San Beda College of Law 10

MEMORY AID IN REMEDIAL LAW

CIVIL PROCEDURE
RULE 1 (B)
GENERAL PROVISIONS ACTION IN ACTION IN ACTION
REM PERSONAM QUASI IN REM
Statutes regulating the procedure of
courts will be construed as applicable to Directed Directed Directed
actions pending and undetermined at the against the against against
time of their passage so long as vested thing itself particular particular
rights will not be impaired. persons persons

Judgment is Judgment is Judgment

Under the 1987 Constitution, the rule- binding on the binding only binding upon
making power of the Supreme Court has whole world upon parties particular
the following limitations: impleaded or persons, but
1. shall provide a simplified and their the real motive
inexpensive procedure for the successors in is to deal with
speedy disposition of cases; interest real property
2. Uniform for all courts of the or to subject
same grade, and said property
to certain
3. Shall not diminish, increase or
claims.
modify substantive rights (Art.
Ex. Land Ex. action to Ex. Unlawful
VIII Sec. 5[5]). registration recover detainer or
case; probate damages; forcible entry;
Section 3. Cases governed. proceedings action for judicial
ACTION CLAIM for allowance breach of foreclosure of
of a will. contract mortgage.
An ordinary suit in a A right possessed by
court of justice one against another
The distinction is important in
One party prosecutes The moment said
another for the claim is filed before a determining the EFFECT of the
enforcement or court, the claim is judgment.
protection of a right converted into an
or the prevention or action or suit. (C)
redress of a wrong. REAL PERSONAL MIXED
ACTION ACTION ACTION
CLASSIFICATION OF ACTIONS. Ownership or personal property is Both real and
(A) possession of sought to be personal
ORDINARY CIVIL SPECIAL CIVIL real property is recovered or where properties are
involved damages for breach involved
ACTION ACTION of contract are
sought
Governed by ordinary Also governed by Founded on Founded on privity Founded on
rules ordinary rules but privity of of contract both
SUBJECT to specific estate
rules prescribed (Rules ex. Accion Ex. Action for a sum ex. Accion
62 to 71). reinvidicatoria of money publiciana
with a claim
for damages
Formal demand of Special features not
one’s legal rights in a found in ordinary civil
court of justice in the actions The distinction is significant in the
manner prescribed by determination of venue. With respect to
the court or by the mixed actions, the rules on venue of real
law actions shall govern, i.e., where the real
property is located.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 11

MEMORY AID IN REMEDIAL LAW

(D) Section 6. Construction.

LOCAL ACTION TRANSITORY
ACTION General Rule: Liberal construction .
Exceptions:
Must be brought in a Generally, must be a. reglementary periods
particular place, in brought where the b. rule on forum shopping
the absence of an party resides
agreement to the regardless of where
contrary the cause of action
RULE 2
arose
CAUSE OF ACTION
Ex. Action to recover Ex. Action to recover
real property sum of money Section 2. Cause of Action, defined.
Essential elements of cause of action
Section 5. Commencement of action. 1. Existence of a legal right of the
plaintiff;
An action is commenced by: 2. Correlative legal duty of the
1. filing of the complaint (the date of defendant to respect one’s right;
the filing determines whether or not 3. Act or omission of the defendant
the action has already prescribed); in violation of the plaintiff’s
and legal right; and
2. payment of the requisite docket fees 4. Compliance with a condition
(determined on the basis of the precedent.
amount of the claim including the
damages indicated in body or the CAUSE OF ACTION RIGHT OF ACTION
prayer of the pleading) delict or wrongful act remedial right or right
or omission committed to relief granted by
by the defendant in law to a party to
It is not simply the filing of the
violation of the institute an action
complaint or the appropriate initiatory primary rights of the against a person who
pleading but also the payment of the plaintiff has committed a
prescribed docket fee that vests a trial delict or wrong
court with jurisdiction over the subject against him
matter or nature of the action. The reason for the the remedy or means
action afforded or the
The court may allow the payment of the consequent relief
deficient docket fee within a reasonable the formal statement right that is given –
period but not beyond the applicable of alleged facts the right to litigate
prescriptive or reglementary period. because of the
occurrence of the
alleged facts
An action can be commenced by filing Determined by facts determined by
the complaint by registered mail. In as alleged in the substantive law
which case, it is the date of mailing that complaint and not the
is considered as the date of filing, and prayer therein
not the date of the receipt thereof by
the clerk of court. RELIEF REMEDY SUBJECT
MATTER
The date of the filing of an amended the redress, the the thing,
complaint joining additional defendant is protection, procedure or wrongful act,
the date of the commencement of the award or type of contract or
action with regard to such additional coercive action which property
defendant. measure which may be which is

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 12

MEMORY AID IN REMEDIAL LAW

Section 5. Joinder of causes of action.

the plaintiff availed of by directly Rule in this section is PERMISSIVE and the
prays the court the plaintiff involved in the plaintiff can always file a separate
to render in his as the means action, action for each cause of action.
favor as a to obtain the concerning
consequence of desired which the
the delict relief wrong has Par. (a): The joinder of causes of action
committed by been done and may involve the same or different
the defendant with respect parties. If the joinder involved different
to which the parties, it must comply with Sec. 6 Rule
controversy 3, thus, there must be a question of fact
has arisen. or law common to both parties joined
arising out of the same or series of
Section 4. Splitting a single cause of transactions.
action, effect of.
Par. (b) requires that: only causes of
SPLITTING OF CAUSE OF ACTION – is the action in ordinary civil actions may be
practice of dividing one cause of action joined, obviously because they are
into different parts and making each subject to the same rules.
part subject of a separate complaint.
Par. (c) As long as one cause of action
Applies NOT only to complaints but also falls within the jurisdiction of the RTC,
to counterclaims and crossclaims. the case can be filed there even if the
MTC has jurisdiction over the others.

Remedy against splitting a single cause Pars. (d) embodies the TOTALITY RULE
of action: Section 33 BP129, as amended by RA
A. Motion to dismiss on the ground of: 7691 - Where there are several claims or
 Litis pendentia, if the first causes of actions between the same or
complaint is still pending (Rule different parties, embodied in the same
16, Sec. 1[e]); or complaint, the amount of the demand
 Res judicata, if any of the shall be the totality of the claims in all
complaints is terminated by final the causes of actions, irrespective of
judgment (Rule 16, Sec. 1[f]) whether the causes of action arose out
of the same or different transactions.
B. An answer alleging either of the
above-cited grounds as affirmative SPLITTING OF JOINDER OF
defense (Rule 16, Sec. 6) CAUSE OF ACTION CAUSES OF ACTION

General Rule on Divisible Contract There is a single cause Contemplates several

A contract to do several things at several of action causes of action
times is divisible, and judgment for a
PROHIBITED. Causes ENCOURAGED.
single breach of a continuing contract is
multiplicity of suits Minimizes multiplicity
not a bar to a suit for a subsequent and double vexation of suits and
breach. on the part of the inconvenience on the
defendant parties
Doctrine of Anticipatory Breach
Even if the contract is divisible in its
performance and the future periodic Section 6. Misjoinder of causes of
deliveries are not yet due, if the obligor action.
has already manifested his refusal to Not a ground for dismissal of an action. A
comply with his future periodic misjoined cause of action may be
obligations, “the contract is entire and severed and proceeded with separately.
the breach total,” hence there can only
be one action for damages (Blossom & There is no sanction against non-joinder
Co. vs. Manila Gas Corp., 55 Phil. 226) of separate causes of action since a

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 13

MEMORY AID IN REMEDIAL LAW

plaintiff needs only a single cause of Impleading the beneficiary as a party in

action to maintain an action. the suit is now mandatory, in cases
allowed to be prosecuted or defended by
RULE 3 a representative.
PARTIES TO CIVIL ACTIONS
CLASSIFICATION OF PARTIES IN
Section 1. Who may be parties; INTEREST
plaintiff and defendant. 1. Indispensable parties – those without
whom no final determination can be had
REQUIREMENTS FOR A PERSON TO BE A of an action. (must be joined)
PARTY TO A CIVIL ACTION:
1. he must be a natural or juridical 2. Necessary (or proper) parties – those
person or an entity authorized by who are not indispensable but ought to
law; be parties if complete relief is to be
2. he must have a legal capacity to sue; accorded as to those already parties, or
and for a complete determination or
3. he must be the real party in interest. settlement of the claim subject of the
action. (may or may not be joined)
PLAINTIFFS- Those having an interest in
the subject matter of the action or in 3. Representative parties – someone
obtaining the relief demanded. acting in fiduciary capacity. Maybe a
trustee, guardian, executor or
DEFENDANTS: administrator, or a party authorized by
1. persons who claim an interest in the law or these Rules.
controversy or the subject thereof
adverse to the plaintiff; or An agent acting in his own name and for
the benefit of an undisclosed principal
2. who are necessary to a complete may sue or be sued without joining the
determination or settlement of the principal except when the contract
questions involved therein; or involves things belonging to the principal

3. all those who ordinarily should be 4. Pro forma parties – those who are
joined as plaintiffs but who do not required to be joined as co-parties in
consent thereto, the reason suits by or against another party as may
therefore being stated in the be provided by the applicable
complaint. substantive law or procedural rule such
as in the case of spouses under Sec. 4.
Neither a dead person nor his estate may
be a party plaintiff in a court 5. Quasi parties – those in whose behalf
action…Considering that capacity to be a class or representative suit is brought.
sued is correlative of the capacity to
sue, to the same extent, a decedent Section 5. Minor or incompetent
does not have the capacity to be sued persons.
and may not be named a party
defendant in a court action (Ventura vs. Under the present rule, a person need
Militante 316 SCRA 226). not be judicially declared to be
incompetent in order that the court may
Section 3. Representatives as parties. appoint a guardian ad litem. It is enough
that he be alleged to be incompetent.
REAL PARTY IN INTEREST – the party The suit can be brought by or against the
who stands to be benefited in the suit or minor or incompetent person personally
the party entitled to the avails of the BUT with the assistance of his parents or
suit. guardian.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 14

MEMORY AID IN REMEDIAL LAW

Section 6. Permissive joinder of SOLIDARY DEBTORS – either is

parties. indispensable and the other is not even a
necessary party because complete relief
PERMISSIVE JOINDER – the aggregate may be obtained from either.
sum of all the claims, determines the
jurisdiction of the court. Section 9. Non-joinder of necessary
parties to be pleaded.
Requisites of permissive joinder of
parties. The non-inclusion of a necessary party
1. Right to relief arises out of the same may be excused only on meritorious
transaction or series of transactions; grounds.
2. There is a question of law or fact
common to all the plaintiffs or The court may order the inclusion of the
defendants; and omitted necessary party if jurisdiction
3. Such joinder is not otherwise over his person may be obtained by
proscribed by the provisions of the ordering plaintiff to file an amended
Rules on jurisdiction and venue. complaint impleading the necessary
party therein as co-defendant.
SERIES OF TRANSACTIONS – transactions
connected with the same subject of the The only sanction for failure to implead
action. a necessary party when ordered by the
court and jurisdiction can be obtained
INDISPENSABLE NECESSARY over said party is a waiver of the claim
PARTIES PARTIES against him. This is considered as an
exception to the provision on penalties
The action cannot The action can imposed on a disobedient party under
proceed unless they proceed even in the Sec. 3 of Rule 17 which would have
are joined absence of some entailed the dismissal of the complaint
necessary parties itself.
No valid judgment if The case may be
indispensable party is determined in court
Section 11. Misjoinder and non-joinder
not joined but the judgment of parties.
therein will not
resolve the entire Neither misjoinder nor non-joinder of
controversy if a parties is a ground for dismissal of the
necessary party is not action.
joined
Objections to defects in parties should
They are those with They are those whose be made at the earliest opportunity – the
such an interest in the presence is necessary
moment such defect becomes apparent –
controversy that a to adjudicate the
final decree would whole controversy but by a MOTION TO STRIKE THE NAMES OF
necessarily affect their whose interests are so THE PARTIES impleaded.
rights so that the court far separable that a
cannot proceed final decree can be If there is misjoinder, a separate action
without their presence made in their absence should be brought against the party
without affecting misjoined.
them
The absence of an indispensable party
renders all subsequent actions of the
JOINT DEBTORS – indispensable party court null and void for want of authority
with respect to own share and a to act, not only as to the absent parties
necessary party with respect to the but even as to those present.
share of the others.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 15

MEMORY AID IN REMEDIAL LAW

Section 12. Class suit. Section 15. Entity without juridical

personality as defendant.
REQUISITES OF A CLASS
/REPRESENTATIVE SUIT. They may be sued under the name by
1. subject matter of the which they are generally known, but
controversy is one of common or they cannot sue under such name for
general interest to many lack of juridical personality.
persons;
2. parties affected are so numerous The service of summons may be effected
that it is impracticable to bring upon all the defendants by serving upon
them all before the court; any of them, or upon the person in
3. parties bringing the class suit are charge of the office or place of business
sufficiently numerous or maintained under such name. (Sec. 8,
representative of the class and Rule 14)
can fully protect the interests of
all concerned. INSTANCES WHERE SUBSTITUTION OF
PARTIES IS PROPER:
Class Suit Permissive Joinder
of Parties A. Death of party; duty of counsel (Sec.
There is one single There are multiple 16)
cause of action causes of action This provision applies where the claim is
pertaining to separately belonging not thereby extinguished as in cases
numerous persons to several persons. involving property and property rights
such as:
1. recovery of real and personal
Section 14. Unknown identity or name property against the estate.
of defendant. 2. enforcement of liens on such
properties
Requisites: 3. recovery for an injury to person
1. there is a defendant or property by reason of tort or
2. his identity or name is unknown delict committed by the
3. fictitious name may be used deceased.
because of ignorance of
defendant’s true name and said In this case, the heirs will be substituted
ignorance is alleged in the for the deceased OR if no legal
complaint representative is named then the court
4. identifying description may be will order the opposing party to procure
used: sued as unknown owner, the appointment of an executor or
heir, devisee, or other administrator for the estate of the
designation deceased.
5. amendment to the pleading
when identity or true name is In case of minor heirs, the court may
discovered appoint a guardian ad litem for them.
6. defendant is the defendant being
sued, not a mere additional The substitute defendant need not be
defendant summoned. The ORDER OF
SUBSTITUTION shall be served upon the
Service of summons upon a defendant parties substituted for the court to
whose identity is unknown may be made acquire jurisdiction over the substitute
by publication in a newspaper of general party
circulation in accordance with Section 14
of Rule 14.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 16

MEMORY AID IN REMEDIAL LAW

If there is failure to notify the fact of liability for which had been
death: the case may continue and assumed by or is imputable to
proceedings will be held valid, and him.
judgment will bind the successors in
interest. If defendant dies before entry of final
judgment in the court where it was
B. Death or separation of a party who pending at that time, the action shall
is a public officer (Sec. 17) not be dismissed but shall be allowed to
continue until entry of final judgment
The action may be maintained by and thereon.
against his successor.
However, execution shall not issue in
The action contemplated here is one favor of the winning party. It should be
brought against the public officer in his filed as a claim against the estate of the
official capacity. decedent.

C. Supervening Incompetence or Section 21. Indigent party.

incapacity of a party (Sec. 18)
The action shall continue to be Indigent – one who has no property or
prosecuted by or against him, personally income sufficient for his support aside
or assisted by the corresponding from his labor, even if he is self-
guardian. supporting when able to work and in
employment. He need not be a pauper to
D. Transfer of interest (Sec. 19) entitle him to litigate in forma
Substitution of parties in this section is pauperis.
NOT mandatory, it being permissible to
continue the action by or against the While the authority to litigate as
original party in case of transfer of an indigent party may be granted upon
interest pendente lite. Unless the an ex parte application and hearing, it
substitution by or the joinder of the may be contested by the adverse party
transferee is required by the court, at any time before judgment is
failure to do so does not warrant the rendered.
dismissal of the case. A transferee
pendente lite is a proper, and not an RULE 4
indispensable party. VENUE OF ACTIONS

The case will be dismissed if the interest VENUE – the place where an action must
of plaintiff is transferred to defendant be instituted and tried.
UNLESS there are several plaintiffs, in
which case, the remaining plaintiffs can VENUE JURISDICTION
proceed with their own cause of action.
Place where the action Power of the court to
Section 20. Action on contractual is instituted hear and decide a case
money claims.
May be waived Jurisdiction over the
subject matter and
Requisites:
over the nature of the
1. The action must primarily be for action is conferred by
recovery of money, debt, or law and cannot be
interest thereon, and not where waived
the money sought therein is
merely incidental thereto. Procedural Substantive

2. The claim, subject of the action, May be changed by the Cannot be the subject
arose from a contract, express or written agreement of of the agreement of
implied, entered into by the the parties the parties
decedent in his lifetime or the

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 17

MEMORY AID IN REMEDIAL LAW

The rule on VENUE IS NOT APPLICABLE

in cases
1) Where a specific rule or law Means of waiving venue:
provides otherwise; or 1. failure to object via motion to
2) The parties have validly agreed dismiss
in writing before the filing of the 2. affirmative relief sought in the
action on the exclusive venue court where the case is filed
thereof (Sec. 4). 3. voluntary submission to the court
where the case is filed
Requisites for venue to be exclusive 4. laches
1. A valid written agreement
2. Executed by the parties before Section 3. Venue of actions against
the filing of the action; and non-residents.
3. Exclusive nature of the venue.
RULES
In the absence of qualifying or restrictive 1. NON-RESIDENT FOUND IN THE
words, venue stipulation is merely PHIL. –
permissive meaning that the stipulated a. for personal actions –
venue is in addition to the venue where the plaintiff
provided for in the rule (Polytrade Corp. resides; and
vs. Blanco 30 SCRA 187) b. for real actions – where
the property is located.
Section 1. Venue of real actions. 2. NON RESIDENT NOT FOUND IN
THE PHIL. –
If property is located at the boundaries An action may be filed only
of two places: file one case in either when the case involves:
place at the option of the plaintiff. a. Personal status of
plaintiff – venue: where
If case involves two properties located plaintiff resides;
in two different places: b. Any property of said
1. If the properties are the object defendant located in the
of the same transaction, file it in Phil. – venue: where the
any of the two places. property or any portion
2. If they are the subjects of two thereof is situated or
distinct transactions, separate found.
actions should be filed in each
place unless properly joined. The Supreme Court has the power to
order a change of venue to prevent a
Section 2. Venue of personal actions. miscarriage of justice.
RESIDENCE – the place where the party
actually resides with continuity and Dismissal of Action for Improper Venue
consistency, whether permanent or The court may not motu propio dismiss a
temporary, at the time the action is complaint on the ground of improper
instituted. venue. An exception is provided in
Section 4 of the Revised Rule on
Summary Procedure.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 18

MEMORY AID IN REMEDIAL LAW

RULES ON SUMMARY PROCEDURE The Court should not dismiss the

SUMMARY PROCEDURE IN CIVIL CASES complaint or counterclaim if they are
not verified. The requirement is merely
Filing of verified a formal one, and not jurisdictional. It
complaint with the should therefore simply direct the party
MTC concerned to have it verified.

court may court may

PROHIBITED PLEADINGS / MOTIONS
summon the dismiss the case UNDER THE RULE ON SUMMARY
defendant outright PROCEDURE.
1. Motion to dismiss the complaint
or to quash the complaint or
information except on the
W/in 10 days If Defendant fails to ground of lack of jurisdiction
from receipt of answer in 10 days –
summons, The court, motu propio over the subject matter or
defendant or on plaintiff’s failure to comply with prior
answers, motion, may render barangay conciliation (referral to
incoporating judgment based on the Lupon)
compulsory facts alleged in the
counterclaim or complaint w/o 2. Motion for a bill of particulars
crossclaim, and prejudice to 3. Motion for a new trial or for
serves a copy on R9, S3 (c) reconsideration of a judgment or
plaintiff for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to
file pleadings, affidavits, or any
Answer to If plaintiff fails to other paper
counterclaim appear in prelim 6. Memoranda
and crossclaim conference, complaint 7. Petition for certiorari,
w/in 10 days may be dismissed. mandamus, or prohibition
Defendant entitled to
decision based on his against any interlocutory order
counterclaim. All issued by the court
crossclaims dismissed. 8. Motion to declare defendant in
Preliminary default
conference w/in 30
days after last 9. Dilatory motions for
answer is filed postponement
10. Reply
If sole defendant 11. Third party complaints
fails to appear, 12. Interventions
plaintiff entitled to
W/in 5 days after
judgment based on
conference, court
issues record of complaint and The filing of a prohibited pleading will
preliminary what is proved not suspend the period to file an answer
conference therein or to appeal.

Although a motion to dismiss is a

W/in 10 days from prohibited pleading, its filing after the
receipt of order, answer had already been submitted does
submission by the not constitute a pleading prohibited by
parties of the summary rules. What the rules
affidavits and
position papers proscribe is a motion to dismiss that
would stop the running of the period to
file an answer and cause undue delay.
Rendition of judgment
w/in 30 days from
receipt of last
affidavit, or w/in 15
days after
REMEDIAL LAWlast
COMMITTEE
clarificatory paper
CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 19

MEMORY AID IN REMEDIAL LAW

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 CASES NOT COVERED BY THE
judgment as may be warranted when the KATARUNGANG PAMBARANGAY LAW:
defendant fails to file an answer.
1. Where one party is the
The issuance of the pre-trial order is an government or any subdivision or
important part of the summary instrumentality thereof;
procedure because it is its receipt by the 2. Where one party is a public
parties that begins the ten-day period to officer or employee, and the
submit the affidavits and other dispute relates to the
evidence. performance of his official
functions;
TRIAL PROCEDURE IN CIVIL CASES 3. Offenses punishable by
imprisonment exceeding 1 year
No trial date is set. No testimonial or a fine exceeding P5,000.00;
evidence is required nor cross- 4. Offenses where there is no
examination of witnesses allowed. All private offended party;
that is required is that within (10) days 5. Where the dispute involves real
from receipt by the parties of the properties located in different
court’s pre-trial order, they shall submit cities or municipalities UNLESS
(1) the affidavits of their witnesses (2) the parties thereto agree to
and other evidence on the factual issues submit their differences to
set forth in the pre-trial order, Together amicable settlement by an
with their position papers setting forth appropriate lupon;
the law and the facts relied upon by 6. Disputes involving parties who
them. actually reside in barangays of
different cities or municipalities,
Judgments of inferior courts in cases EXCEPT where such barangay
governed by summary procedure are units adjoin each other and the
appealable to the RTC. parties thereto agree to submit
their differences to amicable
The decision of the RTC in civil cases settlement by an appropriate
under this rule, including ejectment lupon;
cases, are IMMEDIATELY executory. 7. Such other classes of disputes
which the President may
KATARUNGANG PAMBARANGAY LAW determine in the interest of
(Title One, Book III, RA 7160) justice.

No complaint, petition, action, or However, the court may, at any time

proceeding involving any matter within before trial, motu proprio refer the case
the authority of the lupon shall be filed to the lupon concerned for amicable
or instituted directly in court or any settlement, non criminal cases not
other government office for adjudication falling within the authority of the
UNLESS latter.
1. there has been a confrontation
between the parties before the While the dispute is under mediation,
lupon chairman or pangkat, AND conciliation, or arbitration, the
2. that no conciliation or prescriptive periods for offenses and
settlement has been reached OR cause of action under existing laws shall
unless the settlement has been be interrupted upon filing of the
repudiated by the parties complaint with the punong barangay.
thereto.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 20

MEMORY AID IN REMEDIAL LAW

THE PARTIES MAY GO DIRECTLY TO 4. Disputes arising at the

COURT IN THE FOLLOWING INSTANCES: WORKPLACE where the
1. Where the accused is under contending parties are employed
detention; or at the INSTITUTION where
2. Where the person has otherwise such parties are enrolled for
been deprived of personal study – in the barangay where
liberty calling for habeas corpus such workplace or institution
proceeding; located.
3. Where the actions are coupled
with provisional remedies such CHART ON KATARUNGANG PAMBARANGAY, SEE
PAGE 22.
as preliminary injunction,
attachment, delivery of
personal property, and support PROCEDURE IN REGIONAL TRIAL
pendente lite; and COURTS
4. Where the action may otherwise
be barred by the statute of RULE 6
limitations. KINDS OF PLEADINGS

The parties may, at any stage of the Section 1. Pleadings defined.

proceedings, agree in writing to have the
matter in dispute decided by arbitration PLEADINGS – the written allegations of
by either the Punong Barangay or the parties of their respective claims and
Pangkat. In such case, arbitrational defenses submitted to the court for
hearings shall follow order of appropriate judgment.
adjudicative trials.
A motion to dismiss is NOT a pleading.
The settlement and arbitration It is the allegations or averments in the
agreement may be repudiated on the pleading that determines the jurisdiction
ground that consent is vitiated by fraud, of the court and the nature of the
violence, or intimidation. Such action.
repudiation shall be sufficient basis for
the issuance of the certification for filing
PLEADING MOTION
a complaint in court or any government
office for adjudication. It relates to the cause An application for an
of action; interested order not included in
RULES ON VENUE UNDER THE in the matters to be the judgment
KATARUNGANG PAMBARANGAY LAW included in the
1. Disputes between residents of judgment.
the same barangay shall be
brought for settlement before May be initiatory Cannot be initiatory as
lupon of said barangay they are always made
2. Residents of different barangays in a case already filed
in court
within the same city or
municipality – in the barangay
Always filed before May be filed even
where the respondent or any of judgment after judgment
the respondents reside at the
election of the complainant
Section 3. Complaint.
3. Disputes involving real property
or any interest therein- where COMPLAINT – is a concise statement of
real property or larger portion the ultimate facts constituting the
thereof is situated plaintiff’s cause or causes of action, with

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 21

MEMORY AID IN REMEDIAL LAW

a specification of the relief sought, but 2 kinds of defenses that may be set
it may add a general prayer for such forth in the answer:
further relief as may be deemed just or a. AFFIRMATIVE DEFENSES – allegation
equitable. of a new matter which while
hypothetically admitting the
ULTIMATE FACTS - essential facts material allegations in the pleading,
constituting the plaintiff’s cause of would nevertheless prevent or bar
action. recovery by him. It is in the nature
of Confession and Avoidance
What are NOT ultimate facts: b. NEGATIVE DEFENSES – specific
1. Evidentiary or immaterial facts. denial of the material facts or facts
alleged in the pleading
2. Legal conclusions, conclusions or
inferences of facts from facts Insufficient denial or denial amounting
not stated, or incorrect to admissions:
inferences or conclusions from 1. General denial
facts stated. 2. Denial in the form of a
negative pregnant
3. The details of probative matter
or particulars of evidence, Section 6. Counterclaim
statements of law, inferences
and arguments. COUNTERCLAIM – any claim which a
defending party may have against an
4. An allegation that a contract is opposing party.
valid or void is a mere conclusion
of law. Nature of counterclaim: A counterclaim
is in the nature of a cross-complaint.
TEST OF SUFFICIENCY: if upon Although it may be alleged in the
admission or proof of the facts being answer, it is not part of the answer.
alleged, a judgment may be properly Upon its filing, the same proceedings are
given. A fact is essential if it cannot be had as in the original complaint. For this
stricken out without leaving the reason, it must be answered within ten
statement of the cause of action (10) days from service.
insufficient.
Section 7. Compulsory Counterclaim
Section 4. Answer
RULES ON COUNTERCLAIM
ANSWER – the pleading where the A counterclaim before the MTC must be
defendant sets forth his affirmative or within the jurisdiction of said court,
negative defenses. both as to the amount and nature
thereof (De Chua vs. IAC).

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 22

MEMORY AID IN REMEDIAL LAW

KATARUNGANG PAMBARANGAY PROCEDURE

Filing of complaint
w/ the Punong
Barangay (PB)
W/in the next working day At any time during the
Proceedings…

Issuance of Parties agree

summons to to submit the
the parties dispute for
arbitration
and the
witnesses

Arbitration Hearings
Mediation (hearing)

Failure of Settlement
mediation
efforts

Execution Repudiation of Award to be

Constitu- w/in 6 arbitration made after the
tion of the months from agreement lapse of the
Pangkat date thereof within 5 days period to
from date of repudiate and
agreement w/in 10 days
thereafter
Pangkat convenes not
later than 3 days
from its constitution
and summons the
Execution w/in
parties
6 months from
the date of the
Pangkat must
award
arrive at a
Conciliation
settlement
w/in 15 days (hearing)
from the day
it convenes

Repudiation of
Settlement settlement w/in 10 Note: Repudiation shall
days from date only be allowed on ground
thereof of vitiation of consent by
fraud, violence or
intimidation.
Execution w/in 6
months from the Failure of Conciliation
date of settlement ISSUANCE OF hearings at the Pangkat
CERTIFICATION FOR Level and of Arbitration
FILING OF A hearings shall also lead to
COMPLAINT IN COURT the issuance of
certification for filing a
complaint in court.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 23

MEMORY AID IN REMEDIAL LAW

DOCTRINE OF ANCILLARY JURISDICTION

Section 8. Cross-claim
In an original action before the RTC, the CROSS-CLAIM – any claim by one party
counterclaim may be considered against a co-party arising out of the
compulsory regardless of the amount transaction or occurrence that is the
(Sec. 7, Rule 6 ). subject matter either of the original
action or counterclaim.
If a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
If it is not set up in the action, it is
excess is considered waived (Agustin vs.
barred, except:
Bacalan). In Calo vs. Ajax Int’l, the
1. when it is outside the jurisdiction of
remedy where a counterclaim is beyond the court or;
the jurisdiction of the 2. if the court cannot acquire
jurisdiction over third parties whose
MTC is to set off the claims and file a
presence is necessary for the
separate action to collect the balance. adjudication of said cross-claim.
COMPULSORY PERMISSIVE In which case, the cross-claim is
COUNTERCLAIM COUNTERCLAIM considered permissive.
One which arises out It does not arise out of
of or is necessarily nor is it necessarily
The dismissal of the complaint carries
connected with the connected with the with it the dismissal of a cross-claim
transaction or subject matter of the which is purely defensive, but not a
occurrence that is the opposing party’s cross-claim seeking affirmative relief.
subject matter of the claim.
opposing party’s
claim. Cross Claim Counterclaim 3rd-party
Complaint
It does not require for It may require for its
its adjudication the adjudication the Against a co- Against an Against a
presence of third presence of third party opposing party person not a
parties of whom the parties over whom the party to the
court cannot acquire court cannot acquire action
jurisdiction. jurisdiction.
Must arise out May arise out of Must be in
It is barred if not set It is NOT barred even of the or be necessarily respect of
up in the action. if not set up in the transaction connected with the
action. that is the the transaction opponent’s
subject matter or that is the claim
Need not be Must be answered, of the orig. subject matter (Plaintiff)
answered; no default. otherwise, the action or of a of the opposing
defendant can be counterclaim party’s claim, in
declared in default. therein. which case, it is
called a
GENERAL RULE: A compulsory compulsory
counterclaim not set up in the answer is counterclaim, or
deemed barred. it may not, in
which case it is
EXCEPTION: If it is an after-acquired called a
permissive
counterclaim, that is, such claim
counterclaim.
matured after filing of the answer. In
this case, it may be pleaded by filing an
Section 10. Reply.
amended answer or a supplemental
answer or pleading.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 24

MEMORY AID IN REMEDIAL LAW

REPLY - the response of the plaintiff to Leave of court to file a third-party

the defendant’s answer. complaint may be obtained by motion
under Rule 15.
EFFECT OF FAILURE TO REPLY: new
facts that were alleged in the answer are Summons to new party (third, fourth,
deemed controverted. Hence, the filing etc.) is needed for the court to obtain
of the reply is optional except for the jurisdiction over his person, since he is
denial of the genuineness and due not an original party.
execution of an actionable document
used as defense in the answer. Where the trial court has jurisdiction
over the main case, it also has
Section 11. Third (fourth, etc.) – party jurisdiction over the third party
complaint. complaint, regardless of the amount
involved as a third party complaint is
THIRD (FOURTH,ETC.) – PARTY merely auxiliary to and is a continuation
COMPLAINT – a claim that a defending of the main action (Republic v. Central
party may, with leave of court, file Surety & Insurance Co. L-27802, Oct. 26,
against a person not a party to the 1968).
action for contribution, indemnity,
subrogation or any other relief, in Section 12. Bringing new parties.
respect of his opponent’s claim.
Distinguished from 3rd-party complaint:
THIRD-PARTY COMPLAINT IN A 3rd-party complaint is proper when not
COMPLAINT INTERVENTION one of the third-party defendants
therein is a party to the main action. But
Brings into the action Same if one or more of the defendants in a
a third person who counterclaim or cross-claim is already a
was not originally a party to the action, then the other
party. necessary parties may be brought in
under this section.
Initiative is with the Initiative is with a
person already a party non-party who seeks
to the action. to join the action. RULE 7
PARTS OF A PLEADING
TESTS to determine whether the third-
party complaint is in respect of Section 3. Signature and address.
plaintiff’s claim: The signature of the counsel is a
1. Where it arises out of the same certification that:
transaction on which the 1. That he has read the pleading;
plaintiff’s claim is based, or, 2. There is good ground to support
although arising out of another it; and
or different transaction, is 3. It is not interposed for delay
connected with the plaintiff’s Only the original copies must be signed.
claim; UNSIGNED PLEADING may be stricken
2. Whether the third-party out as sham and false, and the action
defendant would be liable to the may proceed as though the pleading has
plaintiff or to the defendant for not been served. It has no legal effect.
all or part of the plaintiff’s claim
against the original defendant; Section 4. Verification.
and
3. Whether the third-party Pleadings need NOT be verified EXCEPT
defendant may assert any when otherwise provided by the law or
defenses which the third-party rules.
plaintiff has or may have to the
plaintiff’s claim. A verification must now be based on
personal knowledge or based on
authentic records.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 25

MEMORY AID IN REMEDIAL LAW

Pleadings should state ultimate facts

essential to the right of action.

ULTIMATE FACTS: those which directly

Section 5. Certification against forum form the bases of the right sought to be
shopping. enforced or the defense relied upon.
If the ultimate facts are NOT alleged,
FORUM SHOPPING – the filing of a two or the cause of action would be
more cases based on the same cause of insufficient.
action in different courts for the purpose
of obtaining a favorable decision in Section 4. Capacity.
either.
Capacity to sue and be sued
Test to determine the presence of either personally or in representative
forum-shopping: whether in the two (or capacity must be specifically averred by
more) cases pending, there is identity of the party suing or being sued, and
(a) parties, (b) rights or causes of action, specifically denied by the party
and (c) reliefs sought. questioning such capacity.

The certificate is to be executed by Capacity is challenged by

petitioner, and not by counsel. specific denial, motion to dismiss or bill
of particulars.
Required ONLY for complaints or
initiatory pleadings. Section 5. Fraud, mistake, condition of
the condition
Certificate of non-forum shopping is not
required in a compulsory counterclaim FACTS THAT MAY BE AVERRED
(UST Hosp. vs. Surla). GENERALLY:
1. Conditions precedent (BUT there
EFFECT OF FAILURE TO COMPLY: must still be an allegation that
1. Not curable by amendment of the specific condition precedent
said pleading has been complied with,
2. shall be cause for the dismissal otherwise, it will be dismissed
of the case, without prejudice, for failure to state a cause of
unless otherwise provided, upon action)
motion and after hearing 2. Malice, intent, knowledge, or
other condition of the mind
EFFECT OF SUBMISSION OF FALSE 3. Judgments of domestic or
CERTIFICATION OR NON-COMPLIANCE foreign courts, tribunals, boards,
WITH THE UNDERTAKINGS THEREIN: or officers (no need to show
1. indirect contempt jurisdiction)
2. administrative and criminal 4. Official document or act
actions
FACTS THAT MUST BE AVERRED
EFFECT OF WILFULL AND DELIBERATE PARTICULARLY:
FORUM SHOPPING: 1. Circumstances showing fraud or
1. shall be ground for summary mistake in all averments of
dismissal of the case with fraud or mistake
prejudice; 2. Capacity
2. direct contempt.
ACTIONABLE DOCUMENT – written
RULE 8 instrument upon which the action or
MANNER OF MAKING ALLEGATIONS IN A defense is based.
PLEADING

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 26

MEMORY AID IN REMEDIAL LAW

3. compromise;
4. payment;
5. prescription;
Two permissible ways of pleading an 6. want or illegality of
actionable document: consideration; or
1. By setting forth the substance of 7. estoppel
such document in the pleading
and attaching said document BUT the following defenses are
thereto as an annex (contents of waived:
the document annexed are a. forgery in the signature;
controlling, in case of variance b. want of authority of an agent or
in the substance of the corporation;
document set forth in the c. want of delivery; or
pleading and in the document d. the party charged signed the
attached); or instrument in some other
2. By setting forth said document capacity
verbatim in the pleading.
Section 10. Specific Denial
Where the actionable document is
properly alleged, the failure to THREE WAYS OF MAKING A SPECIFIC
specifically deny under oath the same DENIAL:
results in: 1. By specifically denying each
1. The admission of the material allegation of the other
genuineness and due execution party and, whenever possible,
of said document, EXCEPT that setting forth the substance of
an oath is not required: the matters relied upon for such
a. When the adverse party was denial;
not a party to the 2. Part admission or part denial;
instrument; and 3. By an allegation of lack of
b. When an order for the knowledge or information
inspection of the original sufficient to form a belief as to
document was not complied the truth of the averment in the
with. opposing party’s pleading (must
2. The document need not be be made in good faith).
formally offered in evidence.
A denial must not be general. A general
GENUINENESS denial is regarded as an admission of the
That the document is not spurious, facts stated in the complaint and
counterfeit, or of different import on its entitles plaintiff to a judgment on the
face from the one executed by the pleadings.
party, or that the party whose signature
it bears has signed it and that at the NEGATIVE PREGNANT – a form of denial
time it was signed it was in words and which at the same time involves an
figures exactly as set out in the affirmative implication favorable to the
pleadings. opposing party; It is in effect, an
admission of the averment to which it is
DUE EXECUTION directed; It is said to be a denial
That the document was signed pregnant with an admission of the
voluntarily and knowingly by the party substantial facts in the pleading
whose signature appears thereon. responded to.

Defenses that the opposing party may Section 11. Allegation not specifically
set up even after failure to deny under denied deemed admitted.
oath:
1. Mistake; GENERAL RULE: Allegations NOT
2. fraud; specifically denied deemed admitted

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 27

MEMORY AID IN REMEDIAL LAW

(such as allegations of usury in the Interlocutory - not Final – appealable

complaint, and the authenticity and due appealable
execution of actionable documents).
EXCEPTIONS: NO default may be declared in the
1. Allegations as to the amount of following actions:
unliquidated damages 1. Annulment of marriage
2. Immaterial allegations; 2. Declaration of nullity of
3. Incorrect conclusions of fact. marriage
3. Legal Separation
RULE 9 4. Special civil actions of certiorari,
EFFECT OF FAILURE prohibition and mandamus where
TO PLEAD comment instead of an answer is
required to be filed
Section 1. Defenses and objections not
pleaded. The court cannot motu proprio declare a
GENERAL RULE: Defenses and objections defendant in default. For defendant to
that are not pleaded in a MOTION TO be declared in default, the plaintiff
DISMISS or in the answer are deemed must:
waived. 1. File a MOTION to declare
EXCEPTIONS (not waived even if not defendant in default
raised): 2. Prove that summons have been
1. Lack of jurisdiction over the properly served on the
subject matter defendant
2. Litis pendentia 3. Prove that the defendant really
3. Res judicata failed to answer within the
4. Prescription of the action proper period.

These defenses may be raised at any CAUSES OF DEFAULT

stage of the proceedings even for the 1. Failure to answer within the
first time on appeal EXCEPT that lack of proper period
jurisdiction over the subject matter may 2. Non-compliance with the order
be barred by laches. (Tijam vs. of the court to file a bill of
Sibonghanoy). particulars or in case of
insufficient compliance
The presence of these grounds therewith (Rule 12, Section 4)
authorizes the court to motu proprio 3. Refusal to comply with the
dismiss the claims. These grounds must, modes of discovery (Rule 29,
however, appear from the pleadings or Section 3, par. c)
the evidence on record. 4. Failure to furnish plaintiff with a
copy of the answer
Section 3.
If the defendant was declared in default
DEFAULT – the failure of the defendant upon an original complaint, the filing of
to answer within the proper period. It is the amended complaint resulted in the
not his failure to appear nor failure to withdrawal of the original complaint,
present evidence. hence, the defendant was entitled to file
answer to the amended complaint as to
which he was not in default.
ORDER OF JUDGMENT BY
EFFECT OF ORDER OF DEFAULT:
DEFAULT DEFAULT
1. While the party in default cannot
issued by the court, Rendered by the court
on plaintiff’s motion following a default
take part in the trial, he is
for failure of the order or after it nonetheless entitled to notice of
defendant to file his received, ex parte, subsequent proceedings.
responsive pleading plaintiff’s evidence.
seasonably.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 28

MEMORY AID IN REMEDIAL LAW

2. He may still be called on as a 1. The pleading asserting a claim

witness, in behalf of the non- states a common cause of action
defaulting defendants. against several defending parties
2. some of the defending parties
answer and the others fail to do
so
DEFAULT
3. the answer interposes a common
defense
After the
lapse of time
to file an EFFECT OF PARTIAL DEFAULT: The
answer, the Motion denied: court will try the case against ALL
Defendant
plaintiff may
allowed to file an defendants upon the answer of some
move to
answer EXCEPT where the defense is personal to
declare the
defendant in the one who answered, in which case, it
default will not benefit those who did not
answer.
Defendant
answers REMEDY FROM JUDGMENT BY DEFAULT
Motion granted: (FLOW CHART)
Court issues order
of default and
renders judgment, Judgment by default
or require plaintiff
to submit evidence
ex parte.

Motion for new trial or reconsideration at

any time after service of judgment by
default and within 15 (30) days therefrom
Court
maintains
Before judgment order of
by default is default
rendered, Failure to file motion for new trial/
defendant may: Denial of said motion
1. move to set
aside order of
default upon
showing: Perfect appeal from said judgment by
a. FAME default within the balance of said
b. He has a 15 (30) - day period
meritorious
defense
2. Avail of Rule 65
in proper cases
Failure to appeal without
defendant’s faulk

Presentation
of plaintiff’s
evidence ex-
Court sets aside parte Petition for relief from judgment within
order of default and 60 days from notice of the judgment but
defendant is within 6 months from entry thereof
allowed to file an
answer
If plaintiff If plaintiff
proves his fails to prove Annulment of Judgment
allegations, his allega- under Rule 47
judgment by tions, case is
Case set for default. dismissed.
pre-trial

PARTIAL DEFAULT:

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 29

MEMORY AID IN REMEDIAL LAW

3. Amendment to cure a premature

or non-existing cause of action;
EXTENT OF RELIEF TO BE AWARDED IN 4. Amendment for purposes of
A JUDGMENT BY DEFAULT: delay.
Shall not exceed the amount OR be Section 5. Amendment to conform to
different in kind from that prayed for or authorize presentation of evidence.
NOR award unliquidated damages.
1ST PART: refers to amendment to
conform to evidence when issues NOT
RULE 10 raised by the pleadings are tried with
AMENDED AND SUPPLEMENTAL the express or implied consent of the
PLEADINGS parties
- but failure to amend does NOT affect
the result of the trial of these issues
AMENDMENTS
Section 1. Amendments in general. 2ND PART: refers to amendment to
authorize presentation of evidence if
When the complaint is amended, 2
evidence is objected to at the trial on
situations may arise: the ground that it is not within the issues
1. If the complaint merely corrects made by the pleadings.
or modifies the original
complaint, then the action is SUPPLEMENTAL PLEADINGS
deemed commenced upon the A cause of action which accrued after
filing of the original complaint; the filing of the original complaint may,
2. If the amended complaint in the discretion of the court, be
alleges a new cause of action, pleaded in a supplemental complaint if
then that cause of action is there was a valid subsisting cause of
deemed commenced upon the action at the time the original complaint
filing of the amended was filed.
complaint.

Section 2. Amendments as a matter of AMENDED SUPPLEMENTAL

right. PLEADING PLEADING

Amendment for the first time is a matter Refers to facts Refers to facts arising
of right before a responsive pleading is existing at the time of after the filing of the
filed, or in case of a Reply, within 10 the commencement original pleading.
of the action.
days after it was served.
Take the place of the Taken together with
Since a motion to dismiss is NOT a original pleading. the original pleading.
responsive pleading, an amendment may
be had even if an order of dismissal has Can be made as a Always with leave of
been issued as long as the amendment is matter of right as court
made before order of dismissal becomes when no responsive
final. pleading has yet been
filed
Section 3. Amendments by leave of
court. Section 7. Filing of amended pleadings.

Instances when amendment by leave of The amended pleading supersedes the

court may not be allowed: original pleading.
1. When cause of action, defense
or theory of the case is changed; An amendment which merely
2. Amendment is intended to supplements and amplifies facts
confer jurisdiction to the court; originally alleged in the complaint
relates back to the date of the

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 30

MEMORY AID IN REMEDIAL LAW

commencement of the action and is not which shall NOT be less than 60 days
barred by the statute of limitations after notice (Rule 14, Sec.15).
which expired after service of the
original complaint. 4. In case of a non-resident defendant
EFFECT OF AMENDED PLEADING: on whom extraterritorial service of
1. Admissions in the superseded summons is made, the period to
pleading can still be received in answer should be at least 60 days.
evidence against the pleader;
2. Claims or defenses alleged The court may extend the time to file
therein but not incorporated or the pleadings BUT may NOT shorten
reiterated in the amended them.
pleading are deemed waived.
The 15-day period begins to run from
The amended or superseded, original receipt of summons.
pleading is not expunged but remains on
the record although the admission of the Section 3. Answer to amended
amended pleading amounts to complaint.
withdrawal of the original pleading. 1. If the filing of an amended
complaint is a matter of right -
RULE 11 within 15 days from service of
WHEN TO FILE RESPONSIVE PLEADINGS the amended complaint.
2. If the filing of the amended
Answer to the complaint complaint is NOT a matter of
1. Within 15 days after service of right – within 10 days counted
summons, UNLESS a different period from notice of the court order
is fixed by the Court (Sec. 1) admitting the same.

2. In case the defendant is a foreign If no new answer is filed by the

private juridical entity: defendant in case an amendment has
a. if it has a resident agent – been made after he had filed his answer,
within 15 days after service the original answer of the defendant
of summons to him may serve as the answer to the amended
b. if it has no resident agent, complaint, and hence, cannot be
but it has an agent or officer declared in default.
in the Philippines – within 15
days after service of Section 5. Answer to third (fourth,
summons to said agent or etc.)-party complaint.
officer The third-party defendant is served with
c. if it has no resident agent summons just like the original
nor agent nor officer – in defendant, hence, he also has 15, 30, 60
which case service of days from service of summons, as the
summons is to be made on case may be, to file his answer.
the proper government
office which will then send a Section 7. Answer to supplemental
copy by registered mail to complaint.
the home office of the Leave of court is required in filing, the
foreign private corporation – court may fix a different period for
within 30 days after receipt answering the supplemental complaint in
of summons by the home lieu of the reglementary 10-day period.
office of the foreign private
entity. Section 10. Omitted counterclaim or
cross-claim.
3. In case of service of summons by The pleader may set up a counterclaim
publication – within the time or cross-claim by amendment before
specified in the order granting leave judgment when he fails to set it up by
to serve summons by publication, reason of oversight, inadvertence, or

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 31

MEMORY AID IN REMEDIAL LAW

excusable neglect ort when justice the portion thereof to

requires. Leave of court is necessary. which the order is
directed; or
RULE 12 b. make such order as it
BILL OF PARTICULARS may deem just.

BILL OF PARTICULARS- a more definite 2. If plaintiff, his compliant will be

statement of any matter which appears stricken off and dismissed (Rule
vague or obscure in a pleading. 12, sec. 4; Rule 17, sec. 3)

PURPOSE: to aid in the preparation of a 3. If defendant, his answer will be

responsive pleading. stricken off and his counterclaim
dismissed, and he will be
Motion for bill of particulars must be declared in default upon motion
filed within the reglementary period for of the plaintiff (Rule 12, sec. 4;
the filing of a responsive pleading. The Rule 17, sec. 4; Rule 9, sec. 3).
filing of a motion if sufficient in form
and substance, will interrupt the time to
plead. RULE 13
FILING AND SERVICE OF PLEADINGS,
The motion for bill of particulars may be JUDGMENTS AND OTHER PAPERS
granted in whole or in part as not all the
allegations questioned by the movant are Notice given to a party who is duly
necessarily ambiguous as to require represented by counsel is a nullity,
clarification. unless service thereof on the party
himself was ordered by the court or the
A bill of particulars may be filed either technical defect was waived.
in a separate or an amended pleading.
A bill of particulars becomes part of the
pleading which it supplements. Section 3. Manner of filing.
1. Personally
EFFECTS OF MOTION 2. by registered mail
1. If the motion is granted, the
movant can wait until the bill of Filing by mail should be through the
particulars is served on him by registry service which is made by deposit
the opposing party and then he of the pleading in the post office, and
will have the balance of the not through other means of
reglementary period within transmission.
which to file his responsive
pleading. If registry service is not available in the
locality of either sender or addressee,
2. If his motion is denied, he will service may be done by ordinary mail.
still have such balance of the
reglementary period to do so, If a private carrier is availed of by the
counted from service of the party, the date of actual receipt by the
order denying his motion. In court of such pleading and not the date
either case, he will have at least of delivery to the carrier, is deemed to
5 days to file his responsive be the date of the filing of that
pleading. pleading.

Effect of non-compliance: NOTE: PERSONAL and SUBSTITUTED

1. If the Order is not obeyed or in service as applied to pleadings have a
case of insufficient compliance different meaning compared to summons
therewith, the court: under Rule 14.
a. may order the striking
out of the pleading or

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 32

MEMORY AID IN REMEDIAL LAW

b. tendering him copy if he refuses;

c. complete upon actual delivery

MODES OF SERVICE 2. Service by ordinary mail:

PLEADINGS Complete upon expiration of 10
1. PERSONAL SERVICE days after mailing, unless the
a. Delivering personally a copy to court provides otherwise.
the party or his counsel or;
b. Leaving a copy in counsel’s 3. Service by registered mail:
office with his clerk or with a a. Complete upon actual receipt by
person having charge thereof or; the addressee; or
c. Leaving the copy between 8 a.m. b. After 5 days from the date he
and 6 p.m. at the party’s or received the 1st notice of the
counsel’s residence, if known, postmaster, whichever date is
with a person of sufficient age earlier.
and discretion residing therein---
if no person found in his office, Section 12. Proof of filing.
or if his office is unknown, or if Filing is proved by its existence in the
he has no office. record of the case.

2. SERVICE BY MAIL If it is not in the record, and:

If no registry service is available in the If filed personally: proved by the
locality, of either sender or addressee, written or stamped acknowledgment of
service may be done by ordinary mail. its filing by the clerk of court on a copy
of the same; or
3. SUBSTITUTED SERVICE
Delivering the copy to the clerk of court  If filed by registered mail: proved by -
with proof of failure of both personal the registry receipt and the affidavit of
and service by mail. the person who did the mailing.

JUDGMENTS, FINAL ORDERS, Section 13. Proof of service

RESOLUTIONS (Sec.9) 1. Proof of personal service:
1. By personal service; or a. Written admission of the party
2. By registered mail; served; or
3. By publication, if party is b. Official return of the server; or
summoned by publication and c. Affidavit of the party serving.
has failed to appear in the
action. 2. Proof of service by ordinary mail:
Affidavit of the person mailing;
They can be served only under the three
modes.
3. Proof of service by registered mail:
They CANNOT be served by substituted a. Affidavit, and
service. b. Registry receipt issued by the
mailing office.
NOTE: A resort to modes other than by
personal service must be accompanied Section 14. Notice of lis pendens.
by a written explanation why the service
or filing was not done personally (Sec. LIS PENDENS - a notice of a pendency of
11). the action between the parties involving
title to or right of possession over real
Section 10. Completeness of service. property.

1. Personal service It serves as a warning to all persons,

a. by handling a copy to defendant; prospective purchasers or
or encumbrancers of the property in

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 33

MEMORY AID IN REMEDIAL LAW

litigation to keep their hands off the

property in litigation unless they are
prepared to gamble on the result of the Section 3. By whom served.
proceedings. Summons may be served by:
1. Sheriff
The defendant may also record a notice 2. Sheriff’s deputy, or
of lis pendens when he claims an 3. Other proper court officers, or
affirmative relief in his answer. 4. For justifiable reasons, by any
suitable person authorized by
Notice of lis pendens CANNOT be the court issuing the summons.
cancelled on an ex parte motion or upon
the mere filing of a bond by the party on Enumeration is EXCLUSIVE.
whose title the notice is annotated, as
section 14 provides that such ALIAS SUMMONS – issued when original
cancellation may be authorized ONLY has not produced its effect because it is
upon order of court, after proper defective in form or manner of service,
showing that: and when issued, supersedes the first
1. The notice is for the purpose of (Section 5).
molesting the adverse party; or
2. It is not necessary to protect the KINDS OF SERVICE OF SUMMONS:
rights of the party who caused it 1. personal service
to be recorded. 2. substituted service
3. by publication
RULE 14
SUMMONS In actions in personam where the
defendant cannot be served with
PURPOSE OF SUMMONS: summons personally or by substituted
1. to acquire jurisdiction over the service, the case must first be converted
person of the defendant, and; into an in rem or quasi in rem action by
2. to give notice to the defendant attaching the property of the defendant
that an action has been found in the Philippines before summons
commenced against him. can be served by publication. If no
property can be found, the action shall
EFFECT OF NON-SERVICE: Unless there be archived but shall not be dismissed.
is waiver, non-service or irregular (Citizens Surety vs. Court Appeals)
service renders null and void all
subsequent proceedings and issuances in SERVICE OF SUMMONS ON DIFFERENT
the action from the order of default up ENTITIES
to and including the judgment by default
and the order of execution. Service on entity Upon any or all
w/o juridical defendants being sued
Where the defendant has already been personality under common name; or
person in charge of office
served with summons on the original
complaint, no further summons is Service upon In case of minors: by
required on the amended complaint if it minors and serving upon the minor,
does not introduce new causes of action. incompetents regardless of age, AND
upon his legal guardian, or
But where the defendant was declared in also upon either of his
default on the original complaint and the parents.
plaintiff subsequently filed an amended In case of incompetents:
complaint, new summons must be served by serving on him
personally AND upon his
on the defendant on the amended
legal guardian, but not
complaint, as the original complaint was upon his parents, unless
deemed withdrawn upon such when they are his legal
amendment. guardians
IN ANY EVENT, if the

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 34

MEMORY AID IN REMEDIAL LAW

minor or incompetent has demands a relief

no legal guardian, the which consists
wholly or in part in
plaintiff must obtain the excluding the
appointment of a guardian defendant from
ad litem for him. any interest in any
property within
Service upon Serve on officer having the Phil; or
prisoner management of the jail or property of
prison defendant has
been attached in
Service upon To the president, the Phil.
domestic private managing partner, general
juridical entity manager, corporate Mode of service
ENTITY secretary, treasurer, or a. with leave of court
in-house counsel. served outside the
NOTE: Service upon a Phil. By personal
person other than those service; or
mentioned is invalid and b. with leave of court
does not bind the serve by publication
corporation. The in a newspaper of
enumeration is general circulation,
EXCLUSIVE. in which case copy of
the summons and
Service upon Serve on resident agent ; order of court must
foreign private or if none; on gov’t also be sent by
juridical entity official designated by law; registered mail to
or the last known
on any officer or agent of address of
the corporation within the defendant; or
Philippines. c. any other manner
the court deem
Service upon in case defendant is the sufficient.
public Republic of the
corporations Philippines - by serving
upon the Solicitor General Service upon a Substituted service or
in case of a province, city resident with leave of court,
or municipality, or like temporarily out of personal service out of
public corporations – by the Phil. the Phil. as under
serving on its executive extraterritorial service
head, or on such other
officer or officers as the Service upon an With leave of court, by
law or the court may unknown publication in a
direct. defendant or newspaper of general
whose circulatiuon
Extraterritorial Requisites whereabouts are
service a. defendant does unknown
not reside or is
not found within Section 20. Voluntary appearance.
the Phil.
b. he action either:
Any form of appearance in court, by the
affects the
personal status of defendant, by his agent authorized to do
plaintiff; so, or by attorney, is equivalent to
relates to or the service of summons EXCEPT where such
subject of which is appearance is precisely to object to the
property within jurisdiction of the court over the person
the Philippines in of the defendant.
which defendant
has a lien or Inclusion in a motion to dismiss of other
interest;
grounds aside from lack of jurisdiction

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 35

MEMORY AID IN REMEDIAL LAW

over the person of the defendant shall notice or jointly submitted by

NOT be deemed a voluntary the parties, and
appearance. 4. Motions for summary judgment
which must be served at least 10
RULE 15 days before its hearing
MOTIONS 5. Non-litigated motions.

Section 5. Notice of hearing.

MOTION – is an application for relief NOTICE OF HEARING shall:
other than by a pleading. 1. Be addressed to all parties
concerned
GENERAL RULE: Motions must be in 2. Specify the time and date of the
writing. hearing which must not be later
EXCEPTION: Those made in open court than 10 days after the filing of
or in the course of hearing or trial. the motion

KINDS OF MOTIONS NOTE: Any motion that does not comply

with Sections 4, 5 and 6 of this Rule is a
a. motion EX PARTE- made without mere scrap of paper, should not be
the presence or a notification to the accepted for filing and, if filed, is not
other party because the question entitled to judicial cognizance and does
generally presented is not not affect any reglementary period
debatable. involved for the filing of the requisite
pleading.
b. motion OF COURSE – where the
movant is entitled to the relief or Omnibus Motion Rule - All available
remedy sought as a matter of grounds for objection in attacking a
discretion on the part of the court. pleading, order, judgment, or
proceeding should be invoked at one
c. LITIGATED motion – one made with time, otherwise, they shall be deemed
notice to the adverse party to give waived.
an opportunity to oppose.
Motion for leave to file a pleading or
d. SPECIAL motion- motion addressed motion shall be accompanied by the
to the discretion of the court. pleading or motion sought to be
admitted, otherwise, the latter will be
GENERAL RULE: A motion cannot pray denied.
for judgment.
EXCEPTIONS: RULE 16
1. Motion for judgment on the MOTION TO DISMISS
pleadings
2. Motion for summary judgment A Motion to Dismiss is NOT a responsive
3. Motion for judgment on pleading.
demurrer to evidence.
Section 1. Grounds.
Section 4. Hearing on motion. 1. No jurisdiction over the person
3-DAY NOTICE RULE of the defending party
GENERAL RULE: Service of the copy of 2. No jurisdiction over the subject
motions should be made in such a matter of the claim
manner as shall ensure its receipt at 3. Improper venue
least 3 days before the hearing. 4. No legal capacity to sue
EXCEPTIONS: 5. Litis pendentia
1. Ex parte motions 6. Res judicata
2. Urgent motions 7. Prescription
3. Motions agreed upon by the 8. States no cause of action
parties to be heard on shorter

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 36

MEMORY AID IN REMEDIAL LAW

9. Claim or demand has been paid, 2. Such ground appears in the

waived, abandoned, or otherwise allegations of the complaint or in
extinguished plaintiff’s evidence
10. Claim is unenforceable under the
Statute of Frauds REQUISITES OF LITIS PENDENTIA
11. Non-compliance with a condition 1. Parties to the action are the
precedent for filing claim same
2. There is substantial identity in
MOTION TO DISMISS MOTION TO DISMISS the cause of action and relief
sought
UNDER RULE 16 UNDER RULE 33
3. The result of the first action is
(demurrer to determinative of the second in
evidence) any event and regardless of
which party is successful
Grounded on based on insufficiency
preliminary of evidence. Motion to dismiss may be filed in either
objections. suit, not necessarily in the one instituted
first.
may be filed by any May be filed only by
defending party the defendant against
against whom a claim the complaint of the REQUISITES OF RES JUDICATA
is asserted in the plaintiff. 1. Previous final judgment
action. 2. Jurisdiction over the subject
matter and the parties by the
should be filed within May be filed only after court rendering it
the time for but prior the plaintiff has 3. Judgment upon the merits
to the filing of the completed the 4. In a case prosecuted between
answer of the presentation of his same parties
defending party to the evidence. 5. Involving the same subject
pleading asserting the
matter
claim against him.
6. Same cause of action
If denied, defendant If denied, defendant
answers, or else he may present evidence There could be res judicata without a
may be declared in if granted, plaintiff trial, such as in a judgment on the
default appeals and the Order pleadings (Rule 34); a summary
If granted, plaintiff of the dismissal is judgment (Rule 35); or an order of
may appeal or if reversed, the dismissal under Section 3 of Rule 17.
subsequent case is not defendant loses his
barred, he may re-file right to present
When the ground for dismissal is that the
the case evidence.
complaint states no cause of action, such
fact can be determined only from the
Effect of motion to dismiss: A motion to facts alleged in the complaint.
dismiss hypothetically admits the truth
of the facts alleged in the complaint. Where the plaintiff has not exhausted
all administrative remedies, the
However, such admission is limited only complaint not having alleged the fact of
to all material and relevant facts which such exhaustion, the same may be
are well pleaded in the complaint. dismissed for failure to state a cause of
action.
An action cannot be dismissed on a
ground not alleged in the motion even if Non-compliance with P.D. 1508
said ground is provided for in Rule 16. (Katarungang Pambarangay Law) may
result to dismissal of the case on the
EXCEPT: ground of non-compliance with a
1. Those cases where the court may condition precedent.
dismiss a case motu proprio
(Sec. 1, Rule 9)

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 37

MEMORY AID IN REMEDIAL LAW

An action cannot be dismissed on the Section 5. Effect of dismissal

ground that the complaint is vague or GENERAL RULE: The action or claim may
indefinite. The remedy of the defendant be refiled.
is to move for a bill of particulars or EXCEPTION: The action cannot be
avail of the proper mode of discovery. refiled if it was dismissed on any of
these grounds:
GENERAL TYPES OF A MOTION TO 1. Res judicata;
DISMISS 2. Prescription;
1. motion to dismiss before answer 3. Extinguishment of the claim
under Rule 16 or demand;
2. motion to dismiss under Rule 17 4. Unenforceability under the
a. upon notice by plaintiff Statute of Frauds.
b. upon motion of plaintiff
c. due to fault of plaintiff Section 6. Pleading grounds as
3. motion to dismiss on demurrer to affirmative defenses.
evidence after plaintiff has rested If no motion to dismiss had been filed,
his case under Rule 33 any of the grounds for dismissal provided
4. motion to dismiss the appeal filed for in Rule 16, INCLUDING IMPROPER
either in the lower court (Rule VENUE, may be pleaded as affirmative
41,Sec. 13) or in the appellate defenses and preliminarily heard in the
court (Rule 50, Sec.1 ). discretion of the court.

EFFECTS OF REMEDY Dismissal under this section – WITHOUT

prejudice to the prosecution in the same
ACTION ON MTD
or separate action of a COUNTERCLAIM
Order granting motion Appeal from the order
pleaded in the answer
to dismiss is final of dismissal
order
Order denying the Certiorari and RULE 17
motion to dismiss is prohibition if there is DISMISSAL OF ACTIONS
interlocutory grave abuse of
discretion amounting Section 1. Dismissal upon notice by
to lack or excess of plaintiff.
jurisdiction under
Rule 65 Dismissal is effected not by motion but
by mere NOTICE of dismissal which is a
matter of right BEFORE the defendant
Section 4. Time to plead. has answered or moved for a summary
judgment.
Defendant is granted only the balance of
the reglementary period to which he was But notice of dismissal requires an order
entitled at the time he filed his motion of the court confirming the dismissal.
to dismiss, counted from his receipt of Such dismissal is WITHOUT PREJUDICE,
the denial order, but not less than 5 days EXCEPT:
in any event. 1. Where the notice of dismissal so
provides;
The same rule of granting only the 2. Where the plaintiff has previously
balance of the period is followed where dismissed the same case in a
the court, instead of denying the motion court of competent jurisdiction
to dismiss, orders the amendment of the (TWO-DISMISSAL RULE);
pleading challenged by the motion, in 3. Even where the notice of dismissal
which case, the balance of the period to does not provide that it is with
answer runs from his receipt of the prejudice but it is premised on
amended pleading. the fact of payment by the
defendant of the claim
involved.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 38

MEMORY AID IN REMEDIAL LAW

Section 2. Dismissal upon motion of the presentation of his evidence

plaintiff. in chief on the complaint
2. Plaintiff fails to prosecute his
Where the plaintiff moves for the action for an unreasonable
dismissal of his complaint to which a length of time (NOLLE
counterclaim has been interposed, the PROSEQUI)
dismissal shall be limited to the 3. Plaintiff fails to comply with
complaint. these Rules or any order of the
court. Unjustifiable inaction on
Such dismissal shall be without prejudice the part of plaintiff to have the
to the right of the defendant to either: case set for trial is a ground for
1. Prosecute his counterclaim in a dismissal for failure to
separate action, prosecute.

In this case, the court should Complaint may be dismissed

render the corresponding order 1. Upon motion of the defendant,
granting and reserving his right or
to prosecute his claim in a 2. Upon court’s own motion.
separate complaint.
Dismissal shall have the effect of an
-OR- ADJUDICATION UPON THE MERITS
(WITH PREJUDICE), unless otherwise
2. To have the same resolved in the declared by the court.
same action.

In such case, defendant must SECTION 2 SECTION 3

manifest such preference to the
trial court within 15 days from Dismissal is at the Dismissal is not
notice to him of plaintiff’s instance of the procured by plaintiff
motion to dismiss. plaintiff; though justified by
causes imputable to
These alternative remedies of the him;
defendant are available to him
REGARDLESS OF WHETHER HIS Dismissal is a matter Dismissal is a matter
of procedure, without of evidence, an
COUNTERCLAIM IS COMPULSORY OR
prejudice unless adjudication on the
PERMISSIVE. otherwise stated in merits;
the order of the court
Dismissal under this rule is WITHOUT or on plaintiff’s
PREJUDICE, EXCEPT: motion to dismiss his
1. When otherwise stated in the own complaint;
motion to dismiss;
2. When stated to be with Dismissal is without Dismissal is without
prejudice in the order of the prejudice to the right prejudice to the right
court. of the defendant to of the defendant to
prosecute his prosecute his
counterclaim in a counterclaim on the
The approval of the court is necessary in separate action unless same or separate
the dismissal or compromise of a class w/in 15 days from action.
suit. notice of the motion
he manifests his
Section 3. Dismissal due to fault of intention to have his
plaintiff. counterclaim resolved
in the same action
CAUSES FOR DISMISSAL
1. Plaintiff fails to appear for no
justifiable cause on the date of

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 39

MEMORY AID IN REMEDIAL LAW

RULE 18 EFFECT OF NON-APPEARANCE OF

PRE-TRIAL PLAINTIFF:
Cause for dismissal of the action, with
PRE-TRIAL- a mandatory conference and prejudice, unless otherwise ordered by
personal confrontation before the judge the court.
between the parties and their respective
counsel. EFFECT OF NON-APPEARANCE OF
DEFENDANT:
The plaintiff must promptly move ex Cause to allow the plaintiff to present
parte that the case be set for pre-trial , evidence ex parte and the court to
and this he must do upon the service and render judgment on the basis thereof.
filing of the last pleading.
Pre-trial brief. It is the mandatory duty
The pre-trial and trial on the merits of of the parties to seasonably file their
the case must be held on separate pre-trial briefs under the conditions and
dates. with the sanctions provided therein.

When non-appearance of a party may Failure to file pre-trial brief has the
be excused (Sec.4): same effect as failure to appear at the
1. If a valid cause is shown pre-trial.
therefore
2. If a representative shall appear Record of pre-trial. The contents of the
in his behalf fully authorized in PRE-TRIAL order shall control the
writing to: subsequent course of the action, UNLESS
a. Enter into an amicable modified before trial to prevent
settlement manifest injustice.
b. Submit to alternative modes
of dispute resolution A party is deemed to have waived the
c. Enter into stipulations or delimitations in a pre-trial order if he
admissions of facts and of failed to object to the introduction of
documents evidence on an issue outside of the pre-
trial order, as well as in cross-examining
A special authority for an attorney to the witness in regard to said evidence.
compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT
PAGE.
Civil Code, a special power of attorney
is required.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 40

MEMORY AID IN REMEDIAL LAW

PRE-TRIAL

No Amicable Failure to
Settlement Settlement Appear

Agreements
made by parties; If plaintiff is If defendant
Amendments to Absent, when is absent,
pleading; so required to court may
Schedule of trial attend, the hear
court may evidence of
dismiss the plaintiff ex
case parte

TRIAL

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

2. Whether or not the intervenor’s

RULE 19 rights may be fully protected in
INTERVENTION a separate proceeding.
WHO may intervene? The interest which entitles a person to
intervene in a suit must be on the
1. One who has legal interest in the matter in litigation and of such direct
matter in litigation and immediate character that the
2. One who has legal interest in the intervenor will either gain or lose by the
success of either of the parties, direct legal operation and effect of the
3. One who has an interest against judgment.
both parties
4. One who is so situated as to be
INTERVENTION INTERPLEADER
adversely affected by a
distribution or other disposition
An ancillary action. An original action.
of property in the custody of the
court or of an officer thereof. Proper in any of the Presupposes that the
four situations plaintiff has no
FACTORS TO BE CONSIDERED BY THE mentioned in this interest in the subject
COURT Rule. matter of the action
1. Whether or not the intervention or has an interest
will unduly delay or prejudice therein, which in
the adjudication of the rights of whole or in part, is
the original parties; not disputed by the
other parties to the
action.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 41

MEMORY AID IN REMEDIAL LAW

SUBPOENA DUCES TECUM – a process

Defendants are Defendants are being directed to a person requiring him to
already original sued precisely to bring with him books, documents, or
parties to the pending implead them other things under his control.
suit
Section 2. By whom issued
WHO may issue
Section 2. Time to intervene. 1. Court before whom the witness
At any time before rendition of is required to attend
judgment by the trial court. 2. Court of the place where the
deposition is to be taken
JUSTIFICATION: Before judgment is 3. Officer or body authorized by
rendered, the court, for good cause law to do so in connection with
shown, may still allow the introduction investigations conducted by said
of additional evidence and that is still officer or body
within the liberal interpretation of the 4. Any Justice of the SC or of the
period for trial. CA in any case or investigation
pending within the Philippines.
Since no judgment has yet been
rendered, the matter subject of the SUBPOENA TO A PRISONER – must be for
intervention may still be readily resolved a valid purpose; if prisoner required to
and integrated in the judgment disposing appear in court is sentenced to death,
of all claims in the case. reclusion perpetua or life imprisonment
and is confined in prison – must be
REMEDIES FOR THE DENIAL OF authorized by the SC.
INTERVENTION:
1. APPEAL Section 4. QUASHING A SUBPOENA.
2. MANDAMUS if there is grave A. Subpoena DUCES TECUM may be
abuse of discretion quashed upon proof that:
If there is improper granting of 1. It is unreasonable and
intervention, the remedy of the party is oppressive;
certiorari. 2. The articles sought to be
produced do not appear prima
RULE 21 facie to be relevant to the
SUBPOENA issues;
3. The person asking for the
SUBPOENA SUMMONS subpoena does not advance the
an order to appear and Order to answer cost for the production of the
testify or to produce complaint articles desired.
books and documents
may be served to a Served on the B. Subpoena AD TESTIFICANDUM may
non-party defendant be quashed if the witness is not bound
needs tender of does not need tender thereby.
kilometrage, of kilometrage and
attendance fee and other fees
In EITHER case, the subpoena may be
reasonable cost of
production fee quashed for failure to tender the witness
fees and kilometrage allowed by the
SUBPOENA AD TESTIFICANDUM – a Rules.
process directed to a person requiring
him to attend and to testify at the GENERAL RULE
hearing or the trial of an action, or at a. The court which issued the
any investigation conducted by subpoena may issue a warrant
competent authority, or for the taking of for the arrest of the witness and
his deposition. make him pay the cost of such
warrant and seizure, if the court
should determine that his

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 42

MEMORY AID IN REMEDIAL LAW

disobedience was willful and or that it should be allowed before

without just cause (Sec. 8); service of answer.

b. The refusal to obey a subpoena Modes of Discovery are intended to be

without adequate cause shall be CUMULATIVE, and not alternative nor
deemed a contempt of the court mutually exclusive.
issuing it (Sec.9).
Exceptions: Discovery is NOT MANDATORY but failure
Provisions regarding the compelling of to avail carries sanctions in Rules 25 and
attendance (Sec. 8) and contempt (Sec. 26.
9) does not apply where:

a. Witness resides more than 100 RULE 23

km from his residence to the DEPOSITIONS PENDING ACTION
place where he is to testify by
the ordinary course of travel, DEPOSITION – is a written testimony of a
generally, by overland witness given in the course of a judicial
transportation (VIATORY proceeding in advance of the trial or
RIGHT). hearing upon oral examination or in
response to written interrogatories and
b. Permission of the court in which where an opportunity is given for cross-
the detention prisoner’s case is examination.
pending was not obtained.
Depositions are intended as a means to
RULES OF DISCOVERY compel disclosure of facts resting in the
DISCOVERY - is the procedure by which knowledge of a party or other person,
one party in an action is enabled to which are relevant in a suit/proceeding.
obtain before trial knowledge of relevant
facts and of material evidence in the CLASSIFICATIONS OF DEPOSITIONS
possession of the adverse party or of a 1. Depositions on ORAL
witness. EXAMINATION and Depositions
upon WRITTEN
Rationale of discovery: to enable the INTERROGATORIES
parties to obtain the fullest possible 2. Depositions DE BENE ESSE -
knowledge of the issues and evidence those taken for purposes of a
long before the trial to prevent such trial pending action (Rule 23) ; and
from being carried on in the dark. 3. Depositions IN PERPETUAM REI
MEMORIAM - those taken to
Modes of discovery under the Rules of perpetuate evidence for
Court purposes of anticipated action,
1. Depositions pending action (Rule or in the event of further
23). proceedings in a case on appeal,
2. Depositions before action or and to preserve it against danger
pending appeal (Rule 24). of loss (Rule 24).
3. Interrogatories to parties (Rule
25). WHEN TAKEN
4. Admission by adverse party (Rule WITH LEAVE OF COURT
26). 1. after jurisdiction has been
5. Production or inspection of obtained over any defendant or
documents, or things (Rule 27). over the property which is the
6. Physical and mental examination subject of the action and
of persons (Rule 28). BEFORE answer.
2. Deposition of a person confined
Discovery before answer. in prison.
It is only in the exceptional or unusual
case that the need for discovery arises,

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 43

MEMORY AID IN REMEDIAL LAW

WITHOUT LEAVE OF COURT depositions are taken for discovery and

AFTER answer AND deponent is not not for use as evidence.
confined in prison.
Exception: If a party offers the
Section 4. Use of depositions. deposition in evidence, then he is
Where the witness is available to testify deemed to have made the deponent his
and the situation is not one of those witness (Sec.8)
excepted under Sec. 4, his deposition is
inadmissible in evidence and he should Exception to the Exception: Unless the
be made to testify. deposition is that of any adverse party,
and unless, of course, the deposition is
It can be used as evidence by a party for used for impeaching or contradicting the
any purpose under the specific deponent (Sec.8).
conditions in Sec. 4.
Section 10 and 11. Persons before
whom depositions may be taken.
DEPONENT USE
WITHIN THE PHILIPPINES:
Any person By any party for 1. judge
contradicting or 2. notary public
impeaching the 3. any person authorized to
testimony of deponent administer oaths, as stipulated
as witness
by the parties in writing
A party or any one By an adverse party for
who at the time of any purpose OUTSIDE THE PHILIPPINES:
the deposition was 1. on notice, before a secretary of
an OFFICER, embassy or legation, consul
DIRECTOR, or general, consul, vice-consul, or
MANAGING AGENT of consular agent of the Phil.
a public or private 2. before such person or officer as
corp., partnership, may be appointed by commission
or association which
or letters rogatory
is a party
3. any person authorized to
Witness, whether or By any party for any administer oaths, as stipulated
not a party purpose if the court by the parties in writing
finds the 5 instances
occurring Section 12. Commission or letters
rogatory.

SCOPE OF INQUIRY IN DEPOSITIONS: COMMISSION LETTERS ROGATORY

1. Matter which is relevant to the Issued to a non- Issued to the
subject of the pending action; judicial foreign officer appropriate judicial
2. Not privileged who will directly take officer of the foreign
3. Not restricted by a protective the testimony country who will direct
order somebody in said
foreign country to take
down testimony
Certiorari will not lie against an order
Applicable rules of Applicable rules of
admitting or rejecting a deposition in procedure are those of procedure are those of
evidence, the remedy being an appeal the requesting court the foreign court
from the final judgment. requested to act
Resorted to if Resorted to if the
Section 7. Effect of taking depositions. permission of the execution of the
foreign country is commission is refused
A party shall not be deemed to make a given in the foreign country
person his own witness for any purpose Leave of court is not Leave of court is
by taking his deposition because necessary necessary

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 44

MEMORY AID IN REMEDIAL LAW

Section 18. Motion to terminate or RULE 25

limit examination. INTERROGATORIES TO PARTIES

MAY BE FILED: PURPOSE of Written Interrogatories: to

1. any time during the taking of the elicit facts from any adverse party
deposition (answers may also be used as admissions
2. on motion or petition of any of the adverse party)
party or of the deponent; or
3. upon showing that the Written interrogatories and the answers
examination is conducted in : thereto must both be FILED and SERVED.
a. bad faith
b. in such manner as Interrogatories Bill of Particulars
unreasonably to annoy, A party may properly A party may properly
embarrass, or oppress seek disclosure of seek disclosure only of
the deponent or party matters of proof matters which define
which may later be the issues and become
made a part of the a part of the
RULE 24 records as evidence. pleadings.
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL A party may serve written
interrogatories:
Depositions under this Rule are also 1. WITHOUT LEAVE OF COURT –
taken conditionally, to be used at the after answer has been served,
trial only in case the deponent is not for the first set of
available. interrogatories.
2. WITH LEAVE OF COURT – before
Depositions under this Rule do not prove answer has been served
the existence of any right and the (REASON: at that time, the
testimony perpetuated is not in itself issues are not yet joined and the
conclusive proof, either of the existence disputed facts are not yet clear,
of any right nor even of the facts to when more than one set of
which they relate, as it can be interrogatories is to be served.)
controverted at the trial in the same
manner as though no perpetuation of A judgment by default may be rendered
testimony was ever had. However, in the against a party who fails to answer
absence of any objection to its taking, written interrogatories
and even if the deponent did not testify
at the hearing, the perpetuated Only one set of interrogatories by the
testimony constitutes prima facie proof same party is allowed. Leave of court is
of facts referred to in the deposition. necessary for succeeding sets of
interrogatories.
Section 6. Use of deposition.
Section 6. Effect of failure to serve
If deposition is taken under this Rule, it written interrogatories.
may be used in any action involving the
SAME SUBJECT MATTER subsequently Rule 25 and Rule 26 are directed to the
brought. party who fails and refuses to RESORT to
the discovery procedures, and should not
Section 7. Depositions pending appeal. be confused with the provisions of Rule
Sec. 7 is the procedure in perpetuating 29 which provides for sanctions or other
testimony AFTER JUDGMENT IN THE RTC consequences upon a party who refuses
and DURING THE PENDENCY OF AN or fails to COMPLY with discovery
APPEAL. procedures duly availed of by opponent.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 45

MEMORY AID IN REMEDIAL LAW

The justification for this provision is that the truth of which can be ascertained by
the party in need of relevant facts reasonable inquiry.
having foregone the opportunity to
inquire into the same from the other When request may be made: at any time
party through means available to him, he after the issues have been joined.
should not thereafter be permitted to
unduly burden the latter with courtroom What request may include
appearances or other cumbersome 1. Admission of the genuineness of
processes. any material and relevant
document described in and
Unless a party had been served written exhibited with the request.
interrogatories, he may not be 2. Admission of the truth of any
compelled by the adverse party: material and relevant matter of
1. to give testimony in open court, fact set forth in the request.
or 3. Under this rule, a matter of fact
2. give a deposition pending not related to any documents
appeal. may be presented to the other
party for admission or denial.
The only exception is when the court
allows it for GOOD CAUSE shown and to Section 2. Implied Admission.
prevent a failure of justice. The effect of a FAILURE to make a reply
to a request for admission is that each of
Depositions Upon Interrogatories to the matters of which an admission is
Written Parties under Rule requested is deemed admitted.
Interrogatories to 25
Parties under Rule A sworn statement either denying
23 Sec. 25 specifically each matter or setting forth
As to Deponent As to Deponent in detail the reasons why he cannot
Party or ordinary party only truthfully admit or deny those matters
witness must be filed and served upon the party
As to Procedure As to Procedure requesting the admission.
With intervention of no intervention.
the officer authorized Written Section 3. Effect of admission.
by the Court to take interrogatories are USE: An admission under this section is
deposition directed to the party for the purpose of the pending action
himself only and cannot be used in other
proceedings.
As to Scope As to Scope
Direct, cross, redirect, only one set of The party who fails or refuses to request
re-cross interrogatories the admission of facts in question is
prevented from thereafter presenting
Interrogatories Interrogatories evidence thereon UNLESS otherwise
no fixed time 15 days to answer
allowed by the court (Sec.5).
unless extended or
reduced by the court

RULE 27
PRODUCTION OR INSPECTION OF
RULE 26 DOCUMENTS OR THINGS
ADMISSION BY ADVERSE PARTY
Production of documents affords more
Section 1. Request for admission. opportunity for discovery than a
subpoena duces tecum because in the
PURPOSE OF written request for latter, the documents are brought to the
admission is to expedite trial and relieve court for the first time on the date of
the parties of the costs of proving facts the scheduled trial wherein such
which will not be disputed on trial and documents are required to be produced.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 46

MEMORY AID IN REMEDIAL LAW

The TEST to be applied in determining examined him or may thereafter

the relevancy of the document and the examine him.
sufficiency of their description is one of
reasonableness and practicality. RULE 29
REFUSAL TO COMPLY WITH MODES OF
PRODUCTION OR SUBPOENA DUCES DISCOVERY
INSPECTION OF TECUM
DOCUMENTS OR SANCTIONS
THINGS 1. Contempt;
Essentially a mode of means of compelling 2. Payment of reasonable fees;
discovery production of 3. The matters regarding which the
evidence questions were asked, character
The Rules is limited to may be directed to a or description of land et al., be
the parties to the person whether a taken to be in accordance with
action party or not
the claim of party obtaining the
The order under this may be issued upon an
order;
Rule is issued only ex parte application.
upon motion with 4. Prohibition on the refusing party
notice to the adverse to produce evidence or support
party or oppose designated claims or
defenses;
5. Striking out pleadings, order the
dismissal of the action or stay
RULE 28 the action until compliance or to
PHYSICAL AND MENTAL EXAMINATION render judgment by default.
OF PERSONS 6. Order the arrest of the refusing
party except in cases of physical
or mental examination.
The mental condition of a party is in
controversy in proceedings for RULE 30
GUARDIANSHIP over an imbecile or TRIAL
insane person, while the physical
condition of the party is generally TRIAL – judicial process of investigating
involved in PHYSICAL INJURIES cases. and determining the legal controversies
starting with the production of evidence
Since the results of the examination are by the plaintiff and ending with his
intended to be made public, the same closing arguments.
are not covered by the physician-patient
privilege. GENERAL RULE: when an issue exists,
trial is necessary. Decision should not be
Section 4. Waiver of privilege. made without trial.
EXCEPTIONS: when there may be
Where the party examined requests and judgment without trial:
obtains a report on the results of the 1. Judgment on the Pleading
examination the consequences are: (Rule 34)
1. he has to furnish the other party 2. Summary Judgment (Rule 35)
a copy of the report of any 3. Judgment on Compromise
previous or subsequent 4. Judgment by Confession
examination of the same 5. Dismissal with Prejudice
physical and mental condition, (Rule 17)
AND
2. he waives any privilege he may Section 3. Requisites of motion to
have in that action or any other postpone trial for absence of evidence.
involving the same controversy
regarding the testimony of any There must be an affidavit showing:
other person who has so 1. materiality or relevance of such
evidence; and

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 47

MEMORY AID IN REMEDIAL LAW

2. due diligence in procuring it. Unless the court for special reasons
otherwise directs, the trial shall be
If the adverse party admits the facts for limited to the issues stated in the pre-
which evidence is to be presented, the trial order.
trial will not be postponed.
Section 6. Agreed statements of facts.
Section 4. Requisites of motion to This is known as STIPULATION OF FACTS
postpone trial for illness of party or and is among the purposes of a pre-trial.
counsel.
There must be an affidavit or sworn The parties may also stipulate verbally in
certification showing: open court. Such stipulations are binding
1. presence of party or counsel at unless relief therefrom is permitted by
the trial is indispensable; and the court on good cause shown, such as
2. character of his illness is such as error or fraud.
to render his non-attendance
excusable. But counsel cannot stipulate on what
their respective EVIDENCE consists of
Section 5. Order of trial unless and ask that judgment be rendered on
directed by the court. the basis of such stipulation.

Stipulations of facts are not permitted in

Plaintiff presents actions for ANNULMENT OF MARRIAGE
evidence and for LEGAL SEPARATION.

Section 8. Suspension of actions.

Art. 2030 of the Civil Code. Every civil
Defendant presents Defendant files
action or proceeding shall be suspended
evidence to demurrer to
support his evidence
1. If willingness to discuss a
defense/countercla possible compromise is
im/crossclaim/ expressed by one or both
third party parties; or
complaint 2. If it appears that one of the
parties, before the
commencement of the action or
proceeding, offered to discuss a
Third If court If court possible compromise but the
party grants denies other party refused the offer.
defendant motion: motion:
presents Renders Continues Section 9. Judge to receive evidence;
eidence, dismisal with delegation to clerk of court.
if any hearing
GENERAL RULE: the judge must himself
personally receive and resolve the
evidence of the parties.
However, the reception of such
Rebuttal
evidence may be delegated under the
Evidence by After
Parties Presentation of following conditions:
evidence: 1. The delegation may be made
1. oral arguments only in defaults or ex parte
2. submission of hearings, or an agreement in
DECISION memoranda writing by the parties.
2. The reception of evidence shall
be made only by the clerk of
that court who is a member of
the bar.
3. Said clerk shall have no power to
rule on objections to any

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 48

MEMORY AID IN REMEDIAL LAW

question or to admission of RULE 32

evidence or exhibits; and TRIAL BY COMMISSIONER
4. He shall submit his report and
transcripts of the proceedings, COMMISSIONER- a person to whom a
together with the objections to cause pending in court is referred, for
be resolved by the court, within him to take testimony, hear the parties
10 days from the termination of and report thereon to the court, and
the hearing. upon whose report, if confirmed,
judgment is rendered.
RULE 31 Reference to a commissioner may be had
CONSOLIDATION OR SEVERANCE by the written consent of both parties.

GENERAL RULE: Consolidation is Situations when reference to a

discretionary upon the court Commissioner may be made on motion
EXCEPTIONS: Consolidation becomes a (Sec.2):
matter of duty when: 1. Examination of a long account
1. if the cases are pending before 2. Taking of an account is necessary
the same judge OR 3. Question of fact, other than
2. if filed with different branches upon the pleading arises; or
of a court and one of such cases 4. Carrying a judgment or order
has NOT been partially tried. into effect.

REQUISITES FOR CONSOLIDATION: Disobedience to a subpoena issued by

1. When actions involving a the commissioner is deemed a contempt
common question of law or fact, of the court which appointed the latter.
and
2. The actions are pending before RULE 33
the same court DEMURRER TO EVIDENCE
if filed with DIFFERENT
courts, authorization from Section 1. Demurrer to evidence.
the SC is necessary.
DEMURRER TO MOTION TO DISMISS
3 WAYS OF CONSOLIDATING CASES:
EVIDENCE
1. by RECASTING THE CASES
It is presented after presented before a
ALREADY INSTITUTED, the plaintiff has responsive pleading
conducting only one hearing and rested his case (answer) is made by
rendering only one decision; the defendant
2. by CONSOLIDATING THE EXISTING The ground is based it may be based on
CASES and holding only one on insufficiency of any of those
hearing and rendering only one evidence enumerated in Rule 16
decision; and
3. by HEARING ONLY THE PRINCIPAL 2 Scenarios
CASE and suspending the hearing MOTION DENIED MOTION GRANTED
on the others until judgment has
BUT REVERSED ON
been rendered in the principal
case. (TEST-CASE METHOD) APPEAL
Movant shall have the Movant is deemed to
Consolidation of cases on appeal and right to present his have waived his right
evidence to present evidence.
assigned to different divisions of the SC
The decision of the
and the CA is also authorized. Generally, appellate court will
the case which was appealed later and be based only on the
bearing the higher docket no. is evidence of the
consolidated with the case having the plaintiff as the
lower docket no. defendant loses his
right to have the
case remanded for

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 49

MEMORY AID IN REMEDIAL LAW

reception of his rested his case, on the GROUND that

evidence. upon the facts presented by the plaintiff
denial is order of the court is and the law on the matter, plaintiff has
INTERLOCUTORY. Sec. an ADJUDICATION ON not shown any right to relief.
1 , Rule 36 (that THE MERITS, hence,
judgment should state the requirement in
RULE 34
clearly and distinctly Sec. 1, Rule 36
the facts and the law should be complied JUDGMENT ON THE PLEADINGS
on which it is based), with.
will not apply. A judgment on the pleadings must be on
The denial is NOT motion of the claimant. (NO
appealable. SUPPORTING PAPERS ARE REQUIRED
CIVIL CASES CRIMINAL CASES BECAUSE EVERTHING IS BASED ON THE
Defendant need not ask leave of court is PLEADINGS.)
for leave of court; necessary so that the
accused could HOWEVER, if at the pre-trial the court
present his evidence finds that a judgment on the pleadings is
if the demurrer is proper, it may render such judgment
denied motu proprio.
if the court finds if the court finds the
plaintiff’s evidence prosecution’s
GROUNDS:
insufficient, it will evidence insufficient,
grant the demurrer by it will grant the 1. Answer fails to tender an issue
dismissing the demurrer by because of:
complaint. The rendering judgment a. general denial of the
judgment of dismissal is acquitting the material allegations of
appealable by the accused. Judgment the complaint;
plaintiff. If plaintiff of acquittal is not b. insufficient denial of the
appeals and judgment appeallable; double material allegations of
is reversed by the jeopardy sets-in the complaint ; or
appellate court, it will
2. Answer admits material
decide the case on the
basis of the plaintiff’s allegations of the adverse
evidence with the party’s pleading
consequence that the
defendant already loses  By moving for judgment on the
his right to present pleading, plaintiff waives his claim
evidence no res for unliquidated damages. Claim for
judicata in dismissal such damages must be alleged and
due to demurrer proved.
if court denies if court denies the
demurrer, defendant demurrer:
will present his If demurrer was with
NO JUDGMENT ON THE PLEADINGS IN
evidence leave, accused may ACTIONS FOR
present his evidence 1. Declaration of nullity of
If the demurrer was marriage
without leave, 2. Annulment of marriage
accused can no 3. Legal Separation
longer present his
evidence and submits
the case for decision
based on the Motion to Dismiss Motion for
prosecution’s judgment on the
evidence
pleadings

Filed by a defendant Filed by the plaintiff

JUDGMENT ON DEMURRER TO EVIDENCE to a complaint, if the answer raises
is a judgment rendered by the court counterclaim, cross- no issue.
dismissing a case upon motion of the claim or 3rd-party
defendant, made after plaintiff has complaint

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 50

MEMORY AID IN REMEDIAL LAW

Available to generally Available to

If the complaint states no cause of both plaintiff available only plaintiff.
action, a motion to dismiss should be and defendant to the plaintiff,
filed and not a motion for judgment on unless the
the pleading. defendant
presents a
counterclaim.
There is The answer no issues as no
RULE 35
no genuine fails to tender answer is filed
SUMMARY JUDGMENTS issue between an issue or by the
the parties, there is an defending
SUMMARY JUDGMENT i.e. there may admission of party.
One granted by the court for the prompt be issues but material
disposition of civil actions wherein it these are allegations.
clearly appears that there exists NO irrelevant
genuine issue or controversy as to any 10-day notice 3-day notice 3-day notice
material fact. required required rule applies.
May be On the merits On the merits
interlocutory
Who can File or on the
1. Plaintiff: he must wait for the merits
answer to be filed and served, and
thus for the issue to be joined,
before he can move for summary RULE 36
judgment. JUDGMENTS, FINAL ORDERS AND ENTRY
2. Defendant: he can move for THEREOF
summary judgment at anytime, that
is, anytime after filing and service of
the complaint even before he JUDGMENT- final consideration and
answers determination by a court of the rights of
the parties, upon matters submitted to it
The motion for summary judgment must in an action or proceeding.
be supported by (1) affidavit, (2)
depositions of the adverse party or a The date of finality of the judgment or
third party, or (3) admissions of the final order shall be deemed to be the
adverse party, all intended to show that: date of its entry.
a. there is no genuine issue as to
any material fact, except REQUISITES OF A JUDGMENT:
damages which must always be 1. It should be in writing, personally
proved, and and directly prepared by the judge
b. the movant is entitled to a 2. Must state clearly and distinctly the
judgment as a matter of law. facts and the law on which it is
based
The summary judgment may be a 3. It should contain a dispositive part
judgment on the merits, in which case, and should be signed by the judge
an appeal may be taken therefrom. and filed with the clerk of court.

SUMMARY JUDGMENT JUDGMENT PROMULGATION- the process by which a

JUDGMENT ON THE BY DEFAULT decision is published, officially
announced, made known to the public or
PLEADINGS (Rule 9)
delivered to the clerk of court for filing,
Based on the based solely on based on the
pleadings, the pleadings. complaint and
coupled with notice to the parties or
depositions, evidence, if their counsel.
admissions presentation is
and affidavits required. MEMORANDUM DECISION- a decision of
the appellate court which adopts the
findings and the conclusion of the trial
court.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 51

MEMORY AID IN REMEDIAL LAW

JUDICIAL COMPROMISE PROMULGATION OF JUDGMENT

 A judgment based on a
compromise which has the force Court Renders Decision
of law and is conclusive between
parties.
 Not appealable. Filing appeal within
Losing Party 15/30 days from
A JUDGMENT is considered RENDERED notice of judgment
Upon filing of the signed decision. This
includes an amended decision because
an amended decision is a distinct and
Accepts Within 15/30 days
separate judgment and must follow the decision from notice of
established procedural rule. without further judgment:
contest Motion for
The power to amend a judgment is reconsideration; or
motion for new trial
inherent to the court before judgment
becomes final and executory.
Court
maintains
After judgment has become executory,
decision
the court cannot amend the same Court grants motion:
1.modifies decision; or
2.grants new trial
EXCEPT: If no appeal is
1. To make corrections of taken or did
not avail of
clerical errors, not
remedies,
substantial amendments, as judgment
by an amendment nunc pro becomes final Losing party may
tunc. and appeal within the
executory
2. To clarify an ambiguity remaining period
which is borne out by and
justifiable in the context of
the decision.
3. In judgments for support, Section 4. Several judgments.
which can always be Several judgment is proper where the
amended from time to time. liability of each party is clearly
separable and distinct from his co-
parties such that the claims against each
MANNER OF ATTACKING JUDGMENTS: of them could have been the subject of
separate suits, and the judgment for or
1. Direct attack against one of them will not necessarily
a. before finality affect the other.
1. motion for new trial or
reconsideration; A several judgment is NOT proper in
2. appeal actions against solidary debtors.
b. after finality
1. relief from judgment, rule Section 6. Separate Judgments
38 Proper when more than one claim for
2. annulment of judgment, Rule relief is presented in an action and a
47. determination as to the issues material
to the claim has been made. The action
2.Collateral attack shall proceed as to the remaining
claims.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 52

MEMORY AID IN REMEDIAL LAW

Judgment NUNC PRO TUNC (literally parties to the action, The court exercises a
means “now for then”) and which is entered certain amount of
 rendered to enter or record such in the record by the supervision over the
judgment as has been formerly consent of the court. entry of judgment.
rendered but has not been
entered as thus rendered Clarificatory Judgment
 its only function is to record rendered by the court, upon motion,
some act of the court which was when a judgment previously rendered is
done at a former time, but ambiguous and difficult to comply with.
which was not then recorded, in
order to make the record speak AMENDED OR SUPPLEMENTAL
the truth, without any changes CLARIFIED DECISION
in substance or any material JUDGMENT
respect.
It is an entirely new Does not take the
Judgment upon Agreement or decision and place of or extinguish
supersedes the the original judgment
Compromise original judgment
A compromise agreement between the
parties to a case on which the decision Court makes a Serves to bolster or
of the court was based has upon the thorough study of the add to the original
parties the effect and authority of res original judgment and judgment
judicata. It is immediately executory. renders the amended
and clarified judgment
Judgment by Confession only after considering
Judgment upon confession is one which all the factual and
legal issues
is rendered against a party upon his
petition or consent. It usually happens
when the defendant appears in court and RULE 37
confesses the right of the plaintiff to NEW TRIAL OR RECONSIDERATION
judgment or files a pleading expressly
agreeing to the plaintiff’s demand. Order denying
motion for new trial
Two kinds of judgment by confession
1. A judgment by COGNOVIT
ACTIONEM – here, the defendant Second motion for new trial
after service instead of entering based on grounds not existing or
a plea, acknowledged and available when 1st motion was
confessed that the plaintiff’s filed
cause of action was just and
rightful.
2. A judgment by CONFESSION Appeal from the judgment or
RELICTA VERIFICATIONE – after final order and assign as one of
pleading and before trial, the the errors the denial of the
defendant both confessed the motion for new trial
plaintiff’s cause of action and
withdrew or abandoned his plea
An order denying a motion for new trial
or other allegations, whereupon
is not appealable.
judgment was entere against him
without proceeding to trial.
NEW TRIAL - the rehearing of a case
already decided by the court but before
Judgment upon Judgment by the judgment rendered thereon becomes
Compromise Confession final and executory, whereby errors of
The provisions and An affirmative and law or irregularities are expunged from
terms are settled and voluntary act of the the record, or new evidence is
agreed upon by the defendant himself. introduced, or both steps are taken.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 53

MEMORY AID IN REMEDIAL LAW

Purpose: to set aside the judgment or documentary evidence or to the

final order and grant a new trial. provisions of law alleged to be contrary
to such findings or conclusions, and is
WHEN to file: within period for taking merely intended to delay the
appeal. proceedings OR if there is no affidavit of
merit.
WHERE to file: with the trial court
which rendered the questioned Section 6. Effect of granting of motion
judgment. for new trial
When motion is granted, the original
MOTION FOR A NEW MOTION FOR judgment is thereby vacated and the
TRIAL RECONSIDERATION action stands for trial de novo, but the
The grounds are: fraud, The grounds are: the recorded evidence taken upon the
accident, mistake or damages awarded are former trial so far as the same is
excusable negligence or excessive, that the material and competent to establish the
newly discovered evidence is insufficient issues, shall be used at the new trial
evidence which could to justify the decision taking the same.
not, with reasonable or final order, or that
diligence, have the decision or final
discovered and produced order is contrary to The order denying a motion for new trial
at the trial, and which if law. is NOT appealable.
presented would
probably alter the result MOTION FOR NEW MOTION FOR
Second motion may be Second motion from TRIAL REOPENING OF THE
allowed same party is TRIAL
prohibited Specifically Not mentioned in the
If a new trial is granted if the court finds that mentioned in the Rules but is
the trial court will set excessive damages Rules nevertheless a
aside the judgment or have been awarded or recognized procedural
final order that the judgment or recourse or device
final order is contrary deriving validity and
to the evidence or acceptance from long
law, it may amend established usage
such judgment or final NOTE: It is actually
order accordingly mentioned in the Rules
of Criminal Procedure
Proper only after May properly be
REQUISITES for NEWLY-DISCOVERED promulgation of presented only after
EVIDENCE judgment either or both the
1. Must have been discovered after parties have formally
offered and closed
trial
their evidence before
2. Could not have been discovered judgment
and produced at the trial Based upon specific Controlled by no other
3. If presented, would alter the grounds set forth rule than the
result of the action under Rule 37 in civil paramount interests of
4. Otherwise it is called cases and Rule 121 in justice, resting entirely
FORGOTTEN EVIDENCE. criminal cases on the sound discretion
of a trial court, the
A motion suspends or tolls the running of exercise of which
the reglementary period for appeal discretion will not be
reviewed on appeal
except when the same is pro-forma.
UNLESS a clear abuse
thereof is shown
PRO-FORMA MOTION - when it does not
comply with Rule 15 and Rule 37, e.g. it
does not point out specifically the
findings or conclusions of the judgment MOTION FOR RECONSIDERATION
as are contrary to law, making express Purpose: To reconsider or amend
reference to the testimonial or judgment or final order

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 54

MEMORY AID IN REMEDIAL LAW

WHEN to file: within period for taking an WHEN AVAILED OF: WHEN AVAILED OF:
appeal Within the time to within 60 days from
appeal knowledge of the
WHERE to file: with the trial court judgment AND
which rendered the judgment or final
within 6 months from
order sought to be reconsidered entry of judgment
If denied, the order If denied, the order
RULE 38 of denial is NOT denying a petition for
RELIEF FROM JUDGMENTS, ORDERS, OR appealable, hence relief is NOT
OTHER PROCEEDINGS remedy is appeal appealable; the
from the judgment remedy is appropriate
REMEDIES AGAINST FINAL AND civil action under Rule
EXECUTORY JUDGMENTS OR ORDERS 65
Legal remedy Equitable remedy
1. Petition for Relief from Motion need not be Petition must be
verified verified
Judgment (Rule 38)
2. Annulment of judgments or final
orders or resolutions (Rule 47) on TWO HEARINGS UNDER RULE 38
the ground of: 1. Hearing to determine whether
o Extrinsic fraud, to be filed the judgment should be set aside
within 4 years from the 2. If yes, a hearing on the merits of
discovery of the fraud; the case.
o Lack of jurisdiction, before
it is barred by laches or The period fixed by Rule 38 is non-
estoppel extendible and is never interrupted.
3. Direct or collateral attack
against a void or voidable RULE 39
judgment EXECUTION, SATISFACTION AND
o DIRECT ATTACK – when the EFFECT OF JUDGMENTS
validity of the judgment
itself is the main issue of the
action, a petition for EXECUTION – remedy provided by law
certiorari and action to for the enforcement of a final judgment.
annul judgment on the
ground of extrinsic fraud or AGAINST WHOM ISSUED: execution can
lack of jurisdiction only issue against a party and not against
o COLLATERAL ATTACK – if the one who has not had his day in court.
judgment can be resisted in
any other action in which it WRIT OF EXECUTION: judicial writ
is involved. issued to an officer authorizing him to
execute the judgment of the court.
RULE 37 RULE 38
Available BEFORE Available AFTER ESSENTIAL REQUISITE OF A WRIT OF
judgment becomes judgment has become EXECUTION: a writ of execution to be
final and executory final and executory valid, must conform strictly to the
Applies to Applies to judgments, decision or judgment which gives it life.
JUDGMENTS or FINAL final orders and other
ORDERS only proceeding:
It cannot vary the terms of the judgment
1.Land Registration it seeks to enforce
2.Special Proceedings
3. Order of Execution FINAL JUDGMENT OR ORDER- one which
disposes of the whole subject matter or
GROUNDS: GROUNDS: terminates the particular proceedings or
i. FAME FAME action, leaving nothing to be done by the
ii. Newly discovered court but to enforce by execution what
evidence has been determined.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 55

MEMORY AID IN REMEDIAL LAW

EXECUTION OF JUDGMENT Section 1. Execution Upon Judgments

and Final Orders.

EXECUTION ISSUES AS A MATTER OF

Judgment is If the winning
executed by party does not RIGHT:
motion within move for 1. on motion
5 years from execution w/in 2. upon a judgment or order that
date of its 5 years but disposes of the action or
entry before 10 proceeding AND
years from the 3. upon expiration of the period to
date of entry appeal therefrom and NO appeal
of judgment, has been duly perfected.
Execution is a the same can
matter of right only be
revived by GENERAL RULE: court cannot refuse
after execution
expiration of means of a
new action / UNLESS:
period to
appeal and no petition 1. Execution is UNJUST OR
appeal is IMPOSSIBLE
perfected 2. Equitable grounds like a CHANGE
IN SITUATION of the parties
Discretionary which makes execution
execution inequitable
upon good 3. Judgment NOVATED by parties
reasons stated 4. Execution is enjoined
in a special 5. Judgment has become DORMANT
order after
due hearing QUASHAL OF WRIT PROPER WHEN:
1. Improvidently issued
2. Defective in substance
3. Issued against the wrong party
Sheriff enforces writ of execution 4. Judgment already satisfied
5. Issued without authority

Section 2. Discretionary Execution

Losing party is made to indemnify thru:
1. payment with interest;
2. levy and sale of personal property; DISCRETIONARY EXECUTION AS A
3. levy and sale of real property; EXECUTION MATTER OF RIGHT
4. delivery of personal and real
property
May issue before Period to appeal has
the lapse of period already lapsed and
to appeal no appeal is
TEST TO DETERMINE WHETHER A perfected
JUDGMENT OR ORDER IS FINAL OR
INTERLOCUTORY: The test is whether Discretionary upon Ministerial duty of
the judgment or order leaves nothing the court; there is the court PROVIDED
more for the court to do with respect to inquiry on whether there are no
the merits of the case. there is GOOD supervening events
REASON for
execution
SPECIAL JUDGMENT – one that requires
the performance of an act OTHER THAN:
1. The payment of money; and
2. The sale of real or personal
property

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 56

MEMORY AID IN REMEDIAL LAW

GROUNDS FOR EXECUTION PENDING 5. Such other judgments

APPEAL: declared to be immediately
1. Insolvency of the judgment executory unless otherwise
debtor. ordered by the trial court.
2. Wastage of asset by judgment
debtor. Section 6. Execution By Motion Or
Independent Action.
Section 3. Stay of Discretionary
Execution. The party against whom an MODE OF ENFORCEMENT
execution is directed may file a 1. By motion within 5 years from
supersedeas bond to stay discretionary date of its entry
execution. 2. By independent action after 5
years from entry AND before it is
SUPERSEDEAS BOND- one filed by a barred by statute of limitations
petitioner and approved by the court
before the judgment becomes final and Judgment for support does not become
executory and conditioned upon the dormant, thus it can always be executed
performance of the judgment appealed by motion.
from in case it be affirmed wholly or in
part. 5-year period may be extended by the
conduct of judgment debtor.
Supersedeas bond guarantees
satisfaction of the judgment in case of A revived judgment is a new judgment
affirmance on appeal, not other things thus another 5/10-year period to
like damage to property pending the execute and revive is given the party.
appeal
Section 7. Execution In Case Of Death
The court may, in its discretion, order an Of Party.
execution before the expiration of the If the obligor dies AFTER entry but
time within which to appeal provided: BEFORE LEVY on his property, execution
1. There is a motion for execution will be issued for recovery of real or
filed by the winning party personal property or enforcement of a
2. There is notice of said motion to lien thereon. But for a sum of money,
the adverse party; and judgment cannot be enforced by writ but
3. There are good reasons stated in as a claim against his estate/probate
a special order after due proceedings.
hearing.
If he dies AFTER a VALID LEVY has been
GENERAL RULE: an order of execution is made, execution sale proceeds.
NOT appealable otherwise there would Section 8. Issuance, Form and Contents
be no end to the litigation between the of a Writ of Execution.
parties.
EXCEPTIONS: Remedies in an order granting or
1. When the terms of the judgment denying the issuance of a writ of
are not very clear; execution
2. When the order of execution Appeal is the remedy for an order
varies with the tenor of the denying the issuance of a writ of
judgment. execution.

Section 4. Judgments NOT Stayed By Section 10. Execution Of Judgments

Appeal For Specific Act.
1. INJUNCTION If party REFUSES TO VACATE PROPERTY,
2. RECEIVERSHIP remedy is NOT contempt. The Sheriff
3. ACCOUNTING must oust the party. But if demolition is
4. SUPPORT involved, there must be a special order.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 57

MEMORY AID IN REMEDIAL LAW

If party REFUSES TO DELIVER, sheriff will Section 16. Proceedings Where

take possession and deliver it to winning Property Claimed By Third Person.
party.
REMEDIES of THIRD PARTY CLAIMANT
When the party REFUSES TO COMPLY,
court can appoint some other person at 1. Summary hearing before the
the expense of the disobedient party and court which authorized the
the act done shall have the same effect execution;
as if the required party performed it, 2. TERCERIA or third party claim
the disobedient party incurs no liability filed with the sheriff;
for contempt. 3. Action for damages on the bond
posted by judgment creditors; or
Section 11. Execution of Special 4. Independent reinvidicatory
Judgments. action.
When judgment requires the
performance of any act other than for The remedies are cumulative and may be
money and delivery of property. resorted to by third party claimant
independently of or separately from the
The writ of execution shall be served others.
upon the party required to obey the
same and such party may be punished If winning party files a bond, it is only
for contempt if he disobeys. then that the sheriff can take the
property in his possession. IF NO BOND,
LEVY - act by which an officer sets apart cannot proceed with the sale.
or appropriates a part of the whole of
the property of the judgment debtor for SALE ON EXECUTION
purposes or the execution sale. The levy Notice of sale is required before levied
on execution shall create a lien in favor property can be sold at public auction
or the judgment creditor over the right, (Sec. 15).
title and interest of the judgment debtor
in such property at the time of the levy. Remedy against an irregular sale is
MOTION TO VACATE OR SET ASIDE THE
The levy on execution creates a lien in SALE to be filed in the court which
favor of the judgment creditor subject issued the writ.
to prior liens and encumbrances.
REDEMPTION (Secs. 27 & 28)
GARNISHMENT - act of appropriation by Right of Redemption:
the court when property of debtor is in 1. Personal Property – NONE; sale is
the hands of third persons absolute
2. Real Property – there is a right of
The garnishee or the 3rd person who is in redemption
possession of the property of the
judgment debtor is deemed a forced WHO may redeem (Sec. 27)
intervenor. Only the following:
a. Judgment obligor, or his
successor in interest, in whole or
ATTACHMENT GARNISHMENT any part of the property; OR
Refers to corporeal refers to money, b. Redemptioner who is a creditor
property in the stocks, credits and having a:
possession of the other incorporeal 1) Lien by attachment on
judgment debtor. property which belong the property sold
to judgment debtor subsequent to the lien
but is in the under which the
possession or under property was sold,
the control of a third 2) Lien by judgment on the
person
property sold subsequent

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 58

MEMORY AID IN REMEDIAL LAW

to the lien under which Section 33. Deed and possession to be

the property was sold; given at expiration of redemption
3) Lien by mortgage on the period; by whom executed or given.
property sold subsequent
to the lien under which
the property was sold. The PURCHASER is entitled to a
CONVEYANCE AND POSSESSION of the
WHEN CAN REDEMPTION BE MADE? property if there is no redemption. He is
substituted to and acquires all the
BY THE JUDGMENT OBLIGOR: Within one rights, title, interest and claims of the
(1) year from the date of registration of judgment obligor to the property at the
the certificate of sale. time of levy.

BY THE REDEMPTIONER: The deed of conveyance is what

1. Within one year from the date of operates to transfer to the purchaser
registration of the certificate of whatever rights the judgment debtor had
sale; or in the property. The certificate of sale
2. Within sixty days from the last after execution sale merely is a
redemption by another memorial of the fact of sale and does
redemptioner not operate as a conveyance.
If the judgment obligor redeems, no
further redemption is allowed (Sec. The purchaser acquires no better right
29). than what the judgment debtor has in
the property levied upon. Thus, if the
The period of redemption is NOT judgment debtor had already transferred
suspended by an action to annul the the property executed prior to the levy
foreclosure sale. and no longer has an interest in the
property, the execution purchaser
CAN REDEMPTION BE PAID IN OTHER acquires no right.
FORMS THAN CASH?
YES. The rule is liberality in allowing WHEN A THIRD PERSON IS IN POSSESSION,
redemption (aid rather than defeat the The procedure is for the court to order a
right) and it has been allowed in the hearing and determine the nature of
case of a cashier’s check, certified bank such adverse possession.
checks and even checks.

The offer to redeem must be Section 34. Recovery of price if sale is

accompanied with a bona fide tender or not effective; revival of judgment.
delivery of the redemption price.
THE PURCHASER MAY RECOVER THE
However, a formal offer to redeem with PURCHASE PRICE WHEN
a tender is not necessary where the right 1. The purchaser or his successor-
to redeem is exercised through the filing in-interest FAILS TO RECOVER
of a complaint to redeem in the courts, POSSESSION of the property or;
within the period to redeem. 2. Purchaser after having acquired
possession is evicted due to:
RIGHTS OF THE JUDGMENT DEBTOR: a. Irregularities in the
1. Remain in possession of the proceedings concerning the
property sale.
2. Collect rents and profits b. Reversal or setting aside of
3. Cannot be Ejected judgment.
4. Use the property in the same c. The fact that the property
manner it was previously used was exempt from execution.
5. Make necessary repairs d. A third person has vindicated
his claim to the property.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 59

MEMORY AID IN REMEDIAL LAW

REMEDIES OF THE JUDGMENT CREDITOR the judgment-creditor to

IN AID OF EXECUTION institute an action to recover
the property, forbid its transfer
1. If the execution is returned and may punish disobedience
unsatisfied, he may cause for contempt (Section 43)
examination of the judgment
debtor as to his property and Section 46. When Principal Bound By
income (Section 36) Judgment Against Surety.
The principal is bound by the same
2. He may cause examination of judgment from the time he has notice of
the debtor of the judgment the action or proceeding and has been
debtor as to any debt owed by given an opportunity at the surety’s
him or to any property of the request, to join the defense.
judgment debtor in his
possession (Section 37) Section 47. Effect Of Judgment Or
Final Orders.
3. If after examination, the court Refers to judgments which are
finds that there is property of considered as conclusive and may be
the judgment debtor either in rebutted directly by means of relief from
his own hands or that of any judgment or annulment of judgment or
person, the court may order the indirectly by offering them in evidence
property applied to the under the parole evidence rule.
satisfaction of the judgment
(Section 37) Par (A) refers to rule ON RES JUDICATA
in judgments IN REM
4. If the court finds the earnings
of the judgment debtor are
more than sufficient for his JUDGMENT or EFFECT: CONCLUSIVE
family’s needs, it may order FINAL ORDER AS TO
payment in installments
(Section 40) Against a specific Title to the thing
thing
5. The court may appoint a
receiver for the property of the Probate of a will or Will or administration
judgment debtor not exempt administration of However, ONLY prima
from execution or forbid a the estate of a facie evidence of the
deceased person death of the testator
transfer or disposition or
or intestate
interference with such property
(Section 41) In respect to the Condition, status or
personal, political, relationship of the
6. If the court finds that the or legal condition or person
judgment debtor has an status of a
ascertainable interest in real particular person
property either as mortgagor,
mortgagee, or otherwise, and
his interest can be ascertained Par (B) is referred to as “bar by former
without controversy, the court judgment” or RES JUDICATA in
may order the sale of such judgments IN PERSONAM
interest. (Section 42)
RES JUDICATA - final judgments on the
7. If the person alleged to have merits by a court of competent
the property of the judgment jurisdiction is conclusive as to the rights
debtor or be indebted to him, of the parties or their privies in all later
claims an adverse interest in suits on points determined in the former
the property, or denies the judgment.
debt, the court may authorize

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 60

MEMORY AID IN REMEDIAL LAW

REQUISITES: THE EFFECT OF FOREIGN JUDGMENTS

1. A FINAL judgment or order Provided that the foreign tribunal had
2. JURISDICTION over the subject jurisdiction:
matter and the parties by the
court rendering it 1. IN CASE OF JUDGMENT AGAINST
3. Judgment UPON THE MERITS A SPECIFIC THING, the judgment
4. Between the two cases: is CONCLUSIVE upon the TITLE
IDENTITY OF PARTIES TO THE THING;
IDENTITY OF SUBJECT MATTER 2. IN CASE OF A JUDGMENT
IDENTITY OF CAUSE OF ACTION AGAINST A PERSON, the
judgment is PRESUMPTIVE
THERE IS IDENTITY OF CAUSE OF ACTION EVIDENCE of a right as between
when the two actions are based on the the parties and their successors-
same delict or wrong committed by the in-interest by a subsequent title.
defendant even if the remedies are
different. In both instances, the judgment may be
repelled by evidence of want of
Under the doctrine of res judicata, no jurisdiction, notice, collusion, fraud or
matter how erroneous a judgment may clear mistake of law or fact.
be, once it becomes final, it cannot be
corrected. The only grounds are lack of RULE 40
jurisdiction, collusion or fraud. APPEAL FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL
Par. (C) is known as “conclusiveness of COURTS
judgment” or rule of AUTER ACTION
PENDENT APPEAL FROM MTC TO RTC

CONCLUSIVENESS OF JUDGMENT
 has the effect of preclusion only of Appeal decision of MTC by filing notice of
appeal and pay appellate court docket fee
issues. in the same MTC within 15 days from receipt
 parties in both actions may be the of judgment
same but the causes of action are
different.

15 days from perfection of appeal, MTC

clerk transmits record to RTC
BAR BY FORMER CONCLUSIVENESS OF
JUDGMENT JUDGMENT

There is identity of There is ONLY identity of Notice to parties that an appeal is being
parties, subject PARTIES AND SUBJECT taken from the decision of MTC
matter and causes MATTER
of action

The first judgment The first judgment is Within 15 days from notice of appeal:
constitutes as an conclusive only as to  appellant submits memorandum to
ABSOLUTE BAR TO matters directly adjudged the RTC
ALL MATTERS and actually litigated in  appellee files his own memorandum
15 days from receipt of appellants
directly adjudged the first action. Second
memorandum
and those that action can be prosecuted.
might have been
adjudged.
If uncontested, Any party may
judgment is appeal by filing a
entered in the petition for
Section 48. Effect Of Foreign Judgment book of entries review with the
Or Final Orders: RTC

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 61

MEMORY AID IN REMEDIAL LAW

ORDINARY APPEAL - an appeal by notice ORDINARY APPEAL PETITION FOR

of appeal from a judgment or final order REVIEW
of a lower court on questions of fact and Matter of right Discretionary
law. All the records are No records are
elevated from the elevated unless the
APPEAL TO THE RTC court of origin court decrees it
 Mode of Appeal – Notice of Appeal Notice of record on Filed with the CA
appeal is filed with
within fifteen (15) days from receipt
the court of origin
of decision.
 After an appeal to the RTC has been
By Record on appeal:
perfected, the MTC loses its
1. for special proceedings such as
jurisdiction over the case and any
probate; and
motion for the execution of the
2. in such other cases where
judgment should be filed with the
multiple appeals are allowed as
RTC.
in partition and in
 The Summary Rules no longer apply
expropriation.
when the cases is on appeal.
Section 4. Perfection of Appeal; effect
Section 2. When to Appeal.
thereof.
1. Within 15 days after notice of
judgment or final order;
Appeal is deemed perfected:
2. Where a record on appeal is
1. by notice of appeal: as to him,
required, within 30 days from
upon the filing of the notice of
notice of judgment or final order
appeal in due time;
by filing a notice of appeal and a
2. by record on appeal: as to him,
record on appeal;
upon the approval of the record
3. Period to appeal shall be
on appeal filed in due time.
interrupted by a timely motion
for new trial or reconsideration.
Effect of a perfected appeal:
4. No motion for extension of time
The court loses jurisdiction upon the
to file a motion for new trial or
perfection or approval of appeal and
reconsideration shall be
when the period of appeal for other
allowed.
parties expire.

Residual power of the court prior to the

Section 3. How to Appeal.
transmittal of the original record or
By Notice of Appeal:
record on appeal:
1. File a notice of appeal with the
1. to issue orders for the
trial court.
preservation of the rights of the
2. The notice of appeal must
parties which do not involve
indicate:
matters litigated by appeal;
a. parties
2. to approve compromise prior to
b. judgment or final order
the transmittal of the record;
appealed from
3. permit appeal by an indigent;
c. material date showing
4. order execution pending appeal
timeliness of appeal
under Rule 39, Sec.2 ( motion
3. A copy served on the adverse
for execution was filed before
party.
the expiration of the period to
4. Payment in full of docket fees
appeal;
and other lawful fees
5. allow withdrawal of the appeal.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 62

MEMORY AID IN REMEDIAL LAW

Section 8. Appeal from orders b. Motion for new trial or

dismissing case without trial; lack of reconsideration; and
jurisdiction c. Motion to Set aside a
judgment, by consent,
confession or compromise
If lower court dismissed case without on the ground of fraud,
trial on the merits: mistake, duress or any
RTC may: ground vitiating consent.
1. Affirm, or
2. Reverse, in which case, it shall Remedy in cases where appeal is not
remand the case for further allowed
proceedings. Special civil action of certiorari or
prohibition if there is lack or excess of
If dismissal is due to lack of jurisdiction jurisdiction or grave abuse of discretion
over the subject matter: or mandamus if there is no performance
RTC may: of duty.
1. Affirm; if RTC has jurisdiction,
shall try the case on the merits INTERLOCUTORY ORDER – An order
as if the case was originally filed which does not dispose of the case but
with it, or leave something else to be done by the
2. Reverse, in which case, it trial court on the merits of the case.
remand the case for further
proceedings. A judgment based on compromise is not
appealable and is immediately
If the case was tried on the merits by executory.
the lower court without jurisdiction
over the subject matter: Section 2. Modes of appeal.
RTC shall not dismiss the case if it has
original jurisdiction, but shall decide the Ordinary Petition for Petition for
case, and shall admit amended pleadings appeal review review on
or additional evidence. (appeal by writ [Rule 42] certiorari
of error) [Rule 45]

RULE 41 Case is decided Case is The case

APPEAL FROM REGIONAL by the RTC in decided by raises only a
its original the MTC. question of
TRIAL COURTS
jurisdiction Appealed to law
Appealed to the the RTC.
CA Petition for
APPEALABLE CASES review with
1. Judgments or final orders that the CA
completely disposes of the case.
2. A particular matter in a
judgment declared by the Rules File a notice of File a verified File a verified
to be appealable. appeal or a petition for petition for
record on review with review on
appeal with the the CA. Pay certiorari
NON APPEALABLE CASES court of origin the docket with the SC (R
1. Order dismissing an action without (RTC) and give and lawful 45) Pay
prejudice
a copy to the fees, and P docket and
2. Order of Execution
adverse party. 500 as deposit lawful fees
3. Judgments or final orders for or
for costs with and P 500 for
against one or more of several the CA. costs.
parties or in separate claims while
Furnish RTC Submit proof
the main case is pending
and adverse of service of a
4. Orders disallowing or dismissing an
party copy of copy to the
Appeal such (R 42). lower court
5. Interlocutory orders
and adverse
6. Orders denying:
party.
a. Petition for relief;

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 63

MEMORY AID IN REMEDIAL LAW

RULE 42
Within 15 days Within 15 days Within 15 PETITION FOR REVIEW FROM THE
from the notice from notice of days from REGIONAL TRIAL COURTS TO THE
of the judgment the decision notice of the COURT OF APPEALS
for notice of to be judgment or
appeal and reviewed or order or
within 30 days from the denial of the Petition for review is not a matter of
for records on denial of a MR MR or new right but discretionary on the CA. It may
appeal. The or new trial. trial. only give due course to the petition if it
period for filing shows on its face that the lower court
is interrupted has committed an error of fact and/or
by a timely law that will warrant a reversal or
motion for modification of the decision or judgment
reconsidera- sought to be reviewed; OR dismiss the
tion or new
petition if it finds that it is patently
trial.
without merit, or prosecuted manifestly
for delay, or the questions raised therein
Section 7. Approval of record on
are too unsubstantial to require
appeal.
consideration.
Procedure if the appeal is through a
It is merely discretionary on the CA to
record on appeal
order the elevation of the records. This
is because until the petition is given due
1. file record on appeal
course, the trial court may still issue a
2. appellee may file an objection
warrant of execution pending appeal and
within 5 days from his receipt
in some cases such as ejectment and
thereof
those of Summary Procedure, the
3. if there is no objection the court
judgments are immediately executory. It
may:
is only when the CA deems it necessary
 approve it as presented; OR that the Clerk of the RTC will be ordered
 direct its amendment on its to elevate the records of the case.
own or upon the motion of
the adverse party
4. if an amendment is ordered the RULE 43
appellant must redraft the APPEALS FROM THE COURT OF TAX
record within the time ordered APPEALS AND THE QUASI-JUDICIAL
or if there is no time, within 10 AGENCIES TO THE CA
days from receipt
5. submit the record for approval Judgments and final orders or resolutions
with notice on the adverse party of the NLRC are reviewable by the
COURT OF APPEALS in an original action
The period to appeal is MANDATORY and for certiorari under Rule 65 (St. Martin
JURISDICTIONAL. Failure to appeal on Funeral Home vs. NLRC, Sept. 16, 1998).
time makes the decision final and
executory and deprives the appellate A party adversely affected by a decision
court of jurisdiction. or ruling of the CTA en banc may file
with the Supreme Court a verified
However in few instances the court has petition for review on certiorari pursuant
allowed due course to such appeals on to Rule 45 (Sec. 12, RA 9282).
strong and compelling reasons of
justice.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 64

MEMORY AID IN REMEDIAL LAW

RULE 44 RULE 45
ORDINARY APPEALED CASES APPEAL BY CERTIORARI TO THE
SUPREME COURT

Section 9. Appellant’s reply brief.

RTC, Sandiganbayan or CA
Failure to file appellant's brief on time is renders decision
a ground for dismissal of the appeal.
If a motion to dismiss an appeal has been
filed, it suspends the running of the
period for filing the appellant brief, as Any party files a petition for review on
the same would be unnecessary should certiorari w/in 15 days from notice of
final judgment or order of lower court
the motion be granted. or notice of denial of motion for
reconsideration or new trial
The failure of the appellant to make
specific assignment of errors in his brief
or page references to the record as
required in this section is a ground for
Appellant serves copies of petition on
dismissal of his appeal. adverse parties and to the lower court,
and pay the corresponding docket fees
Section 15. Questions that may be
raised on appeal.

The appeal can raise only questions of SC may dismiss the petition or require
law or fact that the appellee to comment
1. were raised in the court below;
and
2. are within the issues framed by If given due course, parties may
the parties thereon. submit memoranda

BRIEF vs. MEMORANDUM

SC may affirm, reverse, or modify
BRIEF MEMORANDUM judgment of the lower court

Ordinary appeals Certiorari, Prohibition, Section 1. Filing of petition with

Mandamus, Quo Supreme Court
Warranto and Habeas
Corpus cases
Appeals to the SC can be taken from a
judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or
Filed within 45 days within 30 days such other courts as maybe authorized
by law and only by verified petition for
Contents specified Shorter, briefer, only review on certiorari on questions of law
by Rules one issue involved - no except only in appeals from judgments
subject index or of the RTC in criminal cases wherein the
assignment of errors just penalty imposed is life imprisonment or
facts and law applicable reclusion perpetua which shall be
elevated by ordinary appeal, or wherein
the death penalty is imposed which is
subject to automatic review.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 65

MEMORY AID IN REMEDIAL LAW

GENERAL RULE: the findings of fact of

the CA are final and conclusive and QUESTIONS OF LAW QUESTIONS OF
cannot be reviewed on appeal to the FACT
SC. doubt or controversy doubt or difference
as to what the law is arises as to the truth
EXCEPTIONS to CONCLUSIVENESS OF on certain facts or falsehood of facts,
FACTS: or as to probative
value of the evidence
1. When the finding is grounded presented
entirely on speculations, surmise if the appellate court the determination
or conjecture; can determine the involves evaluation or
2. When inference made is issue raised without review of evidence
manifestly absurd, mistaken or reviewing or
impossible; evaluating the
3. When the judgment is premised evidence
Can involve questions query invites the
on a misrepresentation of facts;
of interpretation of calibration of the
4. When there is grave abuse of the law with respect whole evidence
discretion in the appreciation of to certain set of facts considering mainly the
facts; credibility of
5. When the findings of fact are witnesses, existence
conflicting; and relevancy of
6. When the CA in making its specific surrounding
findings went beyond the issues circumstances and
of the case and the same is relation to each other
and the whole
contrary to both the admissions
probabilities of the
of appellants and appellees; situation
7. When the findings of fact of the
CA are at variance with those of
the trial court, the SC has to
review the evidence in order to
arrive at the correct findings Certiorari under Rule 45 vs. certiorari
based on the record; under Rule 64/65 ( special civil action)
8. When the findings of fact are
conclusions without citation of CERTIORARI UNDER CERTIORARI UNDER
specific evidence on which they RULE 45 RULE 64/65
are based;
9. When the facts set forth in the petition is based on petition raises the
petition as well as in the questions of law issue as to whether
petitioner’s main and reply the lower court acted
briefs are not disputed by the without jurisdiction or
respondents; in excess of
jurisdiction or with
10. The findings of fact of the CA is grave abuse of
premised on the supposed discretion
evidence and is contradicted by
the evidence on record; It is a mode of appeal Special civil action
11. When certain material facts and
circumstances have been Involves the review of Directed against an
overlooked by the trial court the judgment award interlocutory order of
which, if taken into account, or final order on the the court or where
would alter the result of the merits there is no appeal or
case in that they would entitle any other plain,
speedy or adequate
the accused to acquittal.
remedy

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 66

MEMORY AID IN REMEDIAL LAW

Section 4. Jurisdiction over person,

Must be made within filed not later than 60 how acquired.
the reglementary days from notice of JURISDICTION IS ACQUIRED:
period judgment, order or
resolution appealed
1. Over the PETITIONER - by filing
from
of the petition.
Stays the judgment or Unless a writ of 2. Over the RESPONDENT - by the
order appealed from preliminary injunction service on the latter of the order
or temporary or resolution indicating the
restraining order is courts initial action on the
issued does not stay petition and NOT by the service
the challenged on him of the petition or by his
proceeding voluntary submission.
The petitioner and the The parties are the
Section 5. Action by the court.
respondent are the aggrieved party
original parties to the against the lower
action, and the lower court or quasi-judicial PROCEDURAL OUTLINE (original cases
court or quasi-judicial agency and the in the Court of Appeals)
agency is not prevailing parties 1. Filing of the petition
impleaded 2. Order to acquire jurisdiction
over respondents OR Outright
Motion for Motion for dismissal for failure to comply to
reconsideration is not reconsideration or for requirements also form and
required new trial is required payment of docket and other
If a motion for
legal fees.
reconsideration or
new trial is filed, the 3. Require respondents to file
period shall not only COMMENT within 10 days from
be interrupted but NOTICE
another 60 days shall 4. Court may require the filing of a
be given to the REPLY or such other pleadings as
petitioner ( SC Admin. it may deem necessary
Matter 002-03 ) 5. Determination of FACTUAL
ISSUES, the court may delegate
The court is in the Court exercises the reception of evidence on
exercise of its original jurisdiction
such issues to any of its
appellate jurisdiction
and power of review members.

RULE 47
RULE 46 ANNULMENT OF JUDGMENTS OR FINAL
ORIGINAL CASES ORDERS AND RESOLUTIONS

Section 2. To what actions applicable. Annulment of judgment is a remedy in

law independent of the case where the
Under B.P. Blg. 129, the CA has original judgment sought to be annulled was
jurisdiction to issue writs of mandamus, rendered and may be availed of though
prohibition, certiorari, habeas corpus the judgment has been executed.
and quo warranto, and auxiliary writs or
processes, whether or not they are in aid One important condition for the
of its appellate jurisdiction, and it has availment of this remedy - the petitioner
exclusive original jurisdiction over failed to move for new trial in, or appeal
actions for annulment of judgments of from, or file a petition for relief against,
Regional Trial Courts. or take other appropriate remedies
assailing the questioned judgment or
final order or resolution through no fault
attributable to him.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 67

MEMORY AID IN REMEDIAL LAW

If he failed to avail of those other RULE 48

remedies without sufficient justification,
PRELIMINARY CONFERENCE
he cannot resort to annulment provided
in this Rule, otherwise he would benefit
Section 3. Binding effect of the results
from his own inaction or negligence.
of the conference
Grounds for ANNULMENT OF
In the CA, this procedural device may be
JUDGMENT
availed of not only in original actions but
1. extrinsic fraud or collateral
also in cases on appeal wherein a new
fraud;
trial was granted on the ground of newly
2. lack of jurisdiction;
discovered evidence. The CA can act as a
trier of facts, hence the preliminary
Extrinsic fraud shall not be a valid
conference authorized is a convenient
ground if it was availed of, or could have
adjunct to such power and function.
been availed of, in a motion for new
trial or petition for relief.
RULE 49
ORAL ARGUMENT
EXTRINSIC OR COLLATERAL FRAUD is
any fraudulent act of the prevailing
Section 3. No hearing or oral argument
party in the litigation which is
for motions
committed outside of the trial of the
case, whereby the defeated party has
Motions in the SC and the CA do not
been prevented from exhibiting fully and
contain notices of hearing as no oral
fairly presenting his side of the case.
arguments will be heard in support
thereof; and if the appellate court
EXTRINSIC LACK OF desires to hold a hearing thereon, it will
FRAUD JURISDICTION itself set the date with notice to the
parties.
Period of 4 years from Before it is barred
Filing discovery by laches or RULE 50
action estoppel DISMISSAL OF APPEAL
Effect of Trial court Original action
Section 1. Grounds for dismissal of
judgment will try the may be refiled
case
appeal
With the exception of Section 1 (b)
dismissal of an appeal is directory and
Section. 5. Action by the court.
not mandatory.
Two stages:
1. A preliminary evaluation of the
Other grounds for the dismissal of an
petition for prima facie merit
appeal are:
therein, and
1. by agreement of the parties, as
2. The issuance of summons as in
where the case was amicably
ordinary civil cases and such
settled by them.
appropriate proceedings
2. where the appealed case has
thereafter as contemplated in
become moot or academic.
Sec. 6.
3. where the appeal is frivolous or
dilatory.
The rule allows the CA to dismiss the
petition outright as in special civil
actions. Section 2. Dismissal of improper appeal
to the Court of Appeals
For the court to acquire jurisdiction over
the respondent, the rule requires the No transfer of appeals, erroneously
issuance of summons should prima facie taken to it or to the Court of Appeals,
merit be found in the petition and the whichever of these tribunals has
same is given due course. appropriate appellate jurisdiction, will

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 68

MEMORY AID IN REMEDIAL LAW

be allowed. Also, elevating such appeal With respect to petitions for review and
by the wrong mode of appeal shall be a motions for reconsideration, the
ground for dismissal. Constitution merely requires a statement
A resolution of the Court of Appeals of the legal basis for the denial thereof
dismissing the appeal and remanding the or refusal of due course thereto. The
case to the trial court for further court may opt, but it is not required to
proceedings is merely interlocutory, issue an extended resolution thereon.
hence a motion for its reconsideration
filed year later may be entertained and Section 6. HARMLESS ERROR
granted The court, at every stage of the
proceeding, must disregard any error or
Section 3. Withdrawal of Appeal defect which does not affect the
substantial rights of the parties such as
Court of Appeals may dismiss the appeal error in admission or exclusion of
outright even without motion. The evidence or error or defect in the ruling
remedy if dismissed for improper appeal or order.
is to refile it in the proper forum but has
to be within the prescribed period. Section 8. Questions that may be
decided
RULE 51 Only errors claimed and assigned by a
JUDGMENT party will be considered by the court,
except errors affecting its jurisdiction
Law of the Case – the opinion delivered over the subject matter. To this
on a former appeal. It means that exception has now been added errors
whatever is once irrevocably affecting the validity of the judgment
established, as the controlling legal rule appealed from or the proceedings
or decision between the same parties in therein.
the same case, continues to be the law
of the case, whether correct on general Even if the error complained of by a
principles or not, so long as the facts on party is not expressly stated in his
which such decision was predicated assignment of errors but the same is
continue to be the facts before the closely related to or dependent on an
court. assigned error and properly argued in his
brief such error may now be considered
But this rule does not apply to by the court.
resolutions rendered in connection with
the case wherein no rationale has been RULE 52
expounded on the merits of that action. MOTION FOR RECONSIDERATION

Section 5. Form of Decision The rules now prohibit a second motion

The requirement for the statement of for reconsideration.
facts and the law refers to a decision or
for that matter a final resolution. The Sec. 3 provides a time limit of 90 days
same are not required on minute for the resolution of a motion for
resolutions since these usually dispose of reconsideration filed with the Court of
the case not on its merits but on Appeals from the date the same was
procedural or technical considerations. submitted for resolution, which is
normally the filing of the last pleading
Although the court may, if it feels required by the rules of court or the
necessary, briefly discuss the matter on expiration of such period.
the merits in an extended resolution.
Rules now requires the service of the
motion to the adverse party

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 69

MEMORY AID IN REMEDIAL LAW

RULE 53 The following are the provisional

NEW TRIAL remedies provided for in the Rules of
Court
Filing of a motion for new trial is at any 1. Preliminary Attachment (Rule
time after the perfection of the appeal 57)
from the decision of the lower court and 2. Preliminary Injunction (Rule 58)
before the Court of Appeals loses 3. Receivership (Rule 59)
jurisdiction over the case 4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
The ground is newly discovered evidence
which could not have been discovered PD 1818 prohibits the issuance of
prior to the trial in the court below by injunctive writs not only against
the exercise of due diligence and of such government entities but also against any
character as would probably alter the person or entity involved in the
result. execution, implementation, and
operation of government infrastructure
RULE 56 projects.
PROCEDURE IN THE SUPREME COURT
RULE 57
A. ORIGINAL CASES PRELIMINARY ATTACHMENT
Rule specifically states what cases may
be originally filed with the Supreme The proper party may have the property
Court of the adverse party attached at the
1. petition for certiorari, commencement of the action or at any
prohibition, mandamus, quo time before entry of judgment.
warranto, habeas corpus;
2. disciplinary proceedings against WHEN issued
members of the judiciary and
attorneys 1. In actions for recovery of a
3. cases affecting ambassadors, specified sum of money or
other public ministers and damages, except moral and
consuls exemplary, on a cause of action
arising from law, contract,
B. APPEALED CASES Mode of Appeal quasi-contract, delict or quasi-
In criminal cases where the penalty delict against a party about to
imposed is death or reclusion perpetua, depart from the Phils. with
an appeal made to the Supreme Court is intent to defraud his creditors;
through a notice of appeal filed with the
RTC in all other cases, an appeal made 2. In actions for recovery of money
to the supreme court is through a or property embezzled or
petition for review on certiorari. fraudulently converted to his
own use by a public officer, or
PROVISIONAL REMEDIES an officer of a corp., or an
Also known as ancillary or auxiliary attorney, factor, broker, agent
remedies, are writs and processes or clerk, in the course of his
available during the pendency of the employment as such, or by any
action which may be resorted to by a person in a fiduciary capacity;
litigant to preserve and protect certain
rights and interests therein pending 3. In actions to recover property
rendition, and for purposes of the unjustly taken or concealed,
ultimate effects, of a final judgment in when the property or any of its
the case. part, has been concealed or
disposed of to prevent its being
found by the applicant or any
authorized person;

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 70

MEMORY AID IN REMEDIAL LAW

4. In actions against a person guilty service on the party sought to be

of fraud in incurring or enjoined.
performing an obligation upon
which the action is based; If the matter is of extreme urgency and
the applicant will suffer grave injustice
5. In actions against a party who and irreparable injury, the judge may
has removed or disposed of his issue a TRO effective only for 72 hours
property, or is about to do so, from issuance. Its effectivity may be
with intent to defraud his extended after conducting a summary
creditors; hearing w/in the 72-hrs period until the
application for preliminary injunction
6. In actions against non-residents can be heard.
not found in the Phils., or on
whom summons is served by The total period of effectivity of the TRO
publication. shall not exceed 20 days, including the
72 hours.

RULE 58 If application is denied or not resolved

PRELIMINARY INJUNCTION within said period, the TRO is deemed
automatically vacated.
Preliminary Injunction – an order granted
at any stage of an action or proceeding Effectivity of TRO is not extendible.
prior to the judgment requiring a party There is no need of a judicial declaration
or a court, agency or a person to refrain to that effect.
from a particular act or acts.
A TRO issued by the CA or any of its
PRELIMINARY MANDATORY Injunction – members is effective for 60 days from
an order requiring the performance of a service on the party sought to be
particular act or acts. enjoined.

Grounds A TRO issued by the SC or a member

1. applicant is entitled to the relief therof is effective until further orders.
demanded; or
2. commission, continuance or non- GROUNDS FOR OBJECTION
performance of the act 1. insufficiency;
complained of would work 2. if injunction would cause
injustice to the applicant if not irreparable damage to the
enjoined; or person enjoined while the
3. the acts sought to be enjoined applicant can be fully
probably violates the rights of compensated for such damages,
the applicant respecting the PROVIDED the former files a
subject of the action and tending BOND.
to render the judgment
ineffectual. Distinctions
INJUNCTION PROHIBITION
Section 5. directed against a Directed against a
There must be prior notice to the person party in the action court, tribunal or a
sought to be enjoined and a hearing person exercising
before preliminary injunction may be judicial powers
granted. does not involve Based on the ground
jurisdiction of the that the court against
If great or irreparable injury would court whom the writ is
result to the applicant, the court may sought had acted
issue ex parte a temporary restraining without or in excess of
order, effective only for 20 days from jurisdiction

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 71

MEMORY AID IN REMEDIAL LAW

it may be the main Always the main After 5 days and the adverse party failed
action itself or just a action to object or his counter-bond is
provisional remedy insufficient, the sheriff shall deliver the
property to the applicant.

Distinctions
RULE 59
RECEIVERSHIP
REPLEVIN ATTACHMENT
WHEN MAY BE GRANTED
1. applicant has an interest in the May be sought only Available even if
property or fund subject of the when the principal recovery of property is
proceeding and such property is action is recovery of only incidental to the
personal property. relief sought.
in danger of being lost or
materially injured unless a Can be sought only when May be resorted to even
receiver is appointed; defendant is in actual if the property is in
2. in foreclosure of mortgage, when possession of the possession of a third
the property is in danger of property. person.
being wasted or dissipated and
that its value is probably CANNOT be availed of Can be AVAILED of even
insufficient to discharge the when property is in if property is in
mortgage debt or that it has custodia legis CUSTODIA LEGIS.
been agreed upon by the parties;
3. after judgment, to preserve the Available before Available from
property during the pendency of defendant answers commencement but
an appeal or to dispose of it before entry of
judgment
accdg. to the judgment or to aid
execution;
Bond is DOUBLE the Bond is FIXED by the
4. when appointment of receiver is value of the property court
the most convenient and feasible
means of preserving,
administering or disposing of the
property in litigation. RULE 61
SUPPORT ‘PENDENTE LITE’
A person who refuses or neglects to
deliver property within his control and When may be applied for: at the
which is the subject of the action to the commencement of the action or at any
receiver may be punished for contempt time before judgment or final order.
and liable to the receiver for the money
or the value of the property PLUS Failure to comply with an order granting
damages. support pendente lite may warrant the
issuance of an order of execution against
The receiver shall also file a bond before the non-complying party. He may
entering upon his duties separate from likewise be liable for contempt.
the bond filed by the applicant.
See matrix on provisional remedies more
RULE 60 detailed information.
REPLEVIN

The sheriff shall retain the property for

5 days. Within such period, the adverse
party may object to the sufficiency of
the applicant’s bond or surety or he may
file a counter-bond.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
 San Beda College of Law 72

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)