2019 AMENDED RULES OF CIVIL PROCEDURE - REVIEWER 2020-2021

AMENDED RULES OF CIVIL PROCEDURE A motion to intervene is in the sound discretion of the court to
either deny or grant.

REVIEWER – PART 2 Note: Must be along with pleadings that you want the court to
admit (pleading in intervention)

Disclaimer: The author does not guarantee an error-free What is the remedy of the movant when denied?
reviewer. Reading books and cases are highly recommended.  File Appeal because the order of the court denying his
This is only to summarize everything of civil procedure. Happy motion is considered a final order (Ortiz v. Trent 13 Phil
studying and God Bless. Laban lang, Future Atty.! 130); or
 File Separate civil action
* Supplement: Atty.Galleon’s Notes (did not insert here)
Suppose it was improperly granted, what is your remedy?
 Petition for certiorari on the ground of grave abuse of
RULE 19 discretion.
INTERVENTION
TN: Mandamus will not lie because intervention is discretionary
Definition on the part of the judge.
- Process by which a person not a party may be permitted by
the court to be party to the case because of legal interest of Factors to consider whether or not to allow an intervention:
a matter under litigation or has interest in the legal success 1) WON the intervention will unduly delay or prejudice the
of the litigation. adjudication of the rights of the original parties.
2) WON the intervenor’s right may be fully protected in
INTERVENTION separate proceeding.
A pleading by a person, not party to a case, filed in order to make
him a party to the case. Third-Party Complaint Intervention
The third party plaintiff is The one who intervenes is not
 The intervenor protects his interest. already a party to the case as a party to the case.
 He may side with the plaintiff, defendant or even contradict he is the defendant who has a
both. claim against a third party.
 Motion to intervene is just ancillary to the main case

Section 1. Who may intervene Section. 2. Time to intervene

A person who has a legal interest in the matter in litigation, or in The motion to intervene may be filed at any time before rendition
the success of either of the parties, or an interest against both, or of judgment by the trial court. A copy of the pleading-in-
is so situated as to be adversely affected by a distribution or other intervention shall be attached to the motion and served on the
disposition of property in the custody of the court or of an officer original parties.
thereof may, with leave of court, be allowed to intervene in the
action. The court shall consider whether or not the intervention
When or how to file?
will unduly delay or prejudice the adjudication of the rights of the
The motion to intervene may be filed at any time before rendition
original parties, and whether or not the intervenor's rights may be
of judgment by the trial court. A copy of the pleading-in-
fully protected in a separate proceeding.
intervention must of the pleading in intervention shall be
attached to the motion and served on the original parties.
Who may intervene?
1. The intervenor has a legal interest on the matter under Montie: But if you intervene when the case is already submitted
litigation. for decision, the court will most likely deny the motion and
2. The intervenor has a legal interest in the success of either of suggest that you file it in a separate proceeding. Anyway, the
the parties. intervenor is not a party and hence, will not be bound by the
3. The intervenor has a legal interest against both. judgment. It’s too late to intervene at this point (Not sure if binding
4. The intervenor is so situated as to be so affected by a or only Montie’s opinion)
distribution or other disposition of property in the custody of
the court or of an officer thereof. Effect of dismissal of main action on the intervention:

Purpose: To avoid multiplicity of suits Before: Big Country Ranch Corp.

Now: Metropolitan Bank case, the dismissal of the main case
Example: doesn’t necessarily dismiss intervention. If intervention can stand
A and B have a dispute over the ownership of a parcel of land. X independently, it should be allowed to continue.
comes into the picture and claims he is the real owner, but he was
not a party to the case because the case was only between A and SUMMARY OF RULES:
B. X may intervene in this case to protect his interest. If the complaint is dismissed, look at the Intervention.

Example:  If intervention is ancillary to the main case, then it has no leg

In an administration proceedings or settlement of estate. There is to stand on – Intervention is dismissed
an administrator or executor. Suppose they did not perform their
functions, the heirs may intervene because they have a legal  If the intervention can stand independently – Intervention
interest on the subject matter in litigation. subsists.

Example: Q: What is the remedy of the intervenor in case intervention

The car was subject to writ of replevin and it was subject to is denied?
provisional writ of replevin, it was brought to the court and under A: Special action for certiorari if there is grave abuse of discretion.
custody. But that car was sold to you. So what will you do pra dli
ma adto sa plaintiff ang car if mka daog to sya and to prove that
the car was sold to you by your brother?
Section 3. Pleadings-in-intervention
The intervenor shall file a complaint-in-intervention if he asserts a
File a motion to intervene and allowed present a contract signed
claim against either or all of the original parties, or an answer-in-
by your sibling to established that the car has been sold to you.
intervention if he unites with the defending party in resisting a
claim against the latter.
REQUIREMENT: Leave of court PLEADINGS-IN-INTERVENTION

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a) Complaint-in-intervention – if there is a claim against Subpoena is a process directed to a person requiring him to
either/all of original parties; attend and to testify at the hearing or the trial of an action, or at
b) Answer-in-intervention – if intervenor sides with the any investigation conducted by competent authority, or for the
defendant. taking of his deposition. It may also require him to bring with him
any books, documents, or other things under his control, in which
case it is called a subpoena duces tecum.
Section 4. Answer to complaint-in-intervention
The answer to the complaint-in -intervention shall be filed within Q. What are the two kinds of subpoena?
fifteen (15) days from notice of the order admitting the same,
unless a different period is fixed by the court. 1. Subpoena duces tecum – Bring documents and
identify in court.
Q: When shall the answer be filed? 2. Subpoena ad testificandum – appear in court and
Within 15 days from notice of the order admitting the complaint. testify.

REMEDY IF INTERVENTION IS DENIED: Note: Subpoena duces tecum ad testificandum – if both to bring
 Intervention is a matter of judicial discretion. documents and testify in court.
 Mandamus isn’t a remedy as one can’t compel the court to
do discretionary act. But if there is GAD, mandamus or
certiorari may be resorted to (First Philippine Holdings Section. 2. By whom issued
Corp. vs. Sandiganbayan) The subpoena may be issued by:

a) The court before whom the witness is required to attend;

RULE 20 b) The court of the place where the deposition is to be taken;
CALENDAR OF CASES c) The officer or body authorized by law to do so in connection
with investigations conducted by said officer or body; or
Section 1. Calendar of cases d) Any Justice of the Supreme Court or of the Court of Appeals
The clerk of court, under the direct supervision of the judge, shall in any case or investigation pending within the Philippines.
keep a calendar of cases for pre-trial, for trial, those whose trials
were adjourned or postponed, and those with motions to set for When application for a subpoena to a prisoner is made, the judge
hearing. Preference shall be given to habeas corpus cases, or officer shall examine and study carefully such application to
election cases, special civil actions, and those so required by law. determine whether the same is made for a valid purpose.

No prisoner sentenced to death, reclusion perpetua or life

Duty of the COC
imprisonment and who is confined in any penal institution shall be
brought outside the said penal institution for appearance or
– keep a calendar of cases. Preference shall be given to habeas
attendance in any court unless authorized by the Supreme Court.
corpus, election cases, special civil action, and those that are so
required by law
Q: Who may issue a subpoena?
Note: If filed in multi-sala court: the assignment of the case to a
particular branch must be done exclusively by raffle and in open 1. The court before whom the witness is required to attend.
session in which adequate notice shall be given to parties so that
they can be present. 3 judges will watch the raffling of cases to Issued by the court where the case is pending and where the
prevent hocus-pocus. witness is called.

2. The court of the place where the deposition is to be taken

Section 2. Assignment of cases.
Refers only to deposition taking.
The assignment of cases to the different branches of a court shall
be done exclusively by raffle. The assignment shall be done in
Note: If case is pending in RTC Cebu City and you’re witness is a
open session of which adequate notice shall be given so as to
resident of Osamis. That witness can’t be compelled to go to
afford interested parties the opportunity to be present.
Cebu because of the 100 km away rule from the court in which he
isn’t compelled to testify in court.
Q: How are assignment of cases done?
Cases are raffled to know where it will be heard. Remedy: modes of discovery (Rules 23-28). Your remedy is to
take the testimony from Osamis witness by way of DEPOSITION.
 The raffle is attended by the executive judge of the sala, with Advance taking of testimony outside court room. Can be oral.
two other judges. Notify opponent first. Witness not cooperative? Deposition officer
 The raffle open to the public is appointed in whatever case of deposition. To compel, ask court
 Notice shall be given to the parties to issue subpoena. It is court in Osamiz that will issue.

Q. When shall assignment of cases take place? Example:

The case is in Cebu but the witness is residing in Tacloban and
General Rule: Usually Tuesday afternoons. not willing to attend. You may get his testimony at Tacloban and
Exceptions: Cases which are urgent or needs immediate action: the judge in Tacloban will be the one to preside in the taking of
A. Writ of preliminary injunction testimony. The judge in Tacloban is not really the judge in that
B. TRO case and his role is only to issue a subpoena to the witness to get
the testimony.

RULE 21: 3. The officer or body authorized by law to do so in

SUBPOENA connection with investigations conducted by said officers or
body.
SUBPOENA
A subpoena is a written order from the court requiring a person to Refers to the officers who are in the ground who are allowed to
appear in order to testify. There are also instances where you are make investigation under their investigatory power.
not only required to testify but also to bring some records to
present in court.

Section 1. Subpoena and subpoena duces tecum Examples:

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1. Fiscal/Prosecutor during preliminary investigation subpoena duces tecum to any such person without an order of
2. NBI the court.
3. Police
Subpoena for Deposition
4. Any justice of supreme court or the court of appeals in any This relates to the second person enumerated by the rules who
case or investigation pending in the Philippines may issue a subpoena.

If subpoena is issued by the court and you did not obey, you can A. Notice must be made for all parties for the deposition
be cited for contempt of court.
B. Must be in writing and must be properly served

Section. 3. Form and contents Montie: Before the judge issues the subpoena to the witness,
A subpoena shall state the name of the court and the title of the there must be proof that the requesting party has notified all
action or investigation, shall be directed to the person whose parties regarding the deposition-taking. The opposing party is
attendance is required, and in the case of a subpoena duces invited to attend the deposition for purposes of cross-examination.
tecum, it shall also contain a reasonable description of the books, The opposing party may choose not to attend.
documents or things demanded which must appear to the court
prima facie relevant.
Section. 6. Service
Form and Contents Service of a subpoena shall be made in the same manner as
Subpoena same as summons. There is a caption. Magligas sa personal or substituted service of summons. The original shall be
content. Summons is a directive by court to defendant to answer exhibited and a copy thereof delivered to the person on whom it is
within 15 days from receipt or else he is in default. Subpoena is served. The service must be made so as to allow the witness a
an order by court directing person to appear and testify if reasonable time for preparation and travel to the place of
subpoena as testificandum. attendance.

3 kinds: Costs for court attendance and the production of documents and
1. Ad testificandum: requires to testify orally. other materials subject of the subpoena shall be tendered or
2. Duces tecum: to bring document or papers to court to charged accordingly
identify them.
3. Subpoena duces tecum ad testificandum: testify and SERVICE
bring paper and identify the docus. Combination of General rule: Personal or substituted. One cannot be compelled
both. to testify if he isn’t served with Subpoena.

Note: Once Subpoena is issued to the person and it is oppressive Exception: If said person is inside the courtroom.
or unreasonable, he may ask the court to recall or quash it. Now: No witness can testify without prior judicial affidavit.

Section. 4. Quashing a subpoena Section 7. Personal appearance in court

The court may quash a subpoena duces tecum upon motion A person present in court before a judicial officer may be required
promptly made and, in any event, at or before the time specified to testify as if he or she were in attendance upon a subpoena
therein if it is unreasonable and oppressive, or the relevancy of issued by such court or officer.
the books, documents or things does not appear, or if the person
in whose behalf the subpoena is issued fails to advance the
PERSONAL APPEARANCE IN COURT
reasonable cost of the production thereof.
A person present in court before a judicial officer may be required
to testify as if he were in attendance upon a subpoena issued by
The court may quash a subpoena ad testificandum on the ground
such court or officer.
that the witness is not bound thereby. In either case, the
subpoena may be quashed on the ground that the witness fees
General Rule: One cannot be compelled to testify if he is not
and kilometrage allowed by these Rules were not tendered when
served with a written subpoena.
the subpoena was served.
Exception: If said person is inside the courtroom during hearing
Grounds of a motion to Quash Subpoena: of the case, he may be compelled to testify without a subpoena.

SUBPOENA DUCES TECUM

1. If the Subpoena is unreasonable or oppressive;
Sec. 8. Compelling attendance
2. Relevancy of the books, things, or documents doesn’t
In case of failure of a witness to attend, the court or judge issuing
appear;
the subpoena, upon proof of the service thereof and of the failure
3. Person in whose behalf the SP is issued fails to advance the
of the witness, may issue a warrant to the sheriff of the province,
reasonable cost for the production thereof;
or his deputy, to arrest the witness and bring him before the court
4. If requesting party doesn’t advance cost, the court may recall
or officer where his attendance is required, and the cost of such
or quash SP issued;
warrant and seizure of such witness shall be paid by the witness if
the court issuing it shall determine that his failure to answer the
SUBPOENA AD TESTIFICANDUM
subpoena was willful and without just excuse.
That the witness is not bound thereby (viatory right – means that
a witness can’t be compelled to come to court and testify if he
Bench warrant – a person who fails to testify can be arrested will
resides more than 100 km from the court). What will you do to
be placed under detention indefinitely until he testifies.
compel now?
Remedy: Deposition taking

Section. 9. Contempt
Failure by any person without adequate cause to obey a
Section. 5. Subpoena for depositions.
subpoena served upon him shall be deemed a contempt of the
Proof of service of a notice to take a deposition, as provided in
court from which the subpoena is issued. If the subpoena was not
sections 15 and 25 of Rule 23, shall constitute sufficient
issued by a court, the disobedience thereto shall be punished in
authorization for the issuance of subpoenas for the persons
accordance with the applicable law or Rule.
named in said notice by the clerk of the court of the place in which
the deposition is to be taken. The clerk shall not, however, issue a

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Effect of Failure to appear: Guilty

1. arrest  But instead of filing an answer, X files a motion to dismiss
2. Contempt of court the case on January 5. Applying 2nd Rule (A), January 5
If you are an accused, you can be compelled due to Bill of Rights shall not be included in the computation of the period. In
even with the km restriction. Right to compel witness. effect, only January 2, 3, and 4 are counted. In total, only 3
days, of the 15 day period has elapsed. X has 12 days left to
Q: What is the effect of failure to obey a subpoena? file an answer as balance should the motion be denied.
GR: He may be cited in contempt of court. He can be imprisoned
until he testified.  The judge denied the motion to dismiss and X receives the
XPN: Viatory right of a witness (The right to refuse to testify order of denial on January 10. Applying the 2nd Rule (B),
because he lives more than 100 kilometres from the court) exclude January 10. The balance of the period starts to run
XPN to XPN: If criminal case. on January 11. X has until January 22 to file his answer.
(10+12=22)
People v. Montejo
Viatory right applies only to civil cases. Not applicable to  January 22 is a Saturday. Applying 3rd Rule, X can file until
Criminal Cases because of the Constitutional right of the accused the next working day.
to have a compulsory process to secure the attendance of his
witnesses and production of pieces of evidence in criminal cases.
***** Modes of Discovery *****

This is intended to compel the other party to reveal his evidence

Section. 10. Exceptions
and evidentiary facts.
The provisions of sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100) kilometers
5 Modes of Discovery:
from his residence to the place where he is to testify by the
1. Depositions
ordinary course of travel, or to a detention prisoner if no
a. Pending action (de mene esse) (rule 23)
permission of the court in which his case is pending was obtained.
b. Before action or pending appeal (in perpetuam re
memoriam) (rule 24)
Exception to the rule: 2. Written Interrogatories to parties (rule 25)
1. viatory right of a witness (civil cases only) 3. Request for Admission of Adverse Parties (rule 26)
2. People vs. Montejo 4. Production or Inspection of Documents and Things (rule 27)
3. Genorga vs. Quitain 5. Physical and Mental Examination of Persons (rule 28)

RULE 22 Rule 23
Computation of Time Depositions Pending Action

Section 1. How to compute time Application:

In computing any period of time prescribed or allowed by these  Taking of the testimony in advance by compelling you to
Rules, or by order of the court, or by any applicable statute, the appear before someone whom we call a “Deposition Officer”
day of the act or event from which the designated period of time (judge, or any judge, or even a notary public) who can
begins to run is to be excluded and the date of performance administer oath.
included. If the last day of the period, as thus computed, falls on a  Involves asking questions and answer, then it will be
Saturday, a Sunday, or a legal holiday in the place where the recorded.
court sits, the time shall not run until the next working day.  Therefore, during the trial, when witnesses testify, there is no
more surprise testimony. They cannot contradict their
Section. 2. Effect of interruption answers.
Should an act be done which effectively interrupts the running of
the period, the allowable period after such interruption shall start Deposition
to run on the day after notice of the cessation of the cause  Is the written testimony of a witness given in the course of a
thereof. judicial proceeding, in advance of the trial or hearing, upon
oral examination of in response to written interrogatories,
The day of the act that caused the interruption shall be excluded and where an opportunity is given for cross-examination.
in the computation of the period. o Oral examination; or
o Written interrogatories
Rules on how to compute time:

1. Exclude the first day include the last day. Section 1. Depositions pending action, when may be taken
2. Effect of interruption: (i.e. motion to dismiss; bill of Upon ex parte motion of a party, the testimony of any person,
particulars) whether a party or not, may be taken by deposition upon oral
examination or written interrogatories. The attendance of
a) The day of the act that caused the interruption witnesses may be compelled by the use of a subpoena as
shall be excluded in the computation of the period. provided in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a person confined
b) The allowable period after such interruption shall in prison may be taken only by leave of court on such terms as
start to run on the day after notice of the cessation the court prescribes.
of the cause.
Deposition – refers to the advance taking of the testimony of a
3. If the last day of the period, falls on a Saturday, Sunday, or a witness who is a prospective witness in a certain case. This is
legal holiday in the place where the court sits, the time shall same with trial but only the testimony of the witness is taken in
not run until the next working day. advance.

Montie’s Application of Rules on Computation on Period to Deponent/Witness– the person whose deposition is taken from.
File an Answer (Figures changed for easier understanding):
Reason: He might not make it during the trial.
 X received the copy of the Complaint of Y in January 1. X
has 15 days to answer. Applying the 1st Rule, exclude
January 1. X has until January 16 to answer. (1+15=16)

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When leave of Court is required limitation as to the use because the law provides that taking of
 With Leave of Court deposition may be only used is the witness is not available to
o Defendant filed NO ANSWER. testify. (Santa Maria vs. Clery June 15 2016)
o Deposition of a person confined in prison.
Note: This is only applicable to civil cases. For criminal cases
 Without Leave of Court – defendant filed an answer. there is conditional examinations under Rule 119, Sec 12, 13 &
15. (Manggira v. Resos, Aug, 28, 2008; People v. Go, 677 scra
Can there be cross-examination in taking a deposition? Yes! 203)

Example: P filed a motion for the taking of the deposition of W. Note:

So during the deposition W will be subjected to direct oral If the person who you want to take deposition from is present in
examination and after that adverse party may conduct cross- court, the court can force you by subpoena. But can also force
examination. This is the same as the regular taking of testimony that person to attend this questioning for the purpose of
however, the only difference is that it is taken in advance and deposition. Sec.1 states that “ the attendance of witnesses may
outside of court. be compelled by the use of a subpoena as provided in Rule 21”.

Q: Can you ask for a deposition over your own testimony? Example:
A: Yes, you can take your own testimony daan kay basin unya Your witness resides in Cebu, however your case in pending in
nka mka abot during trial kay nasakit ka. Sec.1 rule 23, upon ex Davao. You are willing to pay for the transportation of your
parte motion the testimony of any person whether a party or not witness to help you in your case. But, take note, you cannot
may be taken into deposition, either oral or written interrogatories. compel your witness nor ask the court in Davao to issue a
subpoena compelling such witness to go to Davao and testify.
This could be taken if there is already a pending case even if The reason is viatory right, the distance is more than 100km.
there is no trial yet. It could also be taken even before the filing of
a complaint of any case that is under Rule.24, before action. Remedy: you go to the RTC of Cebu, get a deposition officer and
let him take her deposition.
2 Modes:
1. Deposition upon oral examination You can compel the witness to go to the office of the notary public
- this is the most popular: questions answers, then they in Cebu for the purpose of deposition through getting a subpoena
recorded. This is similar to the taking of testimony in an open from the clerk of court of the RTC of Cebu, in order to take
court. deposition of the Davao case.

2. Deposition upon written interrogatories Rule 21, Sec. 2(b) – a subpoena may be issued by the court of
the place where the deposition is to be taken.
Q: What is the advantage of using the modes of discovery?
SC: Trial judges should encourage the use of the different modes The subpoena has no more effect beyond 100km. it should be
of discovery because the knowledge of the evidence of the advers filed not where the case is pending but in the court of the place
party may facilitate an amicable settlement or expedite the trial of where the deposition is to be taken or the residence of the
the case. But the resort of the different modes of discovery is not witness.
mandatory. (Co v. IEC, Sept 23, 1986)
PURPOSE OF DEPOSITION-TAKING:
WHEN? (Ayala Land vs. Tagle, 2005)
General rule:
 Depositions are taken at the start of the case before the trial. 1) Give greater assistance to the parties in ascertaining the
truth and in checking and preventing perjury;
Exception: 2) Provide an effective means of detecting and exposing false,
 Deposition may be taken at any time after the institution of fraudulent claims and defenses;
any action, whenever necessary of convenient. There is no 3) Make available in simple, convenient and inexpensive easy,
rule that limits deposition-taking only to the period of pre-trial facts which otherwise could not be proved except with great
or before it; x x x Deposition taking is allowed as part of the difficulty.;
execution where the trial is already terminated. 4) Educate the parties in advance of trial as to the real value of
(Dasmarinas Garments, Inc vs. Reyes) their claims and defenses thereby encouraging settlements;
 Rule 39 on execution, satisfaction or effects of judgements 5) Expedite litigation;
6) Safeguard against surprise;
Deposition could be taken before, during or after pre-trial. 7) Prevent delay;
(Pajarilyaga v. CA 0ct 31, 2008) 8) Simplify and narrow the issue;
9) Expedite and facilitate both preparation and trial.
Usually, a deposition is done during trial. However, according to
the SC it can also be taken after trial has commenced and maybe Note:
used without the deponent without actually being called in the  A non-resident foreign corporation can apply for deposition
witness stand. OW, the taking the witnesses testimony through taking for as long as it is a party.
deposition in lieu of the actual presence during trial may be  The rule does not make any distinction or restriction as to
allowed. who can avail of deposition. The fact that private respondent
is a non-resident foreign corporation is immaterial. (San
Note: If that person whose deposition has been taken is available Luis vs. Rojas, GR 159127, 2008)
during trail he should testify. And his deposition cannot be used in
lieu of his open court testimony.
Section. 2. Scope of examination
His deposition may be only used during the trial as a substitute for Unless otherwise ordered by the court as provided by section 16
his open court testimony as long as the witness is not available. If or 18 of this Rule, the deponent may be examined regarding any
he is available and will not testify then compulsory processes may matter, not privileged, which is relevant to the subject of the
be availed by the party concerned. pending action, whether relating to the claim or defense of any
other party, including the existence, description, nature, custody,
As regards the taking of the deposition, utmost freedom is condition, and location of any books, documents, or other tangible
allowed. Under sec.1, “the testimony of any person may be taken things and the identity and location of persons having knowledge
by deposition upon oral examination or written interrogatories”, of relevant facts.
hence, any person can be under deposition. So the right to take
statement and the right to use them in court are entirely distinct.
There is no limitation as to the taking of the statement but there is

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 The deponent may be examined regarding any matter  General rule, the deponent is not exempt from testifying in
whether related to the claim or defense of any other party, court,
provided it is not a privileged matter.  Exception, when the deponent is the adverse party under
 Asking random questions hoping that you stumble into paragraph b. “the deposition of a party or of anyone who at
something that relates to the case is allowed. Precisely, the the time of taking the deposition was an officer, director, or
mode of discovery is a fishing expedition in the hope that managing agent of the public or private corporation,
you will discover something in the course of the questioning. partnership, or association which is a party may be used by
an adverse party for any purpose”
Limitations in Deposition Taking:
(a) Any deposition may be used by any party for the purpose of
First Limitation: The matter inquired into is not a privileged contradicting or impeaching the testimony of the deponent as a
either under the rules on evidence or special law (Rule 13, witness;
Sec.24)
 A deposition can only be used for the purpose of
Privileged Communication: Sec.24 of rule 130 contradicting or impeaching the testimony of the deponent
 Communication between husband and wife as a witness. It does not substitute.
 Comm. Between attorney and client  It does not exempt the witness from testifying in court.
 Comm. Between physician and patient  It is only a means of knowing what the witness will testify.
 Comm. Between priest and penitent The questions and answers during the trial is identical to the
 Public officers and public interest. deposition.
 Otherwise, if the witness will reverse his testimony during
Other Privileged Matters: trial, you can now use the deposition to destroy him. To
 Editors may not be compelled to disclose the source of IMPEACH the testimony of a witness is to destroy his
published news credibility.
 Voters may not be compelled to disclosed for whom  Therefore, a deposition is not a substitute for the testimony
they voted of the witness in court. You still have to present him in court.
 Trade secrets He has to testify all over again.
 Information contained in tax census returns
 Bank deposits
(b) The deposition of a party or of anyone who at the time of
taking the deposition was an officer, director, or managing agent
Second Limitation: The matter inquired into is relevant to the
of a public or private corporation, partnership, or association
subject of the pending action. (Rule 128, Sec.4)
which is a party may be used by an adverse party for any
purpose;
 While deposition taking authorizes a fishing expedition, you
are not allowed however, to go beyond the topic. It must be
Difference of par. (A) & (B)
related to the topic.
A – is it the deposition of a WITNESS and not a party.
B – is it the deposition of the PARTY himself.
Third Limitation: The court may issue orders to protect the
parties and its deponents under sec. 16 or 18.
A – the deposition of witness can be used only for contradicting or
impeaching the testimony of deponent as a witness.
 While leave of courts is not necessary since it is related to a
B – the deposition of a party can be used for any purpose (e.g. as
pending case and the court has control over the case. Any
his testimony in open court). So it is broader than the first.
party who is aggrieved can go to court and complain.
 The court is authorized to issue orders to protect the parties
Q: Is it necessary who caused the taking of the deposition of
and its deponents under sec. 16 and 18 of this rule.
the party should use it as his evidence?
A: No, because the taking of deposition is only a mode of
Section 3. Examination and cross-examination.
discovery.
Examination and cross- examination of deponents may proceed
as permitted at the trial under Sections 3 to 18 of Rule 132.
If deposition of a witness is taken, it does not necessarily mean
that only the party who caused the taking of the deposition of the
witness could use the testimony of such witness. ANY PARTY
Section. 4. Use of depositions may use the testimony of the deponent if the latter is not available
At the trial or upon the hearing of a motion or an interlocutory during trial.
proceeding, any part or all of a deposition, so far as admissible
under the rules of evidence, may be used against any party who If the deponent is the adverse party, the deposition can be
was present or represented at the taking of the deposition or who considered as the evidence of the party taking the deposition,
had due notice thereof, in accordance with any one of the which can be used not only in impeaching his testimony
following provisions: x x x x x
Note:
When deposition may be used:  Suppose the deposition of your opponent is in your favor,
1. At the trial; you could present the deposition as an admission in your
2. Upon a hearing of a motion (e.g. Rule 35 of Summary favor. You could use it as evidence against your
Judgment) opponent.
3. Upon a hearing of interlocutory proceeding (e.g. issuance o  If the party-deponent makes admissions that are favorable to
a writ of preliminary injunction or attachment) him, such admissions do not bind the adverse party. These
admissions are SELF-SERVING ADMISSION and are
Against whom deposition may be used: therefore inadmissible.
1. Against any party who was present;
2. Against a party who was represented at the taking of the (c) The deposition of a witness, whether or not a party, may be
deposition; used by any party for any purpose if the court finds:
3. Against a party who did not appear or represented but was
duly notified of the scheduled deposition taking. 1) that the witness is dead; or
2) that the witness resides at a distance more than one
Rules to Remember: hundred (100) kilometers from the place of trial or hearing, or
 A deposition is never intended as an easy substitute for is out of the Philippines, unless it appears that his absence
actual testimony. The principle therefore to remember is that was procured by the party offering the deposition; or
the deponent’s testimony must be repeated in court for it to 3) that the witness is unable to attend or testify because of age,
be admitted as evidence. sickness, infirmity, or imprisonment; or

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4) that the party offering the deposition has been unable to Exceptions:
procure the attendance of the witness by subpoena; or  When offering your deposition to contradict or impeach you.
5) upon application and notice, that such exceptional  When you offer the deposition of your opponent, you are not
circumstances exist as to make it desirable, in the interest of making him your witness.
justice and with due regard to the importance of presenting
the testimony of witnesses orally in open court, to allow the Section. 9. Rebutting deposition
deposition to be used; and At the trial or hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any
Review: if the deponent is available to testify during the trial, his other party.
deposition cannot be used in lieu of his open court testimony. But
it can be used to impeach his testimony. If it is offered in lieu of Section. 10. Persons before whom depositions may be taken
the actual tetsiomny of the witness, it can be objected for being within the Philippines
hearsay. (Luiz v. Rojas, March 3, 2008) Within the Philippines, depositions may be taken before any
judge, notary public, or the person referred to in section 14
(d) If only part of a deposition is offered in evidence by a party, hereof.
the adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any If the deposition is taken in the PHIL., who is authorize:
other parts. 1. Any Judge – not necessary the judge acting on the case. He
is only e a deposition officer.
 It is the lawyer of the other side who has the absolute right to 2. Notary Public – authorized by law to administer oath.
complete the picture by offering the other half. I am not 3. Persons referred in Sec. 14
under obligation to help the other side. A lawyer has no
obligation to present everything. He is only under the Section. 14. Stipulations regarding taking of depositions
obligation to support the interest of his client. If the parties so stipulate in writing, depositions may be taken
 ANY PARTY MAY USE THE DEPOSITION AS EVIDENCE. before any person authorized to administer oaths, at any time or
place, in accordance with these Rules, and when so taken may
Section. 5. Effect of substitution of parties be used like other depositions.
Substitution of parties does not affect the right to use depositions
previously taken; and, when an action has been dismissed and  So the parties may stipulate in writing that the deposition
another action involving the same subject is afterward brought officer may not be a judge or a notary public. It can be other
between the same parties or their representatives or successors person who is authorized to administer oath such as
in interest, all depositions lawfully taken and duly filed in the prosecutors, clerk of court who is a lawyer, LA, etc.
former action may be used in the latter as if originally taken
therefor. Section. 11. Persons before whom depositions may be taken
in foreign countries
 If a case is filed but later was dismissed. Then, the petitioner In a foreign state or country, depositions may be taken (a) on
re-filed the case, there is no need for deposition to be taken notice before a secretary of embassy or legation, consul general,
again. consul, vice-consul, or consular agent of the Republic of the
 The depositions taken in the dismissed case will still apply to Philippines; (b) before such person or officer as may be appointed
the new case. There is no need of repeating the whole by commission or under letters rogatory; or (c) the person referred
process. to in section 14 hereof.

Section. 6. Objections to admissibility Deposition is taken Abroad, who are authorized:

Subject to the provisions of section 29 of this Rule, objection may 1. Secretary of the Philippine Embassy
be made at the trial or hearing to receiving in evidence any 2. Consul general
deposition or part thereof for any reason which would require the 3. Consul
exclusion of the evidence if the witness were then present and 4. Vice consul
testifying. 5. Consular agent
6. before such person or officer as may be appointed by
 You can object to the evidence which is being offered during commission or under letters rogatory
the deposition taking. However, the deposition officer cannot 7. the person referred to in section 14 hereof
rule but the objection is recorded.
 It is the judge who will rule on the objection later during the Note:
trial.  If the judge will have to authorize the taking of deposition
abroad, leave of court is required.
Section. 7. Effect of taking depositions  Course it through the Department of Foreign Affairs.
A party shall not be deemed to make a person his own witness for  If the place doesn’t have any embassy, you have to avail of
any purpose by taking his deposition. (b), so the person who is authorized to take the deposition
may be by commission or by letters rogatory.
 If after taking a witness deposition, he knows nothing or
everything he says is against you, then he is useless as a Section. 12. Commission or Letters Rogatory
witness to you. He is not your witness. A commission or letters rogatory shall be issued only when
 In fact, it is the other party who will use the witness. necessary or convenient, on application and notice, and on such
terms and with such direction as are just and appropriate. Officers
Section. 8. Effect of using depositions may be designated in notices or commissions either by name or
The introduction in evidence of the deposition or any part thereof descriptive title and letters rogatory may be addressed to the
for any purpose other than that of contradicting or impeaching the appropriate judicial authority in the foreign country.
deponent makes the deponent the witness of the party introducing
the deposition, but this shall not apply to the use by an adverse By Commission
party of a deposition as described in paragraph (b) of section 4 of  Through someone other than the Philippine consul, (e.g. in
this Rule. Taiwan, Philippine Trade Department) the court will issue a
commission to the head of the trade mission there to act as
General Rule: By simply taking your deposition, it will not make deposition officer or any other person appointed by the judge
you as my witness. But once I offer your deposition in court, you by court order.
are now my witness, especially if you are dead or residing more
than 100km.

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Letters Rogatory Sec. 19. Submission to witness; changes; signing

 Is an instrument (letter) whereby the foreign court is REFER TO CODAL
informed of the pendency of the case and the name of the
foreign witnesses, and is requested to cause their
depositions to be taken in due course of law, for the
Section. 20. Certification and filing by officer
furtherance of justice, with an offer on the party of the court
The officer shall certify on the deposition that the witness was
making the request, to do the like for the other, in a similar
duly sworn to by him and that the deposition is a true record of the
case.
testimony given by the witness. He shall then securely seal the
 Leave of court is not required when the deposition is to be
deposition in an envelope indorsed with the title of the action and
taken before a secretary of embassy or legation and etc. and
marked "Deposition of (here insert the name of witness)" and
the defendant’s answer has already been served.
shall promptly file it with the court in which the action is pending or
 However, if the deposition is to be taken in a foreign country
send it by registered mail to the clerk thereof for filing.
where the Philippines have no secretary of embassy or
legation and etc. it may be taken only before such person
or officer as may be appointed by commission. Section. 21. Notice of filing
The officer taking the deposition shall give prompt notice of its
filing to all the parties.
Section. 13. Disqualification by interest
No deposition shall be taken before a person who is a relative
within the sixth degree of consanguinity or affinity, or employee or Section. 22. Furnishing copies
counsel of any of the parties; or who is a relative within the same Upon payment of reasonable charges therefor, the officer shall
degree, or employee of such counsel; or who is financially furnish a copy of the deposition to any party or to the deponent.
interested in the action.
Section. 23. Failure to attend of party giving notice
 You are disqualified to act as deposition officer if you are If the party giving the notice of the taking of a deposition fails to
related to any of the parties or the lawyer. attend and proceed therewith and another attends in person or by
counsel pursuant to the notice, the court may order the party
Section. 15. Deposition upon oral examination; notice; time giving the notice to pay such other party the amount of the
and place reasonable expenses incurred by him and his counsel in so
A party desiring to take the deposition of any person upon oral attending, including reasonable attorney’s fees.
examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for Section. 24. Failure of party giving notice to serve subpoena
taking the deposition and the name and address of each person If the party giving the notice of the taking of a deposition of a
to be examined, if known, and if the name is not known, a general witness fails to serve a subpoena upon him and the witness
description sufficient to identify him or the particular class or because of such failure does not attend, and if another party
group to which he belongs. On motion of any party upon whom attends in person or by counsel because he expects the
the notice is served, the court may for cause shown enlarge or deposition of that witness to be taken, the court may order the
shorten the time. party giving the notice to pay to such other party the amount of
the reasonable expenses incurred by him and his counsel in so
2 types of deposition taking: attending, including reasonable attorney’s fees.
1. Deposition upon oral examination
2. Deposition upon written interrogatories Summary on Deposition upon oral examination

Note: 1. Notice sent first to the other party and to the court (Sec. 15)
 Before deposition is taken, notice must be given to the
adverse party. 2. Order of Protection of Parties and Opponent (Sec. 16 to 18)
 The notice shall state the time and place for taking the  If the deposition amounts to harassment
deposition and the name and address of each person to be
examined. 3. How deposition upon oral examination taken (Sec.17 to 22)

Section. 16. Orders for the protection of parties and  Deposition must have a transcriber to write everything right
deponents away
After notice is served for taking a deposition by oral examination,
upon motion seasonably made by any party or by the person to  The Transcript of Stenographic Notes will be shown to the
be examined and for good cause shown, the court in which the parties if there are no objects
action is pending may make the following orders:
 Then the parties will sign the transcript and it will be placed
x x x REFER TO CODAL in a brown envelope to be mailed to the court

The court may make any other order which justice requires to o During the presentation of evidence, you can
protect the party or witness from annoyance, embarrassment, or just say that you will present the deposition
oppression. paper (brown envelope will be opened as if
you have already presented your witness.
o The objection of the other party will just say
Section. 17. Record of examination; oath; objections what number he is objecting as recorded in
REFER TO CODAL the deposition paper and ask for the ruling of
the judge of the said objection
Section. 18. Motion to terminate or limit examination
4. Effect of Requesting Party’s Failure to attend and Serve
REFER TO CODAL
Subpoena (sec. 23 and 24)

During the actual taking, any party file a motion or petition to

Section. 25. Deposition upon written interrogatories; service
terminate the examination or limit it if it appears that the
of notice and of interrogatories
examination is conducted in such a manner as to annoy,
— A party desiring to take the deposition of any person upon
embarrass or oppress the deponent or party.
written interrogatories shall serve them upon every other party
with a notice stating the name and address of the person who is
This may be filed where the action is pending or before the RTC
to answer them and the name or descriptive title and address of
of the place where the deposition is taken.
the officer before whom the deposition is to be taken. Within ten
(10) calendar days thereafter, a party so served may serve

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crossinterrogatories upon the party proposing to take the  Deposition officer shall give notice of its filing in court (sec.
deposition. Within five (5) calendar days thereafter the latter may 27)
serve redirect interrogatories upon a party who has served cross-
interrogatories. Within three (3) calendar days after being served Section. 28. Orders for the protection of parties and
with re-direct interrogatories, a party may serve recross- deponents
interrogatories upon the party proposing to take the deposition After the service of the interrogatories and prior to the taking
of the testimony of the deponent, the court in which the
Deposition through written interrogatories action is pending, on motion promptly made by a party or a
deponent, and for good cause shown, may make any order
Instead of oral examination the examination shall be in writing. specified in sections 15, 16 and 18 of this Rule which is
The testimonies of the witness shall also be in writing. For the appropriate and just or an order that the deposition shall not
adverse party if he wants to cross-examine, he can submit cross- be taken before the officer designated in the notice or that it
written interrogatories. So the written interrogatories shall be shall not be taken except upon oral examination.
furnished to the adverse party through counsel and the counsel of
the adverse party can also submit cross- interrogatories to the Section. 29. Effects of errors and irregularities in
witness/deponent. depositions.
X x x REFER TO CODAL
The cross interrogatories and written interrogatories shall be
submitted to the witness to answer before the deposition answer. As to notice
All errors and irregularities in the notice for taking a deposition are
Advantage of Written Interrogatories: waived unless written objection is promptly served upon the party
This will lessen the expenses. The taking of the deposition can be giving the notice.
done before the Philippine Consular Office.
As to disqualification of officer
Objection to taking a deposition because of disqualification of the
Section. 26. Officers to take responses and prepare record officer before whom it is to be taken is waived unless made before
A copy of the notice and copies of all interrogatories served shall the taking of the deposition begins or as soon thereafter as the
be delivered by the party taking the deposition to the officer disqualification becomes known or could be discovered with
designated in the notice, who shall proceed promptly, in the reasonable diligence.
manner provided by sections 17, 19 and 20 of this Rule, to take
the testimony of the witness in response to the interrogatories and As to competency or relevancy of evidence
to prepare, certify, and file or mail the deposition, attaching Objections to the competency of witness or the competency,
thereto the copy of the notice and the interrogatories received by relevancy, or materiality of testimony are not waived by failure to
him. make them before or during the taking of the deposition, unless
the ground, of the objection is one which might have been
Section. 27. Notice of filing and furnishing copies obviated or removed if presented at that time.
When a deposition upon interrogatories is filed, the officer taking it
shall promptly give notice thereof to all the parties, and may As to oral examination and other particulars
furnish copies to them or to the deponent upon payment of Errors and irregularities occurring at the oral examination in the
reasonable charges therefor. manner of taking the deposition in the form of the questions or
answers, in the oath or affirmation, or in the conduct of the parties
Summary on Deposition upon written interrogatories and errors of any kind which might be obviated, removed, or
(As mentioned by Monteclar) cured if promptly prosecuted, are waived unless reasonable
objection thereto is made at the taking of the deposition.
1. Written interrogatories shall be served upon every party with
notice As to form of written interrogatories
2. The notice shall state the name and address of the person to Objections to the form of written interrogatories submitted under
answer it sections 25 and 26 of this Rule are waived unless served in
3. The name, title and address of the position officer writing upon the party propounding them within the time allowed
4. Within 10 days the person asked ma serve cross- for serving succeeding cross or other interrogatories and within
interrogatories three (3) days after service of the last interrogatories authorized.
5. Deposition officer shall give notice of its filing in court (Sec.27)
As to manner of preparation
How deposition upon written interrogatories taken: Errors and irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified, sealed,
 The parties and counsel will not anymore go to the place of indorsed, transmitted, filed, or otherwise dealt with by the officer
the witness under sections 17, 19, 20 and 26 of this Rule are waived unless a
motion to suppress the deposition or some part thereof is made
 Only the deposition officer, the stenographer and the witness with reasonable promptness after such defect is, or with due
or deponent will be present diligence might have been, ascertained.

 The questions of the requesting party are already written, 1:03

and sent to the deposition officer and to all concerned
parties Rule 24: Depositions Before Action or Pending Appeal

 The opposing party will also send their cross-Interrogatories DEPOSITION BEFORE ACTION
to the deposition officer and all concerned parties within 10 Done before the case; There is no case filed yet.
days from receipt of interrogatories Instances where deposition before action may be applicable

 In every case, there should be a written notice served to 1. You wanted to file a case but you lack evidence.
other parties 2. One of your witness is about to die, so you will take his
deposition.
 The deposition officer will ask the questions, deponent 3. You think there might be a case that will most likely be filed
answers against you.

 The deposition officer will send the questions and answers to DEPOSITION PENDING APPEAL
court

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You have lost the case in the lower court and you appealed. This the depositions of the persons to be examined named in the
is good only when there are pieces of evidence newly discovered petition for the purpose of perpetuating their testimony.
which is not taken into account by the lower court.
Sec. 3. Notice and service - The petitioner shall serve a
Example: Pending appeal you discovered evidence that could notice upon each person named in the petition as an
strip up your case in your favor but the evidence involves the expected adverse party, together with a copy of the petition,
testimony of a dying witness. If the CA grants your appeal, you stating that the petitioner will apply to the court, at a time and
already preserved your evidence. place named therein, for the order described in the petition.
At least twenty (20) days before the date of the hearing, the
Section 1. Depositions before action; petition - A person who court shall cause notice thereof to be served on the parties
desires to perpetuate his own testimony or that of another and prospective deponents in the manner provided for
person regarding any matter that may be cognizable in any service of summons.
court of the Philippines, may file a verified petition in the
court of the place of the residence of any expected adverse  You have to furnish a copy of the petition to the expected
party. adverse party.
 The court must see to it that at least 20 days before date of
Instances: hearing, the court shall make notice thereof to be served on
1. There is yet no case filed the adverse parties and the expected deponents.
2. There is a case filed now pending on appeal
Sec. 4. Order and examination - If the court is satisfied that
Leave of Court is Required: the perpetuation of the testimony may prevent a failure or
- You have to file a petition in the court of the place where the delay of justice, it shall make an order designating or
prospective party resides. describing the persons whose deposition may be taken and
specifying the subject matter of the examination and whether
 This is also called a “Petition for Perpetuation of the depositions shall be taken upon oral examination or
Testimony” written interrogatories. The depositions may then be taken in
 This is filed in the court of the place of the residence of any accordance with Rule 23 before the hearing.
expected adverse party because there is still no case. Thus,
you have to file an independent petition under rule24. Who decides the type of deposition?
 The court may decide if the deposition shall be oral or written
TN: The case thereafter need not be filed in the court where the interrogatories.
expected adverse party resides, only the leave of court is required  Initially, it is the requesting party who will decide. But the
to be filed there. decision may be overruled by the court if found to be unfair
to the parties.
Note:
 Can apply to a prospective plaintiff or prospective defendant
Sec. 5. Reference to court - For the purpose of applying Rule
to a case.
23 to depositions for perpetuating testimony, each reference
 Deposition can include those of any probable witness.
therein to the court in which the action is pending shall be
 May include where cause of action has not yet accrued.
deemed to refer to the court in which the petition for such
deposition was filed.
Sec. 2. Contents of petition - The petition shall be entitled in
the name of the petitioner and shall show: (a) that the
Sec. 6. Use of deposition - If a deposition to perpetuate
petitioner expects to be a party to an action in a court of the
testimony is taken under this Rule, or if, although not so
Philippines but is presently unable to bring it or cause it to
taken, it would be admissible in evidence, it may be used in
be brought; (b) the subject matter of the expected action and
any action involving the same subject matter subsequently
his interest therein; (c) the facts which he desires to
brought in accordance with the provisions of sections 4 and
establish by the proposed testimony and his reasons for
5 of Rule 23.
desiring to perpetuate it; (d) the names or a description of
the persons he expects will be adverse parties and their
addresses so far as known; and (e) the names and addresses  To use perpetuation of testimony, the same uses of an
of the persons to be examined and the substance of the ordinary deposition for impeachment, for any other purpose
testimony which he expects to elicit from each, and shall ask like the witness is already dead, the same under rule 23.
for an order authorizing the petitioner to take the depositions
of the persons to be examined named in the petition for the Sec. 7. Depositions pending appeal - If an appeal has been
purpose of perpetuating their testimony. taken from a judgment of a court, including the Court of
Appeals in proper cases, or before the taking of an appeal if
CONTENTS OF PETITION the time therefor has not expired, the court in which the
The petition shall be entitled in the name of the petitioner and judgment was rendered may allow the taking of depositions
shall show: of witnesses to perpetuate their testimony for use in the
event of further proceedings in the said court. In such case
1. That the petitioner expects to be a party to an action in a court the party who desires to perpetuate the testimony may make
of the Philippines but is presently unable to bring it or caused it to a motion in the said court for leave to take the depositions,
be brought upon the same notice and service thereof as if the action was
pending therein. The motion shall state (a) the names and
2. The subject matter of the expected action and his interest addresses of the persons to be examined and the substance
therein of the testimony which he expects to elicit from each; and (b)
the reason for perpetuating their testimony. If the court finds
3. Facts which he desires to be established by the proposed that the perpetuation of the testimony is proper to avoid a
testimony and his reasons for desiring to perpetuate it failure or delay of justice, it may make an order allowing the
depositions to be taken, and thereupon the depositions may
4. The names or a description of the persons he expects will be be taken and used in the same manner and under the same
adverse parties and their addresses so far as known conditions as are prescribed in these Rules for depositions
taken in pending actions.
5. The names and addresses of the persons to be examined and
the substance of the testimony which he expects to be examined  This is allowed if the case has already been decided by the
and the substance of the testimony which he expects to elicit from lower court and the case is appealed by the higher court.
each, and shall ask for an order authorizing the petitioner to take  If you anticipate that the appellate court may conduct further
proceedings or reception of evidence or the appellate court

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will return the case to the trial court for further proceedings, Sec. 2. Answer to interrogatories - The interrogatories shall
you may take the deposition of your prospective witnesses in be answered fully in writing and shall be signed and sworn to
order to preserve their testimony. by the person making them. The party upon whom the
interrogatories have been served shall file and serve a copy
Suarez Notes: of the answers on the party submitting the interrogatories
When can you file a motion to take deposition pending appeal? within fifteen (15) days after service thereof, unless the court,
Either: on motion and for good cause shown, extends or shortens
1. After appeal has been taken (while appeal is going on); the time.
2. Before you file the appeal, within the 15-day period
from the time the judgement is rendered.  When an interrogatory to party is filed, that party is bound to
answer that written interrogatories within 15 days.
So there are several motion which may be filed during the 15-day  Answered fully in writing and shall be signed and sworn to
period: by the person making them.
 Motion for New Trial (before filing an appeal)  The receiving party shall filed and serve a copy of the
 Motion for Reconsideration (before filing an appeal) answer on the party submitting the interrogatories within 15
 Motion to Take Deposition (before filing an appeal) but days.
you may file the same while the appeal is going on.
Sec. 3. Objections to interrogatories - Objections to any
Guerzo Notes:
interrogatories may be presented to the court within ten (10)
1. If appeal has not yet been perfected, motions should be
days after service thereof, with notice as in case of a motion;
made before the court which rendered the judgement.
and answers shall be deferred until the objections are
2. If appeal has already been perfected, motion should be filed
resolved, which shall be at as early a time as is practicable.
before the appellate court.

 When the adverse party does not want to answer your

questions because he believes that they were improper, he
Rule 25: Interrogatories To Parties
wants to object to the questions. The remedy is, he must go
to the court where the case is pending and object. Let the
Note:
court decide whether you will have to answer or not.
 Rule 25 should not be confused with rule 23 on the
 Objections to any interrogatories may be presented to the
deposition upon written interrogatories.
court within 10 days after service thereof.
 Under rules 23, questions are already prepared beforehand
 With notice in case of a motion
and they are going to be submitted to a deposition officer
 And answers shall be deferred until objections are
who will propound the questions to the deponent and record
resolved.
answers under oath.
 However, in rule 25, there is also written questions. You are
Possible Grounds of Objections:
also obliged to answer in writing also. Then you sign your
 Impropriety
answer and swear to the truth of it. You are compelled, as a
 Immateriality
party, to reveal you evidentiary facts. And the process is
 Inadmissibility or privilege
called written interrogatories.
 There is no deposition officer in rule 25. Plaintiff can directly
ask from defendant questions. But cannot ask questions to a Deposition Upon Written Interrogatories to Parties
stranger; While, in rule 23, you can take the deposition of interrogatories
any person whether a party or not. Objections made in the course Objections are presented
of the deposition taking are directly to the court.
Purpose taken note of by the deposition
 This mode of discovery by which is availed of by a party to officr. He does not rule on it.
the action is for the purpose of eliciting material and relevant
facts from any adverse party. Sec. 4. Number of interrogatories - No party may, without
leave of court, serve more than one set of interrogatories to
Deposition Upon Written Interrogatories To Parties be answered by the same party.
Interrogatories (Rule 23) (rule 25)
The deposition is taken before There is no deposition officer. Number of interrogatories allowed
a deposition officer. General rule: 1
Questions are prepared The questioning is direct. Exception: if court allows you to send another set.
beforehand. Plaintiff questions defendant,
They are submitted to the defendant questions the Sec. 5. Scope and use of interrogatories - Interrogatories
deposition officer who will ask plaintiff. There is not third may relate to any matters that can be inquired into under
the department the questions person who will intervene. section 2 of Rule 23, and the answers may be used for the
and he will record the answers. same purposes provided in section 4 of the same Rule.
The deposition of any person Applies to parties only.
may be taken, whether he is a You can send interrogatories Scope of Interrogatories
party or not. only to parties. You cannot ask 1. Not privileged
question to a stranger. 2. Anything that is related to the claim or defense provided it is
relevant.

Section 1. Interrogatories to parties; service thereof - Under Note:

the same conditions specified in section 1 of Rule 23, any  The answers of your opponent can be used for impeachment
party desiring to elicit material and relevant facts from any or any other purpose like to prove an admission already
adverse parties shall file and serve upon the latter written made by the adverse party.
interrogatories to be answered by the party served or, if the
party served is a public or private corporation or a Sec. 6. Effect of failure to serve written interrogatories -
partnership or association, by any officer thereof competent Unless thereafter allowed by the court for good cause shown
to testify in its behalf. and to prevent a failure of justice, a party not served with
written interrogatories may not be compelled by the adverse
When Leave of Court is Required: party to give testimony in open court, or to give a deposition
 w/ Leave of Court – before answer pending appeal.
 w/o Leave of Court - after answer

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 You are barred or precluded from using the other party as a Bar Q: A sends a request for admission to B and B made and
witness in court unless allowed by the court for good cause admission. However, during the trial, A did not offer in evidence
shown and to prevent a failure of justice. the answers to the request. Can the court take judicial notice of
 Thus, if you have questions to your opponent, you should the answers?
first do this by way of written interrogatories. If you did not
ask that question to him or not sent any written Answer: Yes, you are already required to file and serve.
interrogatories, you are not allowed to use him as your Therefore, the court may now take judicial notice because it
witness or the lawyer can object to the opposing counsel’s already forms part of the record.
motion to call your client to the witness stand.

Rule 26: Admission by Adverse Party Effect of failure to answer request for admission:
General rule: implied admission on the genuineness and
Note: materiality
 Rule 26 is also known “Request for Admission”. You send Exception: already denied in the answer
questions to your opponent and he’s bound to answer in
writing within 1 days under oath but the framing of the Case: Po vs. CA
questions are different When a matter is already effectively denied in the
 Here you are requiring the opposing party to admit the truth pleading as in the case of an actionable document attached to the
or authenticity of certain documents. complaint. (ie. Promissory note) but was specifically denied in the
 This is mostly answerable by yes or not. answer, there is no need any more to ask it again under rule 26. If
requested and not denied, there is no admission.
Example:
Do you admit the genuineness of the documents marked as Note:
Annex A?  To withdraw there must be with leave of court.

Section 1. Request for admission - At any time after issues Sec. 3. Effect of admission - Any admission made by a party
have been joined, a party may file and serve upon any other pursuant to such request is for the purpose of the pending
party a written request for the admission by the latter of the action only and shall not constitute an admission by him for
genuineness of any material and relevant document any other purpose nor may the same be used against him in
described in and exhibited with the request or of the truth of any other proceeding.
any material and relevant matter of fact set forth in the
request. Copies of the documents shall be delivered with the  This is for the purpose of evidence. An admission made by a
request unless copies have already been furnished. party pursuant to a request for admission in only good for
that case. It cannot be used in any other case or proceeding.
 You will request the other party to admit the genuineness of  It limits therefore the effectivity of an admission. It is only for
any material and relevant document described in and the pending case.
exhibited with the request or of the truth in the request.
 This is filed when: “At any time after issue have been joined” Notes:
– there is already an answer.  Cannot be used for any other purpose or any other
 Leave of Court is not required because there is already an proceeding.
answer.  Can it be used by another party to the case who did not
himself make the request? No prohibition.
Interrogatories to Parties Request for Admission
(Rule 25) (Rule 26) Sec. 4. Withdrawal - The court may allow the party making an
In both, the answer must be under oath. admission under this Rule, whether express or implied, to
In both, it is purely between parties to the action. withdraw or amend it upon such terms as may be just.
Specific details or evidentiary Admissions are sought. Thus,
matters are sought. The the questions are answerable  Admission made, expressly or impliedly (failure or refusal to
question asked are ho, what , by yes or no. respond) are nevertheless binding.
when, where, etc.  The defendant can withdraw his admission to the request.
Can be availed of there is an Can be availed of without leave The court may allow the party making an admission under
answer served or none yet, of court. the rule, whether express or implied, to withdraw or amend it
with leave of court in the latter upon such terms as may be just.
case.
Sec. 5. Effect of failure to file and serve request for
Sec. 2. Implied admission - Each of the matters of which an admission - Unless otherwise allowed by the court for good
admission is requested shall be deemed admitted unless, cause shown and to prevent a failure of justice, a party who
within a period designated in the request, which shall not be fails to file and serve a request for admission on the adverse
less than fifteen (15) days after service thereof, or within party of material and relevant facts at issue which are, or
such further time as the court may allow on motion, the party ought to be, within the personal knowledge of the latter, shall
to whom the request is directed files and serves upon the not be permitted to present evidence on such facts.
party requesting the admission a sworn statement either
denying specifically the matters of which an admission is General rule: not be permitted to present evidence on such facts.
requested or setting forth in detail the reasons why he “This is very dangerous. What it means here is that if
cannot truthfully either admit or deny those matters. you did not request the other party to admit the genuineness of
Objections to any request for admission shall be submitted the actionable document attached to your pleading, you are
to the court by the party requested within the period for and barred to prove the genuineness of the document.
prior to the filing of his sworn statement as contemplated in
the preceding paragraph and his compliance therewith shall Exception: otherwise allowed by the court for good cause shown
be deferred until such objections are resolved, which and to prevent a failure of justice.
resolution shall be made as early as practicable.
 Request for admission must be answered within 15 days and Must be addressed to the Party
under oath, whether admitting or denying the request Case: Revoneria vs. CA
 Failure to answer the request means that you are deemed to  A request for admission must be addressed to the party and
have admitted. There is an implied admission of all the not to his lawyer. So if the request was sent to the lawyer of
things that was asked to you to admit. the adverse party and the latter did not answer, the failure to
answer will not matter, as the request is not valid.

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A client can always act through is lawyer and that he is conclusions. After such request and delivery, the party
bound through the actuations of the latter. causing the examination to be made shall be entitled upon
Case: PECFC Financial Corp vs. CA request to receive from the party examined a like report of
 However, if the request for admission was properly sent to any examination, previously or thereafter made, of the same
the party and the latter requested his lawyer to answer it, the mental or physical condition. If the party examined refuses to
answer made by the lawyer is valid under the rule. under the deliver such report, the court on motion and notice may
rules, a client can always act through is lawyer and that he is make an order requiring delivery on such terms as are just,
bound through the actuations of the latter. and if a physician fails or refuses to make such a report the
court may exclude his testimony if offered at the trial.

Rule 27: Production or Inspection of Documents or Things Report of findings:

If requested by the party examined, the party causing the
Section 1. Motion for production or inspection; order - Upon examination to be made shall deliver to him a copy of a detailed
motion of any party showing good cause therefor, the court written report of the examining physician setting out his findings
in which an action is pending may (a) order any party to and conclusions.
produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any Sec. 4. Waiver of privilege - By requesting and obtaining a
designated documents, papers, books, accounts, letters, report of the examination so ordered or by taking the
photographs, objects or tangible things, not privileged, deposition of the examiner, the party examined waives any
which constitute or contain evidence material to any matter privilege he may have in that action or any other involving
involved in the action and which are in his possession, the same controversy, regarding the testimony of every other
custody or control; or (b) order any party to permit entry person who has examined or may thereafter examine him in
upon designated land or other property in his possession or respect of the same mental or physical examination.
control for the purpose of inspecting, measuring, surveying,
or photographing the property or any designated relevant
Rule 29: Refusal to Comply with Modes of Discovery
object or operation thereon. The order shall specify the time,
place and manner of making the inspection and taking
Section 1. Refusal to answer - If a party or other deponent
copies and photographs, and may prescribe such terms and
refuses to answer any question upon oral examination, the
conditions as are just.
examination may be completed on other matters or
adjourned as the proponent of the question may prefer. The
proponent may thereafter apply to the proper court of the
 request for the production and inspection of the original
place where the deposition is being taken, for an order to
document, have it photocopied for it to be clear.
compel an answer. The same procedure may be availed of
 this also applies to ocular inspection of a thing.
when a party or a witness refuses to answer any
Example: a land, to see the improvements and etc.
interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the
Q. How is it done?
refusing party or deponent to answer the question or
A. Documents – Before the trial you can ask for the production of
interrogatory and if it also finds that the refusal to answer
the documents in clear copy so that you can have it photocopied
was without substantial justification, it may require the
refusing party or deponent or the counsel advising the
B. Things – Can refer to any type property, real or personal. Real
refusal, or both of them, to pay the proponent the amount of
property is examined by ocular inspection
the reasonable expenses incurred in obtaining the order,
including attorney’s fees.
Requisites for a valid inspection of documents or things
If the application is denied and the court finds that it was
(Real or Personal)
filed without substantial justification, the court may require
the proponent or the counsel advising the filing of the
1. A motion for leave of court must be filed
application, or both of them, to pay to the refusing party or
2. The motion must show good cause for its grant
deponent the amount of the reasonable expenses incurred in
3. Notice of motion must be furnished to all parties
opposing the application, including attorney’s fees.
4. The motion must sufficiently describe the documents or things
Refusal to Answer
to be produced or examined
5. The document or things to be examined must contain evidence
 Movant of deposition upon oral examination may proceed to
material to the pending action
ask questions on other matters
6. The documents or thing to be examined must not be privileged
7. Documents or things to be examined must be in the possession
 Movant may ask from the court for an order to compel from
of the adverse party may at least be under his control
the deponent to answer

 If the court finds the refusal to answer unreasonable, it may

Rule 28: Physical and Mental Examination of Persons
order deponent and counsel to pay reasonable expenses
incurred by the proponent in obtaining the order
Section 1. When examination may be ordered - In an action in
which the mental or physical condition of a party is in
 If the court finds the motion unjustifiable, it may order the
controversy, the court in which the action is pending may in
proponent to pay reasonable expenses in refusing the
its discretion order him to submit to a physical or mental
motion
examination by a physician.
Montie:All of these are without prejudice for the refusing party or
Sec. 2. Order for examination - The order for examination
witness to be cited in contempt of court.
may be made only on motion for good cause shown and
upon notice to the party to be examined and to all other
Other consequences:
parties, and shall specify the time, place, manner, conditions
This was the only thing discussed by sir involving the rest of the
and scope of the examination and the person or persons by
consequences.
whom it is to be made.
1. If the refusing party is the plaintiff – The court may dismiss his
case
Sec. 3. Report of findings - If requested by the party
examined, the party causing the examination to be made 2. If the refusing party is the defendant – He may declared as in
shall deliver to him a copy of a detailed written report of the default
examining physician setting out his findings and

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3. Refusal to allow the inspection of a thing or document shall be Section 1. Notice of trial - Upon entry of a case in the trial
taken to be established for the purposes of the action in calendar, the clerk shall notify the parties of the date of its
accordance with the claim of the party obtaining the order (Rule trial in such manner as shall ensure his receipt of that notice
27) at least five (5) days before such date.

4. If a party refuses to admit the genuineness of a document Notice of trial:

under Rule 26, and it is proven later on that the document is - the coc will send notice of trial to the parties. However, it is
genuine – already determined during the pre-trial.

The refusing party may be ordered to pay the reasonable Trial vs Hearing
expenses incurred in making such proof, including attorney’s fees.  Trial –refers to the reception of evidence in chief of the
plaintiff and defendant.
Case: Sibayan vs. Alda - once the trial begin it shall continue until
adjourned.
Sec. 2. Contempt of court - If a party or other witness refuses  Hearing - All the rest it is covered by hearing.
to be sworn or refuses to answer any question after being Ex: arguing of the motion filed.
directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a Sec. 2. Adjournments and postponements - A court may
contempt of that court. adjourn a trial from day to day, and to any stated time, as the
expeditious and convenient transaction of business may
Sec. 3. Other consequences. require, but shall have no power to adjourn a trial for a longer
xxxxx period than one month for each adjournment, nor more than
three months in all, except when authorized in writing by the
Other consequences: Court Administrator, Supreme Court.
This was the only thing discussed by sir involving the rest of the
consequences. Adjournment vs. Postponement
 Adjournment – will happen when there is lack of material
1. If the refusing party is the plaintiff – The court may dismiss his time. Stop and continue and vice versa.
case  Postponement – requested or being scheduled before the
hearing to be moved to another date.
2. If the refusing party is the defendant – He may declared as in - urgent motion for postponement.
default
Sec. 3. Requisites of motion to postpone trial for absence of
3. Refusal to allow the inspection of a thing or document shall be evidence - A motion to postpone a trial on the ground of
taken to be established for the purposes of the action in absence of evidence can be granted only upon affidavit
accordance with the claim of the party obtaining the order (Rule showing the materiality or relevancy of such evidence, and
27) that due diligence has been used to procure it. But if the
adverse party admits the facts to be given in evidence, even
4. If a party refuses to admit the genuineness of a document if he objects or reserves the right to their admissibility, the
under Rule 26, and it is proven later on that the document is trial shall not be postponed.
genuine –
Sec. 4. Requisites of motion to postpone trial for illness of
The refusing party may be ordered to pay the reasonable party or counsel - A motion to postpone a trial on the ground
expenses incurred in making such proof, including attorney’s fees. of illness of a party or counsel may be granted if it appears
upon affidavit or sworn certification that the presence of
Sec. 4. Expenses on refusal to admit - If a party after being such party or counsel at the trial is indispensable and that
served with a request under Rule 26 to admit the the character of his illness is such as to render his non-
genuineness of any document or the truth of any matter of attendance excusable.
fact, serves a sworn denial thereof and if the party requesting
the admissions thereafter proves the genuineness of such
document or the truth of any such matter of fact, he may
apply to the court for an order requiring the other party to Requisites of Motion for Postponement:
pay him the reasonable expenses incurred in making such 1. absence of evidence
proof, including attorney’s fees. Unless the court finds that - the court of the other party may ask you what
there were good reasons for the denial or that admissions evidence you were have supposed to present since not yet
sought were of no substantial importance, such order shall available at the time of trial or hearing. So u would tell ur
be issued. oppoenent he will say this and that the adverse party say will
admit that but wla nag ingon na admissible as evidence.
Sec. 5. Failure of party to attend or serve answers - If a party
or an officer or managing agent of a party wilfully fails to 2. illness of a party or counsel
appear before the officer who is to take his deposition, after - must be with medical certificate and must be
being served with a proper notice, or fails to serve answers notarized.
to interrogatories submitted under Rule 25 after proper - unless if its emergency, no med cert, show it at the
service of such interrogatories, the court on motion and next hearing or ese will not accept the motion for postponement.
notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part
thereof, or enter a judgment by default against that party, and Sec. 5. Order of trial - Subject to the provisions of section 2
in its discretion, order him to pay reasonable expenses of Rule 31, and unless the court for special reasons
incurred by the other, including attorney’s fees. otherwise directs, the trial shall be limited to the issues
stated in the pre-trial order and shall proceed as follows:
Sec. 6. Expenses against the Republic of the Philippines -  
Expenses and attorney’s fees are not to be imposed upon the (a) The plaintiff shall adduce evidence in support of his
Republic of the Philippines under this Rule. complaint;

(b) The defendant shall then adduce evidence in support of

his defense, counterclaim, cross-claim and third-party
Rule 30: Trial
complaint;

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(c) The third-party defendant, if any, shall adduce evidence of

his defense, counterclaim, cross-claim and fourth-party a. Must be written
complaint; b. Convince the court why your client should win
(d) The fourth-party, and so forth, if any, shall adduce c. You can cite the evidences you have or you can destroy the
evidence of the material facts pleaded by them; other party’s evidences.
(e) The parties against whom any counterclaim or cross-
claim has been pleaded, shall adduce evidence in support of Montie:Memorandum is not necessary but is important because
their defense, in the order to be prescribed by the court; some judges will just copy the memorandum and make it as the
(f) The parties may then respectively adduce rebutting decision. So submit na lang jud. Because it will guide the judge.
evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence Montie: It will contain all the arguments of both parties and the
upon their original case; and judge will just choose from your memoranda which one is the
(g) Upon admission of the evidence, the case shall be best. If memoranda is given, then the case is now deemed for
deemed submitted for decision, unless the court directs the decision.
parties to argue or to submit their respective memoranda or
any further pleadings. Important: The foregoing order of trial applies only to regularly
If several defendants or third-party defendants, and so forth, controverted claims. (Yu v. Magpayo)
having separate defenses appear by different counsel, the
court shall determine the relative order of presentation of REVERSE TRIAL
their evidence. Now as you notice in trial, it is always the plaintiff who will present
evidence first. However, there are instances where the defendant
presents evidence first. We call this reverse trial.
1. Plaintiff shall adduce evidence in support of his complaint.
Yu v. Magpayo
a. Here plaintiff will present all evidence by formal offer of exhibit. This case is about a collection of money. The defendant filed an
Normally the court wants it in writing and the purpose must be answer claiming that he has already paid. Thus, there is no more
stated. need for the plaintiff to prove that the defendant indeed borrowed
b. Then defendant will comment on the formal offer of exhibit. money from him. The only issue now being, whether defendant
c. And the court will rule on the formal offer of exhibit has paid or not. Thus, the burden of proof is now shifted. It is the
defendant who will present evidence first.
TN: Only after the court will rule on the formal offer of exhibit that
the defendants can adduce evidence. This is a case of reverse trial in civil case, no need for the plaintiff
to prove that defendant paid. It shifted to the defendant because
Montie:formal offer of exhibits must be in writing with the she agreed to the allegation. It is now the defendant who will
purpose. the defendant is given the chance to object to the formal present evidence.
offer of exhibits. the court will rule w/n to accept or deny the Reverse trial is akin to trial of criminal cases
exhibits. Then the defendant will be the one now to present his Just like in a criminal case of murder where the defense used is
evidence. Then given formal offer then plaintiff may object. And self-defense. Since the killing was admitted by the accused, there
so on. is no more need for the prosecution to prove the same. The only
issue now being whether the killing was justified or not. Thus, the
2. Defendant shall then adduce evidence in support of his burden of proof is shifted to the accused. It is now the accused
defense. who will present evidence first and prove the self-defense.
3. The third party defendant, if any, shall adduce evidence.

a. He will present his evidence in chief, then his counter claim.

b. Then the plaintiff will present an answer to the counter claim. Sec. 6. Agreed statement of facts - The parties to any action
may agree, in writing, upon the facts involved in the
4. The fourth party defendant, and so forth, if any. litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence.
5. The parties against whom any counterclaim or cross-claim If the parties agree only on some of the facts in issue, the
has been pleaded, shall adduce evidence in support of their trial shall be held as to the disputed facts in such order as
defense, in the order to be prescribed by the court. the court shall prescribe.

6. The parties may then adduce rebutting evidence. Montie:

stipulation of facts: the purpose of a hearing is to determine the
Rebuttal Evidence– that evidence that the plaintiff is allowed to fact of the case then the court will proceed to render judgement.
present in order to rebut the evidences presented by the
defendant. Exp: stipulation of facts are not permitted in Annulment of
Marriage, Declaration of Nullity of Marriage, legal Separation. This
A. In here, the plaintiff is not allowed to present evidence that is is because the law does not allow the dissolution of marriage
already part of the evidence in chief. through agreement of marriage. It must be proved in court under
sufficient grounds.
Except: If there are newly discovered evidence or forgotten
evidences that is essential and not presented in the evidence in Sec. 7. Statement of judge - During the hearing or trial of a
chief. case any statement made by the judge with reference to the
case, or to any of the parties, witnesses or counsel, shall be
B. The defendant is also allowed to present a rebuttal – The Sur- made of record in the stenographic notes.
Rebuttal.
- the judge cannot anymore say “off the record”.
7. Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to
Sec. 8. Suspension of actions - The suspension of actions
argue or to submit their respective memoranda.
shall be governed by the provisions of the Civil Code.
Memoranda must be submitted before 30 days. With or without
Valid grounds:
memoranda – the case is deemed submitted for decision. If the
 Art. 20230 of the civil code provide that civil actions or
court will require the parties to submit memoranda (where all the
proceedings may be suspended:
things you want to stay will be placed in the memoranda):
1. If willingness to discuss possible compromise is expressed by
one or both parties; or

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2.If it appears that one of the parties, before the commencement B. Consolidation – it is upon the initiative of the adverse party.
of the action or proceeding, offered to discuss a possible Here, there are several parties, the common defendant wanted to
compromise but the other party refused the offer. join all those cases, only when all those cases are pending before
the same court.

Example:
Sec. 9. Judge to receive evidence; delegation to clerk of Suppose 30 people were riding on a bus which met an accident
court - The judge of the court where the case is pending shall and all the plaintiffs were injured. After the accident, the 30 of
personally receive the evidence to be adduced by the parties. them decided to file claims for damages against the bus
However, in default or ex parte hearings, and in any case company. They hired the same lawyer.
where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of  The lawyer can file 30 complaints for each plaintiff; or
the bar. The clerk of court shall have no power to rule on  The lawyer can file only one complaint naming as co-
objections to any question or to the admission of exhibits, plaintiffs the 30 injured passengers. That is permissive
which objections shall be resolved by the court upon joinder of parties which is encouraged to expedite litigation,
submission of his report and the transcripts within ten (10) to avoid multiplicity of suits, to economize the procedure or
days from termination of the hearing. avoid repetition of evidence.
 There is the justification for permissive joinder of parties in
Montie: rule 3 but they can only join one complaint if they have
 the parties agreed in writing that they will have ex-parte the same lawyer.
proceedings. So he will delegate it to the clerk of court.
 coc will be the one to hear the evidence and must be a Important: The rule on consolidation of cases generally applies
lawyer and the coc of the RTC. MTC coc are not lawyers so only to cases pending before the same court, not to cases
they cannot conduct ex-parte hearings. pending in different areas of the same court or different courts.
 the coc cannot rule on objections. His job is only to listen. He (PAL v. Teodoro)
will only note it and let the judge rule over it.
Second Requisite
The judge may delegate to his clerk of court under these  You cannot consolidate cases if they are pending in different
circumstances: courts in different provinces. The law says it must be in the
1. Defendant is already in default or in ex-parte hearing; same court.
2. The parties agree in writing; (ask permission from the court or  Cases are consolidated not only when the cases are before
judge) the trial court. There are times when cases are consolidated
3. The coc must be a lawyer. or joined together even when they are already on appeal,
- only the RTC coc are lawyers not the MTC, when they provided, there is a common question of fact or law. It’s so
receive it they cannot rule on the objections, they are only to note. called “Companion Cases”.
It will be the judge to rule on it.  Consolidation of actions is addressed to the sound discretion
of the court, and its action in consolidating will not be
Cases: disturbed in the absence of manifest abuse of discretion.
 Laloan vs. Malpaya
o SC said that a coc can receive evidence for and Guide:
on behalf of the judge during ex parte presentation A. Same court – same territorial jurisdiction. (i.e. all cases
of evidence as a result of default. were filed in RTC Cebu or in any of its branches – may be
o controlling doctrine, pwede na ma delegate and consolidated)
reception of evidence to coc under those 3
instances. B. Areas of the same court – RTC Cebu and RTC Bogo (Both
 Lim Tanho vs. Lamuliti are RTC courts but different territorial jurisdictions – cannot be
 NHA vs CA consolidated)

Rule 31: Consolidation or Severance C. Different courts – MTC and RTC (cannot be consolidated)

Examples:
Section 1. Consolidation - When actions involving a common
Cases filed in different areas of the same court
question of law or fact are pending before the court, it may
Bus Accident – 5 passengers injured. Each has a cause of action.
order a joint hearing or trial of any or all the matters in issue
Because this is a personal action, they can sue the operator in the
in the actions; it may order all the actions consolidated; and
place of plaintiff or defendant at their own instance. They all filed
it may make such orders concerning proceedings therein as
in different courts. They may have the same questions of facts
may tend to avoid unnecessary costs or delay.
and law. But they cannot be consolidated because it has been
filed in different courts.
When is Consolidations of Actions Proper?
Requisites: Montie: If all the passengers are residents of Cebu City and all of
1. When two or more actions involve the same or a common them filed the case before RTC Cebu, then the cases can be
question of law or fact; and consolidated. If however, one of the passengers is a resident of
2. The said actions are pending before the same court, Bogo and filed his case in RTC Bogo, that case cannot be
consolidated with the cases in Cebu because while RTC Cebu
First Requisite and RTC Bogo refer to the same RTC court, both however have
 This is in relation to Rule 3, sec.6 “permissive joinder of different territorial jurisdictions.
parties”
 There must be a common question of fact or law involved in Cases filed in a multi-sala court
their causes of action. What if the cases were filed in different branches of RTC of Cebu,
 There must be a connection somewhere between the rule on can they be consolidated?
consolidation of actions in rule 31 with the rule on permissive  Yes. Because the branches are treated as one court only.
joinder of parties in rule 3. RTC of Cebu has more or less 20 branches – all these
branches have the same territorial jurisdiction.
Difference between Consolidation & Joinder of Parties
Q: To which court will the cases be consolidated?
A. Joinder of parties – they all agree to join their causes of  The cases will be consolidated with the case bearing the
action or upon the initiative of the parties themselves. lowest docket number. This is because the case filed first
has a lower docket number.

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Three ways of consolidating cases  Since it is merely an interlocutory order, if the motion to
1. By recasting the cases already instituted, conducting only one consolidate is denied the remedy is to file a motion for
hearing and rendering only one decision. reconsideration and then, a petition for certiorari.
Otherwise, the case will proceed.
2. By consolidating the existing cases and holding only one
hearing and rendering only one decision Sec. 2. Separate trials - The court, in furtherance of
convenience or to avoid prejudice, may order a separate trial
3. By hearing only the principal case and suspending the hearing of any claim, cross-claim, counterclaim, or third-party
on the others until judgment has been rendered in the principal complaint, or of any separate issue or of any number of
case. claims, cross-claims, counterclaims, third-party complaints
or issues.
When is consolidation not allowed
 When two cases arose from different events or transactions, SEVERANCE OR SEPARATE TRIAL
involve different issues, and ultimately will depend on  In furtherance of convenience or to avoid prejudice or delay
different evidence. in the case, the court my order a separate trial of any claim,
 Consolidation must be denied when prejudice would result to cross claim, courter-claim or third party complaint – only if
any of the parties or would cause complications, delay, cut the court believes that there is reason to do so.
off, or restrict the rights of party.
Distinguish consolidation of Civil Actions from Consolidation Montie:This is the opposite of consolidation.
of Criminal Actions
Rule 32: Trial by Commissioner
Civil Cases Criminal Cases
One or more causes of action Only one offense can be When is there Trial by Commissioner
may be embodied in one subject of one complaint or  This kind of trial is resorted to only when there are issues
complaint because when there information. Consolidation of presented before the court which is not within the
is permissive joinder, there is criminal actions is exclusively competence of the court to determine or decide.
automatic consolidation also. for joint trial.  If the controversy is something that needs the expertise of
another professional then the parties may ask that it will be
The opposite of consolidation The opposite of consolidation referred to an expert in that matter.
is severance. is separate trial. In reality,
there is no actual consolidation Example:
of criminal cases. There is only In a land dispute, they were quarreling over the boundary of the
joint trial of criminal cases. land. He claims the defendant encroached his land. There is a
need for a geodetic engineer.
Q. Is consolidation of criminal and civil cases allowed?
Yes, but the quantum of evidence differs. Section 1. Reference by consent - By written consent of both
parties, the court may order any or all of the issues in a case
Canos v. Peralta to be referred to a commissioner to be agreed upon by the
Consolidation of criminal and civil cases is allowed, but the parties or to be appointed by the court. As used in these
degree of proof will differ. Here, the case was reckless Rules, the word "commissioner" includes a referee, an
imprudence resulting to physical injuries and with damages. The auditor and an examiner.
criminal case and the independent civil action were filed in the
same court.
Sec. 2. Reference ordered on motion - When the parties do
not consent, the court may, upon the application of either or
But because different quantum of evidence is needed, the court
of its own motion, direct a reference to a commissioner in the
will resolve:
following cases:
A. Criminal case – Proof beyond reasonable doubt
 
B. Civil case – Mere preponderance of evidence
(a) When the trial of an issue of fact requires the examination
of a long account on either side, in which case the
Note:
commissioner may be directed to hear and report upon the
 An ordinary civil case can be consolidated with a proceeding
whole issue or any specific question involved therein;
for writ of possession, being summary in nature.
(b) When the taking of an account is necessary for the
 The court held that the technical difference between an
information of the court before judgment, or for carrying a
action and a proceeding, which involve the same parties and
judgment or order into effect;
subject matter, becomes insignificant and consolidation
(c) When a question of fact, other than upon the pleadings,
becomes a logical conclusion in order to avoid confusion and
arises upon motion or otherwise, in any stage of a case, or
unnecessary expenses with the multiplicity of suits.
for carrying a judgment or order into effect.
Suarez Notes: When to appoint commissioner
 Appealed cases can be consolidated with a case being 1. By joint agreement of the parties – if both parties agree to
heard originally. Nothing in the rules expressly prohibits the refer the matter to a commissioner, then they will file a joint
consolidation of an appealed case with a case being heard motion to the court.
originally. However, whether the court will allow 2. Upon request of the party– if the parties cannot agree
consolidation or will not depend on the factual upon request of one party against the will of another party.
circumstances. 3. By court motu propio
Reference to a commissioner:
Guerzo Notes: 1. Reference by consent of the parties
Different kinds of Consolidation 2. Reference ordered on motion
1. Quasi-consolidation – all except one of the several actions
are stayed until one is tried. Examples:
2. Actual Consolidation – several actions are ordered to be 1. Geodetic Engineer – Dispute on boundaries of the land or
tried together but retain their identity single action. partition of land.
3. Consolidation for trial – several actions are ordered to be
tried together but retain their identity. 2. Accountant – Conflict between two business partners, accusing
each other of malversation. This requires the examination of the
books of accounts of the business.

Note: 3. Land Appraiser – Expropriation and determining the fair market

value of the property. For just compensation.

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ten (l0) days after the date of the order of reference and shall
Sec. 3. Order of reference; powers of the commissioner - notify the parties or their counsel.
When a reference is made, the clerk shall forthwith furnish
the commissioner with a copy of the order of reference. The Commissioner must take an oath
order may specify or limit the powers of the commissioner,  Before the commissioner assumes his power as such, he
and may direct him to report only upon particular issues, or must take an oath before the judge that he will perform his
to do or perform particular acts, or to receive and report duties and functions faithfully and in accordance with law.
evidence only, and may fix the date for beginning and
closing the hearings and for the filing of his report. Subject Duty upon Receipt of Order of Reference / Mandatory
to the specifications and limitations stated in the order, the Hearing
commissioner has and shall exercise the power to regulate  From the time the Commissioner receives the order of
the proceedings in every hearing before him and to do all reference from the court, he must call a meeting of the
acts and take all measures necessary or proper for the parties and their counsel within 10 days, and immediately
efficient performance of his duties under the order. He may start the hearing of the case.
issue subpoenas and subpoenas duces tecum, swear
witnesses, and unless otherwise provided in the order of Commissioner must conduct a hearing
reference, he may rule upon the admissibility of evidence.  The Commissioner must conduct a hearing. It is the essence
The trial or hearing before him shall proceed in all respects of due hearing, thus cannot be dispensed with. He must
as it would if held before the court. listen to the evidence of both parties before he will decide
and make his findings and recommend to the court.
Commissioner
 A person who is an expert in that particular field or matter Q: Can the commissioner dispense with the hearing? Can he just
under controversy. Here, the judge needs the assistance or rely on the affidavits filed by the parties?
expertise of the parson for him to resolve the factual issues. A: No. There will be no basis of his report if he will not conduct a
 A commissioner is a representative of the judge. He is the hearing. A finding or recommendation by the commissioner to the
Alter Ego of the judge judge without a hearing is null and void.
 Trial by commissioner normally refers to determination of
factual issues. Legal issues are matters reserved only for If the judge approves such recommendation notwithstanding the
the judge to decide. absence of hearing, the same can be questioned by certiorari via
Rule 65 for grave abuse of discretion.
POWERS OF THE COMMISSIONER
A Commissioner is like an alter ego of the judge. He is very Aljem’s Corp. v. CA
powerful. He acts like a judge in determining the factual issues of The commissioner must conduct a hearing. The requirement for
the case. him to hold a hearing cannot be dispensed with as this is the
essence of due process.
A. To regulate the proceedings in every hearing before him
B. To do all acts and take all measures necessary or proper for
the efficient performance of his duties under the order
C. To issue subpoenas and subpoenas duces tecum Jaca v. Davao Lumber
D. Swear the witnesses When the commissioner did not hold hearing in violation of Sec. 3
E. May rule upon the admissibility of evidence, unless of Rule, it is error for the trial court to issue an order approving
otherwise provided in the order of reference. said commissioner’s report over the objection of the aggrieved
party.
Note: (powers)
 He may conduct a hearing, he will hear both parties. Sec. 6. Failure of parties to appear before commissioner. - If
 He can issue subpoena and administer oath of the a party fails to appear at the time and place appointed, the
witnesses. commissioner may proceed ex parte or, in his discretion,
 He can rule on objections. adjourn the proceedings to a future day, giving notice to the
 He can decide on the case. absent party or his counsel of the adjournment.
 HE CANNOT cite a person in contempt. If the witness will Sec. 7. Refusal of witness. - The refusal of a witness to obey
not appear, he will report to the judge who appointed him as a subpoena issued by the commissioner or to give evidence
a commissioner and the judge will be the one who will site before him, shall be deemed a contempt of the court which
the witness in contempt of court. appointed the commissioner.

Order of Reference / Reference Order Effect of refusal of the witness to obey the subpoena
 An Order of Reference or Reference Order must be issued  Refusal of the witness to obey the subpoena issued by the
by the court to refer the case to a commissioner. It contains commissioner or to give evidence before him shall be
the parameters of the powers of the Commissioner. deemed a contempt of the court which appointed the
 When the court issues an order of reference, the clerk of commissioner. But the Commissioner has no contumacy
court must immediately notify the person appointed as powers. He has to report to the judge and the judge is the
commissioner in the order. one who will cite the witness in contempt.
 And that person must immediately manifest to the court
whether he accepts or not the appointment. Important: Commissioner is considered as the alter ego of the
judge. He has the power to issue a subpoena, but he does not
Compensation of a Commissioner have the power to order an arrest of the witness. If the party did
 Both parties will pay or if not, the losing party. not obey the subpoena, he can ask the help of the judge to order
 The court may appoint a panel of commissioners not only 2 the arrest.
or 3.
Sec. 8. Commissioner shall avoid delays - It is the duty of the
Sec. 4. Oath of commissioner - Before entering upon his commissioner to proceed with all reasonable diligence.
duties the commissioner shall be sworn to a faithful and Either party, on notice to the parties and commissioner, may
honest performance thereof. apply to the court for an order requiring the commissioner to
expedite the proceedings and to make his report.
Sec. 5. - Proceedings before commissioner. Upon receipt of
the order of reference and unless otherwise provided therein,
The Commissioner shall avoid delays
the commissioner shall forthwith set a time and place for the
 The commissioner shall avoid delay. Thus, if the
first meeting of the parties or their counsel to be held within
Commissioner is dilly-dallying with the proceedings, either
party may apply to the court for an order requiring the

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commissioner to expedite the proceedings and to make his B. If the parties did not agree – chargeable to the losing
report. party. The court can order the losing party to reimburse the
winning party of the payment.
Sec. 9. Report of commissioner - Upon the completion of the
trial or hearing or proceeding before the commissioner, he Rule 33: Demurrer to Evidence
shall file with the court his report in writing upon the matters
submitted to him by the order of reference. When his powers Section 1. Demurrer to evidence - After the plaintiff has
are not specified or limited, he shall set forth his findings of completed the presentation of his evidence, the defendant
fact and conclusions of law in his report. He shall attach may move for dismissal on the ground that upon the facts
thereto all exhibits, affidavits, depositions, papers and the and the law the plaintiff has shown no right to relief. If his
transcript, if any, of the testimonial evidence presented motion is denied, he shall have the right to present evidence.
before him. If the motion is granted but on appeal the order of dismissal
is reversed he shall be deemed to have waived the right to
COMMISSIONER’S REPORT present evidence.
Procedure:
Demurrer to evidence
A. Upon completion of hearing, the commissioner must file his  A motion to dismiss filed after the plaintiff finished presenting
report in court stating his findings of facts and conclusion of law. his evidence on the ground of insufficiency of evidence.

B. The clerk shall notify the parties of the filing of the report and Leave of Court is Required
they are given ten (10) daysto file their comment or opposition  Demurrer to evidence in civil cases always needs leave of
thereto. court.

C. After ten (10) days, the court will set the report for hearing Distinguished from Rule 16 or Motion to Dismiss
and thereafter issue an order adopting, modifying or rejecting
it. A. Motion to dismiss in Rule 16 – is based on 10 grounds. It
is a preliminary objection. You objected without even filing
Important: Commissioner’s report is not binding on the courts. an answer.
The commissioner can make a report and it will be the basis for
the decision of the court. However, the court is not bound – it may B. Demurrer to evidence – is a motion to dismiss filed only
or may not follow the commissioner’s report. It is the court’s after the plaintiff has rested his case in court. After he
prerogative. They are there to help; it does not mean that their presented all his evidence that is the time you can file
findings are binding to the parties. demurrer to evidence, instead of presenting his evidence.
The only ground for demurrer to evidence is the insufficiency
Take Note: of evidence.
 The parties, however, may stipulate beforehand that the Montie: If the defendant believes that the plaintiff did not prove
commissioner’s finding of facts shall be final .Thus, only his causes of action against him, why should he present
questions of law shall thereafter be considered. (sec.12) evidence? Remember that in civil cases, the plaintiff should not
depend on the weakness of the defendant but rely on the strength
of his evidence. It is the plaintiff who has the burden of proof,
Sec. 10. Notice to parties of the filing of report - Upon the except in instances of reverse trial. So if the evidence of the
filing of the report, the parties shall be notified by the clerk, plaintiff is weak, file a demurrer on the basis of insufficiency of
and they shall be allowed ten (l0) days within which to signify evidence.
grounds of objections to the findings of the report, if they so
desire. Objections to the report based upon grounds which DEMURRER TO EVIDENCE IN CIVIL CASES
were available to the parties during the proceedings before
the commissioner, other than objections to the findings and Motion for leave of court is required.
conclusions therein set forth, shall not be considered by the  If you want to file a demurrer to evidence in civil cases,
court unless they were made before the commissioner. motion for leave of court is required.

Effects of the grant or denial of demurrer of evidence

Sec. 11. Hearing upon report - Upon the expiration of the
period of ten (l0) days referred to in the preceding section,
A. If granted – The case is dismissed. If however, the plaintiff
the report shall be set for hearing, after which the court shall
appeals and the decision is reversed on appeal, the defendant
issue an order adopting, modifying, or rejecting the report in
shall be deemed to have waived the right to present evidence. In
whole or in part, or recommitting it with instructions, or
which case, the CA will decide the case based solely on the
requiring the parties to present further evidence before the
plaintiff’s evidence. (Important)
commissioner or the court.
TN: If granted, the dismissal is considered an adjudication of the
Sec. 12. Stipulations as to findings - When the parties merits of the case. Hence, the remedy is appeal.
stipulate that a commissioner’s findings of fact shall be final,
only questions of law shall thereafter be considered. B. If denied – The defendant can still present evidence.

Sec. 13. Compensation of commissioner - The court shall Remedy of defendant: If denied, the order of denial is a merely
allow the commissioner such reasonable compensation as an interlocutory order, thus appeal is not the remedy. Certiorari
the circumstances of the case warrant, to be taxed as costs may be availed if there is grave abuse of discretion on the
against the defeated party, or apportioned, as justice court.
requires.
DEMURRER TO EVIDENCE IN CRIMINAL CASES
COMPENSATION OF COMMISSION
 The Commissioner is entitled to compensation.  It is also a motion to dismiss on the ground of insufficiency of
the evidence. But in criminal case, the burden of proof lies in
Q. Who shall pay? the hands of the prosecution. The quantum of evidence
A. If the Commissioner was requested by both – they shall required is proof of guilt beyond reasonable doubt. In case of
share in the compensation. Thus, if the Commissioner says doubt, the accused is acquitted.
payment is 20k, the parties will pay 10k each.
Leave of court is not required, but necessary

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 Leave of court to file a demurrer to evidence is not required, Montie:Here, B admitted the material allegations on the pleading
but it is necessary. Otherwise, you will lose your right to of A. Having no money is not a valid defense. So A can now ask
present evidence. the judge to decide the case now. – A judgment on the pleading.

Effect of denial of demurrer to evidence Q. How is it done?

A.By motion of the plaintiff –motion for judgement of the pleading
A. If with leave of court – The accused can still present evidence. in the court.
B. By the court’s own volition or motu proprio if the court during
B. If without leave of court – Accused loses his right to present pre-trial finds the same to be proper.
evidence.
Montie: Remember that one of the purpose of pre-trial is to
Montie:After prosecution rested his case, if you think the determine the propriety of the issues of the case. If the court finds
evidence is insufficient, you can file demurrer to evidence, but you no issues at all, then the court may render judgment on the
have to file a motion for leave of court first, so that if the demurrer pleading even without the motion of the plaintiff.
is denied – you can still present evidence. Otherwise, if you file
demurrer right away, you lose your right to present evidence. Effects of Filing Judgment on Pleadings:
 Plaintiff is deemed to have admitted all relevant allegations
of facts in the defendant’s answer.
Demurrer to evidence Demurrer to evidence
in civil cases in criminal cases Exceptions:
A. Plaintiff is not deemed to have admitted the irrelevant
Leave if court is required With or without leave of allegations in the defendant’s answer
court B. Defendant is not deemed to have admitted the allegations of
unliquidated damages in the plaintiff’s complaint.
Effect if demurrer is Effect of demurrer is
denied: denied: Exception: Actual damages supported by receipts.
The accused can still If with leave of court
present evidence. Accused can still present Important: Allegations do not include allegations on unliquidated
evidence. damages – it must be proved. Examples of unliquidated
If without leave of court damages: moral damages, exemplary damages, etc. If liquidated
Accused can no longer – it can be awarded.
present evidence.
WHEN NOT PROPER
Effect of demurrer is Effect if demurrer is Judgment on the pleading is not allowed in the following actions:
granted granted
The case is dismissed. The case is dismissed. No A. Declaration of nullity of marriage
However, if reversed on appeal from the prosecution B. Annulment of marriage
appeal, defendant is otherwise double jeopardy. C. Legal Separation
deemed to have waived his
right to present evidence.
Rule 35: Summary Judgement

Rule 34: Judgement on the Pleadings Important: Summary judgment is proper only when there is
clearly no genuine issue as to any material fact in the action. In
Note: this is already deleted, not used by lawyers. here, there is an issue raised but is not genuine or not true. If
there is any question or controversy upon any questions of fact,
there should be a trial on the merits. (Arcanas v. Nagum)
Section 1. Judgment on the pleadings. — Where an answer
fails to tender an issue, or otherwise admits the material
Example:
allegations of the adverse party's pleading, the court may; on
A filed a simple collection case against B. B lied. B did not pay
motion of that party, direct judgment on such pleading.
because his mom abroad has not sent money yet. However, to
However, in actions for declaration of nullity or annulment of
delay the case, B alleged that he has already paid. So there is
marriage or for legal separation, the material facts alleged in
now an issue, that is whether B has paid or not.
the complaint shall always be proved.
Now, A knows very well that B’s answer is a lie. So A can
JUDGMENT ON THE PLEADING
challenge the defendant by way of summary judgment. He will file
 Rules 34 and Rule 35 are like brothers. They are called “twin
a motion for summary judgment supported by affidavits,
rules”. Here, the court will rule on the case based simply on
deposition or admissions subscribed and sworn to before notary
the pleadings filed by the parties, even without conducting a
public.
trial. Trial on the merits of the case is not necessary.
 Or so called “Accelerated Judgement”, automatic decision
Here, A is challenging B to do the same, to file a counter affidavit.
without hearing.
Now if B wants to file a counter-affidavit, it must likewise be
notarized.
Grounds:
A. Where an answer fails to tender an issue, or
Effect:
B. Otherwise admits the material allegations on the adverse
A. If proven that B really did not pay – he will be liable for perjury
party’s pleading.
B. If he will not execute the same – klaro na kaayo namakak.
Examples:
Answer fails to tender an issue
When the defendant, in his answer did not controvert specifically
the material averments on the plaintiff’s pleading. Relate with
Judgment on the pleadings v. Summary judgment
Rule 8 on specific denial.
Judgment on the Summary judgment
Admission of material allegations
pleadings
A filed a simple case of collection against B. B filed an answer,
 There is no issue.  There is an issue, but
admitting that he indeed borrowed money from A, only that he has
 Admits the material not genuine.
no money to pay off the loan yet.
allegations.  There is a defense but
it is not genuine.

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 There is no need for  There is a need for Sec. 4. Case not fully adjudicated on motion - If on motion
supporting affidavits. supporting affidavits, under this Rule, judgment is not rendered upon the whole
 The court will render depositions, and case or for all the reliefs sought and a trial is necessary, the
judgement on the admissions attached court at the hearing of the motion, by examining the
basis only of the in the motion SJ as pleadings and the evidence before it and by interrogating
pleading. basis for the decision. counsel shall ascertain what material facts exist without
It must be served at least 3 Served at least 10 days substantial controversy and what are actually and in good
days before the hearing before the hearing faith controverted. It shall thereupon make an order
Remedy available only to Remedy available to both specifying the facts that appear without substantial
the plaintiff. parties. controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing
Section 1. Summary judgment for claimant - A party seeking such further proceedings in the action as are just. The facts
to recover upon a claim, counterclaim, or cross-claim or to so specified shall be deemed established, and the trial shall
obtain a declaratory relief may, at any time after the pleading be conducted on the controverted facts accordingly.
in answer thereto has been served, move with supporting
affidavits, depositions or admissions for a summary Sec. 5. Form of affidavits and supporting papers - Supporting
judgment in his favor upon all or any part thereof. and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible
Sec. 2. Summary judgment for defending party - A party in evidence, and shall show affirmatively that the affiant is
against whom a claim, counterclaim, or cross-claim is competent to testify to the matters stated therein. Certified
asserted or a declaratory relief is sought may, at any time, true copies of all papers or parts thereof referred to in the
move with supporting affidavits, depositions or admissions affidavit shall be attached thereto or served therewith.
for a summary judgment in his favor as to all or any part
thereof. Sec. 6. Affidavits in bad faith - Should it appear to its
satisfaction at any time that any of the affidavits presented
Who may file: Ground pursuant to this Rule are presented in bad faith, or solely for
1. Plaintiff: the purpose of delay, the court shall forthwith order the
 At anytime after answer has been served. offending party or counsel to pay to the other party the
 If the defendant files an answer just to delay the proceeding, amount of the reasonable expenses which the filing of the
and the issue is not genuine; it is fictitious, plaintiff may file affidavits caused him to incur, including attorney’s fees. It
summary judgement. may, after hearing, further adjudge the offending party or
counsel guilty of contempt.
Answer by Defendant is by Affidavit
Under the rules, if a summary judgement is filed, you have to Rule 36: Judgements, Final Orders and Entry Thereof
answer it also by affidavit, deposition or admission. Otherwise, it
would mean that your answer is not genuine. These should be Section 1. Rendition of judgments and final orders - A
notarized by a lawyer, under the pain of perjury. judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the
2. Defendant: judge, stating clearly and distinctly the facts and the law on
 If the defendant knows that the allegation in the complaint of which it is based, signed by him, and filed with the clerk of
the complainant are not true, defendant may also file the court.
summary judgement and challenge him to answer the
motion for SJ which must be supported by affidavit Q. What is the difference between decision and judgment?
deposition or admission.
A. Decision – Refers to the entire document which summarizes
Q. Can there be partial summary judgment? what transpire during the trial which contains what has
 Yes. The Rules authorizes the rendition of partial summary transpired during the trial, evidence presented, the findings
judgment. Such judgment is interlocutory in nature and is of facts of the court and conclusions of law. Finding of facts
not a final and appealable judgment. The appeal from such and the conclusion of law.
partial judgment should be taken together with the judgment
in the entire case after trial shall have been conducted. B. Judgment – The last part of the decision, also known as the
“fallo”. The conclusion of the court. Usually in just 1 or 2
Sec. 3. Motion and proceedings thereon - The motion shall be paragraphs – the WHEREFORE portion. The most common
served at least ten (10) days before the time specified for the term for judgment is the dispositive portion.
hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the Montie:
hearing. After the hearing, the judgment sought shall be In case of conflict of the two, the judgement will prevail.Unless, it
rendered forthwith if the pleadings, supporting affidavits, is obvious that the judgement is an error.
depositions, and admissions on file, show that, except as to
the amount of damages, there is no genuine issue as to any Case is deemed submitted for decision upon submission of the
material fact and that the moving party is entitled to a last pleading by the court.
judgment as a matter of law.
When decision must be made? (art. VII, Sec. 15(1) consti)
HOW IS IT DONE Supreme Court – 24 months
 By the filing of a motion for summary judgment with Court of Appeas - 12 months
supporting affidavits, depositions or admissions. The motion RTC & MTC – 3 months
shall be served at least ten (10) days before the time
specified for hearing. Note: this is not mandatory.
 Must be subscribed and verified. If bakak pwede ka ma
perjury. HOW FINAL JUDGMENT IS RENDERED
A final judgment on the merits of the case must be:
Montie: This is one exception to the 3-day notice rule. A motion 1. In writing
for summary judgment – must be at least 10 days. 2. Personally and directly prepared by the judge
3. Stating clearly and distinctly the facts and the law on which it
is based.
4. Signed by the judge
5. Filed with the clerk of court

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Except: The decision of the Supreme Court. Because the court New rule
may dismiss it outright due w/o merit. The date of finality of the judgment shall be the date of entry.

Montie: Because if in reality, if your case is not that interesting or Important: The date of finality of the judgment or final order
did not comply with the technicalities, the Supreme Court will just shall be deemed to be the date of its entry.
decide in 1-2 sentences. This is otherwise called as Minute
Resolution. This is because appeals to the Supreme Court are Example
not a matter of right, but a matter of privilege. Thus, if the Judgment is final on January 4. But the clerk of court is on
procedural requirements are not duly complied with, it can right vacation and he returned a week after. He entered the judgment
away be dismissed by a Minute Resolution. in the book on January 11. When was the judgment deemed
entered?
Montie: This is what we call the rendition of judgment. Most civil
cases are appealable within 15 days. But there are some that are Ans. – January 4. The date of the finality of judgment or final
appealable within 30 days like in special civil actions or when order shall be deemed to be the date of its entry, even if it is
there are multiple appeal were record of appeal is required to be entered many weeks or months later.
filed. (To be discussed later)
Montie: Why? Because there are many remedies in the Rules of
RENDITION OF JUDGMENT, WHEN Court that are reckoned on the date of entry of judgment. So it is
 The rendition of judgment is reckoned from the moment the just to avoid confusion. That is why in this new rule, the date of
signed decision is filed in clerk of court, and not its finality is deemed to be the date of entry. No need to wait for the
pronouncement in open court. clerk of court to write it down in the Book of Entries of Judgment.
 The court must explain the basis of its decision. However, a
minute resolution can be issued by Supreme Court in the Remedy Reckoned From Date of Judgement
dismissal of petition for review on certiorari.  Petition for relief of judgement, 60 days from knowledge
 If decision is made through registered mail, it is upon the but not more than 6 months from the entry of judgement.
receipt of the Clerk of Court that is considered the rendition  Petition for Annulment of Judgement
of judgement. Then send out copies to the parties
concerned. Other Kinds of Judgements
 Equivalent to promulgation of judgement.
Sec. 3. Judgment for or against one or more of several
Q. When does the court deem to have rendered their parties - Judgment may be given for or against one or more
decision? of several plaintiffs, and for or against one or more of several
 It is upon the delivery of a signed copy of the decision to the defendants. When justice so demands, the court may require
clerk of court for mailing to all parties. When the clerk of the parties on each side to file adversary pleadings as
court receives the copy, he will send copies to all the parties. between themselves and determine their ultimate rights and
When the losing party receives his copy that is the time that obligations.
you will start counting the 15 days to appeal.
Sec. 4. Several judgments - In an action against several
Q. When does the decision become final? defendants, the court may, when a several judgment is
 The decision of the case becomes final after the lapse of the proper, render judgment against one or more of them,
period to appeal and no appeal or motion for new trial or leaving the action to proceed against the others.
reconsideration is filed.
Sec. 5. Separate judgments - When more than one claim for
Montie:In criminal cases, there must be promulgation of judgment relief is presented in an action, the court, at any stage, upon
of the cases. It is done by reading of the decision in open court. a determination of the issues material to a particular claim
While in civil case, there is only sending of copy to the parties. and all counterclaims arising out of the transaction or
occurrence which is the subject matter of the claim, may
Judgement is Ambiguous: Clarificatory Judgement render a separate judgment disposing of such claim. The
 if the judgement is ambiguous, you can file a clarificatory judgment shall terminate the action with respect to the claim
judgement so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered,
Sec. 2. Entry of judgments and final orders - If no appeal or the court by order may stay its enforcement until the
motion for new trial or reconsideration is filed within the time rendition of a subsequent judgment or judgments and may
provided in these Rules, the judgment or final order shall prescribe such conditions as may be necessary to secure the
forthwith be entered by the clerk in the book of entries of benefit thereof to the party in whose favor the judgment is
judgments. The date of finality of the judgment or final order rendered.
shall be deemed to be the date of its entry. The record shall
contain the dispositive part of the judgment or final order Sec. 6. Judgment against entity without juridical personality -
and shall be signed by the clerk, with a certificate that such When judgment is rendered against two or more persons
judgment or final order has become final and executory. sued as an entity without juridical personality, the judgment
shall set out their individual or proper names, if known.
Entry of Judgement
 It occurs the moment the judgement becomes final and TYPES OF JUDGMENT
executory. 1. Judgment for or against one or more of several parties (Sec 3)
 It becomes final and executory after the lapse of the 2. Several Judgement (Sec 4)
reglementary period to appeal and no appeal is filed. 3. Separate Judgment (Sec 5)
4. Judgment against entity without judicial personality (Sec 6)
Q. When is judgment deemed entered? Entry of Judgement 5. Judgment for specific act
6. Special Judgment
Old rule
The moment the clerk of court enters the judgment in the Book of Montie: We will discuss those judgments when we reach Rule 39.
Entries of Judgment.
Montie:Under the old rules, entry of judgment is actually the 7. Judgment upon confession
mechanical act of writing the dispositive portion of a final decision 8. Judgment non pro tunc – a judgment that reiterates an old
in the Book of entries of judgment. Here, the clerk of court will judgment that is not put on record. The present court will just
enter the judgment (not the decision) of the court and record its revive the judgment and put it on record.
date. 9. Judgment upon compromise – immediately executory and
final. Not appealable.

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10. Clarificatory judgment – when the judgment is vague, you can or more of the following causes materially affecting the
ask the court to clarify their judgment. substantial rights of said party:

Decision that will not become final (a) Fraud, accident, mistake or excusable negligence which
 Decision for Support– it will not become final because it ordinary prudence could not have guarded against and by
can be adjusted anytime. Pwede increase, pwede pud reason of which such aggrieved party has probably been
decrease depending on the circumstances. impaired in his rights; or

JUDGMENT UPON COMPROMISE (b) Newly discovered evidence, which he could not, with
A judgment of the court from the compromise agreement of the reasonable diligence, have discovered and produced at the
parties. This judgment is not appealable. trial, and which if presented would probably alter the result.

Immediately executory since it is a product of the agreement of Within the same period, the aggrieved party may also move
the parties once approved by the court. for reconsideration upon the grounds that the damages
awarded are excessive, that the evidence is insufficient to
Montie:Now we all know that the remedy of a losing party is to justify the decision or final order, or that the decision or final
appeal. However, there are decisions that are not appealable, i.e. order is contrary to law.
judgment upon compromise. This kind of judgment is made by the
parties themselves, and that’s the reason why they cannot Grounds for New Trial
appeal. Why would you appeal your own agreement? It is already 1. FAME
final, executory and not appealable.  Was not able to present evidence due to: Fraud, Accident,
Mistake, & Excusable Negligence
 Fraud refers to acts which ordinary prudence could not have
Compromise Agreement must be: guarded against and by reason of which such aggrieved
A. In writing party has probably been impaired in his rights.
B. Signed by the parties and their lawyers (Lawyers must assist in  Fraud refers to extrinsic fraud, not intrinsic.
the compromise)  When, by reason of FAME, you lost the case because you
C. Submitted to the court were prevented from presenting evidence or denied your day
in court. Your remedy is to have the judgment of the court
Upon submission of the compromise agreement, the court set aside and allow a new trial in order that you can now
will now render judgment based on compromise agreement. present evidence.
 Usually the court will just copy the agreement then
dispositive portion. The court will just state that their
judgment is based on the agreement. “That it is not contrary Must be supported by Affidavit of Merit
to law and the same has been granted and the parties will  To show to the court the nature of the FAME as a basis of
strictly comply” your motion and that you have a meritorious defense, if only
the court will allow you to present evidence.
Important: If later, the compromise agreement contains some
provisions that the parties did not really agreed upon, i.e. there Example: Order of default – you can file a motion to lift motion of
was fraud involved. Can that party appeal? Still no. default only when there is no judgment yet. When there is
judgment – you can either appeal the case or file a motion for new
What is his remedy? trial.
File a Motion to Set Aside the Judgment on Compromise
Agreement because of Fraud or Deceit into signing the Important: Fraud must refer only to extrinsic fraud.
agreement. If the Court will still deny the motion to set aside, this TWO KINDS OF FRAUD:
is the time you will appeal – On the denial of the court of your A.Extrinsic fraud– fraud is committed in order to prevent you
motion to set aside the judgment. from presenting evidence in court.

Montie: Once judgement is final and executory cannot be Example: A filed a case against you, you filed an answer. Now,
modified and changed no matter how erroneous. Unless, there you went to A – for possible compromise agreement. He said ok,
are clerical and typographical errors. This is the principle of you signed the agreement. A said that he will be the one to submit
immutability of judgement. it in court. But A did not submit it to court, he took your money and
continued the case. As a result, you lost the case because you
were not able to present your evidence by reason of A’s fraud.
Rule 37: New Trial or Reconsideration
What is your remedy?
New Trial or Reconsideration You can ask for New Trial on the ground of Fraud.
When the losing party receives the decision, he has three options:
B. Intrinsic fraud– fraud committed during trial. You were able to
1. Motion for New Trial present evidence, not denied of your day in court but the adverse
2. Motion for Reconsideration party presented fake documents, wrong witnesses, etc.
3. Appeal the case
Is there fraud? Yes but this kind of fraud could not be a ground of
TN: These remedies can be availed of within the period to appeal new trial. The party here was defrauded but was not denied of his
– 15 days from receipt of decision. rights to the case. The fraud could have been discovered if only
his lawyer is diligent enough during presentation or during cross-
After Period to Appeal: examinations.
1. Petition for Relief of Judgement
2. Petition for Annulment of Judgement Rules for MNT
1. Fraud is Extrinsic
TN: Your remedy after it has become final and executory is 2. NDE does not refer to forgotten evidence
petition for relief of judgement under rule 38. Or later on, the last 3. New trial is different from reopening of trial
recourse would be annulment of judgement under rule 47. - Former, there is already the decision of the court while in
the latter, there is yet no decision, and you want to introduce
Section 1. Grounds of and period for filing motion for new additional evidence that you want to present.
trial or reconsideration. — Within the period for taking an - In reopening of trial, the court has already terminated the
appeal, the aggrieved party may move the trial court to set trial but there is yet no judgement. It is to be submitted for
aside the judgment or final order and grant a new trial for one decision.

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FAME NDE Motion for

New Trial Re-opening of Trial Attach affidavit of Reconsideration
The trial is done. The trial is done. merit stating the A. Testimonial –
There is already a decision. There is no decision yet. nature of the FAME attach evidence
Grounds are FAME and newly Ask the court to present and that there is a of new witness Point out which
discovered evidence. evidence which you forgot to meritorious specific portion
present that will be considered defense. B. Documentary of the decision is
by the court when it will – attach certified not supported by
eventually decide for the case. true copy, evidence or
authenticated contrary to law.
2. Newly Discovered Evidence (NDE) and notarized
 Newly discovered evidence
 Evidences that you were not able to discover during the trial Must be set for hearing: proof of service
despite due diligence. And if these evidences are presented
to the court, it would alter the decision of the court. You In one case:
probably could have won the case. SC held that if your motion for reconsideration contains a mere
reiteration of what you have already argued in you memorandum
Elements: that was submitted to the court – and in fact the court has already
1. It was discovered only after trial discussed that extensively – your motion serves no other purpose
2. That it could not have been discovered despite due diligence but to delay the resolution of the case. This kind of motion is still
3. Will surely alter the result of the case considered pro forma motion.

Example Section 2. Contents of motion for new trial or reconsideration

A filed collection case against you. You know that you have and notice thereof. — The motion shall be made in writing
already paid him but you cannot present any evidence. The court stating the ground or grounds therefor, a written notice of
rendered decision adverse to you. But before the time to appeal which shall be served by the movant on the adverse party.
expires, B appears and saying that he is there when you made
payment to A. In fact, he has a photo to prove it. A motion for new trial shall be proved in the manner provided
for proof of motion. A motion for the cause mentioned in
So in here, at first you did not know that B was there – that he paragraph (a) of the preceding section shall be supported by
was present when you made the payment. In fact, during the trial affidavits of merits which may be rebutted by affidavits. A
of your case, B was on US – he just returned from his vacation. motion for the cause mentioned in paragraph (b) shall be
So you ask the court that you may present evidence. supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
Newly discovered evidence does not refer to forgotten documents which are proposed to be introduced in evidence.
evidence
A motion for reconsideration shall point out a specifically the
A. Despite due diligence – you must be the one to prove to the findings or conclusions of the judgment or final order which
court that during the trial you exerted due diligence to get the are not supported by the evidence or which are contrary to
evidence but of no avail. law making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to
B. Forgotten evidence– evidence that could have been be contrary to such findings or conclusions.
discovered in exercise of due diligence – kanang nagdanghag
lang ka ba, bisag naa ra sa imo atubangan ang evidence – wa jud A pro forma motion for new trial or reconsideration shall not
nimu gamita. toll the reglementary period of appeal.

Newly discovered evidence may either be:

CONTENTS OF MNT
1. If Ground is FAME – the motion must be accompanied by an
A. Testimonial evidence – testimony of a witness in your motion
Affidavit of Merit.
for new trial, you must attach the affidavit of your new witness.
2. If Ground is NDE
B. Documentary evidence – attach as certified true copy,
 It must be supported by the Affidavits of the Witnesses by
authenticated of the documentary document.
who such evidence is expected to be given.
 You must prove that non-discovery is through no fault of
Ground for Motion for Reconsideration
your own.
1. The damages awarded by the court is excessive.
2. The evidence is insufficient to satisfy a decision.
Affidavit of Merit
3. The decision is contrary to law.
 It is an affidavit of the movant stating that he was not able to
participate in the trial because of FAME, and if only he will
Montie: Here, you must be able to point out which specific portion
be allowed to present his evidence, he has very good and
of the decision is not supported by evidence or contrary to law. If
meritorious case or defense.
you cannot point out – your motion is a pro forma motion.
Affidavit of the Witness
Important: These remedies must comply strictly on the
 If the ground is NDE, it must also be accompanied by the
requirements of contents under the Rules. Non-compliance
affidavit of the witness that you want to present.
makes the motion a pro forma motion, which does not toll the
running of the reglementary period to appeal.
Non-discovery of NDE through no Fault of your own
 When the ground is NDE, you must show to the court that
PRO FORMA MOTION
you were not able to discover the evidence during the trial
 In filing an MR, you must point out specifically the finding or
through no fault of you own.
conclusions of the judgement or final orders which are not
 You could not have discovered those evidence despite due
supported by evidence or is contrary to law. Otherwise, the
diligence. It is because it is not available at the time of the
MR will be treated as Pro Forma motion, a mere scrap of
trial.
paper.
 The affidavit of merit must not only allege that the defendant
Section 3. Action upon motion for new trial or
has a meritorious defense; he must also describe the facts
reconsideration. — The trial court may set aside the
constituting the FAME.
judgment or final order and grant a new trial, upon such
terms as may be just, or may deny the motion. If the court
Motion for New Trial
finds that excessive damages have been awarded or that the

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judgment or final order is contrary to the evidence or law, it How about in new trial? Can you file a second motion?
may amend such judgment or final order accordingly. Yes, if the ground for the second motion is different from the first
motion.
EFFECTS WHEN MOTION IS GRANTED
Example: First motion is based on FAME. Denied. Then you
If motion for new trial is granted discovered another evidence. So file another motion based on
 The original judgment or final order shall be vacated, and the newly discovered evidence. That is allowed.
action shall stand for trial de novo.

A. You can now present your new evidence

B. The evidence presented before shall remain as it is Motion for New Trial Motion for New Trial
Allowed Not Allowed
If motion for reconsideration is granted
 If the court finds that excessive damages have been Section 6. Effect of granting of motion for new trial. — If a
awarded or that the judgment or final order is contrary to the new trial is granted in accordance with the provisions of this
evidence or law, it may amend such judgment or final order Rules the original judgment or final order shall be vacated,
accordingly. and the action shall stand for trial de novo; but the recorded
 There is change of the decision only, like decreasing the evidence taken upon the former trial, insofar as the same is
amount of damages and conforming the judgment to the material and competent to establish the issues, shall be used
rules. at the new trial without retaking the same.

EFFECT WHEN MOTION IS DENIED If motion for new trial is granted

 The original judgment or final order shall be vacated, and the
15 day Fresh period rule action shall stand for trial de novo.
 When the MNT/MR is denied, you have to appeal the
judgement itself, not the judgement denying the motion. A. You can now present your new evidence
 SC said that if the MNT/MR is denied, you have a fresh B. The evidence presented before shall remain as it is
period of 15 days to appeal, not just the balance. (Neypes
vs. CA) Motion for New Trial Motion for New Trial
There will be a trial de novo – Court will just amend its
Important: Movant must appeal the judgment within 15 days from decision is set aside and the decision.
receipt of the order denying his motion and not just for the movant is allowed to present
balance of the period. (Neypes v. CA) evidence.

Rationale: In order to have uniformity of the period given to a

Section 7. Partial new trial or reconsideration. — If the
losing party in the different modes of appeal.
grounds for a motion under this Rule appear to the court to
affect the issues as to only a part, or less than an of the
Montie: It is only in a denial of a motion to dismiss and motion for
matter in controversy, or only one, or less than all, of the
bill of particulars where the balance rule is applicable and not the
parties to it, the court may order a new trial or grant
fresh period rule.
reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest.
Section 4. Resolution of motion. — A motion for new trial or
reconsideration shall be resolved within thirty (30) days from
Section 8. Effect of order for partial new trial. — When less
the time it is submitted for resolution.
than all of the issues are ordered retried, the court may either
enter a judgment or final order as to the rest, or stay the
RESOLUTION OF MOTION
enforcement of such judgment or final order until after the
 A motion for new trial or reconsideration must be resolved
new trial.
within 30 days from the time it is submitted for resolution.

What if it will fail to resolve in 30 days? Can the court still Section 9. Remedy against order denying a motion for new
resolve the motion? trial or reconsideration. — An order denying a motion for
 Yes, the only consequence is that the judge may be new trial or reconsideration is not appealed, the remedy
penalized by the SC. The motion will still be valid even if it being an appeal from the judgment or final order.
will go beyond 30 days.
REMEDY AGAINST ORDER DENYING MOTION FOR NEW
Section 5. Second motion for new trial. — A motion for new TRIAL OR RECONSIDERATION
trial shall include all grounds then available and those not so  An order denying a motion for new trial or reconsideration is
included shall be deemed waived. A second motion for new not appealable. It is an interlocutory order.
trial, based on a ground not existing nor available when the
first motion was made, may be filed within the time herein Important:The remedy being an appeal from the judgment or
provided excluding the time during which the first motion final order. In other words, what you appeal is not the order
had been pending. denying the motion for new trial but the judgment itself. So, the
remedy is to appeal the judgement, not the order denying the
No party shall be allowed a second motion for MR/MNT
reconsideration of a judgment or final order. Except: Certiorari under Rule 65 is now a remedy pursuant to AM
No. 07-7-12, dated Dec. 27, 2007 – Grave abuse of discretion
SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION:
Rule 38: Relief from Judgements, Orders, or Other
Proceedings
When the court denies your motion for reconsideration, can
you file second motion for reconsideration?
Section 1. Petition for relief from judgment, order, or other
GR: No, it is prohibited. proceedings. — When a judgment or final order is entered, or
XPN: The Supreme Court. any other proceeding is thereafter taken against a party in
any court through fraud, accident, mistake, or excusable
Montie: Just like in League of Cities case. There was more or negligence, he may file a petition in such court and in the
less 5 motions for reconsideration. Only the SC can violate their same case praying that the judgment, order or proceeding be
rules. set aside.

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become final, what is your

remedy? Motion for new
Rule 37 Rule 38 trial.
Grounds: FAME &NDE Grounds: FAME
Available after judgement but Available after the judgement You are asking the court to You are not asking to set
before it becomes final and becomes final and executory. set aside the judgment and aside the judgment
executory. IOW, you can no longer let you present evidence (because you have already
appeal. presented your evidence)

PETITION FOR RELIEF FROM JUDGMENT What you are asking is

 It is a remedy given to the losing party after the judgment only to allow you to file an
has been final and executory and the reason is that you appeal.
were not able to present your evidence. What you are asking
is to set aside the judgment and be allowed to present Section 3. Time for filing petition; contents and verification.
evidence. — A petition provided for in either of the preceding sections
of this Rule must be verified, filed within sixty (60) days after
Q. What are the grounds? the petitioner learns of the judgment, final order, or other
FAME: Fraud, Accident, Mistake, Excusable Negligence – they proceeding to be set aside, and not more than six (6) months
are the reasons why you were not able to present evidence. after such judgment or final order was entered, or such
proceeding was taken, and must be accompanied with
TN: This is the only ground – exclusive. affidavits showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
Affidavit of merit petitioner's good and substantial cause of action or defense,
You must present affidavit of merit to convince the court. An as the case may be.
affidavit stating that you have a meritorious defense.
TIME FOR FILING THE PETITION
Montie: FAME is used 3 times in the Rules of Court as a ground
Time for filing the petition:
1. Lifting the order of default – no judgment yet  60 days from the knowledge of the decision, but not more
2. Motion for new trial – already a judgment before expiration of than 6 months from the entry of judgment
the period to appeal
3. Petition for relief of judgment TN: Remember that the finality of judgment is deemed to be the
entry of judgment.
Section 2. Petition for relief from denial of appeal. — When a
judgment or final order is rendered by any court in a case, If FAME happened beyond 6 months
and a party thereto, by fraud, accident, mistake, or excusable  Remedy is Rule 47 Annulment of judgment of RTC (Can
negligence, has been prevented from taking an appeal, he only be done by the CA) If MTC decision– file in the RTC.
may file a petition in such court and in the same case praying
that the appeal be given due course. CONTENTS OF THE PETITION
 Must be verified and accompanied with affidavits showing
PETITION FOR RELIEF FROM DENIAL OF APPEAL the fraud, accident, mistake, or excusable negligence relied
 In here you were able to participate in the trial, you have upon, and the facts constituting the petitioner’s good and
presented your evidence, but you were prevented from substantial cause of action or defense, as the case may be.
appealing because of FAME.
“Verified”
Example: Must be in affidavit form. A statement that the petitioner:
You lost the case. You did not appeal because you did not know
that there is already a decision. It is because the plaintiff connived A. Has read the petition
with the sheriff not to give you the decision. B. Supplied all the information
C. And the contents are all true and correct to the best of his
So how could you appeal when you did not know that there is knowledge
already a decision? Why did you not know that there is already a
decision? Because of fraud – the plaintiff connived with the Affidavit of Merit
sheriff.  The petition must be accompanied with an affidavit of merit.
It describes the extent and nature of FAME. That if only he is
So here you have already presented your evidence, what you are given a change to present evidence, he can show to the
asking is to be allowed to appeal. court that he has meritorious defense.

Montie: If notice of appeal is denied then remedy is petition for

relief from denial of appeal. Instances where affidavit of merit is not required
Only when the court has already discussed extensively the FAME
Relief from Judgment v. Relief from Denial to Appeal in its decision because the petition is verified. A verification of
your petition is like an affidavit of merit already.
Relief from Judgement Relief from Denial of Appeal
You were not able to present You have presented evidence. Important: Such affidavit of merit is not anymore required when
evidence. the judgment or order is void for want of jurisdiction. Absence of
Jurisdiction of court.
You lost the case and a The same. You lost the
judgment has been case and a judgment has Montie: As in the case of lack of jurisdiction over the person
rendered. The judgment been rendered. The because the defendant did not really receive the summons, no
became final (15 days has judgment became final. need to attach affidavit of merit.
already lapsed)

It is only after 15 days that Section 4. Order to file an answer. — If the petition is
you have known that there sufficient in form and substance to justify relief, the court in
is already judgment which it is filed, shall issue an order requiring the adverse
parties to answer the same within fifteen (15) days from the
TN: If the judgment has not receipt thereof. The order shall be served in such manner as

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the court may direct, together with copies of the petition and Section 7. Procedure where the denial of an appeal is set
the accompanying affidavits. aside. — Where the denial of an appeal is set aside, the lower
court shall be required to give due course to the appeal and
ORDER OF THE COURT OF REQUIRING ANSWER to elevate the record of the appealed case as if a timely and
 If the petition is sufficient in form and substance to justify proper appeal had been made.
relief, the court shall issue an order requiring the adverse
party (prevailing party) to answer the same with fifteen (15) PROCEDURE WHERE THE DENIAL OF AN APPEAL IS SET
days from receipt thereof. ASIDE
 Where the denial of an appeal is set aside, the lower court
Order of the court of requiring answer: shall be required to give due course to the appeal and to
Is the court duty bound? No. The court may or may not give due elevate the record of the appealed case as if a timely and
course to the petition. proper appeal had been made.

 If it the petition is not sufficient – It can dismiss it right away Motion for New Trial v. Motion to Relief from Judgment
 If sufficient – require other party to answer.
Motion for New Trial Motion for Relief from
After the receipt of the answers and comments Judgement
 The court will conduct a hearing. The sole issue here is Judgement is not yet final. Judgement is final.
whether or not the court will grant your petition on relief of There are 2 grounds (FAME & Only 1 ground (FAME)
judgment. NDE)

Section 5. Preliminary injunction pending proceedings. — Rule 39: Execution, Satisfaction and Effects
The court in which the petition is filed may grant such
preliminary injunction as may be necessary for the Caveat: Rule 39 has 48 long sections, so the codal provisions
preservation of the rights of the parties, upon the filing by that will appear here are only those discussed by Atty. Monteclar.
the petitioner of a bond in favor of the adverse party, Also, there will be sections which, though discussed by Atty. will
conditioned that if the petition is dismissed or the petitioner not appear here because they may be very lengthy.
fails on the trial of the case upon its merits, he will pay the Nevertheless, I will indicate which section the discussion relates
adverse party all damages and costs that may be awarded to to. Please read this part alongside your codals. Thanks.
him by reason of the issuance of such injunction or the other
proceedings following the petition, but such injunction shall Execution, Satisfaction and Effects of Judgment
not operate to discharge or extinguish any lien which the This Rule discusses how to enforce the judgment of the court.
adverse party may have acquired upon, the property, of the This is where you get the fruits of your labor. Here, we are talking
petitioner. about judgment that is already final and executory. It is a matter of
enforcing the decision of the court.
 Remember that in here, the judgment is already final and
executory. Thus the winning party can file for execution of Montie: Meaning, the period to appeal has already expired, and
the judgment. no appeal was filed. The next thing to be done is to enforce the
judgment. Who enforces? The sheriff.
Q. What will be the remedy of the losing party who wants to
file for Relief of Judgment? Section 1. Execution upon judgments or final orders. —
 He can file a petition for preliminary injunction – to stop the Execution shall issue as a matter of right, or motion, upon a
execution proceedings. The sheriff will be ordered by the judgment or order that disposes of the action or proceeding
court to hold in abeyance the implementation of the upon the expiration of the period to appeal therefrom if no
judgment until after the court shall have resolved the petition appeal has been duly perfected.
for relief from judgment.
If the appeal has been duly perfected and finally resolved, the
Has to put up an injunction bond execution may forthwith be applied for in the court of origin,
When you ask for a TRO or an injunction, you will need to put up on motion of the judgment obligee, submitting therewith
an injunction bond, to answer for whatever damage the prevailing certified true copies of the judgment or judgments or final
party may have suffered because of the stay of execution. order or orders sought to be enforced and of the entry
thereof, with notice to the adverse party.
Section 6. Proceedings after answer is filed. — After the filing
of the answer or the expiration of the period therefor, the The appellate court may, on motion in the same case, when
court shall hear the petition and if after such hearing, it finds the interest of justice so requires, direct the court of origin to
that the allegations thereof are not true, the petition shall be issue the writ of execution.
dismissed; but if it finds said allegations to be true, it shall
set aside the judgment or final order or other proceeding Montie:
complained of upon such terms as may be just. Thereafter The judgement of a RTC can be enforcemd either matter of right
the case shall stand as if such judgment, final order or other of judicial discretion. You can classify as to Nature. As to
proceeding had never been rendered, issued or taken. The enforcement, by a mere motion or independent action.
court shall then proceed to hear and determine the case as if
a timely motion for a new trial or reconsideration had been KINDS OF EXECUTION
granted by it. As to the Nature
1. Execution as a matter of right
HEARING OF THE PETITION  It is a matter of right when the judgment or decision of the
 If the court grants the petition, it will then conduct a hearing court is already final and executory. There is nothing more to
of the case on the merit. So there are actually two hearings be done.
to be conducted by the court.  On the part of the prevailing party.
 Judgement is already final and executory it becomes
1. To determine whether the petition will be granted, and ministerial duty of the court to grant the writ of execution.
2. If the petition is granted – a hearing on the merits of the case.
2. Execution as a matter of judicial discretion
 When the judgment has not yet attained finality, but the
judgment may be executed if there are some good reasons
to be contained in a special order. “Execution pending
appeal”

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 Discretionary execution, this happens when a judgement has B. If case is appealed – there is a need to notify the other party
been rendered but not yet become final within the period of because there may be supervening events that have transpired
appeal. The prevailing party may ask for its execution if there that may cause the issuance of the writ to be not in order.
are good reasons.
 This can be done even though there is already an appeal, WHEN COURT MAY REFUSE TO ISSUE WRIT OF
execution pending appeal. Based on good reasons. File in EXECUTION
the appellate court.
Q. When may the court refuse to issue the writ of execution
As to Enforcement despite the finality of the judgment?
1. By a mere motion
 Just file a motion for execution of final judgment within 5 1. When subsequent facts and circumstances (supervening
years from the time the judgment becomes final – filed in the events) transpire which render such execution unjust or
same court who rendered the judgment. impossible.

2. By independent action Case: Butuan City vs. Ortiz,labor case, the EE won, the NLRC
 If not filed within 5 years, it becomes dormant. ordered his reinstatement but in the criminal case the EE was
found guilty and penalty was imprisonment, so there was a
Effect if motion is dormant: supervening event.
You cannot enforce it by mere motion. You must file an
independent action – Petition for Revival of Judgment. You will 2. When the judgment has been novated by the parties.
just tell the court that there is already a judgment, and you just 3. When a petition for relief from judgment is filed and a writ of
want it to be revived. Here, there is no more issue to be preliminary injunction is issued.
discussed. 4. When the judgment has become dormant, the five year period
to enforce it by a mere motion having expired.
Important: The court does not have a choice but to grant the 5. When the judgment is incomplete.
motion because the judgment is already final. It is his ministerial
duty. If it will not grant, the court can be compelled by a petition When subsequent facts and circumstances transpire which
for mandamus. render such execution unjust or impossible

WHERE TO FILE MOTION FOR WRIT OF EXECUTION Example 1: (supervening event)

Plaintiff filed an ejectment case against a tenant. The court
Q. Where to file a motion for issuance of a writ of execution? decided in favor of the Plaintiff, but even though there is already a
decision, the tenant still does not want to vacate.
If case is not appealed
 In the court of origin. On the other hand, plaintiff has a debt to a Bank. The land leased
 RTC rendered judgment in favor of plaintiff. Defendant did by the tenant was made as a collateral to the debt. He did not
not appeal. After 15 days from receipt of judgment, decision pay, so Bank foreclosed the mortgage. During the auction sale,
became final and executory. Plaintiff has to file a motion for tenant was the highest bidder. So the property is now owned by
execution in the RTC – the court which rendered the the Tenant.
judgment.
Now, can the plaintiff file execution to eject the tenant because
If case is appealed the judgment has already become final?
 If the case is appealed and CA affirmed in toto the decision
of the RTC and such was not anymore appealed. The Not anymore. There is already a supervening event. Thus, it is
decision of the CA becomes final after 15 days without inequitable to enforce it. You cannot eject him because he is
appeal. Where to file a motion for execution of judgment? already the owner.
 Still in the court of origin – RTC.
 If the case is appealed to the CA, the party needs to notify of Example 2: Philippine Veterans Bank Case
the writ of execution to the other partydue to the difference of Bankruptcy – There are creditors of the bank who filed cases
the time or supervening event, there should be a hearing. against the bank. They won and the decision is final. Can the
 It is the court of origin that will issue the writ of execution. creditors execute against the bank?
Even though you can pass your motion for execution in the
CA, the CA will issue an order directing the RTC to execute No. Once the Bank is under Receivership, no one can touch its
the writ. asset until the receivership is terminated. The receivers are
liquidating to determine if the bank may be revived and for the
Q. When to file a motion for execution in the RTC if it is an meantime, all claims of the creditors are frozen.
appealed case?
When the judgment has been novated by the parties
A. Old rule – Only after the records of the case has been There is a change of the stipulation of contract so there is a new
returned to the RTC from the Court of Appeals. contract that will replace the old one.

B. New rule – No need to wait for the records to be returned to Example: Fua Cam Lu vs. Yap Fauco Case
the court of origin. You only have to get a certified true copy of the In a collection case, you lost and the court ordered you to pay the
decision of the CA and the entry of judgment. plaintiff. After you received the decision, you went to the plaintiff
because you can’t pay 1M right away. You want it to be by
Important: installment and the plaintiff agreed. You two signed a contract for
Exception: You can file it in the CA, if the RTC is dilly-dallying the the agreement.
issuance of the writ of execution. However, what the CA will do is
only to direct the RTC to issue the writ of execution. CA will never However, on the 4th month installment, you did not pay. Can the
issue the writ. plaintiff file for execution?

Q. Is there a need to notify the losing party? No. because that it has already been novated when you two
Important: It depends on the decision you are enforcing. modified or changed the judgment.

A. If case is not appealed – No need to notify the other party When the judgment is incomplete
because it is an execution as a matter of right. Besides, the other
party already knows that he lost the case, so why notify? Montie:principle of immutability of judgement means when the
judgement becomes final and executory it cannot be changed,
modified or altered no matter how wrong it could be.

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special order. A judgment of the Court of Appeals cannot be

GR: When the judgment has become final and executory, court executed pending appeal.
cannot amend the judgment.
XPN: The court can still amend a final and executory judgment if: Q: What if the case is forwarded to the Supreme Court?
You cannot touch that case anymore. Once it is forwarded to the
A. To make corrections of clerical errors; SC, no one can touch the case because it is out of respect of the
B. To clarify ambiguity; highest court of the land. So there is no such thing as
C. In judgment for support because it can be amended anytime. discretionary execution of a CA decision. It is only discretionary
(judgement for support, only provisional it cannot be final) execution of a RTC decision.

GROUNDS FOR THE QUASHAL Important: A decision of the CA cannot be executed if it is

pending appeal in the Supreme Court.
Section 2. Discretionary execution. —
GOOD REASONS FOR EXECUTION PENDING APPEAL
(a) Execution of a judgment or final order pending appeal. —
On motion of the prevailing party with notice to the adverse  Motion for discretionary motion, this must be heard in the
party filed in the trial court while it has jurisdiction over the court for the court to hear the good reasons of the motion.
case and is in possession of either the original record or the
record on appeal, as the case may be, at the time of the filing 1. Where the lapse of time will make the judgment ineffective.
of such motion, said court may, in its discretion, order
execution of a judgment or final order even before the Example: You have already won the case but thing is perishable.
expiration of the period to appeal. Like if you fought over a banana. Defendant will not return the
banana because he still wants to appeal. Execution here is
After the trial court has lost jurisdiction, the motion for warranted to prevent the banana from perishing.
execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons 2. Where the appeal is clearly dilatory
to be stated in a special order after due hearing.
Important: It is only the CA which can decide if the appeal is
(b) Execution of several, separate or partial judgments. — A dilatory or not. RTC could not grant the execution pending appeal
several, separate or partial judgment may be executed under on the ground that the appeal is clearly dilatory. Otherwise, they
the same terms and conditions as execution of a judgment or are prejudging the case.
final order pending appeal.
3. Where the judgment is for support
DISCRETIONARY EXECUTION
The court may grant execution even if the decision is not yet final 4. Where the article subject of the case would deteriorate
and executory. However, it may only issue upon good reasons to
be stated in a special order after due hearing. 5. Where the defendants are exhausting their income

Montie: Good reasons are a must and there must be special 6. Where the judgment debtor is in imminent danger of insolvency
order.
7. Where the prevailing party is of advance age.
Q: Where do you file motion for discretionary execution?
In the court of origin, RTC which renders the decision. (?) Q. What is the remedy?
If the court grants discretionary execution and you think the grant
Execution pending appeal – motion should be filed it in the is without basis, remedy is Rule 65 Certiorari for Grave Abuse
appellate court. This is only applicable to decisions of the RTC. of Discretion.
XPN: residual jurisdiction of the RTC, even if the case was
appealed to the CA if the RTC has not yet forwarded the case to Section 3. Stay of discretionary execution. — Discretionary
the CA the RTC can still grant the writ. execution issued under the preceding section may be stayed
upon approval by the proper court of a sufficient
Q. When can the trial court be said to have already lost its supersedeas bond filed by the party against whom it is
jurisdiction? directed, conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be finally
When the case is appealed and the records of the case are sustained in whole or in part. The bond thus given may be
already sent to the Court of Appeals. proceeded against on motion with notice to the surety.

Important: Even if the appeal is filed in the CA, but if the records How to prevent execution pending appeal
are still in the possession of the RTC, the RTC retains its residual By filing a supersedeas bond – an amount of money that you
jurisdiction. It can still issue an order for the discretionary deposited in court to answer for whatever damage the prevailing
execution. But when the records are already sent to the CA, then party may have suffered because of the stay of execution.
RTC loses its jurisdiction over the case.
Supersedeas bond does not automatically stay the execution
Q: What happens if the case is appealed in the CA? Where
will you file? Important: However, the filing of supersedeas bond does not
It depends. entitle the judgment debtor to the suspension of execution as a
matter of right (NAWASA vs. Catolico).Hence, where the needs of
A. If the records of the case has not yet been forwarded to the CA the prevailing party are urgent, the court can order immediate
– file in the RTC. execution despite such supersedeas bond. (De Leon vs. Soriano)

B. If the records are already in the CA – file in the CA Example: A party filed a motion for execution. You prevented it
by filing Supersedeas Bond. If found that the stay of execution is
After the trial court has lost jurisdiction, the motion for not meritorious, and the winning party suffered damage. Here, the
execution pending appeal may be filed in the appellate court. party will just go after the Supersedes Bond.
The Court of Appeals has no authority to issue immediate
execution pending appeal of its own decisions therein. Important: Even if the losing party is willing to put up a bond, the
Discretionary execution is allowed pending appeal only on a court has still the discretion to deny the bond and proceed with
judgment of the trial court upon good reason to be stated in a the discretionary execution if the reason for immediate execution
weighs more than the supersedeas bond.

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alreadymore than 20 years na ang judgement sa CFI in 1920. The

Montie: Rule is, you cannot file execution if the case is appealed, SC said the statute limitation applies only to ordinary civil action,
except if it is discretionary appeal. But there are cases that are the herein case is a special action. It will not prescribe.
immediately executory.
The statute of limitations and Sec.6, Rules 39 of the Rules of
Section 4. Judgments not stayed by appeal. — Judgments in Court do not apply in the land registration proceedings. This
actions for injunction, receivership, accounting and support, provision of the rules refers to civil actions and is not applicable to
and such other judgments as are now or may hereafter be special proceedings, such as land registration case. This is so
declared to be immediately executory, shall be enforceable because a party in a civil action must immediately enforce a
after their rendition and shall not, be stayed by an appeal judgement that is secured as against the adverse party, and his
taken therefrom, unless otherwise ordered by the trial court. failure to act to enforce the same within a reasonable time as
On appeal therefrom, the appellate court in its discretion may provided in the Rules makes the decision unenforceable against
make an order suspending, modifying, restoring or granting the losing party.
the injunction, receivership, accounting, or award of support.
Section 7. Execution in case of death of party. — In case of
The stay of execution shall be upon such terms as to bond or the death of a party, execution may issue or be enforced in
otherwise as may be considered proper for the security or the following manner:
protection of the rights of the adverse party.
(a) In case of the death of the judgment obligee, upon the
JUDGMENT NOT STAYED BY APPEAL application of his executor or administrator, or successor in
Judgments which are not stayed by appeal are immediately interest;
executory.
Examples: (IRAS) (b) In case of the death of the judgment obligor, against his
executor or administrator or successor in interest, if the
1. Injunction judgment be for the recovery of real or personal property, or
2. Receivership the enforcement of a lien thereon;
3. Accounting
4. Support (c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the
Section 6. Execution by motion or by independent action. — same may be sold for the satisfaction of the judgment
A final and executory judgment or order may be executed on obligation, and the officer making the sale shall account to
motion within five (5) years from the date of its entry. After the corresponding executor or administrator for any surplus
the lapse of such time, and before it is barred by the statute in his hands.
of limitations, a judgment may be enforced by action. The
revived judgment may also be enforced by motion within five EXECUTION IN CASE OF DEATH OF A PARTY
(5) years from the date of its entry and thereafter by action Death after the decision has been rendered and has become final
before it is barred by the statute of limitations. Two kinds of questions here:

EXECUTION BY MOTION OR BY INDEPENDENT ACTION 1. What kind of action is filed?

2. Who died?
A. By mere motion – A final and executory judgment may be
executed on motion within 5 years from the entry of judgment. Q. How do you execute a judgment when the losing party
already died?
Simply file a motion for execution in the court where the case was To answer this question, first distinguish what kind of action is
rendered. The court will then just issue a writ of execution. filed, whether it is one which survives or does not survive.

B. By Independent action – After 5 years but before it is barred A. If the action does not survive
by prescription, a judgment may be enforced by independent
action to revive the judgment. The case is dismissed.
Example: Action for Support - What is there to support if the one
Q. If the revival of judgment is granted, how will you to give the support is already dead?
execute?
Execute by mere motion within 5 years from such revival. B. If the action survives

Q. What happens if this revival of judgment will expire again? Distinguish – who died?

PNB v. Bondoc (prevailing doctrine) If the judgment becomes final and the judgment creditor died
If the judgment is a revival judgment and it expired – you can file The execution shall be done by the executor or the administrator
another revival. A revived judgment is already equivalent to a new of the estate of the judgment creditor.
judgment. Thus, it can be enforced by a mere motion or another
revival action. If judgment debtor died
Distinguish what kind of action:
PNB vs. Beloso Case:
If it is a revived judgment, you are only allowed to execute it by 1. Action for the recovery of real/ personal property – execution
mere motion. Thus if the revival judgment has prescribed, you shall be done against the executor or administrator of the
cannot anymore file for another revival. deceased.

Important: Sec 6 Rule 9 restored the Bondoc ruling. Thus, a 2. Action for collection or recovery of sum of money – Distinguish
revived judgment can be enforced by a mere motion within 5 if with or without levy:
years and by another revival action after the lapse of 5 years. The
Bondoc case is the prevailing doctrine. Levy – the act of setting aside the property of the judgment
debtor to answer for the debt as stated in the judgment. When
Republic vs. Claro Yap (Feb. 7, 2018) does the levy occur? – When there is a demand for payment to
The grandparentsowned a parcel of land in Carcar and applied for the judgment debtor and he did not pay. The sheriff started
land proceedings and the judge issued a decree. But the OCT looking for property of the debtor and it will be the subject of the
was not able to follow-up until the death of the lolo and until it was execution sale.
inherited. Now, he filed for a petition for a new OCT for the
reissuance of the decree. The OSG said that the judgement was

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a) With Levy – execution sale of the property as a or trustees of the judgment obligor, to satisfy the judgment,
result of the levy shall continue. with interest, out of such properties;
(c) If it be for the sale of real or personal property, to sell
Example: A money judgment by the court becomes final and such property, describing it, and apply the proceeds in
executory. Before it is executed, the judgment debtor died. How conformity with the judgment, the material parts of which
will the creditor execute the judgment? The sheriff will continue to shall be recited in the writ of execution;
auction sale the levied property and apply the proceeds to the (d) If it be for the delivery of the possession of real or
judgment. If there is excess – it shall be given to the administrator personal property, to deliver the possession of the same,
of the estate of the deceased judgment debtor. describing it, to the party entitled thereto, and to satisfy any
costs, damages, rents, or profits covered by the judgment
b) Without Levy– execution shall be enforced against out of the personal property of the person against whom it
the estate of the deceased person. was rendered, and if sufficient personal property cannot be
found, then out of the real property; and
Example: A money judgment by the court becomes final and (e) In all cases, the writ of execution shall specifically state
executory. Before it is executed, the judgment debtor died. How the amount of the interest, costs, damages, rents, or profits
will the creditor execute the judgment? He will just present the due as of the date of the issuance of the writ, aside from the
decision to the estate of the deceased debtor. In other words, no principal obligation under the judgment. For this purpose,
need to have a levy. the motion for execution shall specify the amounts of the
foregoing reliefs sought by the movant.
If action does not survive The case dismissed FORMS AND CONTENTS OF A WRIT OF EXECUTION

SURVIVES If judgment creditor died Writ of Execution – a written order of the court directing the
Distinguish who died The execution shall be done sheriff to enforce the judgment of the court that is final and
by the executor or the executory. It shall quote the dispositive portion.
administrator of the estate
of the judgment creditor. Important: A motion for execution of judgment must contain the
specific amount of judgment you want to execute. The lawyer of
If judgment debtor died the prevailing party must specify the exact amount. The important
Distinguish what kind of amendment now is that the writ shall specifically state the exact
action was filed amount of the principal, interest, costs of suit, profit due as of the
date of the issuance of the writ. The writ shall only state the
1. Action for collection of dispositive portion of the decision and not the entire body.
real or personal property
Montie: Don’t leave the computation to the sheriff or the judge.
Execution shall be done You compute up to the last centavo.
against the executor or
administrator of the SEC.9: Execution of Judgments for Money, How Enforced.
deceased.
MONEY JUDGMENT
2. Action for collection or An order directing the losing party to pay the prevailing party a
recovery of sum of money certain amount of money.

Distinguish if with or without Q. How are execution of money judgments enforced?

levy
1. Sheriff to demand payment from the judgement debtor stated in
a) With levy the writ of execution either in cash, managers check not personal
check or in any manner acceptable to judgement creditor. The
Execution sale of the payment should be delivered to the judge creditor. The Sheriff will
property as a result of the give the cash to the Clerk of court and will be the one to give to
levy shall continue. the creditor or deposit to the government depository bank; or

b) Without levy 2. Satisfaction by levy, the sheriff will start to look for the property
of the debtor for future public auction sale. The judgement debtor
Execution shall be enforced is given the option which property to levy first. The sheriff must
against the estate of the see to it that the property is equivalent to the judgement; or
deceased person.
3. Garnishment of debts and credits (intangible properties)

Sec. 8. Issuance, Form And Contents Of A Writ Of Execution.

Sec. 8. Issuance, form and contents of a writ of execution. 1 - IMMEDIATE PAYMENT OF DEMAND
The sheriff shall enforce an execution of a judgment for money by
The writ of execution shall: (1) issue in the name of the demanding from the judgment obligor the immediate payment of
Republic of the Philippines from the court which granted the the full amount stated in the writ of execution and all lawful fees.
motion; (2) state the name of the court, the case number and
title, the dispositive part of the subject judgment or order; To whom shall payment be made
and (3) require the sheriff or other proper officer to whom it If the judgment creditor is present as when he accompanied the
is directed to enforce the writ according to its terms, in the sheriff, payment shall be made to him. If not, payment shall be
manner herein after provided: made to the sheriff.
 
(a) If the execution be against the property of the judgment The judgment debtor shall pay either in:
obligor, to satisfy the judgment, with interest, out of the real
or personal property of such judgment obligor; 1. Cash
2. Manager’s check
(b) If it be against real or personal property in the lands of 3. Any other modes of payment acceptable to the judgment
personal representatives, heirs, devisees, legatees, tenants, creditor

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Sheriff will give the payment to the clerk of court and the clerk will
deposit it in the bank. If the clerk is absent, then the sheriff can Non-compliance will not result to contempt of court because
deposit the payment to the nearest government bank directly. the act can be performed by other persons.

Montie: Personal check is not valid – until it is encashed. Example1: Accion Publiciana or Action Reindivicatoria – The
court ordered the defendant to reconvey the lot to the plaintiff.
Q. What if a personal property is offered instead to the Defendant did not cooperate. Can he be cited in contempt? No.
sheriff? Because the court can let somebody else to perform the act.
The sheriff must not accept, unless the judgment creditor is willing
to accept other modes of payment. Example2: Transfer of Ownership of the property – The
defendant was ordered to sign the deed of sale in favor of the
2 - SATISFACTION BY LEVY plaintiff. He did not sign. So the court can ask the clerk of court to
If debtor has no money, sheriff will look for properties of the sign the deed of sale in behalf of the losing party.
debtor to be set aside for the future executions to be applied for
the satisfaction of the judgment. Example3: Return of title – Defendant did not return the title. The
court can order the registry of deeds to cancel the title of the
Levy – The act of setting apart a property of the judgment debtor defendant and issue a title in favor of the plaintiff.
to answer for his debt or obligation by way of auction sale.
Example 4: Ejectment Case – When defendant refused to vacate
How levy is done when the sheriff tried to enforce the ejectment. Can the defendant
A. If real property – just annotate at the back of the title that the be held in contempt? The SC held “It’s quiet a weird decision” –
said property is levied in connection to a certain case. that he is not in contempt because he not defying the court. He is
defying the sheriff.
B. If personal property or capable of manual delivery – sheriff will
take them Besides, there are many remedies for the sheriff to make the
defendant vacate and make the plaintiff possess the land. He can
Q. What properties may be levied? always ask the assistance of the police. He can use reasonable
Real and personal properties – Tangibles properties only. force.

Q. What if the judgment debtor has no tangible properties? TN: However, if there are improvements introduced by the
Then the sheriff will try to find out if the debtor has collectibles defendant, the plaintiff cannot demolish these improvements.
from other people – intangibles. Intangibles are executed by
garnishment. The plaintiff will have to file for writ of demolition. It will be set for
hearing. It is only when there is order from the court for the
3 - GARNISHMENT OF DEBTS AND CREDITS demolition that you can demolish the improvements.
The sheriff will try to find if the judgment debtor has collectibles
from other persons. He will garnish that amount to satisfy Important: The demolition is not covered in the Writ of Execution.
judgment creditor. You must ask the court for a Writ of Demolition, which is the
Special Judgment.
Example:
Judgment debtor has another debtor. So sheriff will go to that Sec. 11. Execution of special judgments.
third person and ask him to stop his payment to the judgment
debtor, and instead, it shall be paid to the judgment creditor. When a judgment requires the performance of any act other
Things that may be garnished than those mentioned in the two preceding sections, a
1. Commissions certified copy of the judgment shall be attached to the writ of
2. Collectible Debts execution and shall be served by the officer upon the party
3. Bank Deposits against whom the same is rendered, or upon any other
person required thereby, or by law, to obey the same, and
Montie: Why bank deposits? Because the contract involved is such party or person may be punished for contempt if he
that of loan. Thus, the relationship is actually that of creditor- disobeys such judgment.
debtor. So the same with the earlier example, instead of the bank
paying the loan to the judgment debtor, pay to the judgment EXECUTION OF SPECIAL JUDGMENT
creditor. Deals with execution of judgment of the court directing the
judgment debtor to do or perform an act that only he can perform.
Q. Can the bank use their Bank Secrecy Law to refuse in It cannot be delegated for being strictly personal.
divulging whether the judgment debtor is a depositor
therein? Non-compliance results to contempt of court

No, it will not apply with the execution of judgment. Example1: You were paid to sing in a show for a song nga ikaw
The bank only has 5 days to inform the court through the sheriff if raj d ang makakanta. Later you don’t want to sing. A case is filed
a deposit is present and whether it is sufficient to satisfy the against you. Can you later on say, “Lain nlang pakantaha sir!”?
obligation. If he has sufficient money, then the bank will deliver No. That skill is personal to you.
the money to the sheriff and the latter will deliver it to the
judgment creditor. Example2: Petition for Quo Warranto – You occupy an office that
you have no right to occupy. Court held that you must vacate the
EXECUTION OF OTHER JUDGEMENT office. Only you can vacate the office, not somebody else.

Execution may vary:

Section 12. Effect of levy on execution as to third person. —
The levy on execution shall create a lien in favor of the
1. Execution of judgment for specific act
judgment obligee over the right, title and interest of the
2. Execution of special judgments
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
Sec. 10. Execution Of Judgments for Specific Act.

Levy
EXECUTION OF JUDGMENT FOR SPECIFIC ACT (Sec. 10)
The act or acts by which an officer sets apart or appropriates a
Deals with execution of judgment by the court ordering the
party or the whole of the property of the judgment debtor for
judgment debtor to perform a particular act. If he will not perform,
purposes of the prospective execution sale.
the court will delegate someone else to perform the act for him, at
the cost of the judgment debtor.

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Effect of levy Q. So what will happen if the sheriff cannot find property real
Important: A levy creates a lien in favor of the judgment creditor, or personal, or any intangibles of the judgment debtor?
but subject to the liens then existing. However, levy is subordinate The writ of execution shall be returned to the court.
to the other liens. If there is already a prior lien to the property, it
will be preferred than the levy. Q. What if the debtor wins in the lotto after 60 days and
return of the writ? Can the judgment creditor execute the
Example: judgment based on the same writ?
Property of a judgment debtor is levied. But it was mortgaged No, it is already functus officio. What you will do is to ask the court
before to the bank. So that mortgage will be preferred provided to issue an alias writ of execution.
that the mortgage has been properly registered. That means it is
useless to buy that property in auction sale because it will still be B. New rule – It must be enforced within 5 years by mere motion.
subject to the mortgage. It requires more responsibility to the sheriff. Every 30 days, he will
make periodic report to the judge until he finds a property within 5
Sec. 13. Property Exempt from Execution. years.

PROPERTY EXEMPT FROM EXECUTION

EXECUTION SALE
1. Family Home – house and lot where the family reside, the
husband and the wife own the house and lot EXECUTION SALE
The sheriff must first levy the property before the execution sale.
2. Ordinary tools and implements personally used by him in his Execution sale is like a public auction sale. The proceeds will be
trade. used to pay the judgment creditor.

3. Three horses or three cows used by him in his ordinary A. If the proceeds is not enough – the judgment debtor will be
occupation. liable for that deficit.

4. Necessary clothing and articles for ordinary personal use, B. If the proceeds is in excess – it shall be returned to the
excluding jewelry. judgment obligor.

5. Household furniture and utensils necessary for housekeeping Section 15. Notice of sale of property on execution. The
of a value not exceeding P100k. notice shall specify the place, date and exact time of the sale
which should not be earlier than nine o'clock in the morning
6. Provisions for individual or family use sufficient for four months. and not later than two o'clock in the afternoon.

7. Professional libraries and equipment of judges, lawyers, The place of the sale may be agreed upon by the parties. In
physicians, pharmacists, dentist, etc. not exceeding P300k in the absence of such agreement, the sale of the property or
value. personal property not capable of manual delivery shall be
held in the office of the clerk of court of the Regional Trial
8. One fishing boat and accessories not exceeding the total value Court or the Municipal Trial Court which issued the writ of or
of P100k owned by a fisherman. which was designated by the appellate court. In the case of
personal property capable of manual delivery, the sale shall
9. So much of the salaries, wages, or earnings of the judgment be held in the place where the property is located.
obligor for his personal services within the four months preceding
the levy as are necessary for the support of his family.
NOTICE OF SALE
10. Lettered gravestone. Before the execution sale, notice of sale must be made. The
notice must provide a description of the thing to be sold, the
11. Monies, benefits, privileges, or annuities accruing or in any specific date, place and time.
manner growing out of life insurance.
Place of execution sale
12. The right to receive legal support. A. If personal property capable of manual delivery – in the place
where the property is located.
13. Properties specially exempted by law.
B. If Real property – in the court who issued the writ.
Section 14. Return of writ of execution. — The writ of
execution shall be returnable to the court issuing it Time of execution sale
immediately after the judgment has been satisfied in part or Between 9am and 2pm. However, the notice must indicate the
in full. If the judgment cannot be satisfied in full within thirty specific time the sale will be conducted.
(30) days after his receipt of the writ, the officer shall report
to the court and state the reason therefor. The notice must be posted in 3 conspicuous public places.
How many days is the posting?
Such writ shall continue in effect during the period within It depends.
which the judgment may be enforced by motion. The officer
shall make a report to the court every thirty (30) days on the A. Personal Property – at least 5 days before the scheduled
proceedings taken thereon until the judgment is satisfied in execution sale
full, or its effectivity expires. The returns or periodic reports
shall set forth the whole of the proceedings taken, and shall Except: If perishable like banana. Execution sale can
be filed with the court and copies thereof promptly furnished be done immediately after the notice.
the parties.
B. Real Property – at least 20 days before the date of the sale.
RETURN OF WRIT OF EXECUTION
A writ of execution, once served and fully satisfied, must be Except: If worth more than P50,000, in addition to the
returned by the sheriff to the court. It has a life span of 5 years. posting in 3 conspicuous places – notice must be
published in the newspaper of general circulation in the
A. Old rule – It must be enforced within 60 days. If not enforced place where sale be held once a week for 2
within 60 days, it will be functus officio. It becomes invalid, consecutive weeks.
useless – it has no more power.

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Montie: What is required is local newspaper only. It shall be by reason thereof, in addition to his actual damages, to be
raffled to avoid conflict on which newspaper it will be posted. recovered by motion in the same action.

Important: PENALTY FOR SELLING WITHOUT NOTICE

Absence of notice will render the execution sale null and void. An execution sale is a public bidding, which is why notice is
necessary. Thus, an execution sale conducted without notice, is
Sec. 16. Proceedings Where Property Claimed By Third null and void.
Person.
Rules of court even provides penalties if sale is without
PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD notice
PERSON Sheriff is liable for P5,000, plus actual damages suffered by the
concerned party. Aside from the damage suit.
Terceria – a third party claim made or filed by third person
against the property levied by the sheriff. The notice must be posted in 3 conspicuous places, plaza, public
market and etc. and if it’s involves land more than 50k must be
Montie: Kung magpataka lang ang sheriff ug levy, a property of a published to a newspaper.
third person may be involved. The third person shall file his claim
to the sheriff. He will just execute an affidavit and submit it to the How to prevent sale? When the judgement debtor will pay his
sheriff – must be accompanied with proof of ownership. debt to the clerk of court. Unless if able to get TRO directing the
sheriff not to proceed with sale.
Q. What will the sheriff do?
The sheriff should not proceed with the execution sale. Otherwise,
Section 18. No sale if judgment and costs paid. — At any
he will be personally liable for damages if it turns out that the third
time before the sale of property on execution, the judgment
party really owns the property. What the sheriff should do is to
obligor may prevent the sale by paying the amount required
immediately inform the court and the judgment creditor.
by the execution and the costs that have been incurred
therein.
If the judgement creditor does not believe it, then he must put up
a bond for whatever damage.

Important: If the judgment creditor wants to go on with the sale, Section 19. How property sold on execution; who may direct
he shall put up a bond. The amount of the bond shall be at least manner and order of sale. — All sales of property under
equivalent to the property. execution must be made at public auction, to the highest
bidder, to start at the exact time fixed in the notice. After
Purpose of the bond: To answer for any damages the sheriff sufficient property has been sold to satisfy the execution, no
may be held liable in the event that the third party claimant will more shall be sold and any excess property or proceeds of
prove that he is the real owner of the property. the sale shall be promptly delivered to the judgment obligor
or his authorized representative, unless otherwise directed
Important: The bond has a lifespan of only 120 days. The bond is by the judgment or order of the court. When the sale is of
liable only if the third party claimant files a case within 120 days. If real property, consisting of several known lots, they must be
he does not file an independent action (reinvindicatory action) sold separately; or, when a portion of such real property is
within such period, the bond will no longer be liable. claimed by a third person, he may require it to be sold
separately.
Q. If you are the third party claimant, how will you prevent
the execution sale after the judgment creditor has put up a When the sale is of personal property capable of manual
bond? delivery, it must be sold within view of those attending the
same and in such parcels as are likely to bring the highest
Important: File an independent action to recover the property price. The judgment obligor, if present at the sale, may direct
(Reinvindicatory action) to prove ownership of the party, with the order in which property, real or personal shall be sold,
prayer of injunction or TRO to stop the sheriff from selling the when such property consists of several known lots or
property. It can be filed in another court. He may ask from the parcels which can be sold to advantage separately. Neither
court the issuance of preliminary injunction to stop the sheriff from the officer conducting the execution sale, nor his deputies,
proceeding the execution sale. can become a purchaser, nor be interested directly or
indirectly in any purchase at such sale.
Montie: In here, the court does not rule on the issue of
ownership. The only issue is whether or not the sheriff is right or WHO MAY DIRECT MANNER AND ORDER OF EXECUTION
wrong in levying the property of the third person. If he wants to This is a situation where the sheriff was able to levy several
resolve the issue of ownership, then he must file an independent properties. i.e. house, ref, car, speedboat, etc.
action again to resolve on the issue of ownership.
Q. Who will direct which will be sold first?
Important: If the third party claim is proven to be frivolous and
baseless, the judgment creditor can sue him for damages. This is A. If the judgment debtor is around – he is given the privilege
now allowed under the New Rules. It might result to the delay and which one to sell first.
levy of the execution sale.
B. If he is not around – the sheriff will decide.
Montie:sheriff conduct the execution sale but there must be
notice prior to such because of due process. Proceed to sec.17 Important: The sale will go on until the obligation is satisfied.
Normally, it is the personal property sold first then the real
Section 17. Penalty for selling without notice, or removing or property.
defacing notice. — An officer selling without the notice
prescribed by section 15 of this Rule shall be liable to pay GR: the personal property will be sold first then the real property
punitive damages in the amount of five thousand (P5,000.00) and must be sold one by one.
pesos to any person injured thereby, in addition to his actual
damages, both to be recovered by motion in the same action; And when the amount is already met then the sheriff must stop
and a person willfully removing or defacing the notice the selling, the excess levied must be returned to the debtor.
posted, if done before the sale, or before the satisfaction of
the judgment if it be satisfied before the sale, shall be liable XPN: if the judgement debtor is around during execution sale,
to pay five thousand (P5,000.00) pesos to any person injured because the it his him who has the privilege to choose which first
to be sold.

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Montie:the judgement debtor can join in the bidding, if it’s the Effect of Certificate of Sale
judgement creditor who is the highest bidder he need not pay The COS transfers the property to the highest bidder except if rea
money because he can charge it to the amount he supposed to property.
get from the bid or ma get sa creditor.
Section 23. Conveyance to purchaser of personal property
XPN: if there is a third-party claim he must pay in cash. capable of manual delivery. — When the purchaser of any
personal property, capable of manual delivery, pays the
Section 20. Refusal of purchaser to pay. — If a purchaser purchase price, the officer making the sale must deliver the
refuses to pay the amount bid by him for property struck off property to the purchaser and, if desired, execute and deliver
to him at a sale under execution, the officer may again sell to him a certificate of sale. The sale conveys to the purchaser
the property to the highest bidder and shall not be all the rights which the judgment obligor had in such
responsible for any loss occasioned thereby; but the court property as of the date of the levy on execution or
may order the refusing purchaser to pay into the court the preliminary attachment.
amount of such loss, with costs, and may punish him for
contempt if he disobeys the order. Section 24. Conveyance to purchaser of personal property
not capable of manual delivery. — When the purchaser of
The amount of such payment shall be for the benefit of the any personal property, not capable of manual delivery, pays
person entitled to the proceeds of the execution, unless the the purchase price, the officer making the sale must execute
execution has been fully satisfied, in which event such and deliver to the purchaser a certificate of sale. Such
proceeds shall be for the benefit of the judgment obligor. The certificate conveys to the purchaser all the rights which the
officer may thereafter reject any subsequent bid of such judgment obligor had in such property as of the date of the
purchaser who refuses to pay. levy on execution or preliminary attachment.

REFUSAL OF PURCHASER TO PAY CONVEYANCE OF PROPERTY

If the highest bidder to whom the property was awarded to
refuses to pay, the sheriff will conduct another bidding. The Personal property – the sale conveys to the purchaser all the
person who refused to pay is disqualified. rights which the judgment obligor had in such property as of the
date of the levy on execution or preliminary attachment. There is
no warranty against eviction.
Penalty
As a penalty, he will be made to pay the amount of loss, with Real property – the office must give to the purchaser a
costs, and the court may punish him for contempt if he disobeys Certificate of Sale containing:
the order.
1. A particular description of the property sold
Example: The first highest bid was 1M, and the bidder did not 2. The price paid for each distinct lot or parcel
pay. Another bidding was conducted. In that second bidding, the 3. The whole price paid by him
highest bidder is 600k. The first highest bidder, as a penalty, will 4. A statement that the right of redemption expires one year from
be made to pay the difference of 400k. If he won’t, he will be cited the date of the registration of the certificate of sale.
in contempt.
Take note: Such certificate must be registered in the Registry of
Section 21. Judgment obligee as purchaser. — When the the place where the property is located.
purchaser is the judgment obligee, and no third-party claim
has been filed, he need not pay the amount of the bid if it Note:
does not exceed the amount of his judgment. If it does, he  COS does not mean that you own the property because
shall pay only the excess. there is still a period to redeem by the debtor.
 the COS is not a deed of sale it is only a proof that u bought
Q. Can the judgment creditor participate in the bidding? it, have it registered immediately in the RD so that the period
Yes. In reality, it is only him who will appear in the bidding. So to redeem by the debtor will start to run.
kung ikaw ra usa, aw igo-igo.a nlang imo bid. Daghan kaau nabira
– Car, House, Ref, Speedboat – the debt is only 100k. Bid dayon DIFFERENCE BETWEEN SEC 23 AND SEC 24
– 55k balay, 5k Ref, 30k, car, 20k Speedboat. Bahalag dagko nag Both refers to conveyance of personal property.
kantidad dha.
Section 23
If creditor bids, does he have to pay? Refers to the conveyance of a personal property sold in execution
No. Here we apply compensation. sale which is capable of manual delivery.

Except: When there is Terceria or a third party claimant. He will Example: Car, jewelries – movable properties. Here, once a
be required to pay his bid in cash. purchaser submits the highest bid and pays the purchased price,
the sheriff will deliver to him the property. And only if necessary,
During public auction where there are several properties, the sheriff will execute a deed of sale. The delivery itself is
which property will be sold first? sufficient to transfer ownership.
It will be the will of the judgment debtor which one will be sold
first. Section 24
Refers to the conveyance of a personal property sold in execution
Example: There are 5 properties mortgaged amounting to 2M. sale which is not capable of manual delivery.
Obligation is only 1.2M. Will the sheriff auction sale everything to
satisfy the obligation? Example: Shares of Stocks.

No. The sheriff is not allowed to auction everything. It shall be Important: Here, the sheriff must execute a deed of sale. The
done one by one until it shall satisfy the obligation. So when the execution of the deed of sale is the operative act of transferring
third property is auctioned, it reached to 1.2M already, then ownership. In fact, the execution of the deed of sale retroacts to
auction sale will end there. the date of the levy.

Once there is already a highest bidder Montie: Meaning, when a deed of sale is handed over to you, you
Sheriff will award the property to the highest bidder. After paying are deemed to be the owner of the property way back at the time
the purchase price – the sheriff will execute a Certificate of Sale the sheriff has levied the said property.
to him.

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Example: When the property has been levied, judgment creditor

sold it to B. When there was an auction sale, you are the highest 1. Amount of the bid
bidder. Property was awarded to you. Now B claims that he is the 2. The purchase price
owner. Who has a better right? You or B? 3. A description of the land sold and
4. A statement of judgment debtor’s right to redemption.
Important: As a rule, you have a better right than the buyer of the
property after the levy and before the execution sale. You are Important: Debtor has the right to redeem the property within 1
deemed to be the owner of the property from the time the sheriff year from registration of the certificate of sale.
levied the said property – it retroacts.
Example: When the sheriff executed the deed of sale in favor to
Grounds to attack on the validity of sale you, does it mean that you are already the owner of the property?
1. Irregularity in the sale such as no publication, no notice, or no
prior levy; No, ownership has not yet transferred to you. The Certificate of
2. Gross inadequacy of the price of sale; Sale is only an evidence that you bought it in an execution sale.
Xpn: sale of real property.
Why? Because the debtor still has right to redemption within 1
Personal property: you can question kay wlay right of redemption year. So you have to wait for 1 year.
Real property: u can question kay pwede pman nmo ma redeem.
Important: When you buy a property in an execution sale – it is
IRREGULARITIES IN THE EXECUTION AND CONDUCT OF incumbent upon you to register the sale in the Register of Deeds.
SALE The Register of Deeds will annotate that certificate at the back of
the title. Until you register the deed of sale, the one-year
Q. What are these irregularities in the execution? redemption will not start to run.
Irregularities in the notice
Important: Remember that the levy is annotated at the back of
A. No posting in 3 conspicuous places the title of the property. That is why the third party buyer can
B. Debtor was not notified never claim to have bought it in good faith.
C. Someone who is not qualified to buy the properties
During the period of redemption
1. Wards The judgment debtor will still occupy the land. He will still enjoy
2. Guardians the land – plants, animals, fruits are all his.
3. Agents
4. Executors or administrators of the estate Effect if there is no redemption after one year
5. Public officials if the property belongs to the The Sheriff will execute the final deed of sale.
government So there are actually two Deeds of Sale if it involves Real
6. Judges – if it is within their territorial jurisdiction Property:
7. Lawyer – if he participated in that case involving
the property 1. Tentative Deed of Sale – called the certificate of sale. This
does not give the purchaser ownership over the property.
Q. What is the remedy of the judgment debtor in case of
irregularities in the conduct of the auction sale? 2. Final Deed of Sale or Deed of Conveyance – gives the
File motion to set aside the sale. purchaser the ownership over the property.

Q. If there is gross inadequacy in the amount of the auction Important: The final deed of sale will retroact to the time of the
sale, is it considered as irregularity of the auction sale? levy. Just like the personal property, it is as if you are the owner of
Qualify. the property at the time of the levy.

A. If personal property – Yes, it can nullify the sale because there PERSONS WHO CAN REDEEM THE PROPERTY
is no right of redemption there.
1. Judgment debtor
B. If real property – No, judgment debtor cannot complain 2. Redemptioners
because it is in fact favorable to him when he exercises his 3. Successors in interest– to whom the judgement debtor
redemption right. transferred his right to redeem the properties. Right to redeem is
a property right which is transferrable.
Example: If you land is worth P1M and sold in an auction for
P200k – judgment debtor will only pay P200k to redeem it. 4. Redemptioners
Important: Gross inadequacy in the sale is not an irregularity, There are other parties who can redeem the property called the
unless it involves a personal property. Redemptioners. They are those who acquired a lien on the
property after the levy.
Sec. 25. Conveyance of real property; certificate thereof
given to purchaser and filed with registry of deeds. Example: A land is levied. After 1 month, it was sold in an
execution sale. However, after the levy but before the sale, there
Upon a sale of real property, the officer must give to the were people who acquired a lien over the property by reason of a
purchaser a certificate of sale containing: mortgage, attachment, etc.
 
(a) A particular description of the real property sold; Q. What if the lien is attached before the levy?
(b) The price paid for each distinct lot or parcel; Here, there is no problem. The lien will be preferred over the levy.
(c) The whole price paid by him; Remember Sec 12 that the levy is subject to existing liens.
(d) A statement that the right of redemption expires one (1)
year from the date of the registration of the certificate of sale. To simplify –

Such certificate must be registered in the registry of deeds of A. Lien before levy – preferred
the place where the property is situated.
B. Lien after levy – Redemptioners
EXECUTION INVOLVING REAL PROPERTY
The sheriff, upon submission of the highest bid and payment of Q. How will the redemptioners exercise their right?
the buyer, will issue a certificate of sale. They will redeem from the judgment creditor.
Certificate of Sale will specify the:

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Example: Property of the judgment debtor is levied for execution can sell his right to redeem to another person he trust to redeem it
sale. It was bought by purchaser X. But before it was bought, that in behalf of himself.
property was already attached by creditors A, B and C. They are
acquired a lien over the property. (A – by attachment; B – by Example: Property is P1M. Bidding was made and purchaser
foreclosure; C – by attachment – they all acquired lien after the bought it for P500k. You have no money to redeem, so you can
levy) sell your right for P300k. That third person can redeem your
property. Tabla rag gipalit niya imong yuta worth P1M for P800k
Purchaser X does not acquire ownership yet because the original (P500k for the redemption + P300k for right to redeem)
debtor has the right to redeem it from him within 1 year.
Important: Your client will just execute a deed of assignment and
Q. In the example, who can redeem? that’s it. He can even redeem it if he wants to.
Either the judgment Debtor, A, B or C (Redemptioners) can
redeem from purchaser X within 1 year from the Registration. Q. If, after the 1 year redemption period, the debtor still do
not want to vacate the property, what is the remedy of the
Q. If A redeems the property, when can B, and C redeem the purchaser?
property from A? To ask the court to issue Writ of Possession.
The subsequent redemptioners only have 60 days to redeem it
from the first redemptioner. Except: When there is already a third person possessing the
property claiming ownership. In which case, purchaser will have
If A wants to redeem from X, he must reimburse X of the to file a case again to litigate the new issue because the third
purchase price + cost of auction sale + taxes + 1% interest per party is already claiming a right.
month from the time X purchased the property.
Note:where the judgement debtor is still the one to stay in the
Q. How will he exercise this right? land the debtor should not deteriorate the land and must preserve
Go to the sheriff and prove your right to redeem – present the the land because after 1 year w/o redemption it will now be the
document, i.e. mortgage, attachment, etc. creditor the owner of the land.

 B can also redeem the property from A – reimburse Note:the sheriff will execute the final deed of sale.
everything A has paid to X + 2% interest
Q. What if there are anomalies in the property? The
 C can also redeem from B – reimburse everything B has purchaser has already paid but cannot possess the property.
paid to A + 2% interest What right does he have?

Note: Example: During the execution, there is a 3rd party claimant. He

 The redemptioner must prove first his right to redeem to the filed an independent action with the court asking for preliminary
sheriff. injunction. The case pushed through, only that the preliminary
 If the debtor will redeem the property from the purchase he injunction was denied. This means that because preliminary
must reimburse the purchase the full amount and all other injunction is denied, the execution continued. Thus, the purchaser
fees. successfully bid and won the property. But the case pushed
 But if the property was foreclosed by the bank there is still 1 through, the third party’s case is still there, and what if in that
year period to redeem. case, the court favored the 3rd party claimant? This is the
anomaly we are talking about. What is the effect?
Montie: The 60 days only apply to redemptioners from the time it
was redeemed by another redemptioner. The +2% interest of the The effect is that the purchaser cannot possess the land because
redemptioners is fixed. That is already the equivalent to the 60 of the anomaly.
days of their right to exercise redemption.
Note: the one preferred is the purchaser in the auction, not the
Important: Once the judgment debtor redeems the property, purchaser of the sale by the judgement creditor because the
there can be no more redemption by the other Redemptioners. ownership retroacts at the time of the purchase of the purchaser
(See Sec 29) sa auction.

Example Note: After the lapse of one year, sheriff delivers you the final
X purchased, A redeemed, B Redeemed. But before C was able deed of sale. It is ur turn now to posses the land but when u came
to redeem, it was the judgment debtor who redeemed it from B. C there the land is claimed by another person not the judgement
can no longer redeem from the judgment debtor. Judgment debtor creditor, your remedy is ejectment.
is the original debtor, thus he has preferential right.
Q. What are the remedies of the purchaser?
Debtor always have 1 year of redemption from registration
Remember, from Registration ha. So even if redemptioner 1. To file an action to recover the money he already paid
redeems the property in the 365th day, debtor cannot redeem 2. To ask for the revival of the judgment in favor of the judgment
anymore for another 1 year. It will not be renewed - non creditor.
extendible.
Montie: Here, purchaser will step into the shoes of the judgment
Except: Judgment Creditor will agree. In which case, it is not creditor and have an execution again. Sheriff will levy another
judicial redemption anymore. If there is an agreement, then it will property of the judgment debtor.
become conventional redemption. Parties can stipulate their
redemption terms.

Successors in interest of the judgment debtor REMEDIES IN AID OF EXECUTION

Successors in interest refer to: Sheriff did not find any property of the debtor. Writ is returned
unsatisfied.
1. Heirs of the debtor
2. His assignees What are the remedies?

Montie: Right to redeem is also a property right, thus it can be 1. Examination of judgment debtor/obligor – there may be
sold. Debtor can assign it to anyone. In fact this is a good advice properties hidden by the debtor. The creditor here will ask the
for your client: His property was executed – he does not have court for subpoena. Debtor will be asked to go to court and be
money to redeem. Redemption period is about to expire. Then he cross-examination regarding properties allegedly hidden.

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Montie: If he is examined in court, remember that he is doing so

under oath. Thus, if he is lying, he will be liable for perjury. Sec. 45. Entry of satisfaction with or without admission -
Whenever a judgment is satisfied in fact, or otherwise than
Note: the writ of execution was returned, if you heared that the upon an execution, on demand of the judgment obligor, the
properties were hidden you can ask the court to summon the judgment obligee or his counsel must execute and
debtor and can be examined by the judge to determine if the acknowledge, or indorse, an admission of the satisfaction as
debtor has other properties. provided in the last preceding section, and after notice and
upon motion the court may order either the judgment obligee
2. Examination of debtor of the judgment debtor– If the or his counsel to do so, or may order the entry of satisfaction
creditor is informed that there are people indebted to the debtor. to be made without such admission.
Creditor will ask the court to subpoena these people and to ask
them how much they are liable and to stop payment to the Sec. 46. When principal bound by judgment against surety -
judgment debtor. Instead, obligation will be paid to the sheriff or When a judgment is rendered against a party who stands as
judgment creditor. surety for another, the latter is also bound from the time that
he has notice of the action or proceeding, and an opportunity
Montie: This is a form of garnishment. at the surety’s request to join in the defense.

3. Enforcement of the attendance and conduct of SATISFACTION OF JUDGMENT

examination – noncompliance will make the judgment debtor The judgement of the court was satisfied already.
liable for contempt
A. Entry of satisfaction of judgment by the clerk of court
4. Debtor to pay directly to creditor Here, the creditor admitted that he has been paid already may be
through an affidavit. Can be shown from sheriff’s report.
5. Garnishment of income more than enough for the support
of his family. B. Entry of satisfaction with or without admission
Here, admitted or not, it can still be proven by the sheriff.
Can salary be garnished?
Yes, provided it is in excess of what is needed to C. When principal is bound by the judgment against surety
support his family. It can be made in monthly Here, the surety is solidarily bound. If there is a case filed against
installment. Court can direct the employer to set aside the surety, debtor is bound by the judgment of the surety. Surety
certain amount – If salary is 100k, 90k is for support, must be impleaded in the case and must be heard.
and maybe 10k for the obligation.
Sec. 47. Effect of judgments or final orders - The effect of a
6. Appointment of Receiver – usually for corporations;
judgment or final order rendered by a court of the
liquidations.
Philippines, having jurisdiction to pronounce the judgment
or final order, may be as follows:
7. Sale of ascertainable interest of judgment debtor in a real
(a) In case of a judgment or final order against a specific
estate.
thing, or in respect to the probate of a will, or the
Ascertainable Interest
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status
 Like to assign the redemption
of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the
 Like a right of mortgagee to foreclose a mortgage. He can
thing, the will or administration, or the condition, status or
step into his shoes.
relationship of the person; however, the probate of a will or
granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
8. Proceedings when indebtedness is denied or property
(b) In other cases, the judgment or final order is, with respect
claim by another person.
to the matter directly adjudged or as to any other matter that
could have been raised in relation thereto, conclusive
If a third person in possession of the property denies that it
between the parties and their successors in interest by title
belongs to the judgment debtor and instead claims ownership to
subsequent to the commencement of the action or special
the property – The court here will allow the judgment creditor to
proceeding, litigating for the same thing and under the same
step into the shoes of the judgment debtor to file case against that
title and in the same capacity; and
third person.
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
Important: Only if there is strong proof that the property really
adjudged in a former judgment or final order which appears
belongs to the judgment debtor.
upon its face to have been so adjudged, or which was
actually and necessarily included therein or necessary
Example: Property levied is a car. That car is in possession of the
thereto.
3rd person – saying that he is the real owner of it. Then the court
will allow you to file a case against him. If proven that it is really a
property of the judgment debtor, it shall be delivered to the sheriff Sec. 48. Effect of foreign judgments or final orders - The
for the execution. effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final
Satisfaction of Judgement order is as follows:
(a) In case of a judgment or final order upon a specific thing,
the judgment or final order is conclusive upon the title to the
Sec. 44. Entry of satisfaction of judgment by clerk of court -
thing; and
Satisfaction of a judgment shall be entered by the clerk of
(b) In case of a judgment or final order against a person, the
court in the court docket, and in the execution book, upon
judgment or final order is presumptive evidence of a right as
the return of a writ of execution showing the full satisfaction
between the parties and their successors in interest by a
of the judgment, or upon the filing of an admission to the
subsequent title.
satisfaction of the judgment executed and acknowledged in
In either case, the judgment or final order may be repelled by
the same manner as a conveyance of real property by the
evidence of a want of jurisdiction, want of notice to the party,
judgment obligee or by his counsel unless a revocation of
collusion, fraud, or clear mistake of law or fact.
his authority is filed, or upon the endorsement of such
admission by the judgment obligee or his counsel on the
face of the record of the judgment. EFFECT OF JUDGMENT OR FINAL ORDER

A. Effect of judgment or final order

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B. You cannot revive the case with the same issues and the same 3. And that after the divorce, the foreigner spouse has capacity to
parties. remarry under his national law.

Requisites of Res Judicata

A. Judgment must be final

B. Court must have jurisdiction
C. Judgment must be upon the merits
D. There must be between the two cases:
 Identity of the party
 Identity of subject matter
 Identity of cause of action
EFFECT OF FOREIGN JUDGMENT OR FINAL ORDER

A. In a case of judgment upon a specific thing – the judgment

is conclusive upon the title to the thing.

B. In case of judgment against a person – the judgment is

presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title.

TN: In either case, the judgment or final order may be repelled by

evidence of a want of jurisdiction, want of notice to the party
collusion, fraud, clear mistake of law or facts.

Q. Is the judgment of a foreign court be enforced in our

court? As a rule, it shall be respected by our court under the
principle of reciprocity.

Except: When the foreign court does not have jurisdiction of the
case or that the foreign court has clearly violated the basis
principle of due process.

Examples re jurisdiction

Example 1: A and B are both American citizens. Married in US,

they filed a divorce in US. Can our court recognize that divorce
decree?

Yes. Parties are both Americans.

Example 2: Same situation. But A and B are Filipinos. Can our

court recognize the divorce degree?

It shall not be recognized. Remember in Art 15 of Family Code.

The theory of nationality. That laws relating to family rights,
duties, status, relation and legal capacity shall be binding with
citizens of the Philippines where ever they will go.

So your status is binding where ever you will go. The courts in US
do not have jurisdiction to change it. Even if you get your divorce
there, it shall not be recognized under Philippine laws. It is your
national law that determines you right to remarry.

Q. But can the foreign judgment be enforced in the

Philippines?

Art. 26 – If a Filipino is married to a foreigner and the foreigner

obtains divorce abroad. The Philippine courts will recognize that
divorce obtained by the foreigner husband against the Filipino
wife. We will recognize that in order for the Filipino wife to
remarry.

Is it automatic?
No. If she wants to remarry, she must file a case in our court for
recognition of foreign judgment called enforcement of foreign
judgment.

Garcia Case
A foreign divorce decree obtained a by foreigner spouse against
Filipino spouse can be given effect in the Philippines in order to
capacitate the latter to remarry only after it is recognized by our
court.

The Filipina spouse must prove:

1. That it is the foreign spouse who filed for divorce.

2. Present the authenticated divorce decree.

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