. b. Dismiss the action or any part thereof. c. Enter a judgment by default against that party, OR/AND d. Order that party to pay reasonable expenses incurred, including attorney’s fees. In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders, EXCEPT an order to submit to a physical or mental examination. NOTE: Orders enumerated above are NOT exclusive. SANCTIONS: 1. Pay expenses Arrest (Section3 par.(d)) 2. (Section1) 3. Contempt (Section2) 4. Facts will be deemed established (Section3 par.(a)) 5. Prohibiting from introducing evidence (Section3 par.(b)) 6. Affect disposition of the case (Section3 par.(c)) Section 4. Expenses on refusal to admit Failure of party to attend or serve answer

If a party or an officer or managing agent of a party willfully: ƒ fails to appear before the officer who is to take his deposition, after being served with a proper notice, or ƒ fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, The court on motion and notice, may: ƒ strike out all or any part of any pleading of that party, or ƒ dismiss the action or proceeding or any part thereof, or ƒ enter a judgment by default against that party, and ƒ in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees. Insular Life Assuarance Co., Ltd. v. CA 238 SCRA 88 (1994) The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case pends, having always in mind the paramount and overriding interest of justice. For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, ultimately to be of injustice. Section 6. Expenses against the Republic of the Philippines

RULE 30 TRIAL TRIAL It is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments GENERAL RULE: There should be a trial when an issue exists. A decision should not be made without trial EXCEPTIONS: 1. Judgment on the Pleading (Rule 34) 2. Summary Judgment (Rule 35) 3. Judgment on Compromise 4. Judgment by Confession 5. Judgment with Prejudice (Rule 17)

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. Notice of trial Notice at least 5 days before the trial date is a part of procedural due process.

Section 5. Order of trial Plaintiff presents evidence in support of his complaint

Section 2. Adjournments and postponements Section 3. Requisites of motion to postpone trial for absence of evidence There must be an affidavit showing: (1) materiality or relevance of evidence; and (2) due diligence in procuring it.

such

Defendant presents evidence to support his defense/counterclaim/c ross-claim/third party complaint

Defendant files: demurrer to evidence

If the adverse party admits the facts for which evidence is to be presented, the trial will not be postponed. Section 4. Requisites of motion to postpone trial for illness of party or counsel

Third party defendant presents evidence, if any

Court grants motion: renders dismissal

REQUISITES An affidavit showing that: 1. That the presence of the party or counsel at the trial is indispensable; and 2. That the character of his illness is such as to render non-attendance excusable. Rebuttal evidence by parties

Court denies motion, continues with hearing

After presentation of evidence; 1.oral arguments; 2.submission of memoranda

DECISION

Reverse Order of Trial In this situation, the defendant presents evidence ahead of the plaintiff When Reverse Order of Trial Proper If the defendant in his/her answer relies upon an affirmative defense, a reverse order of trial is proper Section 6. Agreed statement of facts This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial. The parties may also stipulate verbally in open court. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown, such as Page 52 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 error or fraud. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation.

Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

NOTE: Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAGE and for LEGAL SEPARATION. Section 7. Statement of judge

PURPOSE To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the Trial Court and save unnecessary costs and expenses.

Section 8. Suspension of actions

Section 1. Consolidation

ART. 2030 OF THE CIVIL CODE. EVERY CIVIL ACTION OR PROCEEDING SHALL BE SUSPENDED 1. If willingness to discuss a possible compromise is expressed by one or both parties; or 2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer.

GENERAL RULE: Consolidation is discretionary upon the court.

Section 9. Judge to receive evidence; delegation to clerk of court GENERAL RULE: The judge must himself personally receive and resolve the evidence of the parties. REQUSITES ON VALID DELEGATION OF POWER TO RECEIVE (a) The delegation may be made only in defaults or ex parte hearings, or an agreement in writing by the parties. (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar. (c) Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits; and (d) He shall submit his report and transcripts of the proceedings, together with the objections to be resolved by the court, within 10 days from the termination of the hearing.

RULE 31 CONSOLIDATION OR SEVERANCE CONSOLIDATION Involves several actions having a common question of law or fact which may be jointly tried.

EXCEPTIONS: Consolidation becomes a matter of duty when: 1. If the cases are pending before the same judge; OR 2. If filed with different branches of the same RTC and one of such cases has not been partially tried. Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. Generally, the case which was appealed later and bearing the higher docket number is consolidated with the case having the lower docket number. REQUISITES FOR CONSOLIDATION: 1. Actions which involves a common question of law or fact; and 2. The actions are pending before the same court. • If filed with different courts, authorization from the SC is necessary. 3 WAYS OF CONSOLIDATING CASES: 1. By recasting the cases already instituted, conducting only one hearing and rendering only one decision; 2. By consolidating the existing cases and holding only one hearing and rendering only one decision; and 3. By hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case. (TEST-CASE METHOD) Section 2. Separate trials on any claim, crossclaim, etc.

SEVERANCE Page 53 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 When the separate trial of claims is conducted by the court under this section, it may render separate judgments on each claim.

RULE 32 TRIAL BY COMMISSIONER COMMISSIONER A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered; includes a referee, an auditor and an examiner.

3. Issue subpoenas and subpoenas duces tecum 4. Swear witnesses 5. Unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence Section 4. Oath of Commissioner before he enters into his duties Section 5. Proceedings before Commissioner Section 6. Failure of parties to appear before Commissioner

Section 1. Reference to Commissioner by consent of both parties

If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his counsel of the adjournment.

Reference to a commissioner may be had by the written consent of both parties.

Section 7. Refusal of witness to obey subpoena issued by Commissioner

An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. It can be waived by consent of the parties expressly or impliedly.

Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which appointed the latter.

Section 2. Cases when reference by motion of one of the parties or motu proprio SITUATIONS WHEN REFERENCE TO A COMMISSIONER MAY BE MADE ON MOTION 1. Trial requires examination of a long account of either side 2. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect 3. Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case Section 3. Order of reference; powers of the Commissioner Order may specify or limit the powers of the Commissioner. POWERS OF THE COMMISSIONER 1. Report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only 2. Exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties

Section 8. Commissioner shall avoid delays Section 9. Report of Commissioner Section 10. Notice to parties of the filing of report UPON FILING OF THE REPORT OF THE COMMISSIONER: 1. The parties shall be notified by the clerk; AND 2. The parties shall be allowed 10 days within which to object to the findings of the report. Objections to the report based upon grounds which were available to the parties during the proceedings before the Commissioner shall not be considered by the court, UNLESS they were made before the Commissioner. Section 11. Hearing upon report Section 12. Stipulations as to findings When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law shall thereafter be considered. Section 13. Compensation of Commissioner

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

RULE 33 DEMURRER TO EVIDENCE Section 1. Demurrer to evidence DEMURRER TO EVIDENCE It is presented after the plaintiff has rested its case. The ground is based on insufficiency of evidence. If the motion is denied, the defendant may present his evidence. If the motion is granted, the complaint is dismissed. The remedy of the plaintiff is to APPEAL.

MOTION TO DISMISS Presented before a responsive pleading (answer) is made by the defendant. It may be used on any of those enumerated in Rule 16. If the motion is denied, defendant may file his responsive pleading. If the motion is granted, the complaint is dismissed and depending on the ground, the complaint may be re-filed.

If the court finds plaintiff’s evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence; no res judicata in dismissal due to demurrer. If court denies demurrer, defendant will present his evidence.

2 SCENARIOS: MOTION DENIED

MOTION GRANTED BUT REVERSED ON APPEAL

Movant shall have the right to present his evidence.

Movant is deemed to have waived his right to present evidence. The decision of the appellate court will be based only on the evidence of the plaintiff, as the defendant loses his right to have the case remanded for reception of his evidence. Order of the court is an ADJUDICATION ON THE MERITS, hence, the requirement in Section 1, Rule 36 should be complied with.

Denial is interlocutory. Sec. 1, Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based), will not apply. The denial is NOT appealable. CIVIL CASES Defendant need not ask for leave of court.

CRIMINAL CASES May be filed with or without leave of court. Leave of court is necessary so that the

If court denies demurrer, defendant will present his evidence.

accused could present his evidence if the demurrer is denied. If the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting accused. Judgment of acquittal is not appealable; double jeopardy sets in.

If court denies the demurrer: a. if demurrer was with leave, accused may present evidence b. if the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. If court denies the demurrer: a. if demurrer was with leave, accused may present evidence b. if the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence.

DEMURRER TO EVIDENCE It is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief. JUDGMENT ON DEMURRER TO EVIDENCE It is a judgment rendered by the court dismissing a case upon motion of the defendant, made after Page 55 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief.

RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS It is a judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief. Section 1. When judgment on the pleadings is proper A judgment on the pleadings must be on motion of the claimant. However, if at pre-trial, the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. By moving for judgment on the pleading, plaintiff waives his claim for unliquidated damages. Claim for such damages must be alleged and proved. GROUNDS: 1. Answer fails to tender an issue because of: a. general denial of the material allegations of the complaint; b. insufficient denial of the material allegations of the complaint or 2. Answer admits material allegations of the adverse party’s pleading. ACTIONS WHERE THE MATERIAL FACTS ALLEGED IN THE COMPLAINT MUST ALWAYS BE PROVED 1. Declaration of nullity of marriage 2. Annulment of marriage 3. Legal separation JUDGMENT ON THE PLEADINGS The defendant answered, but did not tender an issue or admitted the material allegations in the complaint. Evidence is not received as the same is based on

JUDGMENT BY DEFAULT The defendant did not file an answer.

Evidence is received.

the pleadings alone. Decision is based on the allegations in the pleadings. MOTION TO DISMISS

Decision is based on the evidence presented.

MOTION FOR JUDGMENT ON THE PLEADINGS Filed by the plaintiff if the answer raises no issue.

Filed by defendant to a complaint, counterclaim, cross-claim or third-party complaint. If the complaint states no cause of action, a motion to dismiss should be filed and no a motion for judgment on the pleading. Falcasantos v. How Suy Ching 91 Phil 456 (1952) One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence, must be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings.

RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. GENUINE ISSUE It is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is sham, fictitious, contrived, and patently unsubstantial so as not to constitute a genuine issue for trial. ƒ

May be asked for by a party seeking to recover upon a claim, counterclaim, crossclaim, or to obtain a declaratory relief.

ƒ

Although Rule does not specifically provide, also unavailable in actions for annulment of a and declaration of nullity of marriage, and for legal separation since Section 1 refers to actions “to recover upon a claim,” or to recover a debt or a liquidated demand for money, or “to obtain declaratory relief”. Page 56 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. Summary judgment for claimant May be filed at any time after the pleading in answer thereto has been served. Section 2. Summary judgment for defending party May be file at any time. Section 3. Motion and proceedings thereon. The motion shall be served at least 10 days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least 3 days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Section 4. Case not fully adjudicated on motion. The trial shall be conducted on the controverted facts only. Section 5. Form of affidavits and supporting papers Section 6. Affidavits in bad faith Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt. BASES OF SUMMARY JUDGMENT 1. Affidavits made on personal knowledge. 2. Depositions of the adverse party or a third party under Rule 23 3. Admissions of the adverse party under Rule 26. 4. Answers to interrogatories under Rule 25; all intended to show that: a. there is no genuine issue as to any material fact, except damages which must always be proved; and b. the movant is entitled to a judgment as a matter of law.

c. Vergara v. Suelto 156 SCRA 753 (1987) Even if the answer does tender an issue, and therefore a judgment on the pleadings is NOT proper, a summary judgment may still be rendered if the issues tendered are NOT genuine, are sham, fictitious, contrived, set-up in bad faith, and patently unsubstantial. Mallilin v. Castillo 156 SCRA 753 (2000) Where the pleadings under a genuine issue i.e. an issue of fact the resolution of which calls for the presentation of evidence, as distinguished from an issue which is sham, contrived, set-up in bad faith, or patently unsubstantial, summary judgment is not proper. Velasco v. CA 156 SCRA 753 (2005) Trial courts are authorized to grant relief by summary judgment. This is intended to expedite or promptly dispose of cases where the facts appear undisputed and certain from the pleading’ admissions and affidavits. This rule does not vest in the court summary jurisdiction to try the issue on pleadings and affidavits but gives the court limited authority to enter summary judgment only if it clearly appears that there is no genuine issue of material fact. SUMMARY JUDGMENT Based on the pleadings, depositions, admissions, and affidavits. Available to both plaintiff and defendant.

There is no genuine issue between the parties, i.e. there may be issues but these are irrelevant. 10-day notice required. May be interlocutory or

JUDGMENT ON THE PLEADINGS Based solely on the pleadings Generally available only to the plaintiff, unless the defendant presents a counterclaim. The answer fails to tender an issue or there is an admission of material allegations. 3-day notice required. On the merits.

JUDGMENT BY DEFAULT (Rule 9) Based on the complaint and evidence, if presentation is required. Available to plaintiff.

No issues as no answer is filed by the defending party. 3-day notice rule applies. On the merits.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 on the merits. Available only in actions to recover a debt, or for a liquidated sum of money or for declaratory relief.

Available in any action except annulment of marriage or legal separation cases.

Available in any action except annulment of marriage or legal separation cases.

RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF JUDGMENT Final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding. Judgment is the result, or the dispositive part of the decision while the opinion gives the grounds for the decision. DATE OF FINALITY OF JUDGMENT/ORDER Date of the finality of the judgment or final order shall be deemed to be the date of its entry. The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or reconsideration is filed within 15 days. Section 1. Rendition of judgments and final orders REQUISITES OF A JUDGMENT 1. It should be in writing, personally and directly prepared by the judge; 2. Must state clearly and distinctly the facts and the law on which it I based; and 3. It should contain a dispositive and should be signed by the judge and filed with the clerk of court PARTS OF A JUDGMENT 1. Opinion of the court (findings of fact and conclusions of law) 2. Disposition of the case (dispositive portion) 3. Signature of the judge JUDGMENT UPON THE MERITS Judgment rendered after consideration of the evidence submitted by the parties during the trial of the case.

The process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel. MEMORANDUM DECISION The judgment or final resolution of the appellate court may adopt by reference the findings of facts and conclusions of law contained in the decision of the trial court. A judgment based on a compromise otherwise known as JUDICIAL COMPROMISE has the force of law and is conclusive between parties. It is NOT appealable. The power to amend a judgment is inherent to the court before judgment becomes final and executory. RULE OF IMMUTABILITY OF JUDGMENT A final judgment cannot be modified, even if the purpose is to correct perceived erroneous conclusions of the facts or law. EXCEPTIONS: 1. To make corrections of clerical errors, not substantial amendments, as by an amendment nunc pro tunc; 2. To clarify an ambiguity which is borne out by and justifiable in the context of the decision; 3. Where the judgment is void; or 4. In judgments for support, it can always be amended from time to time. JUDGMENT NON PRO TUNC A judgment intended to enter into the records acts which had already been done, but which do not appear in the records. NOTE: A JUDGMENT is considered RENDERED: the filing of the signed decision constitutes the rendition of a judgment. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. NOTE: Attack of judgment maybe direct or collateral Direct attack a. before finality 1.motion for new trial or reconsideration 2.appeal b. after finality 1. relief from judgment, Rule 38 2. annulment of judgment, Rule 47

PROMULGATION Page 58 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 judgment for or against one of them will not necessarily affect the other. It is not proper in actions against solidary debtors. Section 5. Separate judgments PROMULGATION OF JUDGMENT Court Renders Decision

Losing Party

Accepts decision without further contest

If no appeal is taken or did not avail of remedies, judgment becomes final and executory

Filing appeal within 15 days from notice of judgment

Within 15 days from notice of judgment: Motion for reconsideration; or motion for new trial

Court maintains decision

SEPARATE JUDGMENT Judgment rendered to dispose of one of the several claims for relief presented in an action, made at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, which terminates such claim. Action shall proceed as to other claims.

It is proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. The action shall proceed as to the remaining claims. Section 6. Judgment against entity without juridical personality The judgment shall set out their individual or proper names, if known.

Court grants motion: 1.modifies decision; or 2.grants new trial

Losing party may appeal within the remaining period

REMEDIES AGAINST JUDGMENTS OR FINAL ORDERS Before finality of judgment or final order: 1. Motion for New Trial; 2. Motion for Reconsideration; and 3. Appeal After Finality of the judgment or final order: 1. Relief from Judgment or Final Order; 2. Annulment of Judgment; and 3. Petition for Certiorari

Section 2. The date of finality of the judgment or final order shall be deemed to be the date of its entry if no appeal or MNT or MR The date of finality of the judgment or final order shall be the date of its entry. Section 3. Judgment for or against one or more of several parties Section 4. Several judgments SEVERAL JUDGMENT Judgment rendered by a court against one or more several defendants and not against all of them leaving the action to proceed against the others. Several judgments is proper where the liability of each party is clearly separable and distinct from his coparties such that the claims against each of them could have been the subject of separate suits, and the Page 59 of

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RULE 37 NEW TRIAL OR RECONSIDERATION Filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution.

Order denying motion for new trial

Second motion for new trial based on grounds not existing or available when 1st motion was filed

Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new trial

Order denying a motion for new trial is not appealable

Section 1. Grounds of and period for filing motion for new trial or reconsideration NEW TRIAL It is the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken. MOTION FOR A NEW TRIAL

MOTION FOR RECONSIDERATION

The grounds are: 1. Fraud (Extrinsic), Accident, Mistake or Excusable Negligence (FAME); or 2. Newly discovered evidence which could not, with

The grounds are: 1. The damages awarded are excessive, 2. The evidence is insufficient to justify the decision or final order; or 3. The decision or final order is contrary to law.

reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result Required: 1. must be in writing 2. affidavit of the existence of FAME and newly discovered evidence; 3. affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action; 4. in case of newly discovered evidence, (a.) affidavit of new witnesses; (b.) duly authenticated documents to be introduced

Required: 1. Must point out specifically the conclusion of judgment; 2. express reference to testimonial or documentary evidence or to provisions of law

Absent the requirements above, the motion for new trial or reconsideration is considered PRO-FORMA or merely a scrap of scratch paper and will not toll the reglementary period for appeal Second motion may be allowed

Second motion from same party is prohibited

If a new trial is granted the trial court will set aside the judgment or final order

If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly

If denied, not appealable; will have to wait for the judgment and appeal therefrom

If denied, not appealable; will have to wait for the judgment and appeal therefrom

GROUNDS: MOTION FOR NEW TRIAL Page 60 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. Fraud, accident, mistake, or excusable negligence (FAME); 2. Newly discovered evidence FRAUD – Must be extrinsic fraud. Extrinsic fraud connotes any fraudulent scheme executed by the prevailing party outside the trial against the missing party who because of such fraud is prevented from presenting his side of the case. ACCIDENT – an event that takes place without one’s foresight or expectation. MISTAKE – generally refers to mistakes of fact or law where, in good faith, the defendant was mislead in the case. EXCUSABLE NEGLIGENCE – depends upon the circumstances of the case.

NOTE: New trial, however, a second motion is allowed but must be based on a ground not existing or available when the first motion was made, which may be filed during the remainder of the 15-day period. Section 3. Action upon motion for new trial or reconsideration The Court may either:: 1. set aside judgment or final order and grant new trial 2. deny the motion for new trial or motion for reconsideration 3. amend such judgment or final order accordingly Section 4. Resolution of motion Section 5. Second motion for new trial

REQUSITES TO BE CONSIDERED AS NEWLY DISCOVERED EVIDENCE 1. Discovered after trial 2. Could not have been discovered and produced at trial despite the exercise of reasonable diligence 3. If presented, could probably alter the result of the action Otherwise it is called forgotten evidence. GROUNDS FOR MOTION FOR RECONSIDERATION 1. Damages awarded are excessive 2. Evidence is insufficient to justify the decision or final order 3. Decision is contrary to law Section 2. Contents of motion for new trial or reconsideration and notice thereof A motion suspends or tolls the running of the reglementary period except when it is pro-forma. PRO-FORMA MOTION It is that which does not comply with Rule 15 and Rule 37, e.g. it does not point out specifically the findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, and is merely intended to delay the proceedings or if there is no affidavit of merit. NOTE: Motion for reconsideration, no second motion is allowed.

Section 6. Effect of granting of motion for new trial When motion is granted, the original judgment is thereby vacated and the action stands for trial de novo, but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial taking the same. Lucas v. Fabros 324 SCRA 1 (2000) A Motion for new trial, or for reconsideration of a judgment, or for reopening of trial, is a prohibited pleading under Section 19 of the Revised Rule on Summary Procedure. This rule, however, applies only where the judgment sought to be reconsidered is one rendered on the merits. "The motion prohibited by this Section is that which seeks reconsideration of the judgment rendered by the court after trial on the merits of the case." Section7. Partial new trial or reconsideration when issues severable Section 8. Effect of order for partial new trial EFFECTS OF AN ORDER FOR PARTIAL NEW TRIAL 1. enter a judgment or final order as to the rest of the issues, or 2. stay the enforcement of such judgment Section 9. Remedy against order denying a motion for new trial or reconsideration is appeal from the judgment Page 61 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Not more than 6 months after such judgment

RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS Section 1. Petition for relief from judgment, order, or other proceedings Section 2. Petition for relief from denial of appeal GROUNDS FOR PETITION FOR RELIEF 1. Judgment or final order entered against a party by FAME; or 2. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal

Æ For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse party’s evidence. Æ Uniform procedure for relief from judgments of MTC and RTC After petition is filed, court shall order adverse parties to answer within 15 days from receipt. After answer is filed or expiration of period therefore, court shall hear the petition. If granted, judgment set aside and court shall proceed as if timely motion for new trial has been granted; if granted against denial of appeal, court shall give due course to appeal. NEW TRIAL/ RECONSIDERATION Must be filed within the appeal period. Judgment not yet final.

A legal right FAME + Newly Discovered Evidence Judgment on final order

RELIEF FROM JUDGMENT Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered. More on equity FAME only Relief from judgment/order on other proceeding

Section 3. Time for filing petition; contents and verification Filed within 60 days after learning of judgment

FORM AND CONTENTS OF THE PETITION 1. The petition for relief must be verified; 2. It must be supported by affidavit showing the FAME relied upon; and 3. The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense. An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another. Section 4. Order to file an answer If petition is sufficient in form and substance to justify relief, court shall issue an order requiring adverse parties to file answer within 15 days from receipt of the notice. Basco v. CA 326 SCRA 768 (2000) In view of the peculiar circumstance of this case, such that the defective notice of hearing on petitioner’s motion for reconsideration was due to the day-long brownouts that plagued the metropolis, counsel’s failure to specify the date and time for hearing of petitioner’s motion for reconsideration should rightly be deemed excusable negligence. Section 5. Preliminary injunction pending proceedings PURPOSE This is to preserve the rights of the parties. Preliminary Injunction is granted upon filing of the petitioner of the BOND in favor of adverse party. Such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. Section 6. Proceedings after answer is filed TWO HEARINGS:

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 (a) Hearing to determine whether the judgment be set aside (b) If in the affirmative, a hearing on the merits of the case WHEN TRIAL ON THE MERITS NOT NECESSARY 1. When relief sought may be the allowance of an appeal after the expiration of the period to appeal. 2. When relief sought may be the staying of immediate execution due to FAME. Section 7. Procedure where the denial of an appeal is set aside The lower court shall be required to give due course to the appeal and to elevate the record of the appealed cases as if a timely and proper appeal had been made.

RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Section 1. Execution upon judgments or final orders WHEN EXECUTION IS A MATTER OF RIGHT 1. On motion; 2. Upon judgment or order that disposes of the action or proceeding; 3. Upon expiration of the period to appeal therefrom and no appeal has been duly perfected; 4. When appeal has been duly perfected and resolved, by filing a motion with the court of origin submitting true copies of the final judgment or final order sought to be enforced. If the court of origin refuses to issue a writ of execution, the appellate court may, on motion, direct the court of origin to issue the writ. FINAL JUDGMENTS Dispose of, adjudicate, or determine the rights of parties Still subject to appeal

FINAL AND EXECUTORY JUDGMENTS Becomes final & excecutory by operation of law After lapse of period to appeal and no appeal was perfected, no further action can be had

Execution of judgment not a matter of right

Execution of judgment a matter of right

JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE EXPIRATION OF TIME TO APPEAL 1. Forcible entry and detainer 2. Injunction, receivership, accounting and support 3. Award, judgment, final order, or resolution of quasi-judicial agencies Æ appealable to CA INTERLOCUTORY ORDER EXECUTED Support pendente lite

THAT

MAY

BE

JUDGMENTS THAT ARE NOT APPEALABLE: 1. Sin perjuico judgments (judgment, w/o any stated facts in support of the conclusion) 2. Conditional judgments 3. Incomplete judgments GENERAL RULE: Trial Court has a ministerial duty to order execution of final and executory judgments. It cannot refuse execution and is compellable by Mandamus. EXCEPTIONS: 1. Change in the situation of the parties which makes the execution inequitable or unjust; 2. Writ of execution varies judgment; 3. Controversy has never been submitted to the judgment of the court; 4. Execution is sought against property exempt from execution 5. Terms of the judgment not clear; leaves room for interpretation; 6. Writ of execution improvidently issued, defective in substance, issued against the wrong party, judgment debtor has been paid or otherwise satisfied, writ has been issued w/o authority. In the above exceptions, remedy is certiorari under Rule 65. WHEN EXECUTION OF FINAL AND EXECUTORY JUDGMENT MAY BE ENJOINED 1. Upon filing of a petition for relief from judgment 2. Attack against a judgment which is void for lack of jurisdiction, or obtained through fraud 3. On equitable grounds

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. In cases falling under the (6) exceptions above Judgment novated by a subsequent agreement cannot be executed. • e.g. agreement entered into by the parties other than terms of payment Judgment for support is not final in a sense that it cannot be modified. • Support depends not only on the varying conditions affecting the ability of the obligor to pay, but also upon the ever-changing needs of the beneficiary himself. GENERAL RULE: Final and executory judgment cannot be amended or modified • Any amendment w/c substantially affects a final and executory judgment is null and void for lack of jurisdiction EXCEPTION: JUDGMENT MAY BE MODIFIED AS TO: 1. clerical errors or mistakes; CLERICAL ERROR Errors not the result of exercise of judicial functions May be modified, corrected even after judgment has become final and executory

JUDICIAL ERROR Mistake relates to something the court did not consider or pass on, or considered and erroneously decided Cannot be modified Æ must be done in another case/suit

2. to clarify ambiguity; or 3. to enter nunc pro tunc orders - to make a present record of an order w/c the court rendered at a previous term but, by inadvertence has not been entered. A final and executory judgment can no longer be amended by adding thereto relief not originally included e.g. award of ownership does not necessarily include possession Section 2. Discretionary execution WHEN ISSUANCE OF WRIT OF EXECUTION IS DISCRETIONARY 1. Execution pending appeal (a) While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal;

(b) When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court; (c) When trial court has lost jurisdiction and has transmitted recordsÆ motion for execution pending appeal with appellate court 2. Execution of several, separate or partial judgments SEVERAL JUDGMENTS Rendered against one or more of several defendants, leading the action to proceed against others

SEPARATE/PARTIAL JUDGMENTS Rendered at any stage of the action regarding a particular claim, leaving the action to proceed as to the remaining claims

DISCRETIONARY EXECUTION May issue before the lapse of period to appeal

EXECUTION AS A MATTER OF RIGHT Issued when period to appeal has already lapsed and no appeal has been perfected Ministerial duty of the provided there are no supervening events

Discretionary upon the court; there is inquiry on whether there is good reason for execution

REQUISITES FOR EXECUTION PENDING APPEAL 1) On motion by the prevailing party, with notice to the adverse party; 2) Good reasons for issuing execution; and 3) The good reasons must be stated in a special order. Examples of good reasons 1) Where education of a person to be supported would unduly be delayed 2) The immediate execution of an order to support is valid 3) The judgment debtor is insolvent, except when a co-defendant is solvent and his liability is subsidiary What are not good reasons: 1) the mere fact that a claim is not secured, w/o any allegation that the defendant is insolvent or is about to dispose of his properties 2) Where the reason given is that an appeal is frivolous or dilatory, the trial judge may not rightfully determine the same 3) Mere posting of a bond Award for actual and compensatory damages may be ordered executed pending appeal, but not moral and exemplary damages. Page 64 of

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Moral and exemplary damages depends on actual result of the appeal

Execution pending appeal is not applicable in land registration proceedings

REVERSAL Modified judgment

Section 3. Stay of discretionary judgment Stay of execution may be allowed at the discretion of the court by filing a supersedeas bond SUPERSEDEAS BOND It is one filed by a petitioner and approved by the court before judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. The supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal, not other things like damage to property pending the appeal. Aside from the supersedeas bond, an aggrieved party may file a special civil action of certiorari under Rule 65 against the order granting execution pending appeal where the same is not founded upon good reasons. ƒ This remedy may be availed of notwithstanding the fact that 1) he has appealed from the judgment, or 2) has filed a supersedeas bond. Section 4. Judgments not stayed by an appeal The following judgments are immediately executory, enforceable after their rendition and shall not be stayed by an appeal, unless otherwise ordered by the trial court: 1. Injunction; 2. Receivership; 3. Accounting; 4. Support; and 5. Such other judgments declared to be immediately executory unless otherwise ordered by the trial court. Section 5. Effect of reversal of executed judgment The trial court may, on motion, issue restitution or reparation in an event of a reversal after a petition for relief under Rule 38, or annulment of judgment under Rule 47 is granted How restitution is made. Effects of reversal, modification. COMPLETE SPECIFIC RESTITUTION

Sale by sheriff to a 3rd person

Sale of a creditor to himself in a public sale Sale to a creditor, but subsequently sold to a 3rd party

Creditor may not be compelled to make specific restitution; He can be required to restore the excess realized upon the execution over and above the amount finally awarded Sale is not affected by reversal; title of 3rd person is protected, except when there is want of jurisdiction over the subject matter He may be required to surrender the property Creditor may be required to account for the value received by virtue of the sale to the 3rd party; title of 3rd party is protected, unless writ of execution is absolutely void, where: - execution upon a void judgment - judgment has been paid - execution levied on wrong party

Section 6. Execution by motion or by independent action. A final and executory judgment or order may be executed: 1) On motion, w/in 5 years from entry; or 2) By filing another action w/in 10 years from entry Lifespan of writ of execution= 5 years A revived judgment is again enforceable by motion w/in 5 years and thereafter, by another action w/in 10 years from finality of the revived judgment, not the original judgment EXECUTION OF A JUDGMENT BY COMPROMISE WITH A TERM If a compromise agreement w/ a term suspends the enforceability of a final judgment, the 5 year/10 year period must be counted from the end of such term, not from the date of entry REVIVAL OF A JOINT AND SEVERAL JUDGMENT A judgment rendered against several defendants, jointly and severally, can be revived against one of them only.

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WHEN 5/10 YEAR PERIOD SUSPENDED 1) When the enforceability of a final decision is suspended by the court; 2) When the 5 year period is interrupted or suspended by agreement of the parties 3) When the judgment creditor institutes supplementary proceedings to the execution 4) When delays are caused by judgment obligor’s own initiatives and for her advantage A valid execution issued and levied w/in the 5 year period may be enforced by sale even after the lapse of the said period ƒ ƒ

The levy is the essential act by which the property is set apart for satisfaction of judgment However, the execution sale must take place w/in the 10 year period

This section applies when a party dies after rendition of judgment, before or after entry. A judgment of foreclosure of mortgage is enforceable by execution against the executor or administrator whether the judgment obligor died before or after entry of judgment. Section 8. Issuance, form, and contents of a writ of execution. The motion for execution and the writ of execution must state specifically the amount of interest, costs, damages, rents, or profits due as of the date of issuance of the writ, aside from the principal obligation Special sheriffs for the service of writ of execution are not authorized by law.

WHEN 5 AND 10 YEAR PERIODS NOT APPLICABLE 1) Judgment for support - does not prescribe - may still be enforced by motion even after the 5 year period 2) Special proceedings - e.g. land registration proceedings

DEATH OF A OBLIGEE

NOTE: An action for support does not prescribe and may still be enforced by motion even after the lapse of 5 year period since the obligation is a continuing one. The court never loses jurisdiction to enforce such.

DEATH OF A OBLIGOR

VENUE OF ACTION FOR ENFORCEMENT OF JUDGMENT ƒ personal action Æ where plaintiff resides or defendant resides, at the election of the plaintiff; ƒ real action Æ where the property is located DEFENSES AVAILABLE IN AN ACTION FOR ENFORCEMENT OF JUDGMENT ƒ prescription ƒ satisfaction of claim ƒ counterclaims ƒ JURISDICTION TO JURISDICTION TO CHANGE, ALTER, ENFORCE JUDGMENT MODIFY JUDGMENT Terminates when the Continues even after judgment becomes final judgment has become final, for purposes of execution and enforcement Governed by Rule 39, Governed by Rule 39, Section 6 Section 1

The writ of execution must conform to the judgment to be executed, otherwise it is null and void. Execution will issue in any case Upon application of his executor, administrator, or successorin-interest Death Before Levy: 1. Action for recovery of real or personal property or any lien - execution will issue 2. Action for a sum of money – execution will NOT issue. In this case, the judgment obligee should file claim against the estate of the judgment obligor under Rule 86. Death After Levy: execution will issue since the property is already separated from the estate of the deceased and is deemed in custodia legis. Against his executor, administrator, or successorin-interest An appeal is the remedy for an order denying the issuance of a writ of execution.

Section 7. Execution in case of death of party. Page 66 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 GROUNDS FOR QUASHING A WRIT OF EXECUTION: 1) writ of execution varies judgment; 2) change in the situation of the parties making execution inequitable and unjust; 3) execution sought to be enforced against property exempt from execution; 4) controversy has never been submitted to the judgment of the court; 5) terms of judgment are not clear and there remains room for interpretation; 6) writ of execution is improvidently issued, defective in substance, issued against the wrong party, judgment debt has been paid, or writ issued without authority Section 9. Execution of judgments for money, how enforced 3 WAYS TO ENFORCE A JUDGMENT FOR MONEY 1. Immediate payment on demand ‐ judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter ‐ payment made to the judgment obligee or his representative, or if not present, to the sheriff, or if ‐ not practicable, to a fiduciary account 2. satisfaction by levy LEVY An act by which an officer sets apart or appropriates a part or whole of the property of the judgment debtor for purposes of the execution sale. ƒ ƒ

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The officer shall levy upon properties of the judgment obligor not otherwise exempt from execution Judgment obligor exercises option to chose w/c property levied upon; if not exercised, officer shall levy 1st on personal property, then on real property The sheriff shall sell only property sufficient to satisfy the judgment and other lawful fees. The on execution creates a lien in favor of the judgment obligee over the right, title, and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing.

GARNISHMENT An act of appropriation by the court when property of debtor is in the hands of third persons. ‐

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The sheriff may levy on debts due to debtor, or other credits, including bank deposits, financial interests, royalties, commissions and other personal property, not capable of manual delivery in the possession or control of 3rd parties Notice served on 3rd party (garnishee)

GENERAL RULE: All property belonging to judgment obligor not exempt from execution may be attached. EXCEPTIONS: 1) Usufruct 2) Ascertainable interest in real estate as mortgagor, mortgagee, or otherwise 3) Unused balance of an overdraft account (credit not subject to garnishment) Levy on personal property may be actual or constructive ƒ e.g. levy on a barge by registration w/ Philippine Coast Guard (constructive) Section 10. Execution of judgments for specific act SPECIFIC ACTS 1) Conveyance, delivery of deeds, or other specific acts; vesting title - if party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party - Real or personal property situated w/in the Philippines: court in lieu of conveyance may give order divesting title and may vest it in others 2) Sale of real or personal property 3) Delivery or restitution of real property - officer shall demand person to peaceably vacate property w/in 3 working days, and restore possession to judgment obligee, otherwise officer shall oust such persons 4) Removal of improvements on property subject of execution - officer shall not destroy, demolish, or remove improvements except upon special order of the court

3. garnishment of debts and credits Page 67 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 -

special order issued upon motion, after judgment obligor failed to remove the same 5) Delivery of personal property officer shall take possession of the same and deliver it to the judgment oblige • Failure to comply with specific acts under Rule 39 Sec. 10 is not necessarily punishable by contempt. However, if a party refuses to: 1. vacate the property – the sheriff must oust the party. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. 2. deliver – the sheriff will take possession and deliver it to the winning party. 3. comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it • No time limit w/in which an order of demolition should be carried out; defeated party is given reasonable period to look for another place. ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD ƒ but writ of execution must be served w/in 5 years ƒ order of demolition ancillary to writ Certiorari is available if requirements for issuance of order of demolition are not followed Section 11. Execution of special judgment SPECIAL JUDGMENT A special judgment is one that can be complied with only by the judgment obligor himself. It requires the performance of any other act than payment of money, or the sale or delivery of real or personal property Failure to comply with special judgment under Section 11 is punishable as contempt by imprisonment Section 12. Effect of Levy on execution as to third persons Section 13. Property exempt from execution PROPERTIES EXEMPT FROM EXECUTION 1) family home, or homestead, land necessarily used in connection therewith

2) ordinary tools and implements used in trade, employment, or livelihood 3) 3 horses, cows, carabaos, or other beast of burdenÆ necessarily used in his ordinary occupation 4) necessary clothing and articles for ordinary personal use, except jewelry 5) household furniture and utensils necessary for housekeeping ≤ P100K 6) Provisions for individual or family use sufficient for 4 months 7) Professional libraries and equipment 8) One fishing boat and accessories ≤ P100K used in livelihood 9) Salaries, wages, or earnings as are necessary for support of family w/in 4 months preceding levy 10) Lettered gravestones 11) Monies, benefits, privileges, or annuities accruing out of any life insurance 12) Properties specially exempt from execution OTHER PROPERTIES SPECIALLY EXEMPT FROM EXECUTION 1) Property mortgaged to DBP (Section 26, CA 458) 2) Property taken over by Alien Property Administration (Section 9[f], US Trading With The Enemy Act) 3) Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4) Backpay of pre-war civilian employees (RA 304) 5) Philippine Government backpay to guerillas (RA 897) 6) Produce, work animals, and farm implements of agricultural lessees, subject to limitations (Section21, RA 6389) 7) Benefits from private retirement systems of companies and establishments, with limitations (RA 4917) 8) Labor wages, except for debts incurred for food, shelter, clothing, and medical attendance (Art. 1708, NCC) 9) Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24, 65, and 177) 10) Copyrights and other rights in intellectual property under the former copright law (PD 49 cf. Section 239.3, RA 8293) 11) Bonds issued under RA 1000 (NASSCO v. CIR L-17874 31 August 1963) (Regalado, F. Remedial Law Compendium Vol. 1, 8th ed., pp. 447-448).

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 14. Return of writ of execution Writ of execution is returnable to the court after judgment it satisfied Sheriff shall report to the court w/in 30 days after receipt and every 30 days until the judgment is satisfied in full Lifetime of writ of execution – 5 years from entry of judgment The rules do not provide any lifetime for a writ of attachment unlike writ of execution Section 15. Notice of sale of property on execution REQUISITES FOR REQUISITES FOR NOTICE OF SALE OF NOTICE OF SALE OF PERSONAL REAL PROPERTY PROPERTY - perishable property: - If ≤ 50,000: notice posted in 3 public notice posted in 3 places for 20 days public places for such time as may be reasonable considering the - If > 50,000: Publication once a week for 2 character & condition consecutive weeks and of the property - other personal notice posted in 3 public property: notice places for 20 days posted in 3 public places for not less than 5 days - In all cases, written notice of the sale shall be given to the judgment obligor, at least 3 days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time. EFFECTS OF AN EXECUTION SALE WITHOUT THE REQUIRED NOTICE 1. Sheriff and creditor are joint tortfeasors 2. Liable in solidum because liability is joint and solidary Want of notice does not invalidate the execution sale where purchaser is innocent and no collusion appears (buyer in good faith) Section 16. Proceedings where property claimed by third persons 3RD PARTY CLAIM A claim by any person other than the judgment debtor or his agent on property levied on execution

PURPOSE OF 3RD PARTY CLAIM 1) To recover property levied on by sheriff (although 3rd party can vindicate claim in a separate action) 2) To hold sheriff liable for damages for the taking or keeping of such property WHEN TO FILE A 3RD PARTY CLAIM At any time, so as long as the sheriff has the possession of the property levied upon, or before the property is sold under execution WHAT IS THE PROCEDURE FOR A 3RD PARTY CLAIM 3rd party should make an affidavit of his title thereto, or right of possession thereof, and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. The sheriff may or may not require the judgment obligee to file a bond. INDEMNITY BOND FILED Action for damages brought against the principal and sureties on the bond Sheriff not liable for damages Sheriff bound to keep property on behalf of judgment obligee

NO INDEMNITY BOND FILED Action for damages may be brought against sheriff himself Sheriff liable for damages Sheriff not bound to keep property under levy

REMEDY OF THE CREDITOR 1. File a bond to indemnify 3rd party complainant - amount of bond not less than value of property - sheriff not liable for damages if bond is filed 2. File a claim for damages against 3rd party in the same or separate action - based on the ground that 3rd party claim is frivolous or plainly spurious REMEDY OF THE 3RD PARTY 1. Vindicate his claim in a separate action - no intervention allowed since judgment final & executory 2. File a separate action for damages against the sheriff (if no bond filed) 3. File a claim for damages against the bond - claim must be w/in 120 days from filing of bond

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The sheriff is at complete liberty to suspend or not to suspend execution if the judgment creditor does not file a bond. The judgment creditor cannot be compelled to file a bond because he is at complete liberty to do so. Without an indemnity bond, the sheriff acts at his own risk if he keeps the property (can be liable for damages). Section 17. Penalty for selling without notice, or removing or defacing notice PERSONS LIABLE UNDER SECTION 17 1) Officer selling without notice 2) Any person willfully removing or defacing notice posted (e.g. notice posted in 3 public places)

Shocking inadequacy of price may be ground for setting aside sale Who has jurisdiction to set aside execution sale? Court w/c rendered judgment that became final and executory has exclusive jurisdiction After sufficient property has been sold to satisfy the execution, no more sale shall be made and any excess shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. Section 20. Refusal of purchaser to pay Section 21. Judgment obligee as purchaser ƒ

What is the liability? 1. punitive damages to any person injured thereby = P5000, 2. actual damages

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Section 18. No sale if judgment and costs paid ƒ If judgment obligor paid the amount of judgment Æ NO writ of execution may be issued or implemented. Section 19. How property sold on execution; who may direct manner and order of sale All sales of property under execution must be made: 1. at a public auction 2. to the highest bidder 3. to start at the exact time fixed in the notice Sale of real properties must be made in the province where the same are situated ƒ Purpose is to obtain the best price

Officer may sell again the property to the highest bidder refusing purchaser may be liable for amount of loss occasioned by such refusal Refusing purchaser may be punished for contempt Officer may reject subsequent bid of refusing purchaser

If judgment obligee is the successful bidder BID ≤ JUDGMENT IF BID > JUDGMENT Judgment obligee not required to pay bid

Judgment obligee required to pay excess

Section 22. Adjournment of Sale ƒ ƒ

If both obligee and obligor agree in writing, sale may be adjourned to any date and time agreed upon Without such agreement, sale may be adjourned from day to day if it becomes necessary to o so for lack of time. Adjournment = waiver of publication of another notice requirement

PERSONS PROHIBITED FROM BUYING ƒ Judge, who issued the writ of execution ƒ Officer conducting sale, or his deputy

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EFFECT OF SALE OF REAL PROPERTY IN MASS GENERAL RULE: Valid

Section 23. Conveyance to purchaser of personal property capable of manual delivery

EXCEPTION: 1. when it appears that a larger sum would have been realized from a sale in parcels, or 2. a sale of less than whole would be sufficient to satisfy debt

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Mere inadequacy of price is not material if there is a right of redemption.

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After purchaser pays the purchase price, the sheriff must deliver the property capable of manual delivery to the purchaser If desired the sheriff shall execute and deliver a certificate of sale No right of redemption in sales of personal property on execution

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 24. Conveyance to purchaser of personal property not capable of manual delivery

2. Real Property – there is a right of redemption WHO MAY REDEEM?

For personal property not capable of manual delivery, the officer must execute and deliver to purchaser certificate of sale (symbolic delivery) Section 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of deeds CERTIFICATE OF SALE MUST CONTAIN 1) Description of real property sold; 2) Price paid (per lot) 3) Whole price paid 4) Statement of right of redemption 1 year from date of registration of certificate of sale ORDINARY SALE ON EXECUTION Need not be confirmed Right of redemption Purchaser acquires upon expiration redemption period

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EXECUTION IN JUDICIAL FORECLOSURE OF MORTGAGE Needs judicial confirmation No right of redemption (except where mortgagee is a bank) Purchaser acquires title after judicial confirmation of sale

Purchaser acquires only right, title, interest and claim of judgment obligor. Purchaser of property registered under Torrens system acquires the same free from liens or encumbrances not noted thereon. Auction sale retroacts to date of levy E.g. a 3rd party claim was filed after the levy. The fact that the 3rd party claim was presented 1 day before the execution sale is immaterial. If the levy is valid, the sale is also valid. The auction sale retroacts to the date of the levy. The purchaser is not entitled to possession during the period of redemption. Section 26. Certificate of sale where property claimed by 3rd person The certificate of sale to be issued shall make express mention of the existence of such third-party claim. Section 27. Who may redeem real property so sold RIGHT OF REDEMPTION: 1. Personal Property – None; sale is absolute

JUDGMENT DEBTOR Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs, joint debtors) When? Within 1 year from the date of registration of the certificate of sale

REDEMPTIONER One who has a lien by virtue of another attachment, judgment, or mortgage on property SUBSEQUENT to the lien under which the property was sold When? 1. Within 1 year from the date of registration of the certificate of sale; or 2. Within 60 days from the last redemption by another redemptioner.

A surety is NOT a successor in interest By paying the debt, he stands in the place of the creditor, not obligor Right of redemption cannot be levied on by judgment creditor The judgment debtor may, of course, legally sell his right of redemption Section 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and filed PERIOD OF REDEMPTION JUDGMENT REDEMPTIONER OBLIGOR Judgment Obligor 1st redemptioner has 1 year to has 1 year from redeem registration of 2nd redemptioner has 60 to redeem after 1st redemption certificate of sale 3rd redemptioner has 60 days after 2nd, etc. Once he redeems, Further redemption allowed, no further even after lapse of 1 year, as redemption is long as each redemption is allowed made w/in 60 days after the last Payment – how and to whom made ƒ Tender of redemption money may be made to purchaser or sheriff ƒ If tender to sheriff – duty to accept Medium of payment ƒ Cash, although Sec. 9, Rule 39 allows certified bank check ƒ If check is dishonored, redemption invalid ƒ If check became stale for not being presented, through no fault of redemptioner, redemption valid Page 71 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Amounts Payable On Redemption JUDGMENT REDEMPTIONER OBLIGOR If he redeems from the If he redeems from the purchaser: purchaser: - Same as - Purchase judgment obligor price + 1% - Amount of lien, If interest + purchaser also assessment creditor w/ prior or taxes lien If he redeems from If he redeems from redemptioner - Same as judgment obligor redemptioner - Redemption - Amount of liens held by last redemptioner prior to price + 2% his own, w/ interest interest + assessment or taxes

Section 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded thereupon; to whom payments on redemption made If judgment obligor redeems, no further redemption is allowed. The Person to whom redemption was made must execute and deliver to the judgment obligor a certificate of redemption.

If based on Mortgage or other lien, must serve: - memorandum of record, or any assignment, AND - affidavit, showing amount due on lien Failure to produce proof by redemptioner is waived by refusal on other grounds. Validity of redemption not affected by failure to present proof If person to whom redemption was offered accepts without requiring proof – redemption valid Section 31. Manner of using premises pending redemption; waste restrained During the period pending the redemption, the court issues an order to restrain the commission of waste on the property by injunction. WHAT IS NOT COMMISSION OF WASTE 1) Use in the same a manner previously used; 2) Use in the ordinary course of husbandry; 3) Make necessary repairs to buildings thereon Section 32. Rents, earnings and income of property pending redemption

purchaser,

During the period of redemption, all rents, expenses, income and fruits derived still belong to the debtor.

Redemption can be paid in other forms than cash. The rule is construed liberally in allowing redemption (aid rather than to defeat the right) and it has been allowed to in the case of a cashier’s check, certified bank checks, and even checks.

During the period of redemption, the purchaser or redemptioner is not entitled to: 1. possession 2. receive the rents, earnings, and income of property sold on execution; 3. reimbursement for improvements

Payments may be made redemptioner, or sheriff.

to

the

A formal offer to redeem is not necessary where the right to redeem is exercised through the filing of a complaint to redeem in the courts, within the period to redeem.

Section 33. Deed and possession to be given at expiration of redemption period; by whom executed or given

Section 30. Proof required of redemptioner

Upon expiration when no redemption has been made within 1 year, purchaser is entitled to conveyance and possession of property.

PROOF REQUIRED JUDGMENT OR FINAL ORDER No proof required

Upon expiration when no redemption has been made within 6 months, last redemptioner is entitled to conveyance and possession of property.

Right of redemption appears on record

REDEMPTIONER If based on judgment or final order: - must serve copy of judgment or final order, certified by clerk of court

Within 1 year purchaser acquires only the rights, title, interest and claim of judgment obligor to property. After 1 year, the purchaser now has his own right and Page 72 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 acquires right to the property. It is at this time that the writ of possession is issued. Writ of possession may be enforced against judgment obligor, successors-in-interest - but NOT against persons whose right possession is adverse to the latter

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Section 34. Recovery of price if sale not effective; revival of judgment If purchaser fails to recover possession, evicted, judgment reversed, property exempt from execution, or 3rd party vindicated claim, purchaser may, on motion or in a separate action: 1) recover from creditor price paid w/ interest, or so much w/c is not returned to judgment obligor; or 2) have original judgment revived for whole price w/ interest Section 35. Right to contribution or reimbursement

5) Sec. 40 – order to apply to obligor’s property in the hands of another, investigate income, expenses, earnings Æ order fix monthly payments 6) Sec. 41 – appoint receiver 7) Sec. 42 – sale of debtor’s interest in real estate 8) Sec. 43 – if garnishee denies debt, court may order creditor to institute action against such person to pay debt Section 37. Examination of obligor of judgment obligor Any person or corporation who has property of the debtor, or is indebted to the debtor Æ court may order such person to be examined Æ to bind the credits due to debtor CITATION The garnishee becomes a forced intervenor, requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation).

If property is executed against several persons, and more than due proportion has been satisfied Æ one who pays may compel contribution from the others

Section 38. Enforcement of attendance and conduct of examination

If surety pays Æ he may compel repayment from the principal

A party or other person may be compelled by an order of subpoena, to attend before the court or commissioner to testify as provided in Sections 36 & 37.

Section 36. Examination of judgment obligor when judgment unsatisfied Upon return of writ of execution, and judgment is still unsatisfied, the creditor may ask the court to require the debtor to appear and his property or income be examined

Failure to obey such order or subpoena may be punished for contempt. Section 39. Obligor may pay execution against obligee Persons indebted to the debtor may pay sheriff.

PROCEEDINGS SUPPLEMENTARY TO EXECUTION The proceedings are to aid judgment creditors in discovery of debtor’s property and its application to the satisfaction of judgment. It is to compel the disclosure of any property that is not exempt from execution 1) Sec. 36 – examination of judgment obligor’s property 2) Sec. 37 – examination of judgment obligor’s debtor (garnishee) 3) Sec. 38 – enforcement of attendance and conduct of examination (punishable by contempt) 4) Sec. 39 – judgment obligor’s debtor may pay sheriff

Sheriff’s receipt shall mean a discharge for the amount paid and shall be credited by the obligee on execution Section 40. Order for application of property and income to satisfaction of judgment. Court may order property of judgment obligor, or money due him, in the hands of either himself or another, to be applied to the satisfaction of the judgment Investigation of income and expenses Æ if it appears earnings more than necessary for support of family Æ court may order that he pay judgment in fixed monthly installments Æ otherwise contempt Page 73 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 41. Appointment of receiver

3) upon indorsement of such admission 4) upon order of the court

The sheriff is not a proper person to be appointed as receiver.

Creditor who compels satisfaction of judgment loses right of appeal.

Section 42. Sale of ascertainable interest of judgment obligor in real estate.

Debtor who voluntary satisfies judgment loses right to appeal.

If Judgment obligor has interest in real estate (as mortgagor or mortgagee, or otherwise) ƒ Receiver may be ordered to sell and convey real estate or interest therein

But, the debtor who is compelled to pay does NOT lose right to appeal. TENDER OF PAYMENT OF JUDGMENT

TENDER OF PAYMENT OF CONTRACTUAL DEBT

Section 43. Proceedings when indebtedness denied or another person claims property.

- If tender refused, not necessary to make consignation - Court may direct money to be paid to the court, and order entry of satisfaction of judgment

- If tender refused, must consign payment w/ court

Person or corporation having property of obligor or indebted to him, claims an interest in property adverse to him or denies debt Court may: 1. authorize judgment obligee to institute action against person or corporation for recovery of such interest or debt; 2. forbid transfer or other disposition of such interest or debt w/in 120 days from notice of order; or 3. may punish disobedience of such order as for contempt. Court cannot make a finding that 3rd person has in his possession property belonging to judgment debtor or is indebted to him and to order said person to pay amount to judgment creditor Execution may issue only upon an incontrovertible showing that 3rd party holds property of judgment obligor or is indebted to him Section 44. Entry of satisfaction of judgment by clerk of court Section 45. Entry of satisfaction with or without admission Judgment obligee is obliged to execute and acknowledge admission of satisfaction of judgment only if judgment obligor demands ENTRY OF SATISFACTION OF JUDGMENT-WHEN MADE 1) upon return of execution satisfied 2) upon filing of admission of satisfaction by creditor

Section 46. When principal bound by judgment against surety SURETY SUED ALONE - principal also bound by judgment - surety should notify principal and request him to join in defense; surety must still file separate action for reimbursement but principal can no longer set up defenses w/c he could have set up in the original action - if principal not notified, he may set up defenses in a subsequent action

PRINCIPAL AND SURETY JOINTLY SUED - judgment may be rendered against them jointly & severally - surety should file cross-claim for reimbursem ent

PRINCIPAL SUED ALONE - principal has no cause of action against surety

The principal is bound by the same judgment from the time he has notice of the action or proceeding and Page 74 of

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 has been given an opportunity at the surety’s request, to join the defense. Section 47. Effect of judgment or final orders. Paragraph (a) refers to rule on Res Judicata in judgments IN REM. JUDGMENT OR FINAL ORDER Against A specific thing

EFFECT: CONCLUSIVE AS TO the title of the thing

Probate of a will or administration of the estate of a deceased person In respect to the personal, political, or legal condition or status of a particular person

Will or administration. However, only prima facie evidence of the death of the testator or intestate Condition, status, or relationship of the person

Paragraph (b) refers to as “bar by former judgment or Res Judicata in judgments IN PERSONAM RES JUDICATA It is a matter adjudged; an existing final judgment or decree rendered on the merits is conclusive upon the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal, on the points and matters in issue in the first suit. It is based on the principle that parties should not litigate the same matter more than once. REQUISITES OF RES JUDICATA 1) Former judgment or order must be final and executory; 2) Court has jurisdiction over subject matter and parties; 3) Former judgment or order was on merits; 4) Identity of parties, subject matter, and cause of action between first and second action. Test to determine IDENTITY OF CAUSE OF ACTION Whether the same evidence would sustain both causes of action NOTE: Res Judicata applies only between adverse parties in a former suit, NOT between co-parties

CONCLUSIVENESS OF JUDGMENT Issues are actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action. RES JUDICATA OR BAR BY FORMER JUDGMENT - Refers to same action, claim or demand - Absolute bar to subsequent action - there is finality as to the claim or demand in controversy, not only to matters presented, but as to any other admissible matter w/c might have been presented - identity of parties, SM, cause of action

ESTOPPEL BY JUDGMENT OR CONCLUSIVENESS BY JUDGMENT - Refers to another action between same parties but involves different claim - judgment merely an estoppel only as to those matters in issue or controverted

- identity of parties, SM only

Section 48. Effect of foreign judgments or final orders. EFFECT OF A FOREIGN ORDER OR TRIBUNAL: 1) Against a specific thing – conclusive upon title to the thing. 2) Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud, or clear mistake of law or fact. ENFORCEMENT OF FOREIGN JUDGMENTS By filing an action based on said judgment; foreign judgment is presumed to be valid and binding. RECOGNITION OF A FOREIGN JUDGMENT Raise the foreign judgment as res judicata in the defense (not in a separate action).

Paragraph (c) is known as “conclusiveness of judgment” or preclusion of issues or rule of AUTER ACTION PENDANT

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