Special Proceedings Rem Law Review (Gesmundo) 2010-2011

SPECIAL PROCEEDINGS

be found

What is a special proceeding? Rule 1, section 3 (c): remedy which a party seeks to establish a right, status, or particular fact

NOTE: the court first taking cognizance excludes all other courts otherwise there will severable proceedings

What is the difference between Specpro, ordinary civil action, summary procedure? Ordinary civil action: Rule 1, section 3 (a): civil action may be ordinary or special. Summary procedure:

When may you contest the assumption of jurisdiction of the court? a. In an appeal from that settlement proceeding in the original case b. When the want of jurisdiction appears on the record. In this case it is obvious, so you do not need to proceed. If the improper venue is not patent then there must be evidence presented to show that there is want of jurisdiction.

What special proceedings are provided in the rules? Those in the Rules of court!! But take note that there are other special proceedings enforced by law like enforcement of arbitration awards How are special proceedings summary judgment?

distinguished

from

Are the rules in ordinary civil actions applicable in special proceedings? Yes in some instances. Like filing and service of pleadings Special Proceeding v. Ordinary Civil Action Special Proceeding there is only one party as a general rule commenced through a petition no responsive pleading is required unless there is an oppositor limited jurisdiction no need for cause of action, you precisely go to court to establish that particular right

Record on appeal is usually required, multiple appeals are allowed decree

Ordinary Civil Action

commenced through a complaint responsive pleading is called an answer

there is a cause of action which is the right violated 15 day ordinary period of appeal a record on appeal is not required judgment

NOTE: there are some special proceedings that are to be filed in FAMILY COURTS/REGIONAL TRIAL COURT SETTLEMENT OF ESTATES Rule 86 In what courts should the estate of a deceased be settled? It depends on:

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Jurisdiction – consider the gross value of the estate [exceeds 300k/400k depends if outside/inside Manila  RTC] if less than that, MTC (if in Manila, MetroTC)

How do you settle of a deceased married person? If both of them die, then their estates can be settled in either of the proceeding. What is the nature of probate proceedings? They cannot resolve collateral matters, only those matters pertaining to the settlement of the estate. Example: they can only settle those liquidation and distribution of estate May the probate court decide on issue of ownership? GR: NO. Except: a. When the parties to the settlement submit themselves to the court to resolve issue on ownership b. Provisionally for purposes of inventory What are the different kinds of settlement proceedings? a. Principal b. Ancillary – decreed by foreign court or when some of properties are in foreign country What is the nature of an estate? It is in the nature of an artificial person however there is now a conflict in the jurisprudence that says it is not an artificial person. What is the extent of jurisdiction of probate courts? Merely on the settlement of estate What warrants and processes may the courts may issue? [Rule 73, section 3] In the exercise of probate jurisdiction, Courts of First Instance may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law. The court may issue a warrant for the apprehension and imprisonment of a person [until s/he performs the order or judgment] if such person does not perform the order or judgment rendered by a court in the exercise of its probate jurisdiction.

Venue: Consideration is his residence, residence not domicile!! Physical habitation at the time of his death If the decedent is a non-resident file in the court having jurisdiction where any of his property can

May the estate of an absentee be settled? Yes! What are the modes of settlement? a. Judicial • Intestate REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO) Special Proceedings Julia Britanico, Kevin Edrick Relopez, Caroline Tan

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b.

Partition Summary – when the gross value of the estate DOES NOT EXCEED 10k (this is irrelevant! Wala namang estate na Php10k!!) Extrajudicial Settlement • Among several heirs • Sole heir – self adjudication

When may there be extrajudicial settlement? When the decedent left no will and no debts If there are outstanding debts, what will happen? The heirs can opt to pay debts first then proceed with extrajudicial settlement What do you mean of newspaper of general circulation? Is “Bomba” included? No! There must be a BONA FIDE subscription. But nevertheless the SC now allows to be published in these kinds of newspapers There should be 21 days of publication, but if there is a total of 15 days of publication that is sufficient