Civipro Atty. Custodio Cayo 2D

WHAT IS JUDICIAL POWER?
Differentiate between errors of judgment and

errors of jurisdiction.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving An error of judgment is one which the court may
rights which are legally demandable and commit in the exercise of its jurisdiction – they
enforceable, and to determine whether or not are reviewable on appeal.
there has been a grave abuse of discretion
An error of jurisdiction renders an order or
amounting to lack of jurisdiction on the part of
judgment void or voidable – they are reviewable
any branch or instrumentality of the government.
on certiorari.
WHAT ARE THE CLASSES OF COURTS?
WHAT ARE THE CLASSES OF JURISDICTION?
1. General jurisdiction – competent to decide their
(1) General – extends to all controversies which
own jurisdiction and take cognizance of all causes,
may be brought before a court
civil or criminal, of a particular nature;
Special – confined to particular causes
Special jurisdiction – incapable of deciding their
own jurisdiction and taking cognizance of only a (2) Original – inherent in a court of first instance
few matters.
Appellate – power of a superior court to rehear
2. Original jurisdiction – where a cause arises; and determine causes which have been tried in
inferior courts
Appellate jurisdiction – where a cause is reviewed.
(3) Exclusive – possessed by a court to the
3. Courts of law – administer justice according to
exclusion of all others
the law;
Concurrent – exercised by different courts at the
Courts of equity - administer justice according to
same time over the same subject matter
the principles of equity.
(4) Criminal – exists for the punishment of crimes
4. Courts or record; courts not of record.
Civil – exists when the matter is not criminal in
5. Civil courts – determine controversies between
nature
private persons; criminal courts – adjudicate
offenses committed against the state. (5) Territorial – power of the court with reference
to the territory within which it is to be exercised
6. Superior courts – exercise original and
supervisory jurisdiction; (6) Jurisdiction over the subject matter – power to
hear cases of the general class to which the
Inferior courts – have very limited jurisdiction and
proceedings in question belong
are subject to review.
(7) Jurisdiction over the person – power to render
7. Constitutional courts – owe their existence to
a personal judgment against a person
the constitution;
(8) Jurisdiction over the res or property –
Statutory courts – owe their existence to statute,
obtained by a constructive service of process or
although they may have been mandated by the
seizure of the property under legal process
Constitution.
HOW IS JURISDICTION OVER THE SUBJECT
DISTINGUISH BETWEEN COURTS AND
MATTER ACQUIRED?
JUDGES.
It is conferred by law and in the manner
Courts may exist without a judge. There may be a
prescribed by law.
judge without a court. Disqualification of a judge
does not destroy the court. Courts are first HOW IS JURISDICTION OVER THE PERSON
created and then judges are appointed to preside. ACQUIRED?
Plaintiff: by filing the complaint
WHAT IS JURISDICTION? Defendant:
It is the authority to hear and determine a cause a. by service of summons, either personal or
or the right to act in a case. It does not depend on substituted
the regularity of the exercise of the power or the
correctness of the decisions made. b. by voluntary appearance
An error committed in the exercise of jurisdiction

does not deprive a court of jurisdiction.
Civil Procedure Reviewer Page 1 of 70

Cayo 2D
• appearance does not necessitate c. it can reorganize the judicial system
physical presence in the court; it provided it does NOT UNDERMINE THE
includes the filing of pleadings SECURITY OF TENURE OF ITS MEMBERS
What are the elements of jurisdiction in civil
cases?
WHAT IS THE ORIGINAL JURISDICTION OF
The court must have jurisdiction over the: THE SC?
a. subject matter Original – cases involving ambassadors, public
ministers, consuls;
b. parties
Petitions for certiorari, mandamus, prohibition,
c. res, if jurisdiction over the person cannot
quo warranto, habeas corpus
be acquired and:
Original and Exclusive – petitions for certiorari,
1. the defendant does not reside and
mandamus, and prohibition against the CA,
cannot be found in the Philippines,
COMELEC, COA, Sandiganbayan
and:
Original and Concurrent with the CA – CPM
i. the action affects the
against the NLRC, CSC, CBAA, CTA, QJ, RTC,
personal status of the
lower courts
plaintiff, OR
Original and Concurrent with the CA and RTC
ii. the action relates to
– CPM against lower courts and bodies;
property in the Philippines
in which the defendant Petitions for habeas corpus and quo warranto
has an interest, OR
Original and Concurrent with the RTC – cases
iii. the relief demanded in the involving ambassadors, public ministers, consuls;
action consists in
WHAT IS THE APPELLATE JURISDICTION OF
excluding the defendant
THE SC?
from any interest in
property located in the A. Appeal by notice of appeal:
Philippines, OR
Criminal cases from the RTC or the
iv. the defendant’s property Sandiganbayan where the penalty imposed is
has been attached within reclusion perpetua or higher and other offenses,
the Philippines. though not so punished, arose out of the same
occurrence or were committed on the same
CAN THE PARTIES DEPRIVE A COURT OF ITS
occasion. Facts and law are reviewed.
JURISDICTION BY AGREEING THAT ANY
CONTROVERSIES ARISING FROM A B. Automatic review:
CONTRACT WILL BE REFERRED TO
ARBITRATION ALONE? Criminal cases where the death penalty is
imposed.
No. Arbitration can be made a condition precedent
to an action in court and it may be stipulated that C. Appeal by petition for review on certiorari:
the arbitrator’s award is final and valid but the 1. Appeals from the CA
award will always be subject to judicial review
under the grounds provided for in the Civil Code 2. Appeals from the Sandiganbayan on questions
and in the Arbitration Law. of law, unless the penalty imposed is RP or higher
WHAT IS THE CONSTITUTIONAL LIMITATION 3. Appeals from the RTC exercising original
ON THE POWER OF CONGRESS TO jurisdiction in the following cases:
DETERMINE THE JURISDICTION OF COURTS? a. If no question of fact is involved (if question of
Congress can define, prescribe, and apportion the fact, appeal to CA):
jurisdiction of various courts but: Constitutionality or validity of any treaty, PD, etc
a. it cannot deprive the sc of its minimum Legality of any tax, impost, toll, assessment,
appellate jurisdiction; penalty imposed
b. it can increase the appellate jurisdiction Jurisdiction of lower court is in issue
only with the ADVICE AND CONCURRENCE
of the SC and;

Cayo 2D
b. all cases where only questions of law are An action quasi in rem is one where an individual
involved is named as a defendant and the purpose of the
proveeding is to subject his interest in the
WHAT IS THE ORIGINAL JURISDICTION OF
property to the obligation or lien burdening it.
THE CA?
Examples are actions for attachment, foreclosure,
Original and Exclusive – actions for annulment etc.
of the RTC on the grounds of extrinsic fraud and
WHEN IS AN ACTION COMMENCED?
lack of jurisdiction
A civil action is commenced by the filing of the
Original and Concurrent with the SC - CPM
original complaint in court.
against the NLRC, CSC, CBAA, CTA, QJ, RTC,
lower courts WHAT MUST ACCOMPANY THE COMPLAINT?
Original and Concurrent with the SC and the There must be concurrent payment of docket fees.
RTC - CPM against lower courts and bodies; Without payment of docket fees, the court does
not acquire jurisdiction over the subject matter
Petitions for habeas corpus and quo warranto
and no pleading is considered as filed. Hence, the
prescriptive period continues to run.
WHAT IS A CIVIL ACTION?

WHAT IS A CAUSE OF ACTION AND WHAT
One by which a party sues another for the ARE ITS ELEMENTS?
enforcement of protection of a right or the
prevention or redress of a wrong. It may either be A cause of action is the act or omission by which a
ordinary or special. party violates the right of another. Its essential
elements are:
WHAT IS A CRIMINAL ACTION?
(1) The legal right of the plaintiff;
One by which the state prosecutes a person for an
act or omission punishable by law. (2) Correlative obligation of the defendant,
and;
WHAT IS A SPECIAL PROCEEDING?
(3) Act or omission of the defendant in
It is a proceeding to establish the status or right violation of the plaintiff’s legal right.
of a party, or a particular fact.
DIFFERENTIATE BETWEEN A CAUSE OF
DISTINGUISH A REAL ACTION FROM A ACTION AND A RIGHT OF ACTION.
PERSONAL ACTION.
A right of action is a remedial right belonging to a
Real actions are actions affecting title to, or person which depends on substantive law.
possession of real property, or interest therein, or
forcible entry and detainer actions. A cause of action is a formal statement of the
operative facts that give rise to such remedial
Personal actions are founded on privity of contract rights – it is governed by the laws on procedure.
or for the enforcement or resolution of a contract,
or for recovery of personal property. WHAT ARE THE RULES ON JOINDER OF
CAUSES OF ACTION?
DISTINGUISH BETWEEN ACTIONS IN
PERSONAM, IN REM, AND QUASI IN REM. (1) The rules on joinder of parties must be
observed;
An action in personam is one whose technical
object is to establish a claim against a person, (2) Special civil actions or actions governed
with a judgment which generally binds his body, by special rules are not covered;
or to bar some individual claim or objection, so
(3) In case of different venues or
that only certain persons are entitled to be heard
jurisdictions, the joinder may be made in
in defense. Examples are actions to enforce
the RTC provided it has jurisdiction over
specific performance or seek resolution.
one of the causes of action and the venue
An action in rem is one whose object is to bar lies therein;
indifferently all who might be minded to make an
(4) When all the causes of action are for
objection of any sort against the right sought to
recovery of money, the aggregate amount
be established, and where anyone in the world
claimed shall be the test of jurisdiction.
has a right to be heard on the matter. An example
is a land registration proceeding. WHAT IS THE EFFECT OF A MISJOINDER OF
CAUSES OF ACTION?

Cayo 2D
It is not a ground for dismissal but the causes of The requisites are:
action may be severed and proceeded with
(1) Right to relief in respect to or arising out
separately, either upon motion or motu proprio.
of the same transaction or series of
If there is no objection to the misjoinder, they transactions, and;
may be adjudicated together.
(2) Common question of law or fact in the
action.
WHO MAY BE PARTIES TO A CIVIL ACTION? DISTINGUISH BETWEEN INDISPENSABLE
AND NECESSARY PARTIES.
Natural or juridical persons, or entities authorized
by law (corporations by estoppel but only to be Indispensable parties are parties in interest
sued). without whom no final determination of an action
can be had. His interest in the subject matter and
WHEN MAY ASSOCIATIONS WITHOUT
the relief sought are so inextricably intertwined
JURIDICAL PERSONALITY BE SUED WITHOUT
with the other parties’ that his legal presence as a
MAKING ALL THE MEMBERS PARTIES TO THE
party to the proceeding is an absolute necessity.
SUIT?
Failure to join an indispensable party will prevent
(1) When they are so numerous that it is the court from exercising judicial power.
impracticable to name them all;
A necessary party is one whose interest in the
(2) When the suit is against a corporation by controversy or subject matter is distinct and
estoppel. divisible from the interest to the other parties and
will not necessarily be prejudiced by a judgment.
WHEN MAY THE STATE BE SUED? He should be joined whenever possible because
(1) When it enters into a private contract; his presence would permit complete relief or a
complete determination of the controversy.
(2) When it enters into a business operation
unless it does so as a necessary incident WHAT HAPPENS WHEN THE PLEADER FAILS
of its governmental function; TO JOIN A NECESSARY PARTY?
(3) When the state sues a private party, (1) The pleader must set forth the party’s
unless to resist a claim; name and the reason for the omission;
(4) When the state fails to abide by what the (2) The court may order the inclusion of the
law or contract requires. omitted party if it finds the reason to be
unmeritorious provided jurisdiction over
WHEN IS A SUIT AGAINST THE STATE? his person may be obtained;
(1) When the suit is against the Republic in (3) Failure to comply with the order of
name; inclusion, without justifiable cause, shall
(2) When the suit is against a government be a waiver of the claim against such
office or agency without juridical party;
personality. (4) The non-inclusion of the necessary party
WHO IS A REAL PARTY IN INTEREST? does not prevent the court from
proceeding with the action, and the
He is the party who stands to be benefited or judgment rendered shall be without
injured by the judgment in the suit or the party prejudice to the rights of the necessary
entitled to the avails of the suit. As a general rule, party.
every action must be prosecuted or defended in
the name of the real party in interest. WHAT IS THE REMEDY AGAINST AN
UNWILLING CO-PLAINTIFF?
Ex. when an agent sues in behalf of the principal
or is sued as a representative of the principal, the He may be made a defendant and the reason
principal must be made a party to the suit. therefor shall be stated in the complaint.
WHAT IS A PERMISSIVE JOINDER OF WHAT IS THE EFFECT OF MISJOINDER OR

PARTIES AND WHEN MAY IT BE MADE? NON-JOINDER OF PARTIES?
It is where a right to relief arising from the same Neither is a ground for a dismissal of an action.
transaction exists in the plaintiffs or against the The parties may be dropped or added by order of
defendants to be joined. the court upon motion or motu proprio at any
stage of the action and on terms that are just. A

Cayo 2D
claim against a misjoined party may be severed (3) The court shall order the legal
and proceeded with separately. representatives to appear and be
substituted within 30 days from notice;
WHAT ARE THE REQUISITES OF A CLASS
SUIT? (4) If no legal representative appears, the
adverse party may be ordered to procure
(1) The subject matter of the controversy is
the appointment of one and the court
one of common or general interest to
charges may be recovered as costs.
many persons, and;
WHEN DOES AN ACTION SURVIVE; WHEN IS
(2) The interested person are so numerous
IT EXTINGUISHED?
that it is impracticable to bring them all
before the court. If the wrong complained of affects primarily
property and property rights and the injuries to
WHAT ARE ALTERNATIVE DEFENDANTS?
the person are merely incidental, the action
When the plaintiff is uncertain against who of survives. If the injury complained of is the
several persons he is entitled to relief, he may primary cause of action, then the action does not
join any or all of them as defendants in the survive.
alternative, although a right to relief against one
OTHER RULES AS TO DEATH OF THE PARTY:
may be inconsistent with a right of relief against
the other. • If the court is informed of the death but
no substitution is made and the
Ex: An action against a principal and an agent in
proceeding continue, the resulting
the alternative – if the agency is proved then the
judgment is void because the court never
principal will be bound; if not, the agent will be
acquired jurisdiction over the substitute.
bound.
• If there is no notice of death and the court
WHAT IS THE RULE WHEN THE NAME OR
has no knowledge thereof, any
IDENTITY OF A DEFENDANT IS UNKNOWN?
subsequent judgment will be valid.
He may be sued as the unknown owner, heir,
OTHERS:
devisee, etc. and when his identity is discovered,
the pleading must be amended. • Public officer - When a public officer who
was a party to an action in his official
WHAT IS THE RULE WHEN AN ENTITY
capacity ceases to hold office pending the
WITHOUT JURIDICAL PERSONALITY IS
action, the same may be continued
SUED?
against his successor if within 30 days
When two or more persons not organized as an after assumption of office, the court is
entity with juridical personality enter into a satisfied that (1) there is substantial need
transaction, they may be sued under the name by for continuing the action and (2) that the
which they are commonly known. successor adopts the action of his
predecessor.
In the answer of such defendant, the names and
addresses of the persons composing said entity • Incompetent – If a party becomes
must all be revealed. incompetent, the action may be continued
by or against him assisted by his legal
The service of summons may be effected upon all guardian.
by serving upon any one or on the person in
charge of the office maintained under such name. • Transfer of interest – In case of transfer
of interest, the action may be continued
WHAT ARE THE RULES AND WHAT IS THE by or against the original party unless the
DUTY OF COUNSEL WHEN A PARTY DIES AND court, upon motion, directs the person to
THE CLAIM IS NOT EXTINGUISHED? whom the interest has been transferred to
(1) Counsel must inform the court within 30 be substituted.
days after the death and give the name • Contractual money claims – When the
and addresses of his legal representative. action is for recovery of money arising
Failure to do so is a ground for disciplinary from a contract and the defendant dies
action; before final judgment the action shall not
(2) The heirs may be allowed to substitute for be dismissed but shall continue until entry
the deceased; of judgment. A favorable judgment shall
be enforced against the estate of the
deceased.

Cayo 2D
If the defendant dies before the action mortgagee to accept payment of the debt. There
was filed, the claim must be filed with a is no issue as to the lots.
probate court.
WHAT IS THE VENUE OF ACTIONS AGAINST
If the money claim arises not out of NON-RESIDENTS?
contract (quasi-delict), the claim may be
If the defendant does not reside AND is not found
filed against the executor.
in the Philippines, and the action affects the
• Indigent party – A party may be personal status of the plaintiff or any property of
exempted from payment of docket fees, said defendant located in the Philippines, the
other fees, and stenographic notes, if the action may be tried in the court of the place
court is satisfied, upon his ex parte where the plaintiff resides, or where the property
application, that he has no money or or any portion thereof is situated or found.
property sufficient for food, shelter, and
This is not applicable to actions in personam,
basic necessities. The fees shall constitute
where jurisdiction over the person must be
a lien on any favorable judgment.
acquired. What are covered here are judgments
The adverse party may contest the order against the res or the property or status of the
granting the exemption and if it found that non-resident who cannot be found.
the person has sufficient property, the
proper fees shall be imposed and he may
even be sanctioned with dismissal of the WHAT ARE PLEADINGS AND WHAT ARE THE
complaint. PLEADINGS ALLOWED?
• Notice to the SolGen – The court may Pleadings are the written statements of the
require the appearance of the SolGen in respective claims and defenses of the parties
any case involving the validity of any law, submitted to the court for appropriate judgment.
treaty, etc.
The pleadings containing claims are complaints,
counterclaims, cross-claims, third (fourth, etc.)
party complaints, or complaints in intervention.
VENUE IN CIVIL CASES IS SUBJECT TO
The defenses are alleged in the answer, which in
STIPULATION – the parties can validly agree in
turn may be responded to by a reply.
writing before the filing of the action on the
exclusive venue thereof and it is only when there DEFINITIONS:
is no stipulation that the following rules will apply.
COMPLAINT – pleading alleging the plaintiff’s
Remember that stipulations as to venue must be cause or causes of action. The names and
clear and categorical as to the court with residences of the defendant must be stated in the
jurisdiction and not merely permissive. complaint.
WHAT IS THE VENUE OF REAL ACTIONS? • The complaint must contain only ultimate
facts and not evidentiary matters or
Actions affecting title to or possession of real
conclusions of law.
property, or interest therein, shall be tried in the
court which has jurisdiction over the area where • Exhibits cannot take the place of the
the real property of a portion thereof is situated. allegations.
In case of forcible entry or unlawful detainer • The occurrence of a condition precedent
actions, the action shall be tried in the municipal must be alleged and proved.
trial court.
• The cause of action is determined not by
WHAT IS THE VENUE OF PERSONAL the relief sought but by the relief available
ACTIONS? under the law.
Personal actions may be tried where the plaintiff
or any of the principal plaintiff or the defendant or
any of the principal defendants resides or in case ANSWER – pleading in which a defending party
of a non-resident defendant, where he may be sets forth his defenses.
found. The plaintiff has the right to choose from WHAT ARE THE KINDS OF DEFENSES?
the above venues.
Negative – specific denial of the material fact or
IMPT: An action for the cancellation of a REM is a facts alleged in the pleading of the claimant
personal action. It is primarily to compel the essential to his cause or causes of action.

Cayo 2D
Affirmative – allegation of a new matter, which of time and effort by the parties and the
hypothetically admits the allegations of the courts.
claimant but constitutes a bar to the claim.
Examples are fraud, prescription, release,
payment, illegality, statute of frauds, estoppel, CROSS CLAIM – any claim by one party against a
former recovery, discharge in bankruptcy, etc. co-party which MUST arise out of the transaction
or occurrence that is the subject matter either of
HOW MUST A DENIAL OF THE ALLEGATIONS
the original action or of a counterclaim therein.
IN THE COMPLAINT BE MADE?
Specifically - allegations not specifically denied,
other than as to the amount of unliquidated REPLY – it is filed in response to an answer to
damages are deemed admitted. deny new matters alleged by way of defense in
the answer and thereby join or make issue as to
Specific denials are made in the following
such new matters. If no reply is filed, all the
manners:
matters in the answer are deemed controverted.
(1) The defendant must specify each material
Remember, a reply is in response to an answer
allegation he does not admit and set forth the
and not to a counterclaim or cross-claim.
matters to support his denial.
(2) Where only part of an averment is to be
denied, the defendant shall specify what is THIRD (FOURTH, ETC.)-PARTY COMPLAINT –
true and deny the remainder. a claim that a defending party may, with leave of
court, file against a person not a party to the
(3) Where a defendant is without sufficient
action for relief in respect of his opponent’s claim.
knowledge to form a belief as to the truth of
an averment, he may state so and this shall
be a specific denial.
BRINGING NEW PARTIES, WHAT AND HOW.
When the presence of parties is required for
COUNTERCLAIM – any claim which a defending granting of complete relief (necessary parties) in
party may have against an opposing party. the determination of a counter-claim or cross
claim, the court shall order them to be brought in
***A counterclaim is not an answer, nor is it part
as defendants, if jurisdiction over them can be
of the answer. It is a distinct cause of action
obtained.
which must be answered by the adverse party
within 10 days from service. This is different from a third-party complaint
because in this case, one of the parties is already
impleaded and another party is necessary, not for
COMPULSORY COUNTERCLAIM – one that is: a new cause of action, but for a more thorough
adjudication of the case.
(1) cognizable by the regular courts or justice
(a labor claim cognizable by the NLRC
cannot be the subject of a counterclaim) ;
WHAT ARE ALTERNATIVE CAUSES OF ACTION
(2) arises out of or is connected with the / DEFENSES?
transaction or occurrence constituting the
These are when a party has separate causes of
subject matter of the opposing party’s
action or defenses and such are set forth in the
claim (if it does not, it is merely a
pleading alternatively.
permissive counterclaim);
Ex: Alternative causes of action could asserted
(3) does not require for its adjudication the
when the plaintiff does not know the complete
presence of third parties of whom the
facts and instead sets forth several scenarios, in
court cannot acquire jurisdiction.
the alternative, each giving him a different cause
WHEN IS A COUNTERCLAIM COMPULSORY? of action – Say Fact 1 is established; the plaintiff
can couple it with Hypothesis 1 or 2 or 3, and in
When:
each case come up with a different cause of
(1) It is logically related to the claim being action.
asserted by the opposing party and;
Alternative defenses would be that the defendant
(2) Separate trials of the claim and the was induced to enter into the contract by fraud
counterclaim would involve a duplication

Cayo 2D
but even if the contract were perfectly valid, the
action to enforce it had already prescribed.
WHAT IS THE EFFECT OF A FAILURE TO
WHAT IS THE FIRST THING THAT A PLEAD DEFENSES AND OBJECTIONS?
CORPORATION (OR ANY OTHER PARTY)
Defenses and objections not pleaded either in a
MUST SET FORTH IN A PLEADING?
motion to dismiss or in the answer are deemed
That it has the capacity to sue or be sued. waived except the following:
WHAT MAY A DEFENDANT DO IN CASE HE (1) Lack of jurisdiction over the SM;
WISHES TO CONTEST THE PLAINTIFF’S
(2) Prescription;
CAPACITY TO SUE?
(3) Lis pendens;
File a motion to dismiss or set it up as an
affirmative defense. (4) Res judicata.
HOW MUST FRAUD, MISTAKE, AND This waiver is revocable and may be corrected
CONDITIONS OF THE MIND BE ALLEGED? through an amendment of the answer with leave
of court.
Fraud and mistake must be alleged with
particularity – the acts constituting such must be WHAT IS THE EFFECT OF A FAILURE TO SET
set forth. Malice, intent, and other conditions of UP A COMPULSORY COUNTERCLAIM?
the mind may be averred generally.
It shall be barred. The rationale is that the
HOW ARE ACTIONABLE DOCUMENTS counterclaim could have best been adjudicated
PLEADED? during the proceedings and the courts will not
permit subsequent filing of suit due to the party’s
(1) The substance of the document must be set
failure to set it up.
forth in the pleading;
WHAT IS THE EFFECT OF A FAILURE TO SET
(2) The original or a copy of the document shall
UP A CROSS-CLAIM?
be:
It shall be barred. Same rationale as the
a. Attached to the pleading as an exhibit
counterclaim.
OR
IMPT: A COUNTERCLAIM OR A CROSS-CLAIM
b. Said copy shall be set forth in the
THAT EXISTS AT THE TIME THE ANSWER IS
pleading
FILED MUST BE CONTAINED THEREIN.
Actionable documents are those on which a cause OTHERWISE, IT SHALL BE BARRED. THIS IS
of action (a PN) or a defense (a receipt A COMPULSORY COUNTERCLAIM. Unless, of
acknowledging payment) may be based. course, the court allows the answer to be
amended on the grounds of oversight,
HOW ARE ACTIONABLE DOCUMENTS
inadvertence, or excusable neglect (see page 9).
CONTESTED?
WHAT IF THE COUNTERCLAIM OR CROSS-
The genuineness (not fake) and due execution
CLAIM MATURES AFTER THE PLEADING OR
(executed with authority) of an actionable
OTHER ANSWER IS FILED?
document properly pleaded is deemed admitted
unless the adverse party: The pleader may file a supplemental pleading
containing the counterclaim or cross-claim, with
(1) Specifically denies them; and
leave of court. This is not a compulsory pleading.
(2) Sets forth what he claims to be the facts;
WHEN IS AN AMENDED ANSWER PROPER; A
(3) Under oath. SUPPLEMENTAL ANSWER?
a. The requirement of the oath does not An amended answer is proper if at the time the
apply when: original answer was filed, the counterclaim or
cross-claim ALREADY EXISTED but was not set up
i. The adverse party (against due to oversight, inadvertence, or excusable
whom the instrument is being negligence.
asserted) is not a party to the
instrument OR A supplemental answer is proper if the
counterclaim or cross-claim MATURES AFTER the
ii. Compliance with an order for answer is filed. This after acquired counterclaim is
inspection of the original not compulsory.
instrument is refused.

Cayo 2D
In both cases, leave of court is necessary. (3) by correcting a mistake in the name of a
party, or;
LET’S TALK ABOUT DEFAULT. HOW IS AN
ORDER OF DEFAULT MADE? (4) a mistaken or inadequate allegation or
description
(1) The defending party fails to answer within
the time allowed; (5) so that the actual merits of the case may
be determined without regard to
(2) The plaintiff files a motion to have the
technicalities and in a speedy and cheap
defendant declared in default;
manner.
(3) The court renders judgment according to
WHEN IS AN AMENDMENT A MATTER OF
the complaint or requires the submission
RIGHT?
of evidence (may be to the clerk of court).
An amendment is a matter of right:
WHAT IS THE EFFECT OF AN ORDER OF
DEFAULT? (1) only once;
The party in default is ENTITLED TO NOTICE but (2) at any time before a responsive pleading
may not participate in the trial. (i.e. an answer to a complaint; reply to an
answer) is served
HOW CAN RELIEF FROM AN ORDER OF
DEFAULT BE OBTAINED? a. in case it is a reply that will be
amended, within ten days after its
The party declared in default may:
service
(1) after notice;
IMPT: A motion to dismiss is not a responsive
(2) before judgment; pleading. If the only reply to a complaint is a
motion to dismiss, the plaintiff may still amend his
(3) file a motion under oath to set aside the complaint once as a matter of right (provided the
order upon showing that: complaint was not dismissed and the dismissal
a. his failure to answer was due to final).
FAME (fraud, accident, mistake, PROBLEM: A COMPLAINT IS PROPERLY
excusable negligence) AND AMENDED, ALLEGING NEW CAUSES OF
b. he has a meritorious defense. ACTION. MUST SUMMONS BE SERVED AGAIN
ON THE DEFENDANT?
WHAT IS THE EFFECT OF A PARTIAL
DEFAULT? It depends.
When there is a common cause of action against If the defendant has already appeared in court, it
several defendants and only a number of them is sufficient that a copy of the amended complaint
answer, such answers shall serve as such for be served upon him.
those who failued to answer. If the defendant has not yet appeared in court,
What is the extent of relief to be awarded in a another summons must be served with the
judgment by default? amended complaint; otherwise, the court has no
jurisdiction to render judgment on the new causes
(1) It shall not exceed the amount or be of action.
different in kind from that prayed for.
WHAT IS THE RULE WITH REGARD TO
(2) It shall not award unliquidated damages SUBSTANTIAL AMENDMENTS?
(damages must be proved by evidence).
If the amendment is only the first one and is
WHEN CAN THERE BE NO JUDGMENT BY made before the responsive pleading is filed, it is
DEFAULT? a matter or right.
In actions for annulment and legal separation, to Otherwise, leave of court is necessary, as well as
prevent collusion. notice to the other party and opportunity to be
heard.
HOW ARE PLEADINGS AMENDED? HOW ABOUT FORMAL AMENDMENTS?
By adding or striking out: Clerical and typographical errors may be:
(1) an allegation, or; (1) Summarily corrected by the court;
(2) the name of any party, or;

Cayo 2D
(2) At any stage of the proceedings; (2) claims or defenses in the superseded
pleading not incorporated in the amended
(3) Provided no damage is caused to the
pleading are deemed waived.
adverse party.
So always make sure not to omit such claims or
PROBLEM: SEVERAL ISSUES WERE NOT
defenses.
RAISED BY THE PLEADINGS BUT WERE
TRIED WITH THE CONSENT OF THE PARTIES.
WHAT SHALL BE DONE?
PERIODS WITHIN WHICH TO FILE
Upon motion of any party, even after judgment, RESPONSIVE PLEADINGS:
the pleadings may be amended to conform to the
evidence by raising the issued. Failure to amend Answer to complaint 15 days from receipt
will not affect the result of the trial. So bakit pa? of summons or
PROBLEM: EVIDENCE IS PRESENTED AT THE 30 days from receipt

TRIAL AND OBJECTED TO BECAUSE THE of summons if
ISSUE IT SEEKS TO RESOLVE IS NOT WITHIN foreign corp. and
THOSE RAISED IN THE PLEADINGS. WHAT summons served on
SHALL BE DONE? gov’t officer
The court may allow amendment of the pleadings Answer to amended 10 days from service
if the presentation of the evidence will serve the complaint of copy if matter of
ends of substantial justice. right
WHEN ARE SUPPLEMENTAL PLEADINGS 15 days from notice

PROPER? admitting if not
matter of right
(1) Upon motion;
Answer to 10 days from service
(2) With notice; counterclaim or of copy
(3) Upon just terms; cross-claim
(4) A party seeks to set forth occurrences Answer to third Just like complaint
which happened after the pleading sought party complaint (15/30)
to be supplemented. Answer to 10 days from notice
DISTINGUISH BETWEEN AMENDED AND supplementary of order admitting
SUPPLEMENTAL PLEADINGS. complaint the same
Amended pleadings – ALLEGE FACTS WHICH Reply to answer 10 days from

OCCURRED PRIOR to the filing of the original pleading responded
pleading but which were not alleged because of to
oversight, inadvertence, or subsequent discovery.
Supplemental pleadings – ALLEGE FACTS WHEN MUST THE ANSWER TO THE
WHICH OCCURRED AFTER the filing of the original COMPLAINT BE FILED?
pleading.
Generally, 15 days after service of summons
WHAT DOES AN AMENDED PLEADING LOOK unless otherwise provided by the court.
LIKE?
In case the defendant is a foreign private juridical
The amended pleading must indicate the entity and the summons is served on:
amendments by appropriate marks. This is to
enable the court and the other party to know a. the resident agent – 15 days
which are the amendments without having to
b. the government official designated to
search for them.
receive the same – 30 days from receipt
WHAT IS THE EFFECT OF AN AMENDED of home office
PLEADING?
(1) foreign corporations – SEC; foreign
It supersedes the pleading amended but: banks – BSP; foreign insurance
companies – Insurance Commissioner
(1) admissions in superseded may be received
in evidence against the pleader and;

Cayo 2D
WHEN MUST AN AMENDED COMPLAINT particularity to enable him to properly prepare his
(COUNTERCLAIM, CROSS-CLAIM, ETC.) BE responsive pleading.
ANSWERED?
REMEMBER, A BILL OF PARTICULARS IS THE
(1) If it is filed as a matter of right (see page 9) – DOCUMENT CLARIFYING THE PLEADING
15 days from service of copy; WHICH WAS THE SUBJECT OF THE MOTION
FOR A BILL OF PARTICULARS.
(2) If its filing is not a matter of right (see page
9) – 10 days from notice of order admitting Ex: A complaint was found to be vague. The
the same (in this case, the amendment defendant files a motion for a bill of particulars. If
requires notice and hearing) the court grants the motion, the claimant then
submits the bill of particulars clarifying the
WHEN MUST A COUNTERCLAIM OR CROSS-
indefinite points.
CLAIM BE ANSWERED?
AT WHAT POINT IN TIME SHOULD A MOTION
10 days from service.
FOR A BILL OF PARTICULARS BE FILED?
WHEN MUST A THIRD (FOURTH, ETC.)-PARTY
It should be filed within the period allowed for the
COMPLAINT BE ANSWERED?
filing of the responsive pleading.
Same as an answer to a regular complaint – 15
WHAT HAPPENS AFTER THE COURT GRANTS
days from service of summons unless otherwise
THE MOTION FOR A BILL OF PARTICULARS?
provided by the court (30 if foreign juridical
person and summons served on gov’t officer). There must be compliance (submission of the bill)
within 10 days from notice of the court’s order.
WHEN MUST A REPLY BE FILED?
WHAT IF THERE IS INSUFFICIENT OR NO
10 days from service of the pleading responded
COMPLIANCE TO THE ORDER FOR THE
to.
SUBMISSION OF THE BILL OF PARTICULARS?
WHEN MUST AN ANSWER TO A
The court may order the striking out of the
SUPPLEMENTAL COMPLAINT BE FILED?
pleading or the specific vague portions or even
10 days from notice of the order admitting the dismiss the complaint.
same, unless a different period is ordered by the
WHAT HAPPENS WHEN THE BILL OF
court. If the original complaint has been answered
PARTICULARS IS SERVED OR THE MOTION IS
and no answer to the supplemental complaint is
DENIED?
filed, the original answer shall serve as the
answer to the supplementary complaint. After it is filed, and the bill is served or the motion
is denied, the moving party may file his
CAN THERE BE EXTENSIONS GIVEN TO THE
responsive pleading within the period to which he
PERIODS WITHIN WHICH TO FILE
was entitled at the time the motion was filed. This
PLEADINGS?
period shall not be less than five days.
Yes. Upon motion and on such terms as may be
just, the court may extend the time to plead or
even allow a pleading to be filed after expiration. DISTINGUISH BETWEEN FILING AND
SERVICE.
IMPT: ONE OF JUSTICE SABIO’S FAVORITES:
The motion for extension must be filed before the Filing is the act of presenting the pleading or other
expiration of the period. If it is filed after, there is paper to the clerk of court.
nothing more to extend.
Service is the act of providing a party with a copy
Also, Justice Sabio stresses that counsel should of the pleading or paper concerned.
always be prepared for a denial of the motion for
Service may be made upon counsel or the party
extension, or any motion for that matter, and
unless service upon the party is ordered by the
have the appropriate pleading on hand.
court. One counsel representing several parties is
entitled only to one copy served by the opposite
side.
WHAT IS A MOTION FOR A BILL OF
PARTICULARS? WHEN CAN SERVICE UPON A PARTY HIMSELF
BE ORDERED?
It is a motion requesting for a definite statement
of any matter which is not averred with sufficient (1) When counsel of record cannot be located;

Cayo 2D
(2) When the party is ordered to show cause why c. plainly addressed to the party or his
he should not be punished for contempt. counsel at his office or residence
WHAT IS THE MANNER OF FILING? d. with instructions to the postmaster to
return to sender after 10 days if
(1) personally, by presenting original copies to
undelivered
the clerk of court
(3) by ordinary mail if no registry service is
• the clerk shall indicate on the pleading the
available in the locality of the sender or
date and hour of filing
addressee.
(2) by registered mail
WHAT IF PERSONAL OR SERVICE BY MAIL OF
1) the post office stamp shall be considered PLEADINGS AND PAPERS CANNOT BE MADE?
as the date of the filing – the envelope
If personal service or service by mail cannot be
must be attached to the rollo.
made, service may be made by:
CAN THE FILER USE PRIVATE LETTER
(1) delivering the copy to the clerk of court
FORWARDERS SUCH AS DHL, FEDEX, ETC?
(2) with proof of failure of both personal service
Yes. However, the downside is that the pleadings
and service by mail
are considered filed only when actually received
by the clerk of court. The service shall be complete at the time of such
delivery.
SO WHAT DO YOU DO FIRST, FILE OR SERVE?
HOW ARE JUDGMENTS, FINAL ORDERS, AND
It depends.
RESOLUTIONS SERVED?
Judgments, resolutions and orders of the courts
Either personally or be registered mail. But if a
must first be filed with the clerk of court before
party summoned by publication fails to appear in
they are served upon the parties. Filing them with
the action, service may also be by publication.
the clerk is promulgation unlike in criminal cases
where the reading of the judgment serves as Only final orders are covered here. Interlocutory
promulgation. (I suppose it’s the judge that files orders are served in the same manner as
them.) pleadings and papers.
Pleadings subsequent to the complaint (because WHY IS ORDINARY MAIL NOT AVAILABLE AS
you don’t serve the complaint on the defendant; A MODE OF SERVICE OF FINAL ORDERS OR
rather, it is attached to the summons) and written JUDGMENTS?
motions must first be served upon the parties
These are appealable and it is necessary that the
before they are filed in court.
appeal period may be computed. Actual receipt
HOW ARE PLEADINGS AND PAPERS SERVED? must be known.
Service may either be: WHEN IS SERVICE COMPLETE?
(1) personal (1) Personal – upon actual delivery
a. delivering the papers to the party or (2) Registered mail –
his counsel
a) upon actual receipt by the addressee as
b. leaving it in his office with his clerk or shown by the registry return card (a
with a person having charge thereof certification by the postmaster and the
delivery book can be substituted) or
c. as a last resort, by leaving it at the
party’s or counsel’s residence b) after 5 days from the date he received the
first notice of the postmaster, whichever is
i. between 8am and 6pm
earlier.
ii. with a person of sufficient age
(3) Ordinary mail – upon the expiration of 10
and discretion RESIDING
days after mailing, unless otherwise provided
THEREIN
by the court.
(2) by registered mail
BETWEEN THE DENIAL OF RECEIPT BY A
a. depositing a copy in the post office LAWYER AND A CERTIFICATION BY THE
POSTMASTER OF THE SENDING OF THE
b. in a sealed envelope

Cayo 2D
NOTICE, WHAT SHOULD BE GIVEN addressed to the court, with
CREDENCE? postage prepaid, and with
instructions to return to sender
The postmaster, of course. There is a presumption
that an official duty was regularly performed. (4) If by ordinary mail
WHAT IS THE PREFERRED MODE OF a. An affidavit of the mailer that there is
SERVICE? no registry service available in either
or both localities
Personal service , whenever practicable shall be
the mode. DISCUSS THE RULE REGARDING A NOTICE
OF LIS PENDENS.
Except with respect to papers emanating from the
court (judgments, orders, resolutions) a resort to Where the action affects the title or the right of
other modes must be accompanied by a written possession of real property, the plaintiff or the
explanation why service was not done personally. defendant may record in the register of deeds a
If there is no such explanation, the court may notice of the pendency of the action.
consider the paper or pleading as not filed.
The notice shall contain:
Distance from the court or from the adverse party
is a good reason. a. the names of the parties;
HOW IS FILING PROVED? b. the object of the action or defense;
The filing of a pleading or a paper shall be proved c. a description of the property affected.
by:
The notice binds third parties only upon its filing.
(1) its existence in the rollo;
It may be cancelled upon order of the court if:
(2) If filed personally
a. it was only for the purpose of molesting the
a. by the written or stamped adverse party or
acknowledgement of its filing by the
clerk on a copy; b. it is not necessary to protect the rights of the
parties.
(3) if by registered mail
a. by the registry receipt AND
WHO ISSUES SUMMONS? WHEN? WHAT ARE
b. an affidavit of the mailer containing ITS CONTENTS?
i. a full statement of the date The clerk of court issues summons upon:
and place of the deposit in the
post office in a sealed a. the filing of the complaint, and;
envelope, addressed to the b. the payment of the requisite legal fees
court, with postage prepaid,
and with instructions to return The summons shall be:
to sender a. directed to the defendant,
HOW IS SERVICE PROVED? b. signed by the clerk under seal,
(1) By a written admission of the party served; c. and contain:
(2) If personal service: i. the name of the court
a. By the official return of the server; ii. the names of the parties to the action;
b. By the affidavit of the server, iii. a direction that the defendant answer
containing a full statement of the within the proper period;
date, place and manner of serving;
iv. a notice if there is no answer, plaintiff
(3) If by registered mail: will obtain judgment by default and
a. by the registry receipt AND may be granted the relief applied for
b. an affidavit of the mailer containing d. attached to the summons shall be:
1. a full statement of the date and i. a copy of the complaint and;

place of the deposit in the post
office in a sealed envelope,

Cayo 2D
ii. an order for appointment of a a) the summons has been lost, or;
guardian ad litem, if any.
b) a summons is returned without being served
WHAT IS THE IMPORTANCE OF SERVICE OF
1. in this case, the server shall, within 5
SUMMONS?
days, serve a copy on plaintiff’s counsel,
It is the manner by which jurisdiction over the stating the reasons for failure
person of the defendant is acquired. A judgment
HOW IS SUMMONS SERVED?
rendered without service of summons is void
unless jurisdiction has been acquired by voluntary 1) As much as possible, by PERSONAL SERVICE,
appearance of the defendant. which means:
HOW IS JURISDICTION ACQUIRED OVER a. Actual delivery, or;
ADDITIONAL DEFENDANTS?
b. Tender, in case the defendant refuses
Summons must be served upon the new party as to receive the summons
if he were an original party defendant (see page 7
- Bringing New Parties). 2) SUBSTITUTED SERVICE, if for justifiable
causes, the defendant cannot be served
PROBLEM: A COMPLAINT IS PROPERLY personally. How?:
AMENDED, ALLEGING NEW CAUSES OF
ACTION. MUST SUMMONS BE SERVED AGAIN a. Leaving copies of the summons at the
ON THE DEFENDANT? defendant’s residence with:
It depends. i. some person of suitable age
If the defendant has already appeared in court, ii. and discretion

even if just to file a motion to dismiss, it is iii. residing therein
sufficient that a copy of the amended complaint
be served upon him. b. leaving copies at the defendant’s
office or regular place of business
If the defendant has not yet appeared in court, with:
another summons must be served with the
amended complaint; otherwise, the court has no i. some competent person
jurisdiction to render judgment on the new causes ii. in charge of the office
of action.
WHAT ARE THE REQUISITES OF
WHO MUST SERVE THE SUMMONS? SUBSTITUTED SERVICE?
a. The sheriff; (1) The defendant cannot be served
b. His deputy; personally within a reasonable time;
c. Any suitable person authorized by the court, (2) The impossibility should be shown by
for justifiable reasons. stating the efforts made to serve the
summons personally and that the efforts
Service by any other person is INVALID. failed. This is shown in a proof of service.
WHAT IS A RETURN OF SUMMONS? WHAT IS HOW IS SUMMONS IN AN ACTION IN
ITS PURPOSE? PERSONAM SERVED ON A RESIDENT
When service has been completed, the server TEMPORARILY OUTSIDE OF THE
shall, within 5 days: PHILIPPINES?
a. serve a copy of the return personally or by 1. By substituted service, or;

registered mail to the plaintiff’s counsel and 2. By extraterritorial service.
b. return the summons to the clerk who issued Substituted service is the normal means;
it, accompanied with proof of service. extraterritorial service is extraordinary.
The return is important so the plaintiff may know HOW IS SERVICE OF SUMMONS MADE ON
when to file an motion to have the defendant ENTITIES WITHOUT JURIDICAL
declared in default. PERSONALITY (CORPORATIONS BY
WHAT IS AN ALIAS SUMMONS? ESTOPPEL)?
An alias summons is issued when: All the persons can be served by:
a. Serving upon any one of them or;

Cayo 2D
b. Serving upon the person in charge of the Philippines or must be engaged in business in the
office maintained in such name. Philippines.
HOW IS SERVICE OF SUMMONS MADE ON SO THE RULES WITH REGARD TO FOREIGN
PRISONERS? CORPORATIONS ARE:
Summons shall be served by the officer managing Doing business with license – may sue, may be
the penal institution; he is deemed deputized as a sued
special sheriff for the purpose.
Doing business without license – may not sue,
HOW IS SERVICE OF SUMMONS MADE ON may be sued
MINORS AND INCOMPETENTS?
Not doing business, with license – may sue, may
1. By service on him personally, and; be sued (I think)
2. By service on his guardian or his guardian Not doing business, without license – may not
ad litem. sue, may not be sued
3. In case of a minor, service may also be on HOW IS SERVICE OF SUMMONS MADE ON
one of his parents. PUBLIC CORPORATIONS?
HOW IS SERVICE OF SUMMONS MADE If the defendant is the Republic, upon the Solicitor
DOMESTIC PRIVATE JURIDICAL ENTITIES? General.
Service must be made on its: If the defendant is a political subdivision, on its
executive head or such other officers as the court
a. President;
may direct.
b. Managing partner;
HOW IS SERVICE OF SUMMONS MADE ON
c. General Manager; DEFENDANTS WHOSE IDENTITY OR
WHEREABOUTS ARE UNKNOWN AND CANNOT
d. Corporate Secretary; BE ASCERTAINED WITH DILIGENT INQUIRY?
e. Treasurer; In this case, service may, by leave of court, be
f. In-house Counsel effected by publication in a newspaper of general
circulation.
Service on any other officer is invalid.
HOW IS SERVICE OF SUMMONS MADE ON
HOW IS SERVICE OF SUMMONS MADE ON DEFENDANTS WHO DO NOT RESIDE AND
FOREIGN PRIVATE JURIDICAL ENTITIES CANNOT BE FOUND IN THE PHILIPPINES
WHICH HAVE TRANSACTED BUSINESS IN
THE PHILIPPINES? or
Service must be made on: WHEN IS EXTRATERRITORIAL SERVICE

PROPER?
1. its resident agent, or;
1. Service may be effected extraterritorially:
2. on any of its officers or agents within the
Philippines, or; a. By personal service, or;
3. with the government officer designated by b. By publication in a newspaper of

law. general circulation
WHAT DOES IT MEAN TO BE “DOING • In this case, a copy of the

BUSINESS”? summons and the order for
publication shall be sent to the
There must be a continuity of conduct and last known address of the
intention to establish a continuous business. defendant
PROBLEM: X CORPORATION, A FOREIGN c. In any other manner which the court
JURIDICAL ENTITY, HAS NO LICENSE TO DO may deem sufficient.
BUSINESS IN THE PHILIPPINES BUT ENTERS
INTO ONE TRANSACTION IN THE 2. When the defendant does not reside AND is
PHILIPPINES. CAN X CORPORATION BE not found in the Philippines, and;
SUED? 3. The action is in rem or quasi in rem or in
No. In order to be sued, the foreign corporation other words:
must either have a license to do business in the

Cayo 2D
a. Affects the personal status of the motion to dismiss for any grounds is not
plaintiff, or; considered as having voluntarily submitted
himself to the court’s jurisdiction.
b. Relates to property:
i. within the Philippines in which
WHAT IS A MOTION? WHAT IS ITS FORM?
the defendant has an interest,
WHAT ARE ITS CONTENTS?
OR;
A motion is an application for relief other than by
ii. in which the relief demanded
a pleading.
consists in excluding the
defendant from any interest It must be in writing unless it is made in open
therein, OR court or in the course of a hearing or trial as such
are made in the presence of the adverse party
iii. belonging to the defendant
who has opportunity to object.
within the Philippines, which
has been attached It shall:
The defendant shall have at least 60 days after (1) State the relief sought, and;
notice to answer.
(2) the grounds on which it is based, and;
WHAT IS THE PRIMARY PURPOSE OF
(3) if necessary, be accompanied by supporting
EXTRATERRITORIAL SERVICE OF SUMMONS?
affidavits and papers.
It is only for complying with the requirement of
WHEN ARE SUPPORTING AFFIDAVITS
fair play. Jurisdiction over the person is not
NECESSARY?
essential in actions in rem or quasi in rem.
(1) When so required by the rules;
What constitutes proof of service of summons?
(2) If the facts alleged in the motion are not of
Proof of service shall:
judicial notice;
(1) be in writing by the server;
(3) A motion to set aside a judgment of default
(2) set forth the manner, place, and date of must be accompanied by an affidavit of merit.
service;
WHEN ARE SUPPORTING AFFIDAVITS NOT
(3) specify the name of the person who received NECESSARY?
the summons;
(1) If the ground on which the motion is based
(4) specify any papers which have been served appears in the rollo;
with the process;
(2) A motion to set aside an order of default need
(5) be sworn to when made by a person other not be accompanied by an affidavit of merit if
than a sheriff or his deputy (because such the ground is interruption of the reglementary
duties are covered by their oath of office). period by the filing of a motion to dismiss.
But if the service was made by publication, proof WHEN SHOULD MOTIONS BE HEARD?
shall constitute:
Motion day is Friday, in the afternoon; and when
1. the affidavit of the printer, editor, etc.; Friday is a non-working day, in the afternoon of
the next working day.
2. a copy of the publication;
Except for ex parte motions (which may be acted
3. an affidavit showing the deposit in the
upon without hearing) all written motions shall be
post office of:
set for hearing.
• a copy of the summons and;
The hearing date shall be set by the movant and
• order for publication he shall give notice to the affected party in such a
manner as to ensure receipt by the latter at least
NOTE: As discussed under jurisdiction, voluntary 3 days before the hearing date.
appearance of the defendant can take the place of
service of summons to vest the court with DESCRIBE THE NOTICE.
jurisdiction over his person.
(1) It must be addressed to all parties concerned;
Appearance can be the filing of an answer, the
filing of a motion for extension, but not the filing
of a motion to dismiss. A defendant who files a

Cayo 2D
(2) Specify the time and date of the hearing, (4) Res judicata.
which must not be more than 10 days after
Ex: A motion to dismiss should include all grounds
the filing of the motion (to avoid delay).
available at that time.
WHEN MUST NOTICE BE SERVED?
OTHERS:
At least three days before the hearing or Tuesday,
• A motion for leave to file a pleading or
at the latest:
motion should be accompanied by the
1. if given by registered mail: motion or pleading sought to be admitted.
a. actually received by Tuesday or
b. the first notice of the WHEN MUST A MOTION TO DISMISS BE
postmaster should be 5 days FILED AND WHAT ARE THE GROUNDS?
before Tuesday
An motion to dismiss must be filed within the time
2. if given by ordinary mail, mailed 10 but before filing the answer to the complaint
days before Tuesday (counterclaim, etc.).
WHEN CAN THE 3 DAY PERIOD NOT BE The grounds are [JJVLPSNEUC]:
FOLLOWED?
(a) that the court has no jurisdiction over the
a. Urgent motions, such as a person of the defendant;
motion for postponement due to
(b) that the court has no jurisdiction over the
sudden illness of counsel can
subject matter of the claim;
have shorter notice;
(c) that venue is improperly laid;
b. A motion for summary judgment
must be served 10 days before (d) that the plaintiff has no legal capacity to sue;
the hearing
(e) that there is another action pending between
WHAT ARE SOME EX PARTE MOTIONS? the same parties for the same cause;
Motions for extension to file pleadings, (f) that the cause of action is barred by a prior
applications for writs of preliminary attachment, judgment or by the statute of limitations;
restraining orders, etc.
(g) that the pleading asserting the claim states no
WHAT IS THE EFFECT OF THE ABSENCE OF cause of action;
NOTICE OF HEARING TO THE ADVERSE
PARTY AND PROOF OF SERVICE? (h) that there has been payment, waiver,
abandonment, or other extinguishment of the
The motion is a mere scrap of paper. obligation;
SO THE STEPS IN SETTING A MOTION FOR (i) that the claim is unenforceable under the
HEARING ARE (AS FAR AS I CAN FIGURE statute of frauds;
OUT):
(j) that a condition precedent for filing has not
(1) Serve on the affected parties a copy of the been complied with.
motion and notice of hearing (at least 3 days
before the hearing date);
(2) File the motion in court and set the hearing WHAT ARE THE REQUISITES OF LIS
date – attaching to the motion proof of service PENDENS?
of the motion and notice. (1) the same parties, or at least such as represent
IMPT: A motion attacking a pleading, order, or the same interest;
proceeding must include all motions available and (2) the same rights asserted, and the same relief
objections not included shall be waived. The Rules prayed for;
discourage the filing of multiple motions.
(3) this relief must be founded on the same facts,
Objections excluded from this rule are: and the title or essential basis for the relief
(1) Lack of jurisdiction over the SM; sought must be the same;
(2) Prescription; (4) the identity in these particulars should be

such that a judgment in one would constitute
(3) Lis pendens; res judicata.

Cayo 2D
How do you determine which of the two actions If the motion is denied – he shall be entitled to
should be dismissed? the time remaining when he served his motion but
not less than 5 days.
The following are things to consider:
If the pleading is ordered amended, the periods in
(1) the date of filing, with the first action
Rule 11 shall apply (15 days if amendment is a
preferred;
matter of right; 10 if not)
(2) whether the action sought to be dismissed
WHAT IS THE EFFECT OF AN ORDER OF
was merely to preempt the later action or to
DISMISSAL?
anticipate its filing and lay the basis for its
dismissal; and Res judicata if the grounds for dismissal are:
(3) whether the action is the appropriate vehicle (1) res judicata or prescription;
for litigating the issues between the parties.
(2) extinguishment of the obligation;
WHAT ARE THE REQUISITES OF RES
(3) unenforceability;
JUDICATA?
(4) lis pendens
(1) The former judgment or order must be final;
OTHERS:
(2) It must have been rendered by a court having
jurisdiction over the subject matter and the The grounds for a motion to dismiss may also be
parties; pleaded as affirmative defenses.
(3) It must have been based on the merits; The dismissal of a complaint upon a motion to
dismiss does not prevent the adverse party from
(4) There must be identity of:
prosecuting a counterclaim.
a. parties;
b. subject matter, and;
How is an action dismissed by the plaintiff?
c. cause of action
(1) by filing a NOTICE of dismissal at any time
WHAT IS THE TEST OF WHETHER THE before service of:
COMPLAINT STATES A CAUSE OF ACTION?
a. the answer, OR;
The test is whether, admitting the facts alleged,
b. a motion for summary judgment.
the court could render a valid judgment in
accordance with the relief sought. • Upon filing of the notice, the court shall
confirm the dismissal.
WHAT ARE EXAMPLES OF CONDITIONS
PRECEDENT TO THE FILING OF SUITS? • The dismissal is without prejudice except:
a. failure to avail of barangay conciliation i. It is stated in the notice that
where the same is required dismissal is with prejudice;
b. lack of earnest efforts to reach a ii. when the notice is filed by a
compromise in suits between family plaintiff who has once dismissed
members an action based on the same
claim.
(2) By filing a MOTION to dismiss after the service
WHAT ACTIONS IS THE COURT LIMITED TO
of the answer
AFTER HEARING A MOTION TO DISMISS?
• Upon approval of the court and upon
The court may:
terms and conditions deemed proper.
(1) dismiss the action;
• Only the original complaint is dismissed –
(2) deny the motion; any counterclaims survive and may be
resolved in the same action or in a
(3) order amendment of the pleading.
separate action.
WHAT SHOULD THE MOVANT DO IF THE
When may an action dismissed due to the
MOTION TO DISMISS IS DENIED? IF AND
plaintiff’s fault?
AMENDMENT OF THE PLEADING IS
ORDERED? When:

Cayo 2D
(1) The plaintiff fails to appear without justifiable WHAT IS THE EFFECT OF FAILURE TO
cause on the date of presentation of his APPEAR AT PRE-TRIAL?
evidence;
Failure of plaintiff – dismissal with prejudice,
(2) The plaintiff fails to prosecute his case for an unless otherwise ordered.
unreasonable length of time;
Failure of defendant – plaintiff may present
(3) The plaintiff fails to comply with a court order evidence ex parte.
or the Rules.
WHEN SHOULD A PRE-TRIAL BRIEF BE FILED
• Dismissal is either upon motion of the AND WHAT SHOULD IT CONTAIN?
defendant or motu proprio.
It should be filed in court and served on the
• Dismissal constitutes res judicata unless the adverse party at least three days before the pre-
court orders otherwise. trial.
It shall contain:
WHEN IS PRE-TRIAL CONDUCTED? (a) a statement of willingness to enter into
amicable settlement;
After the last pleading is served and filed, it is the
duty of the plaintiff to move ex parte that the case (b) a summary of admitted facts;
be set for pre-trial.
(c) the issues to be tried;
What is the nature and purpose of a pre-trial?
(d) the documents to be presented;
Pre-trial is mandatory. The court shall consider:
(e) a manifestation of intention to avail of
(a) the possibility of an amicable settlement or of discovery procedures or referral to
a submission to alternative modes of dispute commissioners;
resolution;
(f) the number and names of witnesses and the
(b) the simplification of the issues; substance of their testimonies;
(c) the necessity or desirability of amending the (g) applicable laws and jurisprudence;
pleadings;
(h) the available trial dates of counsel.
(d) the possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
(e) the limitation of the number of witnesses;
(f) the advisability of a preliminary reference of
issues to a commissioner;
(g) the propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
(h) the advisability or necessity of suspending the
proceedings; and
(i) such other matters as may aid in the prompt
disposition of the action.
• It is the duty of the parties and counsel to
appear at the pre-trial. Non appearance of a
party can be excused only if:
o A valid cause is shown; or
o A representative appears on his behalf
fully authorized in writing (special
authority) to enter into an amicable
settlement, enter into stipulations,
etc.

Cayo 2D
WHAT ARE THE REQUISITES FOR WHO ISSUES A SUBPOENA?
INTERVENTION?
(1) the court before whom the witness is required
The intervenor must: to attend;
(1) Have legal interest in the matter in (2) the court of the place where the deposition is
controversy; or to be taken;
(2) Have legal interest in the success of either of (3) the officer or body authorized to do so in
the parties; connection with an investigation;
(3) Have legal interest against both; or (4) and Justice of the SC or CA in any case or
investigation pending within the Philippines
(4) Be so situated as to be adversely affected by
a disposition of property in the custody of the HOW IS A SUBPOENA QUASHED?
court;
Duces tecum – upon motion if:
(5) Intervention will not unduly delay or prejudice
(1) it is unreasonable and oppressive; or
the adjudication of rights of original parties;
and (2) the relevancy of the books, documents, does
not appear; or
(6) Intervenor’s rights may not be fully protected
in a separate proceeding. (3) if the person in whose behalf the subpoena is
issued pails to advance the reasonable cost of
WHAT KIND OF INTEREST MUST AN
the production thereof
INTERVENOR HAVE?
(4) Witness and kilometrage fees not tendered
His interest must be actual, material, direct, and
upon service
immediated, and not simply contingent and
expectant. Ad testificandum –
WHEN SHOULD THE MOTION TO INTERVENE (1) if the witness is n to bound thereby
BE FILED?
(2) Witness and kilometrage fees not tendered
At any time before rendition of judgment by the upon service
trial court. A copy of the pleading-in-intervention
should be attached. WHAT IS THE RULE IN THE ISSUANCE OF
SUBPOENAS FOR DEPOSITIONS?
Though it is not necessary to serve a subpoena on
WHAT ARE THE PREFERRED CASES? a party for the purpose of taking his deposition –
notice of the taking being enough – the court may
Habeas corpus cases, election cases, special civil
issue a subpoena upon proof of service of notice
actions, and others required by law.
to take the deposition.
HOW ARE CASES ASSIGNED?
The issuance of a subpoena merely preps the
By raffle, in open session, with sufficient notice so court to exercise its power of contempt.
those interested may be present.
Issuance of a subpoena duces tecum, however,
necessitates a prior court order.
WHAT IS A SUBPOENA? HOW IS A SUBPOENA SERVED?
It is a process directed to a person requiring him In the same manner as a personal or substituted
to attend and to testify at: service of summons.
(1) a hearing, trial, or There must also be tender of fees for one day’s
attendance (P20 in MTC, P50 in higher courts) and
(2) investigation,
kilometrage.
(3) or for the taking of his deposition.
When the subpoena is issued on behalf of the
• If he is required to produce books, Republic, tender of fees need not be made.
documents, etc. it is a subpoena duces tecum
If the subpoena is duces tecum, the cost of
• If both testimony and production of producting the things must also be tendered.
documents, etc., it is a subpoena duces tecum
HOW IS ATTENDANCE COMPELLED?
ad testificandum.

Cayo 2D
Upon proof of service and failure to attend, a WHAT IS A DEPOSITION PENDING ACTION?
warrant may be issued for the witness’s arrest. WHEN MAY IT BE TAKEN?
This applies to subpoenas issued by fiscals and
It is taken:
court-appointed commissioners.
(1) by:
WHEN WILL THE SUBPOENAED WITNESS
NOT BE COMPELLED TO ATTEND OR CITED 1. oral examination; OR
FOR CONTEMPT FOR FAILING TO ATTEND?
2. written interrogatories
When such witness resides more than 100 km.
from the place where he is to testify or to a (2) with:
detention prisoner if no permission of the court 1. leave of court
where his case was pending is obtained.
• after jurisdiction has been acquired
over the defendant or property; or
HOW IS TIME COMPUTED? • person to be deposed is in prison
The day the period begins to run is excluded and 2. without leave
the date of performance included. If the last day
falls on a Saturday, Sunday or legal holiday, the • after an answer has been served
time shall not run until the next working day. WHAT IS THE SCOPE OF EXAMINATION?
When a period is interrupted, the allowable period Any matter:
after the interruption begins on the day after
notice of the cessation of the cause thereof. The (1) not privileged;
day of the act that caused the interruption shall (2) relevant to the subject of the action
be excluded.
HOW MAY DEPOSITIONS BE USED?
WHAT ARE THE MODES OF DISCOVERY? Any part of a deposition may be used against any
party who was represented at the taking or who
(1) Depositions pending action; had notice thereof, in accordance with the
(2) Depositions before action or pending appeal; following:
(3) Interrogatories to parties; (1) may be used for contradicting or impeaching

deponent as a witness;
(4) Admission by adverse party;
(2) deposition of one who was an officer of a
(5) Production or inspection of documents or corporation which is a party may be used for
things; any purpose;
(6) Physical and mental examination of persons. (3) the deposition of a witness, whether or not a
WHAT ARE THE PURPOSES OF RULES OF party, may be used for any purpose if the
DISCOVERY: court finds:
(1) as a device to narrow down and clarify the 1. witness is dead;

basic issues between the parties 2. witness resides more than 100km from
(2) as a device for ascertaining the facts relative place of trial, or is out of the Philippines,
to the issues unless absence procured by the party
offering the deposition;
(3) to enable the parties to obtain the fullest
possible knowledge of the issues and facts 3. witness unable to attend because of
before civil trials to prevent trials carried on in age, sickness, imprisonment;
the dark 4. attendance of witness not successfully
(4) to facilitate mutual knowledge of all the procured despite subpoena;
relevant facts gathered by both parties, to this 5. other just circumstances.
end either party may compel the other to
disgorge whatever facts he has WHAT IS THE EFFECT OF TAKING A
DEPOSITION? USING A DEPOSITION?
(5) advances stage at which disclosure can be
compelled in order to reduce possibility of By taking a deposition, a party is not deemed to
surprise make the person his witness.

Cayo 2D
By introducing the deposition in evidence, other • Judgment by default
than to contradict or impeach, the deponent
• Pay expenses
becomes the witness of the party.
DEPOSITION BEFORE ACTION:
TRIAL
• In order to perpetuate testimony
ADJOURNMENTS OR POSTPONEMENTs
INTERROGATORIES TO PARTIES
• Not for longer than one month at a time
• To elicit material and relevant facts
or three months in all, except when
• Limited to one set per party otherwise authorized
interrogated
MOTION TO POSTPONE FOR ABSENCE OF
ADMISSION BY ADVERSE PARTY EVIDENCE
• To seek admission of the genuineness of • Affidavit that evidence is material and due
any document or the truth of any relevant diligence was used to procure it
matter.
• Trial can go on if adverse party admits to
• Implied admission if not answered by facts to be proved by evidence even if
adverse party within 15 days from service right to object is reserved.
of request.
MOTION TO POSTPONE TRIAL FOR ILLNESS
• Admission is for the pending action only. OF PARTY OR COUNSEL
PRODUCTION OR INSPECTION OF THINGS • Affidavit that presence is indispensable
and non-attendance is excusable
(1) Production of tangibles for inspection,
duplication, etc. ORDER OF TRIAL:
(2) Permit entry into property for inspecting, (1) plaintiff – evidence in support
surveying, etc. of complaint
PHYSICAL AND MENTAL EXAMINATION (2) defendant – evidence in
support of defense,
• Where the physical or mental condition of
counterclaim, cross-claim,
a party is in controversy
third party complaint
REFUSAL TO COMPLY WITH MODES OF
(3) third party defendant –
DISCOVERY
evidence in support of
Refusal to answer defense, counterclaim, cross-
claim, third party complaint
• Adjourn or
(4) fourth party defendant –
• Court may compel answer evidence is support of
o Continued failure defense, counterclaim, cross-
claim, third party
Contempt complaint…and so on
Facts deemed established (5) Parties against whom
Refusal to allow counterclaim or cross-claim
disobedient party to pleaded – adduce evidence in
present evidence support of defense
Strike out pleadings or (6) Parties – rebutting evidence

judgment by default unless court permits evidence
on original case
Arrest – except for refusal
to submit to physical or Newly discovered;
mental examination Omitted through
REFUSAL TO ATTEND inadvertence or
mistake;
• Strike out pleadings;
• Dismiss action

Cayo 2D
Purpose is to correct If granted, case dismissed. But on appeal, no
evidence previously more right to present evidence.
offered.
RECEPTION OF EVIDENCE
Judgment on the pleadings
• By judge; or
When?
• By clerk of court who is member of
Proper where:
bar if:
(1) answer:
(1) Ex parte hearing
o fails to tender an issue or
(2) Parties agree in writing
o admits the material allegations of the
**Clerk can’t rule on admissibility
adverse party’s pleading
(2) motion for judgment on the pleadings is filed
Consolidation
o Not allowable in annulment or legal separation
• Actions involving a common question of cases
law or fact are pending before the same
o A general denial is an admission which
court
warrants judgment on the pleadings
• To avoid unnecessary costs or delay
Severance
Summary judgments
• Claim, counterclaim, cross-claim, third
o For claimant; when:
party complaint may be tried separately
o After answer
• For convenience or furtherance of justice
o Claimant moves for summary
judgment with supporting documents
Trial by commissioner and affidavits
WHEN? o For defendant; when:
• By consent of parties; OR o Any time
• By order of the court, if: o Defendant moves for summary
judgment with supporting documents
o Long examination of accounts
and affidavits
o Taking of account necessary
o Motion must be served 10 days before
for judgment
hearing of motion
o Question of fact not in
o Affidavits and documents served 3 days
pleadings arises
before hearing
Commissioner can proceed ex parte and punish
o Judgment rendered if:
for contempt for failure to appear
o No genuine issue as to any
A commissioner can issue subpoenas and rule on
material fact, except unliquidated
admissibility
damages
o Movant is entitled to judgment as
Demurrer to evidence a matter of law.
When? How?
After presentation by plaintiff of evidence. DISTINGUISH BETWEEN JUDGMENT BY
DEFAULT, JUDGMENT ON THE PLEADINGS,
Defendant may move for dismissal on the ground SUMMARY JUDGMENT, AND MOTION TO
that the plaintiff has not established a right to DISMISS.
relief.
Judgment by default when there is failure to
If denied, present evidence. answer within the proper period.

Cayo 2D
Judgment on the pleadings when the answer fails
to tender an issue.
Summary judgment when the answer apparently
raises an issue, but supporting documents show
that there is no genuine issue as to any material
fact.
A motion to dismiss is filed before an answer if the
complaint (not the answer) states no cause of
action, among other grounds
FORM OF JUDGMENT:
(1) in writing;
(2) stating the facts and law on which it is based;
(3) personally and directly prepared by the judge;
(4) signed by him;
(5) filed with the clerk (promulgation).
WHAT ARE THE GROUNDS OF NEW TRIAL OR

RECONSIDERATION?
New trial:
(1) Fraud, accident, mistake, excusable
negligence – unavoidable and rights impaired
o Only extrinsic fraud – committed outside
the trial by the successful party
(2) Newly discovered evidence which couldn’t
have been produced even with diligence AND
would probably affect the outcome
Reconsideration:
(1) damages awarded are excessive;
(2) evidence is insufficient to justify decision;
(3) decision is contrary to law.
RULE WITH REGARD TO SECOND MOTIONS
FOR NEW TRIAL AND SECOND MOTIONS FOR
RECONSIDERATION:
New trial:
A motion for new trial must include all grounds
available at that time and those not included are
barred.
A second motion based on new grounds may be
filed subject to the aforementioned rule.
Recon:
Not possible, except in the SC.

Cayo 2D
RULE 39 (3) Quasi-judicial judgments, orders, or
resolutions appealable to the CA.
EXECUTION
ARE THERE INTERLOCUTORY ORDERS THAT
WHEN DOES EXECUTION UPON JUDGMENTS MAY BE SUBJECT OF EXECUTION?
OR FINAL ORDERS ISSUE AS A MATTER OF
RIGHT? Yes, such as an order granting support pendente
lite.
(1) On motion;
ARE THE JUDGMENTS THAT ARE NOT
(2) Upon a judgment or order that disposes of APPEALABLE? [CSI]
the action or proceeding;
(1) Conditional judgments – contains no
(3) Upon the expiration of the appeal period judgment; just a statement of action
with no appeal taken. should a condition occur
WHEN AND WHERE DOES EXECUTION ISSUE (2) Sin perjuicio judgments – judgment
IF APPEAL HAS BEEN PERFECTED AND without a statement of facts to support –
RESOLVED? no prejudice
(1) Applied for in the court of origin; (3) Incomplete judgments – leaves matters to
be settled in a subsequent proceeding.
(2) On motion;
AS A GENERAL RULE, TRIAL COURTS HAVE
(3) With notice;
THE MINISTERIAL DUTY TO ORDER
(4) Submitting certified true copies of: EXECUTION OF A FINAL AND EXECUTORY
JUDGMENT. WHAT ARE THE EXCEPTIONS, IF
a. Judgment or final order; and
ANY? [NU-VICE]
b. The entry thereof.
(1) Not submitted - When it appears that
*Records do not have to be transmitted to the the controversy has never been submitted
court of origin, copies are sufficient. to the judgment of the court;
WHEN MAY THE APPELLATE COURT DIRECT (2) Unclear - When the terms of the
THE COURT OF ORIGIN TO ISSUE THE WRIT judgment are not clear and there remains
OF EXECUTION, WITHOUT APPLICATION room for interpretation;
BEING MADE IN THE LATTER?
(3) Varies - When the writ of execution
(1) Upon motion; varies the judgment;
(2) When the interest of justice requires. (4) Improvident - When in appears that the
writ of execution has been improvidently
DISTINGUISH FINAL JUDGMENTS FROM issued, defective in substance, against the
FINAL AND EXECUTORY JUDGMENTS. wrong party, issued without authority, or
Final judgments finally dispose of, adjudicate, or that the debt has been paid or satisfied.
determine the rights of the parties in the case. (5) Change - When there has been a change
They are not yet executory (as a matter of right) in the situation of the parties which makes
in the sense that an appeal may still be perfected. the execution inequitable or unjust;
Final and executory judgments become so by (6) Exempt - When execution is sought to be
operation of law; upon the lapse of the appeal enforced against property exempt from
period if no appeal is perfected. execution;
ARE THERE JUDGMENTS AND FINAL ORDERS In the above cases, the other party may file a
THAT MAY BE EXECUTED AS A MATTER OF motion to quash the writ of execution.
RIGHT BEFORE THE EXPIRATION OF THE
APPEAL PERIOD? WHEN MAY EXECUTION OF FINAL AND
EXECUTORY JUDGMENTS BE ENJOINED?
Yes.
(1) Upon the filing of a petition for relief from
(1) Forcible entry and unlawful detainer judgment;
judgments by lower courts;
(2) When judgment is attacked for being void
(2) [SIRA] – Support, injunction, receivership, for lack of jurisdiction or obtained through
and accounting, unless otherwise ordered; fraud;

Cayo 2D
(3) On equitable grounds; *In the book, the requisites are (1) motion with
notice; (2) good reasons; (3) stated in a special
(4) In cases falling under the exceptions to
order.
the ministerial duty of ordering execution
[NU-VICE] EXECUTION PENDING APPEAL IS FILED IN
THE TRIAL COURT WHEN:
CAN FINAL AND EXECUTORY JUDGMENTS BE
AMENDED? ARE THERE ANY EXCEPTIONS TO (1) The trial court still has jurisdiction over
THE RULE? the case;
Final and executory judgments cannot be (2) The trial court has lost jurisdiction but still
amended except: has the records.
(1) To correct clerical errors; EXECUTION PENDING APPEAL IS FILED IN
THE APPELLATE COURT WHEN:
(2) To clarify ambiguities;
The trial court has lost jurisdiction over the case
(3) To enter nunc pro tunc orders (now for
and the records have been transmitted to the
then);
appellate court.
(4) To modify judgments for support.
WHAT ARE SEVERAL, SEPARATE, OR PARTIAL
WHAT IS THE TEST TO DETERMINE WHETHER JUDGMENTS?
AN ERROR IS CLERICAL OR NOT?
Several judgment – rendered against one or
It is a clerical error if there was a failure to more defendants, leaving the action to proceed
preserve or correctly represent in the record the against the others.
actual decision of the court.
Separate or partial judgments – rendered at
It is a judicial error if it relates to something the any stage of an action disposing of a particular
court did not consider or erroneously decided. claim and leaving the action to proceed as to the
remaining claims.
HOW ARE RIGHTS WHICH MAY HAVE BEEN
CREATED AFTER JUDGMENT HAS BECOME WHAT ARE GOOD REASONS?
FINAL AND EXECUTORY BE ENFORCED?
(1) Appeal was made only for delay;
A new suit must be filed.
(2) Education of the person to be supported
would be unduly delayed;
WHEN MAY DISCRETIONARY EXECUTION OR (3) Monthly allowances as necessary support;

EXECUTION PENDING THE PERIOD TO
(4) Insolvency of the judgment debtor.
APPEAL OR EXECUTION OF SEVERAL
JUDGMENTS BE HAD? WHAT ARE NOT GOOD REASONS?
(1) On motion for execution by the prevailing (1) Claim is not secured;
party;
(2) Judge may still determine whether appeal
(2) With notice to the adverse party; is dilatory;
(3) Filed in either: (3) Posting of a bond.
a. The trial court while: *When discretionary execution is granted and
there are no good reasons therefor, certiorari will
i. It has jurisdiction over the
lie even if the appeal has been filed or a
case and (should this be
supersedeas bond has been filed.
OR?)
OTHERS:
ii. Is in possession of the
original record or record • Actual and compensatory damages (but
on appeal not moral and exemplary damages) may
be ordered executed pending appeal.
b. The appellate court, if the trial
court has lost jurisdiction • Execution pending appeal is not applicable
in land registration proceedings.
(4) After hearing;
(5) Upon good reasons to be stated in a
special order.

Cayo 2D
HOW IS DISCRETIONARY EXECUTION (4) If the creditor is the purchaser at the
STAYED? execution sale, he may be made liable for
the property, at the option of the, debtor.
(1) Upon motion and of supersedeas bond;
(5) If the writ of execution is void, the
(2) Approved by the court;
subsequent sale is unenforceable (I
(3) Conditioned upon the performance of the think).
judgment or order in case it is finally
sustained in which case the judgment may
be proceeded against on motion and WHEN AND HOW MUST A FINAL AND
notice to the surety. EXECUTORY JUDGMENT OR ORDER BE
EXECUTED?
*This does not preclude the filing of certiorari to
question discretionary execution ordered with (1) Within 5 years from date of entry – on
GADALEJ motion;
WHAT ARE THE JUDGMENTS NOT STAYED BY (2) After 5 years but before 10 years from
APPEAL? date of entry – by action (for revival).
Yes. (3) The same periods apply to revived
judgments.
(1) Forcible entry and unlawful detainer
judgments by lower courts; WHAT IS THE PERIOD WITH REGARD TO THE
EXECUTION OF A JUDGMENT BY
(2) [SIRA] – Support, injunction, receivership,
COMPROMISE?
and accounting, unless otherwise ordered;
The period begins to run only after the expiration
(3) Quasi-judicial judgments, orders, or
of the period within which payment should have
resolutions appealable to the CA.
been made.
*So it seems the only way these may be stayed
Ex: In a compromise to make the amount payable
are by filing a supersedeas bond.
within six years from entry of judgment, the
OTHERS: period begins to run only after the expiration of
the six year period.
• Sureties are solidarily liable with the
principal and the measure of the liability is WHEN ARE THE PERIODS SUSPENDED?
the appealed decision.
(1) When the enforceability of the judgment is
suspended by order or becomes
conditional, prescription does not run.
WHAT HAPPENS WHEN AN EXECUTED
JUDGMENT HAS BEEN REVERSED OR (2) By agreement of the parties to suspend
ANNULLED? enforcement.
Upon motion, the court may order restitution or (3) When proceeding supplementary to
reparation of damages as equity and justice may execution are intitiated by the creditor
warrant. (examination of debtor due to unsatisfied
execution).
Reversal or annulment could by under petition for
relief under Rule 38 or annulment under Rule 47. (4) When the delay was due to the judgment
debtor’s fault.
WHAT ARE SOME RULES WITH REGARD TO
RESTITUTION? (5) When an action to revive the judgment is
filed.
(1) Specific restitution is proper in case of
complete reversal. PERIODS ARE NOT SUSPENDED BY:
(2) In case or partial reversal, only the excess (1) Injunction enjoining execution sale.
is returned.
(2) Written extrajudicial demand or
(3) In case of properties sold to third parties acknowledgement of debt.
at an execution sale, the sale remains
DIFFERENTIATE JURISDICTION TO AMEND
valid but the judgment debtor is liable for
JUDGMENT FROM JURISDICTION TO
the amount realized plus interests.
EXECUTE JUDGMENT.

Cayo 2D
Jurisdiction to amend terminates when the
judgment becomes final and executory.
WHAT IS THE FORM OF A WRIT OF
Jurisdiction to execute continues even after the EXECUTION?
judgment becomes executory because it is
Probably won’t come out.
necessary for the enforcement of the judgment.
WHAT ARE THE GROUNDS FOR QUASHING A
WHAT IS THE VENUE FOR THE ACTION TO
WRIT OF EXECUTION?
ENFORCE JUDGMENT?
[NU-VICE]
The venue will depend on the character of the
principal action (whether personal or real). (1) Not submitted - When it appears that
the controversy has never been submitted
WHAT ARE DEFENSES IN AN ACTION FOR
to the judgment of the court;
ENFORCEMENT?
(2) Unclear - When the terms of the
Prescription, satisfaction of the judgment after
judgment are not clear and there remains
entry, permissive counterclaims.
room for interpretation;
OTHERS:
(3) Varies - When the writ of execution
• A judgment rendered against several varies the judgment;
defendants, jointly and severally, can be
(4) Improvident - When in appears that the
revived against one of the only.
writ of execution has been improvidently
• Only the execution must be had within the issued, defective in substance, against the
5 year period; sale may occur after. wrong party, issued without authority, or
that the debt has been paid or satisfied.
• But sale must occur before the expiration
of the 10 year period. (5) Change - When there has been a change
in the situation of the parties which makes
• Judgment for support is a continuing
the execution inequitable or unjust;
obligation and does not prescribe; but
unpaid installments more than 10 years (6) Exempt - When execution is sought to be
old are uncollectible. enforced against property exempt from
execution.
• Periods are not applicable to special
proceedings such as land registration
cases.
HOW IS EXECUTION ON JUDGMENTS FOR
MONEY ENFORCED? EXPLAIN BRIEFLY.
HOW IS EXECUTION ENFORCED IN CASE OF (a) Immediate payment on demand - of cash,
THE DEATH OF A PARTY? certified check payable to the judgment
obligee, any other form acceptable to the
(1) Death of judgment obligee - upon
judgment obligee;
application of his executor, administrator,
or successor in interest; (b) Satisfaction by levy – This occurs if
immediate payment in (a) is not made. The
(2) Death of the judgment obligor:
obligor can choose which properties will be
a. For recovery of real or personal levied and sold. If no choice is made, personal
property or the enforcement of a property will be sold before real property.
lien thereon – against his
(c) Garnishment of debts and credits –
executor, administrator, or
Credits and debts due the judgment obligor
successor in interest;
and in the possession or control of third
If it is judgment for money, such persons (garnishee) may be levied by serving
as in an action for damages, it notice upon such third persons. The amount
shall be filed as a regular money garnished should be delivered directly to the
claim. obligee by the garnishee within 10 days from
notice.
b. Death of judgment obligor after
execution is actually levied upon HOW IS EXECUTION ON JUDGMENTS FOR
his property – property may be SPECIFIC ACTS PERFORMED?
sold to satisfy the judgment

Cayo 2D
(a) Judgment to perform acts to vest title (2) Professional libraries and equipment of
(such as delivery of deeds) - The court judges, lawyers, engineers, dentists, and
may direct the act to be done at the cost other professionals;
of the disobedient party.
(3) The right to receive support;
(b) Sale of real or personal property - The
(4) Necessary clothing and personal effects,
court shall order the property to be sold
excluding jewelries!
and the proceeds to be applied to satisfy
the judgment. (5) Salaries or wages for personal services
rendered within the 4 months preceding
(c) Delivery or restitution of real property
the levy and necessary for family support;
– The officer shall demand that the
occupants vacate within 3 days and if they (6) Ordinary tools used in livelihood;
fail to do so, reasonable means may be
employed. (7) Three beasts of burden used in livelihood;
(d) Delivery or restitution of personal (8) Etc.

property – the officer will take possession But if property mentioned above is mortgaged, it
and deliver the property to the judgment is not exempt from foreclosure.
obligee.
(e) Removal of improvements on
property subject of execution – If the WHAT HAPPENS IF PROPERTY LEVIED BY
judgment obligor refuses to remove THE SHERIFF IS CLAIMED BY A THIRD
improvements, the officer can only PERSON?
demolish the improvements if there is a GR: If the third person claimant makes an
special order issued upon motion of the affidavit of his claim and serves it on the sheriff
obligee and after due hearing. and obligee, the sheriff shall not be bound to keep
HOW ARE SPECIAL JUDGMENTS EXECUTED? the property.
A copy of the judgment and the writ of execution Exception: The sheriff may keep the property if
shall be served on the person required to perform the obligee puts up a bond to indemnify the third
the required act and such person may be party and the sheriff will not be liable for any
punished for contempt until he performs such act. damages to the third person if such bond is
furnished.
DIFFERENTIATE JUDGMENTS FOR SPECIFIC
ACTS FROM SPECIAL JUDGMENTS. 9 The third person may vindicate his claim in a
separate action.
Judgments for specific acts are for payment, sale,
or delivery of property. Upon refusal, the court 9 The sheriff keeps or releases the property at
can appoint an officer or other person to perform his discretion – with or without a bond. If no
the act. Refusal is not generally punishable by bond is filed and the sheriff keeps the
contempt. property, he can be liable for damages.
Special judgments are for acts which can only be

performed by the obligor because of some HOW CAN THE JUDGMENT OBLIGOR
qualification or circumstance. Only the obligor can PREVENT EXECUTION?
perform the act and refusal is punishable by
contempt. By paying the amount required by the execution
at any time before the sale.
WHAT IS THE EFFECT OF LEVY ON

EXECUTION AS TO THIRD PERSONS? HOW PROPERTY IS SOLD ON EXECUTION.
The levy shall create a lien in favor of the The judge/officer involved cannot purchase
judgment obligee subject to liens already existing. Inadequacy of price can be grounds for setting
aside the sale ONLY IF it shocks the
conscience and there can be a better price at
WHAT ARE THE PROPERTIES EXEMPT FROM a subsequent sale UNLESS there is right of
EXECUTION? GIVE AT LEAST 5. redemption.
(1) Family home;

Cayo 2D
RULE 45 (1) Conflicting findings of fact - When
the findings of fact are conflicting;
APPEAL BY CERTIORARI TO THE SC
(2) Contrary to RTC findings - When
WHAT IS AT ISSUE IN ABC? the findings of fact of the CA are
GR: Only questions of law are entertained. contrary to those of the trial court;
E: In ABC from the RTC, when the SC believes (3) Not supported by evidence - When
there are factual issues, it may decide them or the findings of fact are conclusions
refer them to the CA. without citation of specific evidence on
which they are based;
DISTINGUISH BETWEEN APPEAL BY
CERTIORARI RULE 45 AND THE SPECIAL (4) Not disputed by respondent -
CIVIL ACTION OF CERTIORARI RULE 65. When the facts set forth in the petition
as well as in the petitioner’s main and
ABC 45 SCAC 65 reply briefs are not disputed by the
respondent;
WHAT IS Questions or errors Acts of
REVIEWED? of law decided by lower court, (5) Mistaken inference - When the
lower court body or inference is manifestly mistaken,
officer absurd, or impossible;
exercising
(6) Misapprehension of facts - When
judicial or
the judgment is based on a
quasi-
misapprehension of facts;
judicial
functions (7) Premised on absence of evidence -
when with When the finding of fact of the CA is
or in excess premised on the supposed absence of
of evidence and is contradicted by the
jurisdiction evidence on record.
or with
GADALEJ (8) GADALEJ - When there is GADALEJ;
Errors of judgment Errors of (9) Speculation - When the conclusion is

a finding grounded entirely on
jurisdiction
speculation, surmises, or conjectures;
PARTIES? Same parties – Inferior
(10) Beyond issues - When the CA, in
appellant/petitioner court,
making its findings, went beyond the
: board or
issues of the case and the same is
appellee/respondent officer is
contrary to the admissions of both
the public
appellant and appellee;
respondent;
appellee is HOW AND WHEN IS ABC COMMENCED?
private
respondent (1) By filing a verified petition raising only
questions of law, accompanied by:
DECISION? Affirming, Annulling or
reversing, or modifying a. Docket and other lawful fees and
modifying the the act deposit for costs
judgment b. AND proof of service on the lower
court and the adverse party.
(2) Within 15 days from notice of:
When may the SC inquire into conclusions of fact
made by the CA? a. final order
GR: Conclusions of fact of the CA are binding on b. OR denial of motion for new trial
the SC. or reconsideration properly filed.
E: CAN THERE BE AN EXTENSION OF THE 15
DAY PERIOD?
[CCNNMMPGSB] corny, walang vowels
Yes, there can be a 30 day extension to file the
petition:

Cayo 2D
(1) upon motion duly filed and served; Pleadings, briefs, memoranda, etc. may be
required by the SC to help it determine whether to
(2) with full payment of docket, and other
deny the petition.
lawful fees and deposit of costs;
WHEN THE PETITION IS GIVEN DUE COURSE:
(3) before the expiration of the original 15
day period. (1) the SC may require the filing of pleadings,
briefs, memoranda, etc.
WHAT ARE THE CONTENTS OF THE
PETITION? (2) the SC may require the elevation of the
entire records of the case or parts thereof.
(1) Names of the parties – petitioner and
respondent;
(2) Material dates – notice of judgment/denial RULE 46
of MR/MNT appealed from;
ORIGINAL CASES
(3) Statement of matters and arguments;
TO WHAT ACTIONS IS RULE 46 APPLICABLE?
(4) Certified true copy of the judgment, final
order or resolution appealed from and Orignal actions for certiorari, prohibition,
pertinent portions of the record; mandamus, and quo warranto.
(5) Certification of non-forum shopping. WHAT IS THE ORIGINAL JURISDICTION OF

THE CA?
WHEN MAY THE PETITION BE DISMISSED OR
DENIED? (1) CPM under R65;
Dismissed: (2) Quo warranto;
(1) failure to pay fees; (3) Habeas corpus;
(2) no proof of service; (4) Annulment of RTC judgments –

EXCLUSIVE
(3) failure to comply with formal requirements
(as to the contents of the petition) WHAT ARE THE CONTENTS OF THE
PETITION?
Denied:
(1) names and addresses of the parties –
(1) without merit; petitioner/respondent;
(2) for delay; (2) statement of facts and matters;
(3) raises unsubstantial questions. (3) relief prayed for
IS ABC A MATTER OF RIGHT? WHEN WILL IT (4) material dates – if R65
BE GRANTED?
(5) proof of service;
ABC is a matter of judicial discretion and will be
granted only when there are special and (6) certified true copy of the judgment, final
important reasons therefor, such as but not order or resolution and material portions
limited to: of the record
(1) When the lower court has decided a (7) certification of non-forum shopping;
question of substance: (8) docket and lawful fees, deposit for costs.
a. not previously decided by the SC WHO ARE THE PARTIES?
b. OR decided it not in accordance The parties are the petitioner and the respondent.
with jurisprudence
HOW IS JURISDICTION OVER PARTIES
(2) When the lower court has departed from ACQUIRED?
the accepted and usual course of judicial
proceedings so as to call for an exercise Petitioner – by filing the petition
by SC of its power or supervision.
Respondent –
Documents:
(1) by service of the initiatory action taken by
the court resolving either to dismiss the

Cayo 2D
petition of give due course thereto, Extrinsic fraud is fraud committed outside
requiring the submission of a comment the trial by the successful party
(2) OR voluntary submission. (2) Lack Of Jurisdiction
WHAT DOES THE COURT DO AFTER
RECEIVING THE PETITION?
WHEN MUST THE ACTION BE FILED?
The court may either:
If based on:
(1) Dismiss the petition with specific reasons
(1) extrinsic fraud – within four years from
therefor;
discovery;
(2) OR require the respondent to comment
(2) lack of jurisdiction – before it is barred by
(initiatory action).
laches or estoppel.
WHAT IF THE RESPONDENT FAILS TO
COMMENT?
WHAT ARE THE CONTENTS OF THE VERIFIED
The court may decide based on the record.
PETITION?
HOW DOES THE COURT DETERMINE FACTUAL
(1) Statement of the facts and law justifying
ISSUES?
annulment as well as the petitioner’s
The court may: cause of action or defense, as the case
may be.
(1) conduct hearings;
(2) Certified copy of the JOFR
(2) OR delegate reception of evidence to:
(3) Affidavits of witnesses
a. A member of the court;
(4) Certification of non-forum shopping;
b. OR an appropriate court (lower
court), agency, or office.
WHAT IS THE COURT’S ACTION ON THE
PETITION?
RULE 47
No merit – dismiss
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS Prima facie merit – give due course and serve
summons on the respondent.
WHEN IS THIS REMEDY AVAILABLE?
The CA may annul:
WHAT IS THE PROCEDURE TO BE
(a) judgments, final orders or resolutions of FOLLOWED?
RTCs
The procedure in ordinary civil cases.
The RTC has jurisdiction over petitions for
annulment of judgments, final orders or HOW IS EVIDENCE RECEIVED BY THE CA?
resolutions of the MTCs The reception of evidence may be referred to:
(b) for which the ordinary remedies of new (a) a member of the CA;
trial, appeal petition for relief or other
appropriate remedies are no longer (b) an RTC judge.
available (if they are available, R47
cannot be resorted to).
IMPT: WHAT IS THE EFFECT OF THE
(c) through no fault of the petitioner JUDGMENT OF ANNULMENT?
If based on lack of jurisdiction – the
WHAT ARE THE GROUNDS FOR ANNULMENT? questioned judgment will be rendered null and
void without prejudice to the original action being
(1) Extrinsic Fraud – unless it was availed of refiled in the proper court (with jurisdiction).
OR could have been availed of in a motion
for new trial or petition for relief (R37 & If based on extrinsic fraud –
R38)

Cayo 2D
(1) Plaintiff in the original action (the action RULE 49 – ORAL ARGUMENT
that was annulled) is not guilty of extrinsic
fraud –
a. upon the plaintiff’s motion, the CA RULE 50
may order the RTC to try the case DISMISSAL OF APPEAL
as if a timely motion for new trial
had been granted therein WHAT ARE THE GROUNDS FOR
DISCRETIONARY DISMISSAL OF AN APPEAL?
b. OR the plaintiff may refile the case
– the prescriptive period for Remember, these grounds are discretionary.
refilling the original action is
The CA MAY dismiss an appeal, upon motion or
suspended from the filing of the
motu proprio, on the following grounds:
original action until the judgment
of annulment. [MOSS-FUCkUP]
(2) Plaintiff in the original action (the action (a) Material data rule - Failure of the record
that was annulled) WAS GUILTY of on appeal to show on its face that the
extrinsic fraud – the plaintiff who was appeal was taken within the period fixed
guilty of extrinsic fraud may refile the by these Rules;
original action if his cause of action had
(b) Out of time - Failure to file the notice of
not yet prescribed.
appeal or the record on appeal within the
Ex: If the plaintiff sued upon a contract period prescribed by these Rules;
and employed extrinsic fraud in procuring
(c) Service - Failure of the appellant to serve
a favorable judgment, when the judgment
and file required brief or memoranda;
is annulled, he may refile his claim
provided that his right of action has not (d) Specific assignment of errors -
yet prescribed. In this case, provided ten Absence of specific assignment of errors in
years have not yet elapsed from the time the appellant’s brief, or of page references
the right of action accrued. There is no to the record;
suspension of the prescriptive period by
the filing of the action for annulment. (e) Fees - Failure of the appellant to pay the
docket and other lawful fees;
(f) Unauthorized alterations, omissions or
WHAT RELIEF IS AVAILABLE? additions in the approved record on
appeal;
(1) attorney’s fees
(g) Correction/completion - Failure of the
(2) damages
appellant to take the necessary steps for
(3) restitution, if the judgment annulled had the correction or completion of the record
already been executed within the time limited by the court in its
order;
(h) Unappealable - The fact that the order
RULE 48 or judgment appealed from is not
PRELIMINARY CONFERENCE appealable;
At any time during the pendency of the case, the (i) Preliminary conference - Failure of the
court may call the parties and their counsel to a appellant to appear at the preliminary
preliminary conference: conference or to comply with orders,
circulars, or directives without justifiable
(a) Amicable settlement - To consider the cause.
possibility of an amicable settlement
unless the case is not subject to OTHER CAUSES FOR DISMISSAL OF APPEAL
compromise; NOT IN THE RULES:
(b) To define, simplify, and clarify the issues; Also discretionary
(c) To formulate stipulations of fact, limit (1) Moot causes;

witnesses, etc. (2) Frivolous appeals
a. Dilatory

Cayo 2D
b. No justiciable question pleading or expiration of the period for its
filing
c. Patently without merit.
WHO RENDERS JUDGMENT?
The members of the court who participated in the
WHAT ARE THE CAUSES FOR MANDATORY
deliberation on the merits of the case before its
DISMISSAL OF APPEALS?
assignment to a member for the writing of the
Dismissal is mandatory in the following decision.
circumstances:
HOW IS VOTING DONE?
(1) The appeal from the RTC decision raises
All three members must participate and vote
only questions of law – SC has
unanimously.
jurisdiction;
Should there be a dissent, the Presiding
(2) Appeal by notice of appeal instead of by
Justice of the CA will choose two additional
petition for review.
Justices by raffle to form a special division of
Notice of appeal - if RTC judgment is 5 Justices.
rendered in the exercise of original
A decision will be rendered only with the
jurisdiction.
participation of all five and a majority vote.
Petition for review - if RTC judgment is
WHAT IS THE FORM OF A DECISION?
rendered in the exercise of appellate
jurisdiction. It should state clearly and distinctly the facts and
law on which it is based either contained in the
decision itself or adopted from the decision
WHEN IS WITHDRAWAL OF AN APPEAL A appealed from.
MATTER OF RIGHT? WHEN IS IT A MATTER
In case of adoption, the decision appealed from
OF DISCRETION?
must be incorporated in the decision rendered;
Matter of right – at any time before the filing of mere reference is not allowed.
the appellee’s brief.
Matter of discretion – after the appellee’s brief is
IMPT: WHAT QUESTIONS MAY BE DECIDED
filed.
BY THE COURT?
RULE 51 No errors which does not affect the jurisdiction
JUDGMENT over the SM or the validity of the judgment
appealed from will be considered unless:
WHEN IS A CASE DEEMED SUBMITTED FOR
JUDGMENT? (1) stated in the assignment of errors;
In ordinary appeals: (2) OR closely related to or dependent on an

assigned error and properly argued in the
(1) No hearing held – upon filing of last brief;
required pleading or expiration of the
period for its filing; (3) OR they are merely plain errors and
clerical errors.
(2) Hearing held – upon termination of the
hearing or upon filing of last required WHEN IS JUDGMENT ENTERED IN THE BOOK
pleading or expiration of the period for its OF ENTRIES OF JUDGMENTS?
filing Judgment is entered by the clerk in the book of
In original actions and petitions for review: entries of judgments when it becomes final and
executory - upon the expiration of the period to
(1) Where no comment is filed – upon file an appeal or a motion for new trial.
expiration of the period to comment;
Even if the judgment is physically entered after
(2) No hearing held – upon filing of last the expiration of the period, the date of entry is
required pleading or expiration of the considered to be the date it became final and
period for its filing; executory.
(3) Hearing held – upon termination of the WHEN AND HOW MAY JUDGMENT BE
hearing or upon filing of last required EXECUTED?

Cayo 2D
GR: Upon the filing of a motion after the entry of the court below even with diligence AND would
the judgment (after it becomes final and probably affect the outcome of the case.
executory).
ACTION OF THE CA?
E: Unless it is ordered to be immediately
(1) Grant or refuse a new trial in the lower
executory.
court after considering the new evidence
In original actions in the CA – the writ of and the evidence produced at trial;
execution will be accompanied by a copy of the
(2) OR order the taking of additional
judgment and addressed to a proper officer for
testimony;
enforcement
(3) OR render judgment as it may deem just.
In appealed cases, where a motion for execution
pending appeal is granted and the CA is in
possession of the original record or the record on
appeal – the resolution granting the motion, a RULE 54
copy of the judgment to be executed, and an INTERNAL BUSINESS
order to issue a writ of execution will be sent to
the lower court. WHEN DOES THE CA SIT EN BANC?
(1) Administrative;
RULE 52 (2) Ceremonial;
MOTION FOR RECONSIDERATION (3) OR other non-adjudicatory functions.
WHEN? A MR should be filed within 15 days from

notice of the judgment WITH PROOF OF SERVICE
RULE 55
ON THE ADVERSE PARTY. Must be resolved within
90 days. PUBLICATION OF JUDGMENTS AND FINAL
RESOLUTIONS
2ND? No second MR by the same party shall be
entertained (except that the rules don’t apply to Published in the OG and in the Reports
the SC – it may entertain a 2nd MR) officially authorized by the court in the
language officially written:
STAY OF EXECUTION? A properly filed MR shall
stay the execution of the judgment unless the o SC Reports
court, for good reasons, shall otherwise direct.
o CA Reports
Required for appeal? The filing (and denial) of a
MR is usually a prerequisite to the filing of an
appeal or of a R65 remedy. RULE 56
WHAT IS ALLEGED IN THE MR (R37)? PROCEDURE IN THE SC
(1) Excessive damages;
ORIGINAL CASES
(2) Insufficient evidence;
WHAT CASES MAY BE FILED ORIGINALLY IN
(3) Judgment contrary to law. THE SC?
IMPT: PRO FORMA MR? A MR is pro forma if it (1) CPM R65;
does not raise any new issues. It does not toll the
(2) Quo warranto,
running of the period to appeal and should be
dismissed. (3) Habeas corpus;
(4) Disciplinary matters against members of
RULE 53 the judiciary and attorneys;
NEW TRIAL (5) Cases involving ambassadors, public

ministers and consuls
WHEN? At any time after perfection of the appeal
and before the CA loses jurisdiction over the case. APPEALED CASES
Must be resolved within 90 days. HOW IS APPEAL TO THE SC TAKEN?
GROUND? Newly discovered evidence which GR: Only by petition for review on certiorari
couldn’t have been discovered prior to the trial in

Cayo 2D
E: criminal cases where the penalty is death, RP
or life imprisonment.
PROVISIONAL REMEDIES
WHAT IS A PROVISIONAL REMEDY?

WHAT ARE THE GROUNDS FOR THE
DISMISSAL OF AN APPEAL TO THE SC? It is a collateral proceeding, permitted only in
connection with a regular action as one of its
An appeal to the SC may be dismissed motu incidents. It is a remedy provided to meet a
proprio or on motion on the following grounds: particular need or exigency.
[UM…COFFEe?] The provisional remedies are:
(1) Unappealable - The fact that the case is (1) Preliminary attachment;
not appealable to the SC;
(2) Preliminary injunction;
(2) Merit - Lack of merit in the petition;
(3) Receivership;
(3) CDO - Failure to comply with any circular,
directive or order of the SC without (4) Replevin.
justifiable cause;
(4) Out of time - Failure to take the appeal
RULE 57
within the reglementary period;
PRELIMINARY ATTACHMENT
(5) Formal requirements - Failure to
comply with the requirements regarding When: At the commencement of the action or at
proof of service and contents of and the any time before entry of judgment
documents which should accompany the
petition; If judgment has already been entered, a writ of
execution and not a writ of attachment is proper.
(6) Fees - Failure to pay the requisite docket
fee and other lawful fees or to make a Purpose: To hold the property of the adverse
deposit for costs; party as security for the satisfaction of any
judgment
(7) Error in the choice or mode of appeal.
Cases when available:
Petition for review is the proper mode
(1) In an action for recovery of specified
An appeal by notice of appeal shall be amount of money or damages, other than
dismissed unless the penalty imposed moral and exemplary, on a cause of action
is death, RP or life imprisonment arising from law, contract, quasi
An ABC from an RTC decision contract, delict, or quasi-delict against a
submitting questions of fact may be party who is about to depart from the
referred to the CA for appropriate Philippines with intent to defraud his
action creditors;
What is the procedure when the SC en banc is (2) In an action for money or property
unable to reach a decision? embezzled or fraudulently misapplied or
converted to his own use by a public officer,
In cases to be decided en banc, where the court is or an officer of a corporation, or an attorney,
divided or the required majority cannot be had: factor, broker, agent, or clerk, in the course of
his employment as such, or by any other
(1) The case shall be re-deliberated.
person in a fiduciary capacity, or for a
(2) If there is still no decision: willful violation of duty;
a. The original case shall be (3) In an action to recover the possession of
dismissed property unjustly or fraudulently taken,
detained or converted, when the property, or
b. The decision appealed from shall
any part thereof, has been concealed,
be affirmed
removed, or disposed of to prevent its being
c. The motion or petition on the found or taken by the applicant or an
incidental matter shall be denied authorized person;
d. The sentence of death shall be (4) In an action against a party who has been
reduced to reclusion perpetua guilty of fraud in contracting the debt or

Cayo 2D
incurring the obligation upon which the action Property of the deceased in the hands of a
is brought, or in the performance thereof; judicial administrator is also exempt because
it is in custodia legis. The creditor’s remedy is
(5) In an action against a party who has
to file a money claim against the estate.
removed or disposed of his property, or is
about to do so, with intent to defraud his But the defendant’s interest in the property
creditors; belonging to the estate of the deceased may
be attached by serving the executor with a
(6) In an action against a party who does not
copy of the writ.
reside and is not found in the Philippines,
or on whom summons may be served by WHAT IS THE NATURE OF ATTACHMENT?
publication.
Attachment is a proceeding in rem and the lien it
creates over the property is enforceable against
the world and only subject to liens already
DOES THE ISSUANCE OF A WRIT OF
existing.
ATTACHMENT REQUIRE HEARING?
No. Thus, it may be issued without jurisdiction
over the adverse party having been acquired. HOW IS PROPERTY ATTACHED?
However, the court may require prior hearing, in
(1) The applicant must file an affidavit either by
which case, summons must be served.
him or by another person with personal
But levy on attachment requires service of knowledge, showing that:
summons.
(a) The case is one of those where
MAY THE DEFENDANT OBTAIN A WRIT OF attachment is available;
PRELIMINARY ATTACHMENT?
(b) There is no other sufficient security;
Yes. In case he sets up a counterclaim.
(c) The amount due to the applicant is as
WHAT IS THE LIFETIME OF THE WRIT OF much as the amount for which the order is
ATTACHMENT? granted
There is no lifetime stated in the Rules but its (2) The applicant must file a bond in the amount
character being interlocutory and ancillary, it is fixed by the court conditioned that he will pay
necessarily lifted when the case is dismissed. It is all the costs and damages which may be
also terminated, of course, is when it is satisfied. adjudged to the adverse party should the
court finally adjudge that the applicant was
CAN A WRIT OF ATTACHMENT BE ISSUED
not entitled to the attachment (ex: if the case
AGAINST A FOREIGN CORPORATION DULY
is dismissed).
LICENSED TO DO BUSINESS IN THE
PHILIPPINES, WITHOUT ANY ALLEGATION (3) The court issues an order of attachment
OF FRAUD OR INTENT TO ABSCOND (IN
a. Upon motion
OTHER WORDS, UNDER GROUND #6)?
i. ex parte
No. First, the corporation necessarily has an agent
in the country; it cannot be considered non- ii. OR with notice and hearing by
resident. Second, summons need not be served
by publication as the same can be served upon 1. the court where the action is
the agent. Third, foreign corporations issue pending
securities upon registration precisely to safeguard 2. or the CA
against their absconding.
3. or the SC
WHAT PROPERTIES ARE EXEMPT FROM
ATTACHMENT? b. Requiring the sheriff to attach the
property of the party against whom it is
Properties exempt from execution are exempt issued, not exempt from execution, and
from attachment (three horses, three cows sufficient to satisfy the demand.
…).
(4) The sheriff attaches the property
Property in custodia legis is exempt in
attachment and execution because it is under a. IMPT: Actual attachment must be
the control of the court. accompanied or preceded by
service of summons together
with:

Cayo 2D
i. a copy of the complaint, Only salary DUE may be attached, subject
to the rule that wages earned for personal
ii. the application for attachment
service in the four months preceding the
iii. the affidavit attachment and necessary for support are
exempt from execution/attachment.
iv. the bond
(5) The interest of the adverse party as an
v. the order heir – by serving the
vi. the writ executor/administrator with a copy of the
writ
b. Service of summons is not required
where: (6) Property in custodia legis – by serving the
court with a copy of the writ
i. summons could not be served
personally or by substituted Property in custodia legis is supposed to
service despite diligent efforts be exempt from attachment. But I
suppose if the court where the property is
ii. OR the defendant is a resident deposited agrees to the attachment, it can
of the Philippines temporarily be done.
absent
Ex: Payment to a debtor/defendant
iii. OR the defendant is a non- consigned in court and attached by a
resident; creditor/complainant.
iv. Or the action is in rem or
quasi in rem.
WHAT IS THE PROCEDURE IF THE
An action in personam may be GARNISHEE DENIES THE INDEBTEDNESS?
converted into an action quasi
in rem by attaching property Payment by the garnishee upon judicial order will
of the defendant, in which extinguish his debt to his creditor.
case, summons may be However, if he denies the indebtedness, he may
served by publication. The be required to appear in court and be examined
attachment will precede the on oath regarding the same.
service of summons.
CAN THE GARNISHEE BE COMPELLED TO PAY
HOW DOES THE ADVERSE PARTY PREVENT OR DELIVER THE PROPERTY IN THE EVENT
THE ATTACHMENT? HE DENIES THE DEBT?
He may file a counterbond or make a deposit No; to do so would be to deprive him of property
equal to the amount in the order of attachment. without due process. A separate action must be
The purpose of the deposit or the counterbond is instituted.
to secure the payment of any judgment which the
attaching party may recover in the action.
WHEN MAY THE PROPERTY BE SOLD BEFORE
ENTRY OF JUDGMENT?
IN WHAT MANNER DOES THE SHERIFF Upon notice and hearing…
ATTACH PROPERTY?
(1) When the property is perishable
(1) Real property – filing in the registry of
deeds a copy of the order; (2) OR when the sale would be beneficial to
both parties.
(2) Personal property capable of manual
delivery – taking and keeping it; The proceeds will be deposited in court to be
applied according to the judgment.
(3) Stock or shares – by leaving with the
president or managing agent a copy of the
writ;
WHEN MAY ATTACHMENT BE DISCHARGED?
(4) Bank deposits, debts, credits, and other
(1) By the adverse party’s filing of a
personal property not capable of manual
counterbond;
delivery (garnishment) – by leaving with
the garnishee a copy of the writ; (2) By the dismissal of the case;

Cayo 2D
(3) By the appointment of an assignee over (3) Garnish
the adverse party’s property under the
Insolvency Law;
HOW ARE THE PROCEEDS OF THE
(4) By filing a motion for the discharge of the
ATTACHMENT APPLIED?
attachment on the ground that:
(1) Costs of the proceedings;
a. It was improperly or irregularly
issued such as in the following (2) Judgment debt;
circumstances:
(3) Return to the judgment debtor any
i. The complaint states no excess.
cause of action;
ii. The attaching creditor fails
to prove the ground on HOW IS THE COUNTERBOND/CASH DEPOSIT
which the attachment was PROCEEDED AGAINST?
based; Counterbond - When the judgment becomes
iii. The plaintiff’s affidavit and executory, the sureties on the counterbond shall
bond are not in be bound to pay the judgment after NOTICE AND
accordance with the Rules. SUMMARY HEARING IN THE SAME ACTION.
b. OR that the bond is insufficient. Deposit – paid to the judgment obligee
i. The attachment will be

reduced to correspond to HOW AND WHEN IS A CLAIM FOR DAMAGES
the bond ON ACCOUNT OF IRREGULAR, IMPROPER OR
EXCESSIVE ATTACHMENT MADE?
WHAT ARE THE PROCEEDINGS WHEN THE An application for damages must be made
PROPERTY IS CLAIMED BY A THIRD (a) before trial – as a matter of right
PERSON?
(b) before judgment becomes executory – as
The sheriff shall not be bound to keep the a matter of discretion
property under attachment if:
(c) before appeal is perfected – probably also
(1) The property attached is claimed by a a matter of discretion because judgment
third person is not yet executory
(2) The third person makes an affidavit of his … with due notice to the sureties
right to the property
The damages will be awarded only after hearing
(3) Serves the affidavit upon: and will be included in the judgment on the main
a. the sheriff case.
b. AND the attaching party This applies even if judgment in the main case is
against the adverse party. Just because the
(4) The sheriff demands a bond from the adverse party was truly liable doesn’t cure any
attaching party to indemnify the third defect in the attachment.
person claimant
WHAT IS THE PROCEDURE FOR THE
(5) The attaching party fails to file the bond RECOVERY OF DAMAGES AGAINST THE BOND
FOR AN ILLEGAL ATTACHMENT?
This is different from the bond filed to
indemnify the adverse party (1) There is a judgment in the main action –
even if judgment is against the adverse
party;
IN WHAT ORDER DOES THE SHERIFF
(2) IMPT: The application for damages is
SATISFY THE JUDGMENT OUT OF PROPERTY
filed in the SAME ACTION before trial,
ATTACHED?
before appeal is perfected, or before
(1) Cash judgment becomes executory;
(2) Sell property If damages are not claimed in the same
action, they are barred, except:

Cayo 2D
(a) Where the principal action is
dismissed for lack of jurisdiction over
the SM;
(b) In FEUD, where the amount of
damages exceeds the jurisdiction of
the MTC, it is necessary that the claim
be filed in the RTC.
(3) Notice is given to the attaching party and
his sureties;
(4) There is proper hearing regarding the
damages and the award was included in
the final judgment.

Cayo 2D
RULE 58 (b) that the commission, continuance or non-
performance of the act or acts complained
PRELIMINARY INJUNCTION of during the litigation would probably
WHAT IS PRELIMINARY INJUNCTION? work injustice to the applicant; or
SEC. 1. A preliminary injunction is an ORDER (c) that a party, court, agency or person is
granted at ANY STAGE of the proceeding PRIOR doing, threatening, or is attempting to do,
TO THE JUDGMENT or final order, requiring a or is procuring or suffering to be done,
party or a court, agency or a person to REFRAIN some act or acts probably in violation of
from a particular act or acts. It may also REQUIRE the rights of the applicant respecting the
THE PERFORMANCE of a particular act or acts, in subject of the action or proceeding, and
which case it shall be known as a preliminary tending to render the judgment
mandatory injunction. ineffectual.
WHAT ARE THE CLASSES OF PRELIMINARY Mandatory

INJUNCTION? Mandatory injunction may be issued if the
(1) Preventive or Prohibitory following requisites are present (concurrent):
a. Its purpose is to require one to refrain (1) the complainant has a clear legal right – the
from a particular act. right must be clear and unmistakable because
unlike in prohibitory injunction, mandatory
b. The act to be enjoined is alleged to be injunction requires the performance of a
illegal and has not yet been particular act and does more than maintain
performed. It is enjoined because it the status quo;
would cause irreparable injury.
(2) his right has been violated and the invasion is
c. The situation is preserved in status material and substantial; and
quo.
(3) there is an urgent and permanent necessity to
(2) Mandatory prevent serious damage.
a. Its purpose is to require the HOW IS PRELIMINARY INJUNCTION
performance of an act. DISTINGUISHED FROM FINAL INJUNCTION?
b. The party in whose favor it is issued is See definition of preliminary injunction (SEC. 1).
placed in the same situation he was
before the commission of the illegal Final injunction is a judgment rendered after trial
act. which (1) perpetually restrains the party or
person enjoined from the commission or
c. The status quo to be restored is the continuance of the act or acts OR (2) confirms the
last actual peaceable uncontested preliminary mandatory injunction.
status (LAPUS) which preceded the
pending controversy. HOW IS PROHIBITORY INJUNCTION
DISTINGUISHED FROM PROHIBITION?
WHEN MAY PRELIMINARY INJUNCTION BE
ISSUED? Prohibitory injunction – order requiring a party
to refrain from a particular act
Preventive or Prohibitory
Prohibition – judgment commanding a tribunal,
When the plaintiff’s principal action is an ordinary board, corporation, officer, or person, whether
action of injunction (to restrain the commission of exercising judicial, quasi judicial, or ministerial
an act perpetually or for a limited period) and the functions, to desist from further proceeding in the
grounds in SEC. 3 are present: action or matter because it is in excess of
jurisdiction or because it acts with GADALEJ.
SEC. 3 – Grounds (alternative):
HOW IS MANDATORY INJUNCTION
(a) that the applicant is entitled to the relief
DISTINGUISHED FROM MANDAMUS?
demanded, and the whole or part of such
relief consists in restraining the Mandatory injunction – order requiring a party
commission or continuance of the act or to perform a particular act in order to restore the
acts complained of, or in requiring the last peaceable actual uncontested status (LAPUS)
performance of an act or acts, either for a which preceded the pending controversy
limited period or perpetually;
Mandamus – judgment commanding a tribunal,
corporation, board, officer, or person either (1)

Cayo 2D
unlawfully neglecting the performance of an act (E) A court cannot interfere by injunction with the
required by law or (2) excluding another from the JUDGMENT of a co-equal court.
use and enjoyment of a right or office, to do such
WHAT ARE SOME SPECIFIC CASES WHERE
acts required to be done.
PRELIMINARY INJUNCTION LIES?
DOES PRELIMINARY INJUNCTION APPLY TO
(1) In petitions for relief from judgment
CONSUMMATED ACTS?
entered through FAME.
As a general rule, when defendants are required
(2) In actions for annulment of judgments
to merely abstain or desist from performing
obtained through extrinsic fraud.
certain acts, they are under no duty to perform
positive acts. (3) In petitions for CPM.
The exception is when they are specifically (4) To restrain continued breach of valid
ordered to perform positive acts such as the negative obligations.
removal of the impediment complained of as
being prejudicial to the plaintiff’s rights. (5) To restrain a city for abating a nuisance
per accidens without a judicial order.
Ex:
(6) To restrain voting on disputed shares of
The destruction of a dam built without necessary stock.
permits.
(7) To restrain sheriff from selling property on
The reconnection of an electrical line disconnected execution not belonging to the judgment
arbitrarily. obligor.
The restoration to possession of a party unlawfully (8) To restrain criminal prosecutions.
deprived thereof by forcible entry.
WHAT ARE SOME SPECIFIC CASES WHERE
RULES ON JURISDICTION OF COURTS TO PRELIMINARY INJUNCTION DOES NOT LIE?
ISSUE PRELIMINARY INJUNCTION:
(1) To take property out of the possession of
(A) A judge in charge of a branch of a trial court one party and place it into that of another
has jurisdiction to issue a preliminary injunction in whose title has not clearly been
a case pending in that branch notwithstanding the established by law.
fact that a similar injunction had been denied by
another judge in another branch of the court. (2) Where an action for damages would
adequately compensate the injuries
Ex: A case is pending in Branch 1 or the Makati caused – remember, there must be a
RTC. Branch 2 of the same RTC denies a petition probability of irreparable injury.
for preliminary injunction. Branch 1 may still issue
the writ despite the denial by Branch 2. (3) To prevent directors from discharging
their offices and restoring former
(B) The RTC has no authority to restrain or enjoin directors.
acts being perpetrated or to be perpetrated
outside the territorial boundaries of its region. (4) To restrain a criminal prosecution except
to prevent oppression and to protect
(C) Where the main action is the annulment of constitutional rights.
the respondent’s action and injunction is merely
corollary, the trial court of the locality where the HOW IS A PRELIMINARY INJUNCTION OR
questioned act is to be implemented has TEMPORARY RESTRAINING ORDER
jurisdiction. GRANTED?
Ex: An order of dismissal issued by the LTO (a) Upon verified application showing facts
Commissioner in Manila but to be enforced by a entitling the applicant to the relief demanded;
subordinate officer in Dagupan may be enjoined (b) AND filing of a bond to answer for damages
by the Dagupan courts despite the fact that the which the party enjoined may sustain if the
original action for mandamus was filed in Manila. court should finally decide that the applicant
(D) In cases of corporations, the court with was not entitled thereto.
jurisdiction over the locality of principal office of (c) With notice and hearing.
the corporation has the authority to issue
preliminary injunction, despite the fact that the
act sought to be enjoined are to be performed CAN PRELIMINARY INJUNCTION BE
elsewhere. GRANTED WITHOUT NOTICE?

Cayo 2D
GR: No. The general procedure follows: (3) If its issuance would cause irreparable
damage to the person enjoined while the
(1) If appears from facts shown by the
applicant can be fully compensated for
affidavits or by the verified application
such damages as he may suffer AND the
that
person to be enjoined files a bond that he
(2) great or irreparable injury would result will pay such damages;
to the applicant before the matter can be
This is discretionary upon the court
heard on notice,
(4) It may be reduced if its extent is too
(3) the court to which the application for
great.
preliminary injunction was made, may
issue a temporary restraining order
(4) to be effective only for a period of 20 WHEN SHOULD DAMAGES UPON THE BOND
days from service on the party or BE CLAIMED?
person sought to be enjoined.
Just like in preliminary attachment, damages upon
(5) Within the said 20 day period, the court the bond should be claimed, heard and awarded in
must: the principal action.
a. order said party or person to show
cause why the injunction should
WHEN IS FINAL INJUNCTION GRANTED?
not be granted,
If after trial it appears that the applicant is
b. determine within the same period
entitled to have the acts complained of
whether or not the preliminary
permanently enjoined, the court shall grant a final
injunction shall be granted,
injunction.
c. and accordingly issue the
corresponding order.
E:
(1) If the matter is of extreme importance
(2) and the applicant will suffer grave
injustice and irreparable injury
(3) the executive judge of a multiple-sala
court or the presiding judge of a single
sala court may issue an ex parte
temporary restraining order
(4) effective only 72 hours from issuance
(5) Within the 72 hours, the judge before
whom the case is pending shall conduct a
summary hearing to determine whether
the temporary restraining order shall be
extended until the application for
preliminary injunction can be heard.
(6) In no case shall the total period of the
temporary restraining order exceed 20
days including the original 72 hours.
WHAT ARE THE GROUNDS FOR OBJECTION

TO OR DISSOLUTION OF A TEMPORARY
RESTRAINING ORDER OR AN INJUNCTION?
(1) Insufficiency;
(2) Other grounds as shown in affidavits;

Cayo 2D
RULE 59 decided by the court of origin and the receiver
appointed to be subject to the control of said
RECEIVERSHIP court.
Sec. 1 – UPON A VERIFIED APPLICATION, one or
more receivers of the PROPERTY SUBJECT OF THE
ACTION OR PROCEEDING may be appointed by WHAT IS A RECEIVER?
the COURT WHERE THE ACTION IS PENDING, or • A receiver is an indifferent person between
by the CA, or by the SC, or a member thereof, in the parties to a cause, appointed by the court
the following cases: to receive and preserve the property or fund
(a) WHEN IT APPEARS FROM THE VERIFIED in litigation pendente lite, when it does not
APPLICATION, and such other proof as the seem reasonable to the court that either party
court may require, that: should hold it.
1. the PARTY APPLYING for the appointment • He is an officer of the court, exercising his
if a receiver has AN INTEREST IN THE function in the interest of neither party litigant
PROPERTY or fund which is the subject of but for the common benefit of all parties in
the action or proceeding, interest.
2. AND that such property is in DANGER OF o Since he is an officer of the court,

BEING LOST, removed, or materially property held by him is considered as
injured UNLESS A RECEIVER BE being in custodia legis for the benefit
APPOINTED to administer and preserve it. of whoever may establish title thereto.
(b) WHEN IT APPEARS IN AN ACTION BY THE WHO MAY APPOINT A RECEIVER?

MORTGAGEE FOR THE FORECLOSURE OF A (1) MTCs
MORTGAGE that:
(2) RTCs
1. THE PROPERTY IS IN DANGER OF BEING
WASTED or dissipated or materially (3) CA
injured, AND that its VALUE IS (4) SC, or a member thereof.
PROBABLY INSUFFICIENT to discharge
the mortgage debt, DOES A PARTY HAVE A VESTED RIGHT TO
HAVE A RECEIVER APPOINTED BY THE
2. OR that the PARTIES HAVE SO COURT?
STIPULATED in the contract of
mortgage. No, it is DISCRETIONARY on the court where the
application is made, just like the grant of
(c) AFTER JUDGMENT, preliminary injunction.
3. to PRESERVE the property DURING THE This is true even if there is a stipulation for
PENDENCY OF AN APPEAL, receivership.
4. OR to DISPOSE of it ACCORDING TO WHAT IS THE REMEDY FOR A DENIED
THE JUDGMENT, APPLICATION FOR RECEIVERSHIP?
5. OR to AID EXECUTION when the Since it is interlocutory, CERTIORARI, not appeal
execution has been returned is the proper remedy.
UNSATISFIED or the JUDGMENT
OBLIGOR REFUSES to apply his property WHAT IS THE NATURE OF THE POWER TO
in satisfaction of the judgment, APPOINT A RECEIVER; HOW SHOULD IT BE
EXERCISED?
6. OR OTHERWISE to carry the judgment
into effect. The power should be exercised with great caution
because receivership is THE MOST DRASTIC AND
(d) WHENEVER IN OTHER CASES IT APPEARS FAR-REACHING OF THE EXTRAORDINARY
THAT THE APPOINTMENT of a receiver IS THE REMEDIES.
MOST CONVENIENT AND FEASIBLE MEANS OF
PRESERVING, ADMINISTERING, OR
DISPOSING OF THE PROPERTY in litigation.
CASES WHEN RECEIVER MAY BE APPOINTED:
During the pendency of an appeal, the appellate
(a) WHEN IT APPEARS FROM THE VERIFIED
court may allow an application for the
APPLICATION, and such other proof as the
appointment if a receiver to be filed in and
court may require, that:

Cayo 2D
1. the PARTY APPLYING for the appointment them. It was the court that ordered their
if a receiver has AN INTEREST IN THE placement under receivership – it did not
PROPERTY or fund which is the subject of relinquish control over the property.
the action or proceeding,
2. AND that such property is in DANGER OF
(c) AFTER JUDGMENT,
BEING LOST, removed, or materially
injured UNLESS A RECEIVER BE 1. to PRESERVE the property DURING THE
APPOINTED to administer and preserve it. PENDENCY OF AN APPEAL,
• Receivership is NOT PROPER IN ACTIONS 2. OR to DISPOSE of it ACCORDING TO
INVOLVING TITLE TO REAL ESTATE where the THE JUDGMENT,
effect of the appointment is to take the
property out of the possession of the 3. OR to AID EXECUTION when the
defendant before a final adjudication of the execution has been returned
rights of the parties can be made EXCEPT IN UNSATISFIED or the JUDGMENT
EXTREME CASES AND ON A CLEAR SHOWING OBLIGOR REFUSES to apply his property
OF NECESSITY TO SAVE THE PLAINTIFF FROM in satisfaction of the judgment,
GRAVE AND IRREMEDIABLE LOSS or damage. 4. OR OTHERWISE to carry the judgment
• Receivership IS PROPER TO REMEDY into effect.
MALADMINISTRATION of property owned in Appeal from the judgment of the RTC has been
common and differences among co-owners. perfected – does it still have jurisdiction to
• PARTY APPLYING for receivership SHOULD appoint a receiver?
HAVE ACTUAL, EXISTING INTEREST in the Yes; although the perfection of the appeal
property in litigation. deprives the RTC of jurisdiction over the case, it
o Where the land has no improvements still retains jurisdiction over the preservation of
that produce income and only the property under litigation and involved un the
standing crops, the appointment of a appeal. In such a case, the action may be
receiver was not proper because the regarded as yet pending for the appointment of a
possible damage was coverable by a receiver because such appointment is merely to
bond. The standing crops belong to he preserve the property and thus effectuate the
who planted them. court’s decree.
May a receiver be appointed when execution of a
judgment remains unsatisfied?
(b) WHEN IT APPEARS IN AN ACTION BY THE
MORTGAGEE FOR THE FORECLOSURE OF A Yes; Rule 39 Section 41 provides for the
MORTGAGE that: appointment of a receiver of the property of the
judgment obligor.
1. THE PROPERTY IS IN DANGER OF BEING
WASTED or dissipated or materially Ex: Where execution of judgment was suspended
injured, AND that its VALUE IS for one year from its affirmation by the SC, the
PROBABLY INSUFFICIENT to discharge RTC should have appointed a receiver to insure
the mortgage debt, that the judgment obligee’s rights to the property
would be protected.
2. OR that the PARTIES HAVE SO
STIPULATED in the contract of
mortgage. (e) WHENEVER IN OTHER CASES IT APPEARS
IF THE PARTIES HAVE STIPULATED FOR THAT THE APPOINTMENT of a receiver IS THE
RECEIVERSHIP IN THE CONTRACT, IS IT A MOST CONVENIENT AND FEASIBLE MEANS OF
MATTER OF RIGHT? PRESERVING, ADMINISTERING, OR
DISPOSING OF THE PROPERTY in litigation.
No, it is still within the court’s discretion despite
the existence of a stipulation.
CAN THE COURT ORDER THE SALE OF THE • Where A purchased and took possession of
MORTGAGED PROPERTIES DESPITE THEIR the property from X in an unregistered sale
STILL BEING UNDER RECEIVERSHIP? and B also purchased the property in a
foreclosure sale where B was the mortgagee,
Yes, the properties are considered to be under the appointment of a receiver over the
custodia legis and the court has control over property was proper as the best way to

Cayo 2D
conserve and administer the property pending properties under his care. Though he cannot be
the action. compelled to furnish a bond, if he does so and the
properties under his care are later dissipated,
Is a stipulation authorizing a mortgagee to take
destroyed, etc. the bond may be executed upon.
possession of the mortgaged property upon
foreclosure valid?
Yes; such stipulation is a convenient and feasible On what grounds may the application for
means of preserving and administering the receivership be denied?
property under litigation.
Other than for reasons that it is not among the
cases in SEC. 1, an application may be denied
when the adverse party files a bond executed to
WHAT MUST THE COURT DO BEFORE
the applicant, in an amount fixed by the court, to
ISSUING THE ORDER APPOINTING A
cover all damages that may be suffered by reason
RECEIVER?
of the acts, omissions, or other matters specified
SEC. 2 – Before issuing the order appointing a in the application as ground for the appointment.
receiver, the court shall:
On what grounds may the receiver be discharged?
(a) require the applicant to file a bond executed
He may be discharged if it is shown that his
to the party against whom the application is
appointment was obtained without sufficient
presented,
cause.
• in an amount to be fixed by the court,
• to the effect that the applicant will pay
WHAT MUST THE RECEIVER DO BEFORE HE
such party all damages he may sustain by
ENTERS UPON HIS DUTIES?
reason of the appointment of such
receiver in case the applicant shall have He must:
procured such appointment without
(1) SWEAR to perform them faithfully
sufficient cause;
(2) AND file a BOND
(b) and the court may, in its discretion, at any
time after the appointment, require an • executed to such person and in such sum
additional bond as further security for such as the court may direct,
damages.
• to the effect that he will faithfully
MAY AN ORDER FOR RECEIVERSHIP BE discharge his duties and obey the orders
ISSUED EX PARTE? of the court.
No; a hearing is necessary and a bond is required DIFFERENTIATE BETWEEN THE BOND FILED
from the applicant. BY THE APPLICANT AND THE BOND FILED BY
THE RECEIVER.
Who should be made parties to the suit for the
appointment of a receiver? Applicant’s bond – answers for all damages that
the adverse party may sustain by reason of the
Interested parties should be included
appointment of the receiver in case the
(indispensable and necessary parties).
appointment was procured without sufficient
WHO SHOULD BE APPOINTED AS THE cause
RECEIVER; CAN IT BE THE PLAINTIFF?
Receiver’s bond – answers for damages suffered
An impartial person should be appointed as the by reason of the failure of the receiver to
receiver. However, the plaintiff can be appointed discharge his duties faithfully or to obey the
as the receiver under special circumstances. In orders of the court
such a case, he receives no compensation but is
entitled to be reimbursed for expenses incurred in
caring for the property. WHAT MUST THE APPLICANT AND THE
RECEIVER DO WITH REGARD TO THEIR
WHAT IS A COMMON-LAW RECEIVER AND
RESPECTIVE BONDS?
WHAT IS HIS LIABILITY?
The person filing a bond must serve a copy
Not sure but…
thereof on each interested party, who may except
One who assumes the receivership without judicial to its sufficiency or of the surety or sureties
appointment and is bound to account for the thereon.

Cayo 2D
Applicant’s / surety’s bond - If the bond is found A RECEIVER is a special officer appointed in
to be insufficient or the surety or sureties fail to relation to and within a certain case or action, and
justify, and such failure is not rectified, the bond whose duties are limited to his sphere of action,
shall be denied or the receiver discharged, as the and do not extend further than the case in which
case may be. he was appointed.
Adverse party’s bond - If the bond is found to be A SHERIFF is a court officer of a general character
insufficient or the surety or sureties fail to justify, who is not appointed for a certain judicial case. He
and such failure is not rectified, the receiver shall exercises his functions within the limits of his
be appointed or reappointed, as the case may be. jurisdiction.
FUNDS IN THE RECEIVER’S CUSTODY are not
within the reach of processes coming from other
WHAT ARE THE GENERAL POWERS OF THE
judicial proceedings. Those with claims must
RECEIVER?
appear in the same proceedings and assert their
Subject to the control of the court where the claims.
action is pending, the receiver shall have the
FUNDS IN THE SHERIFF’S CUSTODY may be
following powers:
within the reach of processes coming from other
(a) To bring and defend, in such capacity (as judicial proceedings.
receiver), actions in his own name;
NOTE: Authorization of court is not necessary in
(b) To take and keep possession of the property mortgage foreclosure suit when mortgage was
in controversy; constituted before appointment of receiver.
(c) To receive rents; WHAT IS THE PROCEDURE IN

PRESENTATION OF CLAIMS AGAINST
(d) To collect debts due to himself as receiver of RECEIVERSHIP?
the fund, property, estate, person, or
corporation of which he is the receiver; (1) By motion or petition in the same proceeding
in which the receiver discharges his duties.
(e) To compound for and compromise the same;
(2) By filing complaints-in-intervention in
(f) To make transfers; accordance with section 1 of Rule 19.
(g) To pay outstanding debts; (3) Notice must be given to all the parties in
(h) To divide the money and other property that interest.
shall remain among the persons legally
entitled to receive the same;
WHAT IS THE LIABILITY FOR REFUSAL OR
(i) And generally, to do such acts respecting the NEGLECT TO DELIVER PROPERTY TO THE
property as the court may authorize. RECEIVER?
MAY THE RECEIVER INVEST THE FUNDS IN Such person may be punished for contempt and
HIS HANDS? shall be liable to the receiver for the money or the
Funds in the hands of the receiver may be value of the property and other things so refused
invested only by order of the court upon the or neglected to be surrendered, together with all
written consent of all parties to the action. damages that may have been sustained by the
party or parties entitled thereto as a consequence
HOW IS AN ACTION BROUGHT AGAINST THE of such refusal or neglect.
RECEIVER?
No action may be filed by or against a receiver
without leave of court which appointed him. This HOW IS THE RECEIVERSHIP TERMINATED?
applies only when the receivership is pending. It is terminated when the court, motu proprio or
MAY THE RECEIVER ENTER INTO A on motion of either party:
CONTRACT WITH RESPECT TO THE (1) determines that the necessity for a receiver
PROPERTY HELD BY HIM? no longer exists, after due notice and hearing
Yes, but only with court approval. Unauthorized to all interested parties,
contracts are the receiver’s personal obligations. (2) settles the accounts of the receiver, and
DISTINGUISH THE FUNCTIONS OF A
RECEIVER FROM THOSE OF A SHERIFF.

Cayo 2D
(3) directs the delivery of funds and other
property in his possession to the person
adjudged to be entitled to receive them, and
(4) orders the discharge of the receiver as such.
WHEN SHOULD A RECEIVER BE REMOVED?
When he asserts ownership over the property in
his hands as a receiver and refuses to submit an
accounting of the financial status of the property.
WHEN SHOULD OBJECTIONS TO THE
ACCOUNTS OF THE RECEIVER BE MADE?
They should be made timely. They cannot be
made when no objection was interposed prior to
the court’s approval and after receipt of benefits.
NOTE: The judgment should include recovery

against the sureties. Damages not claimed in the
same action are barred.

Cayo 2D
RULE 60
A: The order of the court authorizing the plaintiff
REPLEVIN corporation to take possession of the personal
by Shak property in litigation upon the filing of a bond
sufficient to secure the conservation or value of
the same, does not constitute a delivery of the
Q: When may an application for replevin be personal property, but only a deposit of the
had? property in litigation applied for by said plaintiff
corp. which became a receiver by authority of the
A: At the commencement of the action or at court, it being the party most interested in the
anytime before the answer. conservation and care of said property.
Q: What is the purpose for such? Q: How should preliminary attachment be

construed in case of doubt?
A: For the recovery of possession of personal
property. A: If the subject matter is personal property, then
it should be treated as replevin in case there is
Q: Who has jurisdiction to issue writ of conflict or doubt.
replevin?
Q: If the mortgagor refuses to surrender
A: IF the value of the personal property sought to property, what should the mortgagee do?
be recovered is more than 200K, and in Metro
Manila 400K, the RTC has jurisdiction. A: He should institute an action either to effect a
judicial foreclosure directly or to secure
If the value is less than above, then the MTC has possession as a preliminary to the sale by a writ
jurisdiction. of replevin. He should implead the mortgagor in
the complaint for the recovery of the encumbered
Q: Where may the writ of replevin be property. He cannot lawfully take the property by
enforced? force against the will of the mortgagor.
A: Anywhere in the Philippines. Q: What if the possession is held by a 3rd

party, who should be impleaded?
Q: What is replevin?
A: The indispensable parties in action to recover
A: Delivery of personal property as a provisional possession as a preliminary to sale on foreclosure
remedy consists in the delivery, by order of the are the 3rd party and the chattel mortgagor.
court, of a personal property by the defendant to
the plaintiff, who shall give a bond to assure the Q: What is the basis for jurisdiction in an
return thereof of the payment of damages to the action by chattel mortgage?
defendant if the plaintiff’s action to recover
possession of the same property fails, in order to A: The value of the money claim and the value of
protect the plaintiff’s right of possession of said the personal property combined.
property, or prevent the defendant from
damaging, destroying or disposing of the same Q: If a mortgagee in installment sales of
during the pendency of the suit. personal property chooses the remedy of
specific performance is he entitled to
Q: What is the main difference between deficiency judgment?
Replevin from Preliminary attachment?
A: Yes, it is only when the vendor-mortgagee
A: If the purpose of the action is for the recovery chooses the remedy of foreclosure of chattel
of possession of personal property belonging to mortgage that the mortgagor is not liable for any
the plaintiff = replevin. If the property belongs to deficiency.
the defendant and is sought to be attached by the
plaintiff to secure the satisfaction of any judgment Q: What are expenses of suit that not taken
that he may recover form the defendant = out of the proceeds of the foreclosure sale
Preliminary attachment. but directly recoverable from the mortgagor?
Q: What is the man difference between

replevin and receivership?

Cayo 2D
A: Repayment for the premium on the replevin A: Upon filing of the affidavit and bond, the court
bond it filed, the sheriff’s fees, costs of suit, and a shall issue such writ, describing the personal
reasonable sum as atty’s fees. property alleged to be wrongfully detained and
requiring the sheriff to take such property in his
Q: Who may file an application for a writ of custody.
replevin?
Q: What is the duty of the sheriff upon
A: The applicant-plaintiff or some other person receipt of such order?
who personally knows the facts.
A: He must serve a copy on the adverse party of
Q: What should the application for a writ of the affidavit and bond and must take the property
replevin contain? if it be in the possession of the adverse party, or
his agent, and retain it in his custody
A: 1.) That the applicant is the owner of the
property claimed or is entitled to the possession Q: What if the property is concealed in a
thereof. building or enclosure?
1.1) particularly describing it,
A: The sheriff must demand its delivery, and if it
2.) That the property is wrongfully detained by is still refused, he must cause the building or
the adverse party. enclosure to be broken open and take the
2.1) Alleging the cause of detention property into his possession.
according to the best of his knowledge,
information, and belief. Q: Whats next?
3.) That the property has not been distrained or A: The sheriff must keep such property in a
taken for a tax assessment or a fine pursuant to secure place and shal be responsible for its
law delivery to the party entitled after receiving his
3.1) or seized under a writ of execution or fees and necessary expenses for taking and
preliminary attachment, keeping the same.
3.2) or otherwise placed under custodia
legis Q: Can the courts order the sheriff to deliver
3.3) if so seized that it is exempt from personal property when such is under
such seizure or custody attachment?
4.) The actual market value of the property. A: No, they do not have jurisdiction to order the
delivery of personal property to the applicant if
5.) A bond must be given, executed to the the property is under attachment, it being in
adverse party in double the value of the property. custodia legis.
Q: Why should it be double the value of the Q: What if the property is subject of a search
property? warrant, can it be the subject of a writ of
replevin?
A: Depreciation?
A: No, if it is in the custody of another public
Q: Is the writ of replevin limited as a remedy officer by virtue of a search warrant, then it
to the plaintiff? cannot be subjected to a writ of replevin. Only the
court that issued the warrant may order its
A: No, the defendant may obtain such in a release.
counterclaim for foreclosure of chattel mortgage.
Q: What if the adverse party objects to the
Q: Why is that? sufficiency of the bond of the applicant?
A: Because in a counterclaim, the defendant is A: The adverse party cannot immediately require
actually the plaintiff seeking this provisional the return of the property.
remedy.
Q: What if he does not object thereto?
Q: What does the order of the writ of
replevin contain and when is it issued? A: He may at anytime before the delivery of the
property to the applicant require the return

Cayo 2D
thereof, by filing with the same court a bond
executed to the applicant, in double the value of A: It must be claimed in an action for such within
the property as stated in the applicant’s affidavit. 120 days from the date of the filing of the bond.
But if the claim is spurious or patently frivolous
Q: What is the purpose of the bond? then nothing herein shall prevent such claimant
from claiming damages.
A: To enable the defendant to retain possession of
the property. Q: Will the sheriff be liable for the claim of
the 3rd person?
Q: Within what time must the sheriff return
the property to the applicant-plaintiff? A: No, if a bond was filed. If no bond is filed by
the applicant to secure the claim of a 3rd party
A: Within 5 days after the taking of the property. intervenor, then he would be liable.
Q: When may the adverse party require the Q: What if the sheriff is sued for damages
re-delivery of the property to him upon when the writ is issued in favor of the
payment of the bond? Republic of the P.I.?
A: At any time before the delivery of the property, A: The filing of the bond is not required because
or within 5 days after the taking of the property of the State repleived it. The sheriff shall be
the sheriff provided that it was not yet delivered. represented by the Sol Gen, and if held liable
therefore, the actual damages adjudged by the
Q: What does the defendant-adverse party court shall be paid by the National Treasurer.
have to do if he wants the property returned
to him? Q: How may a 3rd party vindicate his claim?
A: 1.) Put up a counter-bond in double the A: By filing of a complaint in intervention, because

amount of the chattel, and 2.) furnish the plaintiff he has a legal interest in the matter in litigation.
with a copy of the counter-bond within 5 days
from the date the sheriff took possession of the Q: After the taking of the property by the
property. Both these requirements are mandatory. sheriff, what should he do?
Q: When does the furnishing of a copy of the A: The sheriff must file the order, with his
counter-bond have to be accomplished? proceedings indorsed with the court within 10
days.
A: It has to be accomplished within the prescribed
period if the plaintiff is to have an opportunity to Q: What does the judgment in these
contest the redelivery of the property sought by contemplated situation state?
the defendant.
A: After trial of the issues, the court shall
Q: What if the judge approves a counter- determine who has the right of possession to and
bond beyond the 5 day period? the value of the property and shall render
judgment in the alternative for the delivery
A: The act would be GADALEJ. Certiorari will lie. thereof to the party entitled to the same, or for its
value in case delivery cannot be made, and also
Q: If the property taken is claimed by any for such damages as either party may prove.
person other than the defendant-adverse Q: What does the re-delivery bond cover?
party what happens?
A: Although a replevin re-delivery bond does not
A: The sheriff shall not be bound to keep the in terms require the property to be returned in
property under replevin or deliver it to the substantially good condition as when taken, such
applicant unless the applicant or his agent, on an obligation is always implied by law. In other
demand of said sheriff, shall file a bond approved words, the bond covers the deterioration or
by the court to indemnify the 3rd party claimant in depreciation of such personal property.
a sum not less than the value of the property
under replevin. Q: When may the prevailing party refuse to
take the litigated property?
Q: When may a claim for damages be made
against the bond?

Cayo 2D
A: When judgment is rendered for the articles or A: Damages must result from the refusal or
their value and they cannot be returned in inability of the plaintiff to redeliver the property in
substantially the same condition, it is settled that pursuance of a judgment. Unless there is an
the prevailing party may: adjudication, there is no duty to return the
1.) Refuse to take them and instead sue personal property in question, and there being no
on the redelivery bond, or duty to return it, there can be no damages for
2.) Execute on the judgment for value. non-restitution.
Q: Is this right confined at the time of

judgment?
A: No, if the prevailing party has this right after

judgment, it is at once obvious that he must also
have the same right when, asking for the delivery
pendente lite of the same property, he afterwards
finds them in a substantially depreciated
condition.
Q: How is this right to reject assured?
A: By the provision that the judgment in a suit for

replevin must be in the alternative so as to afford
a measure of relief where the property cannot be
returned.
Q: Can the premiums paid to the surety for

the counter bond be claimed as damages by
the adverse party?
A: No, it constitutes an expense purely voluntary

due to his desire to retain possession of the
chattel pending the suit and his refusal to rely on
the replevin bond for indemnity.
Q: What should the judgment include?
A: It should include the claim for damages against

the applicant or adverse party, as the case may
be and the surety thereon. The rule stands that
damages must be claimed in the same action
otherwise it is barred.
Q: May a party claim damages against a

surety prior to the delivery of the property
pursuant to the writ of replevin?
A: No, a replevin bond is simply to indemnify the

defendant against any loss that he may suffer by
being compelled to surrender the possession of
the property pending trial, he can not recover on
the bond as for a reconversion when he has failed
to have judgment entered for the return of the
property.
Q: Why is the order to return property a

condition precedent to recover damages
from surety?

Cayo 2D
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
CERTIORARI PROHIBITION MANDAMUS

DEFINITION Certiorari is a writ issued by Prohibition is a legal Mandamus is a COMMAND
a superior court to an remedy, prerogative in issuing from a court of law of
interior court, board or character, to prevent competent jurisdiction, in the
officer exercising judicial or courts, etc. from usurping name of the state or
quasi-judicial functions or exercising jurisdiction sovereign, directed to some
whereby the record of a with which they have not inferior court, etc. requiring
particular case is ordered to been vested by law. the performance of a
be elevated for review and particular duty which duty
correction in matters of law. results from the official station
of the party to whom the writ
is directed.
WHO? Tribunal, board or officer Tribunal, corporation, board, officer or person
WHAT Judicial or quasi-judicial Judicial, quasi-judicial or n.a.
FUNCTIONS? ministerial
DOES WHAT? has acted without or in Conducts proceedings Unlawfully neglects the
excess of its jurisdiction or without or in excess of its performance of an act which
with GADALEJ jurisdiction or with the law specifically enjoins as
GADALEJ a duty resulting from an
office, trust, or station
OR
Unlawfully excludes another
form the use and enjoyment
of a right or office to which
such other is entitled
WHAT ELSE? and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course
of law
WHO FILES A person aggrieved thereby may file a verified petition in the proper court, alleging the
WHAT? facts with certainty
PRAYING…? That judgment be rendered That judgment be rendered That judgment be rendered
annulling or modifying the commanding the commanding the respondent
proceedings and granting respondent to desist from to do the act required to be
such incidental reliefs as further proceedings in the done to protect the rights of
law and justice may require action or matter specified the petitioner and to pay the
therein, or otherwise damages sustained by the
granting such incidental petitioner by reason of the
reliefs as law and justice wrongful acts of the
may require respondent

Cayo 2D
WHAT IS A WRIT OF CERTIORARI? (1) When appeal is not available – ex. NLRC
decisions are not appealable but may be
It is a prerogative writ (takes precedence over
taken to the CA under Rule 65.
other civil cases), never demandable as a matter
of right, never issued except in the exercise of (2) When the right to appeal has been lost
judicial discretion. with or without the petitioner’s
negligence and the decision appealed
DISTINGUISH BETWEEN APPEAL BY
from is void for lack or excess of
CERTIORARI RULE 45 AND THE SPECIAL
jurisdiction.
CIVIL ACTION OF CERTIORARI RULE 65.
(3) When appeal is available but the order
ABC 45 SCAC 65 complained of is a patent nullity.
WHAT IS Questions or errors Acts of ♥ Even if appeal is available, certiorari can
REVIEWED of law decided by lower still lie if appeal is not equally speedy,
? lower court court, body adequate, etc.
or officer
exercising ♥ Even if appeal has already been
judicial or perfected, certiorari can still be availed
quasi- of if the latter proves to be the adequate
judicial remedy and its filing will not be
functions construed as an abandonment of the
when with appeal.
or in
IS A PREVIOUS MOTION FOR
excess of
RECONSIDERATION NECESSARY BEFORE
jurisdiction
FILING A PETITION FOR CERTIORARI?
or with
GADALEJ General rule: Yes.
Errors of judgment Errors of Exceptions: [PiPlPnQU]
jurisdiction
(1) where the issue is purely legal;
PARTIES? Same parties – Inferior
(2) where public interest is involved;
appellant/petitioner court,
: board or (3) in case of urgency;
appellee/responden officer is
(4) where the question of jurisdiction was
t the public
sqarely raised, submitted to and met
respondent
and decided by the lower court;
; appellee
is private (5) where the order is a patent nullity.
respondent
DECISION? Affirming, Annulling
reversing, or or DISTINGUISH PROHIBITION FROM
modifying the modifying INJUNCTION.
judgment the act Prohibition is directed to the court itself,
commanding it to cease from the exercise of a
jurisdiction to which it has no legal claim.
WHAT ARE THE REQUISITES FOR
Injunction is directed only to parties litigant,
CERTIORARI?
without interfering with the court.
(1) Tribunal, board, or officer exercises judicial
WHAT ARE SOME LIMITATIONS ON THE
or quasi-judicial functions;
SCOPE OF PROHIBITION?
(2) Acted without or in excess of jurisdiction or
(1) It does not apply to political functions;
with GADALEJ;
(2) It applies only to threatened and not
(3) There is no appeal, or any plain, speedy, and
consummated acts;
adequate remedy in the ordinary course of
law. (3) It does not apply to errors and
irregularities in procedure where the
WHEN MAY CERTIORARI BE INVOKED (IN
proper remedy is probably certiorari.
RELATION TO APPEAL)?
Civil Procedure Reviewer 54

Cayo 2D
Quo warranto is proper if the respondent usurps
the office.
TO WHAT ACTS/DUTIES DOES MANDAMUS
APPLY? ♥ They may be combined if one respondent
unlawfully excludes without usurping while
Ministerial acts – to compel performance of
the other usurps.
the act required by law.
Discretionary acts – to compel the exercise of
discretion. DISTINGUISH CERTIORARI FROM
PROHIBITION.
DO YOU MEAN TO SAY THAT MANDAMUS
CAN BE USED TO COMPEL THE Certiorari is a CORRECTIVE remedy used to re-
PERFORMANCE OF DISCRETIONARY ACTS? examine the action of a lower body directed at
the proceedings in such body.
Yes; what is compelled is action on the part of
the respondent in using his discretion. A good Prohibition is a PREVENTIVE remedy issued to
example is a petition for mandamus to compel a restrain future action, and is directed to the
judge to render judgment on a case he has been court itself.
sitting on beyond the period allowed by law. The
DISTINGUISH PROHIBITION FROM
court issuing the writ of mandamus will
MANDAMUS.
command him to decide but will not decide for
him. Prohibition has for its object that of preventing
an inferior tribunal from executing an act in
WHAT RIGHT MUST THE PETITIONER HAVE
excess of its jurisdiction.
FOR MANDAMUS TO LIE?
Mandamus has for its object to compel an
He must have clear and certain legal rights to
inferior tribunal to comply with a function which
the action being compelled. Mandamus will not
the law specially prescribes as a duty resulting
issue in doubtful cases.
from its office.
DISTINGUISH MANDAMUS FROM
INJUNCTION.
WHEN SHOULD THE PETITION BE FILED?
Mandamus is remedial; injunction is preventive.
Not later than 60 days from notice of the
Mandamus is employed to redress grievances;
judgment or notice of denial of the MR, whether
injunction is used to prevent injury.
such MR is required or not.
Mandamus is to set in motion; injunction is to
ARE THERE EXTENSIONS OF TIME TO FILE
restrain motion.
THE PETITION?
CAN MANDAMUS ISSUE WHEN
Yes, but only for compelling reasons and in no
ADMINISTRATIVE REMEDIES ARE STILL
case exceeding 15 days.
AVAILABLE?
WHERE SHOULD THE PETITION BE FILED?
General rule – No.
(1) Supreme Court;
Exception – Mandamus will issue even if
administrative remedies are available if: (2) RTC with territorial jurisdiction over the
area
(1) The respondent is in estoppel – if by
his conduct, he led the other party to (3) CA – whether or not in aid of its
believe that immediate judicial recourse appellate jurisdiction
is available.
(4) Sandiganbayan – if in aid of its appellate
(2) Pure questions of law are raised – jurisdiction
since these questions cannot be decided
by an administrative officer with finality. ♥ If it involves the acts or omission of a
quasi-judicial agency, the general rule is
DISTINGUISH THE SECOND GROUND FOR that the CA has exclusive jurisdiction.
MANDAMUS FROM QUO WARRANTO.
Mandamus is proper if the respondent excludes
the petitioner from an office to which the latter WHAT IS THE DUTY OF PRIVATE
is entitled without claiming such office for RESPONDENTS IN DEFENDING AGAINST A
himself. PETITION?

Cayo 2D
The private respondents must appear and (d) Without merit from allegations in the
defend, both himself and the public respondent. complaint.
Costs awarded are for the account of the private
After comment:
respondent alone.
(1) Manifestly without merit;
♥ The public respondent should not intervene
in the case. (2) Intended merely for delay;
♥ The joinder of the private respondent (3) Unsubstantial questions that don’t require
interested in sustaining the action consideration.
complained of is MANDATORY.
WHAT RELIEF IS THE PETITIONER

WHAT IS THE PROCEDURE? ENTITLED TO?
(1) Petition is filed; Certiorari:
(2) If petition is sufficient, order requiring (1) A judgment annulling or modifying the
respondents to comment shall be issued; proceedings of the tribunal, board, or officer
taken without or in excess of jurisdiction or
♥ This order is equivalent to a
with GADALEJ.
summons.
(2) Costs.
(3) Respondent must file comment within 10
days from receipt of such order. Prohibition:
♥ In petitions for certiorari before the SC (1) A judgment commanding the defendant to
and the CA, before giving due course to desist from further proceeding in the action
the petition, respondents may be or matter where the proceedings were
required to comment. without or in excess of jurisdiction or with
GADALEJ.
(4) After the comment is filed or the period
for filing it expires, the court may hear (2) Costs.
the case or require submission of
memoranda. Mandamus:
(5) The court can the render judgment as is (1) Judgment commanding the respondent to do
appropriate. the act required to be done.
(2) Costs (probably).
DOES FILING THE PETITION INTERRUPT (3) Exemplary damages.

THE RUNNING OF THE APPEAL PERIOD? Why are damages not awarded in certiorari and
General rule: No. Under Sec. 7 of Rule 65, the prohibition?
petition shall not interrupt the course of the The question of damages can only be
principal case … determined in an adjudication of the merits of
Exception: … unless a TRO or a writ of the case. In certiorari and prohibition, all that is
preliminary injunction has been issued against determined is whether there is lack or excess of
the public respondent from further proceeding in jurisdiction.
the case.
WHEN CAN A PETITION BE DISMISSED?

Before comment:
(1) Defective in form and substance;
(a) Non-joinder of private respondents;
(b) No proof of service;
(c) No certificate of non-forum shopping;

Cayo 2D
RULE 66 HOW IS QUO WARRANTO AGAINST DE
FACTO ELECTIVE OFFICERS BROUGHT
QUO WARRANTO UNDER THE OMNIBUS ELECTION CODE?
WHAT IS QUO WARRANTO? It is brought by any voter via a sworn petition,
It is Latin for “by what authority”. TEN DAYS after the proclamation of the results
of the election, on the ground of ineligibility or
It is a demand made by the state upon an disloyalty to the Republic of the Philippines.
individual or corporation to show by what right
they exercise some franchise or privilege The body with jurisdiction is:
appertaining to the state which, according to the (a) The COMELEC. if it is against a member of
Constitution and the laws, they cannot legally congress or a regional, provincial, or city
exercise except by virtue of a grant or authority officer;
from the state.
(b) The RTC or MTC, if it is against a municipal
or barangay officer.
Section 1. – An action for the usurpation of a DISTINGUISH BETWEEN QUO WARRANTO
public officer, position or franchise may be PROCEEDING REFERRING TO OFFICES
commenced by a verified petition brought in the FILLED BY ELECTION AND THOSE FILLED
name of the Republic of the Philippines against: BY APPOINTMENT.
(a) A person who usurps, intrudes into, or Election – what is determined is the eligibility of
unlawfully holds or exercises a public office, the elected candidate; the court cannot declare
position or franchise; that the second placer has been elected since
(b) A public officer who does or suffers an act the law only authorizes declaration of election in
which, by the provision of law, constitutes a favor of a candidate who has received the most
ground for the forfeiture of his office; or votes
(c) An association which acts as a corporation Appointment – what is determined is the

within the Philippines without being legally legality of the appointment; the court
incorporated or without lawful authority so determines who has been appointed and should
to act. declare who is entitled to occupy the office
NOTE: ACCEPTANCE OF INCOMPATIBLE
OFFICE AND ITS EFFECTS ON THE QUO
IN WHOSE NAME AND AGAINST WHOM IS WARRANTO PETITION
AN ACTION FOR QUO WARRANTO
BROUGHT? Where the petitioner subsequently accepts an
office incompatible to the one he alleges to have
It is brought in the name of the Republic of the been usurped from him, the petition should be
Philippines. dismissed because he is considered to have
abandoned it.
It is brought against:
However, where abnormal conditions were
(a) Persons who usurp, intrude into or
present and the incompatible office was only
unlawfully hold a public office, position or
temporarily accepted, the petition should not be
franchise;
dismissed.
(b) Public officers who forfeit their office; and
NOTE: REMOVAL AND REPLACEMENT OF
(c) Associations which act as corporations OFFICER
without legally being incorporated or
Where the petitioner was legally dismissed and
authorized.
his replacement was qualified and duly
DISTINGUISH QUO WARRANTO FROM THE appointed, removal can only be done in the
SECOND GROUND FOR MANDAMUS. regular way and the petition should be
dismissed.
Quo warranto is proper if the respondent usurps,
intrudes, or unlawfully holds the office. Where removal was illegal, the appointment of
another person, even if apparently regular, was
Mandamus is proper if the respondent unlawfully
invalid because the position is not considered
excludes – without usurping - the petitioner
vacant.
from an office to which the latter is entitled.

Cayo 2D
DOES PUBLIC OFFICE INCLUDE (2) With the court’s permission (where it is to be
LEGISLATIVE OFFICE? commenced);
Yes. In Avelino v. Cuenco, the SC assumed (3) Provided that the SolGen/prosecutor MAY
jurisdiction over the political question of who require the person requesting and relating to
was the duly elected senate president and held provide an indemnity for the expenses and
that there was a quorum when Cuenco was costs of the action approved by and
elected. The petition for quo warranto was deposited in the court.
dismissed.
IN CASES WHERE THE SOLGEN MAY FILE
CAN QUO WARRANTO BE BROUGHT THE PETITION, WHAT IS THE PROCEDURE?
AGAINST CORPORATIONS BY ESTOPPEL?
(1) The request is made to the SolGen,
No, because they are not really corporations and indemnity may be required;
are merely treated as such for purposes of being
(2) Permission is applied for in court;
sued.
(3) The court will direct notice to be given to the
Quo warranto is brought against de facto
respondent who may oppose the application;
corporations or associations which act as
corporations without authority such as those (4) If permission is granted, an order granting
whose certificate of registration was improperly such permission shall be issued and copies
issued. served on the interested parties;
(5) The petition for quo warranto will be filed
within the period ordered by the court.
WHAT ARE THE INSTANCES WHEN AN
ACTION FOR QUO WARRANTO IS BROUGHT WHO IS THE RELATOR?
(AS TO WHO BRINGS THE ACTION)?
The relator is the one at whose request the
(1) The SolGen or a public prosecutor MUST SolGen or a public prosecutor brings the action
(Sec. 2) or MAY (Sec. 3) bring the action; with the permission of the court.
(2) An individual may bring the action (Sec. 4).
WHEN MAY AN INDIVIDUAL COMMENCE
THE ACTION?
WHEN MUST THE SOLGEN OR A PUBLIC
When the individual claims to be entitled to a
PROSECUTOR COMMENCE THE ACTION
public office or position usurped or unlawfully
(SEC. 2)?
held or exercised by another, an action may be
(1) When directed by the President; OR brought in his own name.
(2) When he has good reason to believe that the IMPORTANT: WHAT MUST THE INDIVIDUAL
cases in section 1 can be established by PETITIONER PROVE IN ORDER FOR THE
proof. PETITION TO BE GRANTED?
IS THE SOLGEN’S DUTY MANDATORY OR He must show that he is entitled or that he has a
DISCRETIONARY? clear right to the office being contested. It is not
sufficient that he has preferential right to be
The book says that the SolGen exercises
appointed to the office in question.
discretion in the determination of the sufficiency
of proof – “when he has good reason to believe”. The doctrine is: No individual can bring a civil
action relating to usurpation of a public office
However, if he is directed by the President, who
without averring that he has a right to the
has control and supervision over him, I think
same; and at any stage of the proceedings, if it
that he MUST file the petition.
be shown that such individual has no right, the
action may be dismissed because there is no
legal ground upon which it may proceed when
WHEN MAY THE SOLGEN OR A PUBLIC the fundamental basis of such action is
PROSECUTOR COMMENCE THE ACTION destroyed.
(SEC. 3)?
May an individual bring an action for quo
(1) At the request and upon the relation of warranto against two or more persons?
another person;
In general, an individual cannot bring an action
for quo warranto against two or more persons

Cayo 2D
illegally holding separate offices unless he is proceedings in order to secure the most
entitled to them all. expeditious determination of the matters
involved therein consistent with the rights of the
parties. The action MAY be given precedence
WHAT ARE THE CONTENTS OF THE QUO
over any other CIVIL matter pending in the
WARRANTO PETITION AGAINST
court.
USURPATION?
(1) The parties:
WHAT SHOULD THE JUDGMENT CONTAIN?
a. Petitioner - he person/s claiming
to be entitled to the position Where the respondent is found to be guilty of
(Under Sec. 1, it is brought in usurping, unlawfully holding, or exercising a
the name of RP but under Sec. public office or franchise, judgment shall be
5, it can be brought in the rendered:
individual’s own name).
(a) that such respondent be OUSTED and
b. Respondent – the party alleged altogether excluded from the office;
to be unlawfully holding the
(b) that the petitioner or relator, as the case
position
may be, recover his COSTS;
(2) An averment of the petitioner’s right to
(c) a determination of the respective rights
the office
of the parties to the office/franchise MAY
(3) An averment of the respondent’s also made as justice requires.
unlawful possession of the office
IMPORTANT: DISTINCTION BETWEEN THE

WHERE SHOULD THE ACTION FOR QUO COURT’S ACTION WHEN THE ACTION IS
WARRANTO BE BROUGHT? BROUGHT BY THE SOLGEN OR A PUBLIC
PROSECUTOR AND AN INDIVIDUAL
In general (original and concurrent):
Brought by SolGen / public prosecutor – the
(a) SC
court may decide against defendant and order
(b) CA his ouster even if there is no one adjudged to be
entitled to the office
(c) RTC with jurisdiction over the territorial area
where the respondent or any of the Brought by individual –if the individual fails to
respondents reside prove that he is entitled to the office, there will
be no judgment against the defendant
Where the SolGen commences the action
(original and concurrent):
(a) SC WHAT ARE THE RIGHTS OF THE PERSON
ADJUDGED TO BE ENTITLED TO THE OFFICE
(b) CA (SEC. 10)?
(c) RTC Manila After taking the oath and executing the bond
NOTE: Though the SC has original jurisdiction required by law, if any, the person adjudged to
concurrently with the RTC, unless there are be entitled may:
compelling reasons, the action will be left to the (a) take upon himself the execution of the
RTC because of the factual issues involved. office (perform the functions);
NOTE: The Sandiganbayan has original (b) demand from the respondent all the
jurisdiction over quo warranto proceedings in aid books and papers in the latter’s custody
of its appellate jurisdiction. This is concurrent appertaining to the office, refusal of
with the SC. which is punishable by contempt;
(c) bring an action for damages (back
NOTE: AS TO PERIODS FOR FILILNG salaries and other damages) sustained
PLEADINGS / OTHER PROCEEDINGS by reason of the usurpation.
The court MAY reduce the periods provided in NOTE: DAMAGES UNDER THE OMNIBUS
the Rules for filing pleadings and for all other ELECTION CODE

Cayo 2D
Actual or compensatory damages by be granted assured of reinstatement by the administrative
in election contests and quo warranto authorities.
proceedings.
NOTE: LIMITATIONS UNDER THE OMNIBUS
ELECTION CODE
WHAT ARE THE LIMITATIONS ON AN The petition for quo warranto must be filed with
ACTION FOR QUO WARRANTO (SEC. 11)? the COMELEC, RTC, or MTC, as the case may be,
within ten days after the proclamation of the
(1) The action itself must be commenced:
results of the election.
a. One year from ouster; or
However, the filing with the Commission to
b. One year from the time the right annul or suspend proclamation shall suspend the
of the petitioner to the office running of the prescriptive period.
arose
(2) An action for damages by reason of the
WHAT ELSE MUST THE JUDGMENT CONTAIN
usurpation must be commenced within
(SEC. 12)?
one year after the ENTRY of the
judgment establishing the petitioner’s The court may render judgment for costs against
right to the office in question. either the petitioner, the relator, or the
respondent, or the person or persons claiming to
In (1), both criteria must be met. Ex: If the
be a corporation, or may apportion the costs, as
petitioner’s right to hold the office has existed
justice requires.
for more than one year, the petition will be
dismissed although the usurper had been
occupying the office for less than a year.
In (2), the claim for back salaries and damages
is INCIDENTAL to the principal action and must
be brought within one year.
WHAT IS THE REASON FOR REQUIRING THE
QUO WARRANTO ACTION TO BE FILED
WITHIN ONE YEAR?
Persons ousted from an office should take
immediate steps to recover the office and a
delay of more than one year is considered as a
loss of the right to the office due to
abandonment thereof.
Public policy and convenience demand stability
in government.
IS THERE AN EXCEPTION TO THE ONE YEAR
PRESCRIPTIVE PERIOD WITHIN WHICH TO
FILE THE QUO WARRANTO ACTION?
Yes. In Cristobal v. Melchor, where the petitioner
was constantly promised and assured
reinstatement, he was held not to have lost his
right to file an action for quo warranto despite
the lapse of one year. Laches could not apply
because there was no inaction in view of the
representations of the government.
DOES THE RESORT TO ADMINISTRATIVE
REMEDIES ABATE THE ONE YEAR PERIOD
TO FILE QUO WARRANTO PROCEEDINGS?
No. The rule of exhaustion does not apply here.
Read this with the exception to the prescriptive
period where the petitioner was repeatedly

Cayo 2D
RULE 68 judgment for a deficiency, after the sale of the
mortgaged premises, or the property pledged, in
FORECLOSURE OF REAL ESTATE MORTGAGE the foreclosure or other proceeding to realize
By Shak upon the security, he may claim his deficiency
judgment in the manner provided in the
preceding section, or he may rely upon his
Q: How do you commence a Foreclosure of mortgage or other security alone, and foreclose
Real Estate Mortgage? the same at any time within the period of the
statute of limitations, and in that event he shall
A: By filing of a complaint which shall set forth
not be admitted as creditor, and shall receive no
the date and due execution of the mortgage, it’s
share in the distribution of the other assets of
assignments, if any, the names and residences
the estate.
of the mortgagor and the mortgagee; a
description of the mortgaged property; a
statement of the date of the note or other
documentary evidence of the obligation secured Q: Is extra-judicial foreclosure allowed
by the mortgage; the amount to be claimed to after the death of the mortgagor?
be unpaid thereon and the names and A: The general rule is that the power of sale
residences of all persons having or claiming an given in a mortgage is a power coupled with an
interest in the property subordinate in right to interest which survives the death of the grantor.
that of the holder of the mortgage, all of whom
shall be made defendants. However, the proper way, in congruence with
the law, is to suspend temporarily the power to
sell so as not to interfere with the orderly
Q: What is pactum commissorium ? administration of the estate of a decedent. In
this light, extra-judicial foreclosure is not
A: The prohibition against the occurrence by allowed after the death of the mortgagor.
which a mortgagee-creditor appropriates the
thing mortgaged automatically upon default of
the mortgagor-debtor in paying the principal Q: What are the remedies of the mortgage
obligation, or disposes of it without resorting to creditor against an insolvent debtor?
the process of foreclosure, whether judicial or A: In the insolvency as well as in the
extra-judicial. Any stipulation to the contrary is testamentary and intestate proceedings, the
void. mortgage creditor is not obliged to take part in
said proceedings for the recovery of his debt
against the insolvent or the decedent’s estate,
Q: What are the modes of foreclosure of he may institute, maintain and prosecute a
real estate mortgage? separate suit against the insolvent debtor, or
against the executor or administrator for the
A: It may be either judicial or extra-judicial.
recovery of his secured credit until he obtains a
final judgment and he may enforce this
judgment against the property mortgaged to
Q: What are the provisional remedies
him in the manner established by law.
available to the mortgagee in case of
foreclosure? However, after the mortgage debtor has been
declared insolvent and the insolvency court has
A: 1. Preliminary attachment of properties of the
acquired control of his estate, no separate
debtor not covered by the mortgage.
foreclosure the mortgage without the knowledge
2. Receivership of mortgaged property. and previous consent of the insolvency court.
Q: What are the remedies of the mortgage Q: What is the rule when a personal action
creditor against the estate of the deceased? for the recovery of the debt is instituted
instead of foreclosure?
A: He may abandon the security and prosecute
his claim, and share the general distribution of A: He may pursue either of the 2 remedies but
the assets of the estates; or he may foreclose not both. By such election his cause of action
his mortgage or realized upon his security, by can by no means be impaired, for each of the 2
action in court, making the executor or remedies is complete in itself. Thus, an election
administrator a party defendant, and if there is a to bring a personal action will leave open to him

Cayo 2D
all the properties of the debtor for attachment Q: May the first mortgagee be joined as
and execution, even including the mortgaged party defendant in foreclosure action by the
property itself. second mortgagee?
A: Yes, in such a situation, the 2nd mortgagee
has to wait until after the debtor’s obligation to
Q: Where is the venue of foreclosure of real
the 1st mortgagee has been fully settled. The
estate mortgage?
court ordered the property given as security to
A: Actions affecting title to or possession of real be sold, the proceeds to be paid to the first
property, or interest therein, shall be mortgagee and the excess, if any, to the 2nd
commenced and tried in the proper court which mortgagee.
has jurisdiction over the area wherein the real
property involved, or a portion thereof, is
situated. Q: What can he do once he is not joined?
A: He may file a complaint in intervention. Even
if the 1st mortgagee is not joined or does not
Q: Who are the parties in a foreclosure
intervene, his rights are protected inasmuch as
complaint?
the mortgaged property remains subject to his
A: Indispensable parties: lien.
1. The mortgage debtor
2. The mortgagor or owner of the mortgaged Q: What is the effect of an accelerating
property, if not the debtor, or clause?
3. The executor or administrator of the A: The failure of the mortgagor to comply with
deceased mortgagor. this stipulation has the effect of accelerating the
time for the payment of the mortgage debt, and
4. The executor or administrator of the rendering the mortgage subject to foreclosure
property mortgaged with the approval of the and sale under Act. 3135. When the mortgage is
court. rendered foreclosurable for such non-
5. The heir to whom the mortgaged property compliance, the bringing of the action of
has been adjudicated. foreclosure may be justified.
Q: What is the effect of the failure to join Q: What is the effect of a prohibition
the second mortgagee, junior against a second mortgage, sale or
encumbrancer, subordinate lienholder, or donation?
subsequent purchaser? A: Although the civil code states that a
A: While a second mortgagee is a proper and a stipulation forbidding the owner form alienating
necessary party to a proceeding to foreclose a the immovable mortgaged shall be void, a way
1st mortgage on real property, he is not an to get around it is to provide for a stipulation
indispensable party, because a valid decree may wherein such act or acts must be made with the
be made, as between the mortgagor and 1st consent of the mortgagee as a condition.
mortgagee, without regard to the second
mortgage, but the consequence of a failure to
make the 2nd mortgagee a party to such Q: What happens when the court finds that
proceeding is that the lien of the 2nd mortgagee in the action for foreclosure, the facts set
on the equity of redemption is not affected by forth in the complaint is true?
the decree of foreclosure.
A: It shall ascertain the amount due to the
The effect of the failure to implead a subordinate plaintiff upon the mortgage debt or obligation,
lienholder or subsequent purchaser or both is to including interest and other charges and costs,
render the foreclosure ineffective as against and shall render judgment for the sum so found
them, with the result that there remains in their due and order that the same be paid to the court
favor the “unforeclosed equity of redemption.” or to the judgment obligee within a period of not
But the foreclosure is valid as between the less than 90 days nor more than 120 days
parties to the suit. (equity in redemption) from the entry of
judgment, and that in default of such payment

Cayo 2D
the property shall be sold at public auction to Q: What is the right of redemption?
satisfy the judgment.
A: The mortgagor or debtor shall have the right
to redeem the property by paying the amount
due under the mortgage deed, with interest
Q: What is the manner of enforcing a
thereon at the rate specified in the mortgage,
judgment of foreclosure after 5 years?
and all the costs and expenses incurred by the
A: 1. A judgment of foreclosing a mortgage bank or institution from the sale and custody of
which has lost executory force by the lapse of 5 said property less the income derived therefrom.
years, may be revived by filing a complaint
The period of one year after the sale has been
based thereon.
construed as one year from the registration of
2. A 2nd mortgagee who was not a party either the sale of registered land.
in the original complaint or in the judgment
entered by virtue thereof, may not be included
as party defendant in an action commenced by a Q: When in a foreclosure suit, there is no
complaint for the purpose of reviving the said 3rd person intervenor, what should the
judgment which has already lapsed purchaser do in order to gain possession
thereof or attain title thereto?
3. The mortgagee who forecloses a part of the
mortgaged properties only and does not A: He should obtain a writ of possession to put
foreclose the remainder until after the expiration an end to the litigation. As regards the title to
of 5 years to recover the balance of the such property, it shall vest upon the purchaser
mortgage indebtedness, is not entitled to charge upon finality of the order of confirmation of the
interest on said balance for the period of the sale.
delay.
Q: Differentiate right of redemption and

Q: What is the effect of the sale of equity in redemption.
mortgaged property?
A: The right of redemption is the right of the
A: Upon the failure of the defendant to pay the mortgagor to redeem the mortgaged property
amount of the judgment within the specified within a certain period (in most cases, within 1
period, the plaintiff shall file a motion for year) after the sale of the property in
execution foreclosing the mortgage. satisfaction of the mortgage debt. It is available
to the mortgagor only when the mortgage is
After the sale on foreclosure of the mortgaged
foreclosed extrajudicially. It is not available in
property, the plaintiff or the purchaser shall file
judicial foreclosures, except when the
a motion for confirmation of the sale with notice
mortgagee foreclosing is a bank.
to all the parties to the action. Without notice
and hearing, an order of confirmation is void and On the other hand, equity of redemption is the
may be set aside anytime. right of the mortgagor in a judicial foreclosure to
pay the amount of his obligation before the
The confirmation of the sale of the mortgaged
confirmation of the sale (usually 90 to 120 days)
real property in judicial foreclosure proceedings
of the mortgaged property.
cuts off all interest of the mortgagor in the
property sold and vest them in the purchaser.
Such confirmation retroacts to the date of the
Q: In order to that a sale may be validly
sale. The order of confirmation is a final order
confirmed, what should the court do?
which is appealable.
A: It is necessary that a hearing be given the
Before the finality of the order of confirmation,
interested parties, at which they may have an
the mortgage debtor, the 2nd mortgagee, the
opportunity to show cause why the sale should
subsequent attaching creditor or purchaser may
not be confirmed, and to inform them of the
exercise what is known as the “equity of
time when their right of redemption is cut off.
redemption in judicial foreclosure of real estate
Lack of notice and hearing of motion for
mortgage except when allowed by law.
confirmation renders the order null and void.

Cayo 2D
Q: To enjoin a foreclosure proceeding the court, may on motion order more property
instituted by a bank, what should the to be sold. It lies within the power of the plaintiff
petitioner do? to present the matter by motion to the trial
court.
A: He may file a bond in the amount fixed by the
court that he will pay all the damages which the
bank may suffer.
Q: What happens when there is a deficiency
in the amount realized by the judicial sale?
Q: Can the property be judicially sold A: The court upon motion shall render judgment
substantially less than its actual value? against the defendant for any such balance for
which, by the record of the case, he may be
A: Yes, mere inadequacy of the price is not a
personally liable to the plaintiff, upon which
ground for setting aside the sale, unless it is
execution may issue immediately if the balance
unconscionable or iniquitous.
is all due at the time of the rendition of the
judgment, otherwise, the plaintiff shall be
entitled to execution at such time as the balance
Q: What happens to the proceeds of the remaining becomes due under the terms of the
sale? original contract, which time shall be stated in
A: After deducting the costs of the sale, the the judgment.
amount realized shall be paid to the person
foreclosing the mortgage, and when there shall
be any balance or residue, after paying off the Q: What are the cases wherein a deficiency
mortgage debt due, the same shall be paid to judgment cannot be decreed?
junior encumbrancers in the order of their
A: 1. One who mortgages his property to secure
priority, to be ascertained by the court, or if
the debt of another without expressly assuming
there be no such encumbrancers or there be a
personal liability for such debt cannot be
balance or residue after payment to them, then
compelled to pay the deficiency remaining due
to the mortgagor or his duly authorized agent,
after the mortgage is foreclosed.
or to person entitled to it.
2. In an action to foreclose a mortgage against a
nonresident defendant not found in the
Q: How should the sale proceed in case the Philippines who fails to submit himself to the
debt is not all due? jurisdiction of the court, no personal judgment
for the deficiency can be rendered.
A: If the debt for which the mortgage or
encumbrance was held is not all due as
provided in the judgment, as soon as a sufficient
Q: If it be for a judicial foreclosure of a
portion of the property has been sold to pay the
chattel mortgage, can the deficiency be
total amount and the costs due, the sale shall
claimed in the same action?
terminate, and afterwards, as often as more
becomes due for principal or interest and other A: No, an independent action may be instituted
valid charges, the court may, on motion, order for the recovery of the deficiency.
more to be sold. But if the property cannot be
sold in portion without prejudice to the parties,
the whole shall be ordered to be sold in the 1st Q: What is the prescriptive period to file an
instance, and the entire debt and costs shall be action for deficiency in extrajudicial
paid, if the proceeds of the sale be sufficient foreclosure of real estate mortgage?
therefor, there being a rebate of interest where
such rebate is proper. A: The right to claim payment of deficiency after
foreclosure of real mortgage prescribes in 10
years.
Q: If the payment of the secured debt is
made by installment, what is the rule?
Q: What happens after confirmation of the
A: Default in the payment of any installment judicial sale?
gives the mortgagee a right to foreclose as to
such installments without waiting for the A: If shall be registered in the registry of deeds.
maturity of the whole debt. As often as more of If no right of redemption exists, the certificate of
the debt becomes due for principal or interest, title in the name of the mortgagor shall be

Cayo 2D
cancelled, and a new one issued in the name of
the purchaser.
Q: What if a right of redemption exists,

such as when the mortgagee is a bank?
A: The certificate of title in the name of the
mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the
sale shall be registered and a brief
memorandum thereof made by the registrar of
deeds upon the certificate of title.
Q: What if the property is redeemed?

A: The deed of redemption shall be registered
with the registry of deeds, and a brief
memorandum thereof shall be made by the
registrar of deeds on said certificate of title.
Q: What if the property is not redeemed?

A: The final deed of sale executed by the sheriff
in favor of the purchaser at the foreclosure sale
shall be registered with the registry of deeds,
whereupon the certificate of title in the name of
the mortgagor shall be cancelled and a new one
issued in the name of the purchaser.

Cayo 2D
RULE 70 Cases of forcible entry and detainer are
summary in nature. This means that
FORCIBLE ENTRY AND UNLAWFUL technicalities or details of procedure which may
DETAINER cause unnecessary delays should carefully be
avoided.
By Sheryl
WHAT ARE THE KINDS OF ACTION TO RECOVER
DISTINGUISH BETWEEN FORCIBLE ENTRY POSSESSION OF REAL PROPERTY?
AND UNLAWFUL DETAINER
1. Forcible entry and detainer – an
FORCIBLE ENTRY UNLAWFUL action which could be brought in the
DETAINER MTC within 1 year from the unlawful
Based on entry Based on unlawful deprivation or withholding of possession.
effected by force, detention by a person The object is the recovery of physical
intimidation, threat, who has acquired possession (possession de facto).
strategy, or stealth possession rightfully,
(FISTS) but who detains the 2. Accion Publiciana – a plenary action
property after the for possession which should be filed in
right to keep the RTC within 10 years from the date of
possession is ended. dispossession. The object is recovery of
The action is to The possession is the better right to possession
recover possession legal at the start (possession de jure).
founded upon illegal but becomes illegal
possession from the after the right to 3. Accion Reivindicatoria – an action to
beginning. keep it has ended recover ownership and possession,
which may be brought in the RTC within
10 years, if possession is in good faith,
WHERE SHOULD THE ACTION BE FILED? and 30 years if possession is in bad
faith.
The action should be filed in the MTC where the
property is located. So if A is dispossessed of his property
through FISTS, the he should file an action
WHEN SHOULD THE ACTION BE FILED? for forcible entry in the MTC. He should file
within one year from the date of
The action should be filed within 1 year after the dispossession. If after the expiration of
unlawful deprivation or withholding of one year, he does not file an action for
possession. forcible entry, the proper action is accion
publiciana, which should be filed in the RTC
WHO MAY FILE THE ACTION? within 10 years from dispossession.
For Forcible Entry: Anyone deprived of the

possession of any land or building by FISTS; FROM WHAT DATE IS THE ONE-YEAR
PERIOD COUNTED?
For Unlawful Detainer:
In forcible entry: from the date of entry or
1. Any landlord, vendor, or vendee, or taking of possession by force, intimidation,
other person against whom the threat, or strategy. If entry is by means of
possession of any land or building is stealth, count from the date of discovery.
unlawfully withheld after the expiration
or determination of the right to hold In illegal detainer:
possession, by virtue of any contract,
express or implied; and 1. from the date of the last demand to
vacate in case of non-payment of rent or
2. The legal representatives or assigns of non-compliance with the conditions of
any such landlord, vendor, vendee, or the lease.
any other person.
2. from the date of the notice to quit, in
WHAT IS THE NATURE OF THE ACTION? case of a tacit renewal of the lease;

Cayo 2D
3. from the date of the revocation of the The complaint must state that the two demands
permit in case of occupancy on mere mentioned above were made in order to confer
tolerance or under a temporary permit. jurisdiction upon the MTC.
IN AN ACTION FOR ILLEGAL DETAINER, IS WHEN IS A DEMAND NOT NECESSARY?

IT NECESSARY TO ESTABLISH PRIOR
PHYSICAL POSSESSION? A demand is not necessary when the action is to
terminate the lease because of the expiration of
No. In an action for illegal detainer, an the term. It is only necessary when the action is
allegation of prior physical possession is not for failure to pay rent due or to comply with the
required. This is because in illegal detainer, the conditions of the lease.
defendant actually has prior possession. The
possession of the defendant is lawful at first and But remember that the demand is necessary
becomes unlawful only after the right to keep it only in unlawful detainer cases. It is not
has ended. necessary in forcible entry cases because the
possession is illegal from the beginning.
WHAT MUST THE PLAINTIFF ALLEGE IN AN
ACTION FOR FORCIBLE ENTRY? WHAT PLEADINGS ARE ALLOWED IN AN
ACTION FOR FE OR UD?
The plaintiff must allege:
The only pleadings allowed are:
1. prior physical possession;
1. complaint
2. and that he was deprived thereof by 2. compulsory counterclaim
means of FISTS. (If the dispossession 3. cross claim
did not take place by any of these 4. answers thereto
means, the RTC has jurisdiction, even if
the action is filed within one year from WHAT ACTION WILL THE COURT TAKE ON
dispossession) THE COMPLAINT?
IF THE AMOUNT OF DAMAGES AND RENTS The court may either:

CLAIMED BY THE PLAINTIFF IN AN ACTION
FOR UNLAWFUL DETAINER OR FORCIBLE 1. dismiss the case outright on any of the
ENTRY EXCEEDS THE JURISDICTIONAL grounds for the dismissal of a civil action
AMOUNT OF THE MTC, DOES THE MTC STILL which are apparent thereon; or
HAVE JURISDICTION?
2. issue summons, if no ground for
Yes. The amount of damages in FE or UD is not dismissal is found.
jurisdictional because it is only incidental to the
main action. WHAT IS THE EFFECT OF THE FAILURE OF
THE DEFENDANT TO ANSWER THE
BEFORE COMMENCING THE ACTION FOR COMPLAINT WITHIN THE PERIOD
UNLAWFUL DETAINER, WHAT MUST THE REQUIRED?
LESSOR DO?
The court, motu propio or upon motion of the
The lessor must first make a demand upon the plaintiff, shall render judgment as may be
lessee: warranted by the facts alleged in the complaint
and limited to what is prayed for therein. The
1. to pay or to comply with the conditions court may reduce the amount of damages and
of the lease; and attorney’s fees prayed for if excessive or
unconscionable.
2. to vacate the premises.
AFTER THE ANSWER IS FILED, WHAT
If the lessee fails to comply with these demands HAPPENS?
within 15 days in case of land or 5 days in case
of buildings, the lessor may file the action for Not later than 30 days after the last answer is
unlawful detainer. filed, a preliminary conference shall be held.

Cayo 2D
WHAT HAPPENS IF THE PLAINTIFF DOES
NOT APPEAR AT THE PRELIMINARY Within 10 days from receipt of the order, the
CONFERENCE? parties shall submit:
The failure of the plaintiff to appear in the 1. affidavits of their witnesses and other
preliminary conference shall be cause for evidence on the factual issues; and
dismissal of the complaint.
2. position papers setting forth the law and
The defendant who appears in the absence of the facts relied upon by them.
the plaintiff shall be entitled to judgment on his
counterclaim based on the pleadings. All cross- The affidavits must state only facts of direct
claims shall be dismissed. personal knowledge of the affiants and shall
show their competence to testify to the matters
WHAT HAPPENS IF THE DEFENDANT DOES stated therein.
NOT APPEAR AT THE PRELIMINARY
CONFERENCE? WITHIN WHAT PERIOD MUST THE COURT
RENDER JUDGMENT?
If the sole defendant fails to appear, the plaintiff
shall likewise be entitled to judgment on the Within 30 days after receipt of the affidavits and
pleadings. position papers or the expiration of the period
for filing them, the court shall render judgment.
But if two or more defendants sued under a
common cause of action had pleaded a common But if the court finds it necessary to clarify
defense, and at least one of them appears at the certain material facts, it may issue an order
preliminary conference, the plaintiff shall not be specifying the matters to be clarified and require
entitled to judgment on the pleadings. the parties to submit affidavits or other evidence
within 10 days. Judgment shall be rendered
CAN THE PRELIMINARY CONFERENCE BE within 15 days after receipt of the last affidavit.
POSTPONED?
WHAT ARE PROHIBITED PLEADINGS?
Generally, no. It can only be postponed for
highly meritorious grounds. 1. Motion to dismiss, except on the ground
of lack of jurisdiction over the subject
WHAT ARE THE CONTENTS OF THE RECORD OF matter, or failure to refer the matter for
PRELIMINARY CONFERENCE? conciliation when required
Within 5 days after the termination of the 2. Motion for bill of particulars;
preliminary conference, the court shall issue an
order stating the matters taken up therein, 3. Motion for new trial, reconsideration, or
including but not limited to: reopening of trial;
1. whether the parties have arrived at an 4. Petition for relief from judgment;
amicable settlement;
5. Motion for extension of time to file
2. the stipulations or admissions entered pleadings, affidavits, or any other paper;
into by the parties;
6. Memoranda;
3. whether judgment may be rendered
without the need of further proceedings; 7. Certiorari, mandamus, prohibition
against any interlocutory order;
4. a clear specification of material facts
which remain controverted; 8. Motion to declare defendant in default;
5. other matters intended to expedite the 9. Dilatory motions for postponement;

disposition of the case.
10. Reply;
WHAT HAPPENS AFTER THE ISSUANCE OF
THE ORDER OF THE PRELIMINARY 11. Third-party complaints;
CONFERENCE?

Cayo 2D
12. Interventions.
If the allegations of the complaint are found to
MAY THE COURT GRANT PRELIMINARY be true, the court shall render judgment in favor
INJUNCTION DURING THE PENDENCY OF of the plaintiff:
THE CASE?
1. for the restitution of the premises;
Yes. The plaintiff may, within 5 days after filing
the complaint, file a motion for the issuance of a 2. for rentals in arrears or for reasonable
writ of preliminary mandatory injunction to compensation for the use and occupation
restore him in his possession or preliminary of the property;
prohibitory injunction to prevent the defendant
from committing further acts of dispossession 3. attorney’s fees;
against the plaintiff.
4. costs.
WHAT SHOULD THE MTC DO IF THE
DEFENDANT RAISES THE DEFENSE OF If the allegations are not true, the defendant
OWNERSHIP IN HIS PLEADINGS? may recover costs from the plaintiff.
If the question of possession cannot be resolved IS A JUDGMENT IN FE OR UD CONCUSIVE

without deciding the issue of ownership, the MTC AS TO OWNERSHIP?
should resolve the issue of ownership but only to
determine the issue of possession. Nye, siempre hindi. The judgment shall only be
conclusive as to possession. It shall not bind the
GUIDELINES: title or affect the ownership of the property. It
shall not bar an action between the same parties
1. The principal issue must be possession. with respect to title to the property.
Ownership must merely be ancillary
thereto. WHERE SHOULD THE DECISION OF THE
MTC BE APPEALED?
2. The plaintiff must really and primarily
seek the restoration of possession. If The judgment is appealable to the appropriate
the reliefs sought establish a case for RTC.
recovery of ownership, the action should
be dismissed. AGAINST WHOM IS THE JUDGMENT
BINDING?
3. The inferior court cannot adjudicate the
issue of ownership if the relationship of The judgment is binding against:
lessor-lessee has been sufficiently
established, unless the has been a 1. the defendant;
subsequent change in or termination of 2. all members of his family;
that relationship between the parties. 3. servants;
4. employees;
4. In forcible entry case, but not in 5. sublessees;
unlawful detainer, the party who can 6. guest;
prove prior possession can recover such 7. agent;
possession even against the owner 8. successor-in-interest.
himself.
DOES AN EJECTMENT CASE SURVIVE THE
5. If the question of possession hinges on DEATH OF A PARTY?
the question of ownership, the inferior
court may resolve the issue of ownership An ejectment case survives the death of a party.
provisionally. Such determination is This is because it involves possession of real
binding only with respect to possession property. The decision may be enforced against
and not to title. It does not bar a the successors-in-interest if one of the parties
subsequent action between the same dies.
parties involving title to the land.
IS A JUDGMENT AGAINST THE DEFENDANT
WHAT RELIEFS MAY BE AWARDED BY THE IMMEDIATELY EXECUTORY?
JUDGMENT IN FE OR UD?

Cayo 2D
Yes, the judgment against the defendant in FE
or UD is immediately executory. CAN THE PLAINTIFF WITHDRAW THE
RENTALS DEPOSITED IN COURT?
WHAT MUST THE DEFENDANT DO TO STAY
EXECUTION OF THE JUDGMENT? Yes, if the defendant does not object.
The defendant must: WHILE THE JUDGMENT IS ON APPEAL TO

THE RTC, CAN THE RTC ISSUE AN
1. perfect an appeal to the RTC; INJUNCTION?
2. file a supersedeas bond to pay accrued
rent, damages, and costs; and Yes. Within 10 days from the perfection of the
3. deposit rents in the RTC during the appeal to the RTC, the plaintiff may file a motion
pendency of the appeal, on the tenth for the issuance of a writ of preliminary
day of each succeeding month or period. mandatory injunction to restore him in
possession if the court is satisfied that:
Upon failure of the defendant to file the bond or
to make the deposits, the RTC may, upon 1. the defendant’s appeal is frivolous or
motion, order execution of the judgment of the dilatory; or
MTC, without prejudice to the continuation of the
appeal of the decision. 2. the appeal of the plaintiff is prima facie
meritorious.
CAN THE COURT EXTEND THE TIME FOR
MAKING THE DEPOSIT?
IS THE JUDGMENT OF THE RTC ON APPEAL
OF THE MTC DECISION IMMEDIATELY
No, the court cannot extend the period for
EXECUTORY?
making the deposit. It must be made on the
tenth day of each succeeding month or period. Yes. The judgment of the RTC against the
defendant is immediately executory. There is no
WHEN CAN THE MOTION FOR IMMEDIATE way of staying execution (unlike the MTC
EXECUTION BE DENIED? decision). This is without prejudice to a further
appeal that may be taken from the RTC decision.
If because of:
1. fraud, accident, mistake, or excusable

negligence (FAME), or
2. the occurrence of supervening events

which brought about a material change
in the situation of the parties and which
would make execution inequitable,
the defendant failed to post the supersedeas

bond or to make the periodic deposits, he may
file a petition for relief under Rule 38. The
motion for immediate execution should be
denied.
WHEN IS A SUPERSEDEAS BOND NOT

REQUIRED?
1. If the defendant deposits in court the

amount of back rentals fixed in the
judgment;
2. If there are not rents and damages in

arrears;
3. Or there is no judgment rendered for

rents and damages.

Cayo 2D

Civipro Atty. Custodio Cayo 2D

Uploaded by

Copyright:

Available Formats

Civipro Atty. Custodio Cayo 2D

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Civipro Atty. Custodio Cayo 2D

Uploaded by

Copyright:

Available Formats

WHAT IS JUDICIAL POWER?

Differentiate between errors of judgment and

An error committed in the exercise of jurisdiction

Civil Procedure Reviewer Page 1 of 70

Civil Procedure Reviewer Page 2 of 70

WHAT IS A CIVIL ACTION?

Civil Procedure Reviewer Page 3 of 70

WHAT IS A PERMISSIVE JOINDER OF WHAT IS THE EFFECT OF MISJOINDER OR

Civil Procedure Reviewer Page 4 of 70

Civil Procedure Reviewer Page 5 of 70

Civil Procedure Reviewer Page 6 of 70

Civil Procedure Reviewer Page 7 of 70

Civil Procedure Reviewer Page 8 of 70

Civil Procedure Reviewer Page 9 of 70

PROBLEM: EVIDENCE IS PRESENTED AT THE 30 days from receipt

WHEN ARE SUPPLEMENTAL PLEADINGS 15 days from notice

Amended pleadings – ALLEGE FACTS WHICH Reply to answer 10 days from

Civil Procedure Reviewer Page 10 of 70

Civil Procedure Reviewer Page 11 of 70

Civil Procedure Reviewer Page 12 of 70

b. an affidavit of the mailer containing d. attached to the summons shall be:

1. a full statement of the date and i. a copy of the complaint and;

Civil Procedure Reviewer Page 13 of 70

It depends. i. some person of suitable age

If the defendant has already appeared in court, ii. and discretion

a. serve a copy of the return personally or by 1. By substituted service, or;

Civil Procedure Reviewer Page 14 of 70

Service must be made on: WHEN IS EXTRATERRITORIAL SERVICE

3. with the government officer designated by b. By publication in a newspaper of

WHAT DOES IT MEAN TO BE “DOING • In this case, a copy of the

Civil Procedure Reviewer Page 15 of 70

Civil Procedure Reviewer Page 16 of 70

(2) Prescription; (4) the identity in these particulars should be

Civil Procedure Reviewer Page 17 of 70

Civil Procedure Reviewer Page 18 of 70

Civil Procedure Reviewer Page 19 of 70

Civil Procedure Reviewer Page 20 of 70

(3) Interrogatories to parties; (1) may be used for contradicting or impeaching

(1) as a device to narrow down and clarify the 1. witness is dead;

Civil Procedure Reviewer Page 21 of 70

 Strike out pleadings or (6) Parties – rebutting evidence

Civil Procedure Reviewer Page 22 of 70

Civil Procedure Reviewer Page 23 of 70

WHAT ARE THE GROUNDS OF NEW TRIAL OR

Civil Procedure Reviewer Page 24 of 70

Civil Procedure Reviewer Page 25 of 70

WHEN MAY DISCRETIONARY EXECUTION OR (3) Monthly allowances as necessary support;

Civil Procedure Reviewer Page 26 of 70

Civil Procedure Reviewer Page 27 of 70

Civil Procedure Reviewer Page 28 of 70

(d) Delivery or restitution of personal (8) Etc.

Special judgments are for acts which can only be

WHAT IS THE EFFECT OF LEVY ON

Civil Procedure Reviewer Page 29 of 70

Errors of judgment Errors of (9) Speculation - When the conclusion is

Civil Procedure Reviewer Page 30 of 70

(5) Certification of non-forum shopping. WHAT IS THE ORIGINAL JURISDICTION OF

Dismissed: (2) Quo warranto;

(1) failure to pay fees; (3) Habeas corpus;

Strike out pleadings or (6) Parties – rebutting evidence