RemRev 1 - Judge Gito - FINALS

Remedial Law Review I • Rule 24: Depositions Before Action or Pending Appeal
Judge Gener Gito

FINALS NOTE: If the deposition taken before the existence of the action, or for
appeal, it is called in perpetuam rei memoriam.2
JGG: If you would examine the rule, Rule 24 is the same as that in Rule 134
MODES OF DISCOVERY (RULES 23-29) (Perpetuation of Testimony). However, Rule 134 is denominated as Perpetuation
of Testimony. But basically, the provision in Rule 24 and that of Rule 134 are
substantially the same.
Q: Is it necessary to ask permission from the court for the taking of

deposition if there is a pending action?
A: YES, because deposition can be taken upon ex-parte motion from a party. (Sec.
1, Rule 23)
JGG: This is because under the new rules, if you would like to take the deposition
of somebody, you have to file a motion before the court where the case is pending.
However, the motion is ex parte – meaning, it can be likened to a non-litigious
Deposition motion because you are not anymore required to notify the other party if you
would like to take a deposition of any person. What you have to do is file an ex
It is the taking of testimony of any person, whether he be a party or not, but at the parte motion with the court. The meaning of an ex parte motion is that it is from
instance of a party to the action. This testimony is taken out of court. the other party only.
Q: What is the difference between depositions and testimony? This is why the motion of taking a deposition is always grantable as a matter of
course.
A: Usually, testimony is taken in court proceedings where the case is pending.
Meanwhile, deposition is taking the testimony of any person even outside of the Thus, the requirement that it should be by leave of court after jurisdiction has
court where the case is pending. been obtained over any defendant or over property which is the subject of the
action, or without such leave after an answer has been served, is not anymore
Two situations where depositions are taken necessary.
JGG: To repeat, this is because under the new rule, if you want to take the
• Rule 23: Depositions Pending Action
deposition of somebody, what you have to do is just to file a motion.
NOTE: If the deposition is taken pending action, it is called deposition de
benne esse.1
1 For the time being. 2 For the perpetuation of the memory of the matter.
Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 1

DEPOSITIONS PENDING ACTION (RULE 23) Q: How is deposition taken?
A: There are two (2) ways by which deposition may be taken, viz.:
Section 1. Depositions pending action, when may be taken. — Upon ex
parte motion of a party, the testimony of any person, whether a party or not, may
• Deposition upon oral examination
be taken, at the instance of any party, by deposition upon oral examination or
• Deposition upon written interrogatories
written interrogatories. The attendance of witnesses may be compelled by the
use of a subpoena as provided in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a person confined in prison may Q: Whose deposition may be taken?
be taken only by leave of court on such terms as the court prescribes.
A: The testimony of any person, whether a party or not, may be taken. (Sec. 1,
Rule 23)
Section 10. Persons before whom depositions may be taken within the Philippines.
— Within the Philippines depositions may be taken before any judge, notary
public, or the person referred to in section 14 hereof. (10a, R24)
Section 11. Persons before whom depositions may be taken in foreign countries. —
In a foreign state or country, depositions may be taken (a) on notice before a
secretary of embassy or legation, consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines, (b) before such person or officer as may
be appointed by commission or under letters rogatory; or (c) the person referred
to in section 14 hereof. (11a, R24)
Section 14. Stipulations regarding taking of depositions. — If the parties so

stipulate in writing, depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with these Rules and when
so taken may be used like other depositions. (14a, R24)
Depositions pending action, when may be taken
Persons before whom depositions may be taken
Comparison with old rule
Q: Before whom may depositions be taken?
JGG: Under the old rule, you have to distinguish whether the court has already
obtained jurisdiction over the person over the defendant or over the property A: In depositions, there is always a deposition officer. Before whom depositions
which is the subject of the action or not. If the court has already obtained may be taken depends on where the deposition will be taken.
jurisdiction over the person of the defendant or the property which is the subject
matter of the action, then it should be by leave of court and without such leave BEFORE WHOM DEPOSITIONS MAY BE TAKEN
after an answer has already been served. If taken within the Philippines If taken in foreign countries
(Sec. 10, Rule 23) (Sec. 11, Rule 23)
In the present rule, there is no more distinction. What is required in the present
rule is that if you want to take a deposition of somebody, you have to file an ex (1) Judge;
(1) Secretary of embassy or legation;
parte motion to that effect. (2) Consul general;
JGG: The judge referred to here is (3) Consul diplomatic channels. (OCA à DFA à
the judge of the PLACE where the (4) Vice-consul; Foreign Court with Jurisdiction)
deposition is to be taken; not (5) Consular agent;
necessarily the judge of the court (6) Person as may be appointed by This letter coming from our court is
where the action is pending. commission or letters rogatory; called letters rogatory. There is a
(7) Person authorized to administer mutual obligation on the part of the
(2) Notary public; oaths. (Sec. 14, Rule 23) two countries such that the court in
Germany can also do the same
(3) Person authorized to administer through the principle of reciprocity.
oaths (if agreed by the parties).
(Sec. 14, Rule 23) NOTE: If we do not have a consular
office in the residence of the supposed
Section 12. Commission or letters rogatory. — A commission or letters rogatory witness, then the taking of the
shall be issued only when necessary or convenient, on application and notice, and deposition of the witness is by way of
on such terms, and with such direction as are just and appropriate. Officers may commission.
be designated in notices or commissions either by name or descriptive title and
letters rogatory may be addressed to the appropriate judicial authority in the Case: Dulay v. Dulay
foreign country. (12a, R24)
Leave of court is not required when deposition is to be taken before secretary of
Commission v. Letters Rogatory (Dasmarinas Garments v. Reyes, G.R. No. embassy or legation, consul general, consul, vice-consul or consular agent of the
108229, 24 Aug. 1993) RP and defendant’s answer has already been served. However, if deposition is to
be taken in foreign country where the Philippine has no secretary of embassy or
COMMISSION LETTERS ROGATORY legation, consul general, consul, vice-consul or consular agent, it may be taken by
It is an instrument sent in the name person as may be appointed by commission. The authentication made by the
and by the authority of a judge or consular officer was a ratification of the authority of the notary public who took
court to another, requesting the latter the questioned depositions. (Dulay v. Dulay, G.R. No. 158857, 11 Nov. 2005)
It is an instrument issued by a court of to cause to be examined, upon
justice, or other competent tribunal, interrogatories filed in a cause JGG: Note that the case of Dulay was promulgated before the amendments were
to authorize a person to take pending before the former, a witness introduced to the 1997 Rules. Now, there is no more distinction over whether the
depositions, or do any other act by who is within the jurisdiction of the court has already acquired jurisdiction over the person of the defendant or over
authority of such court or tribunal. judge or court to whom such letters the thing which is the subject matter of the action or an answer has already been
are addressed. served. What you have to do is file an ex parte motion to take the deposition of a
NOTE: Commissions are applicable in person.
countries where we do not have a EXAMPLE: The witness is residing in
consular office but the PH has a Germany, and a you want to take a In Dulay, the SC said that if deposition is to be taken in a foreign country where
relation with that country. If the deposition of such witness. You can the Philippines has no secretary of embassy or legation, consul general, consul,
witness is there, then the taking of the apply to the court where the case is vice-consul or consular agent, it may be taken by person as may be appointed by
deposition should be through a pending, and the judge will send a commission.
commission. letter to the judge or to the court
which has jurisdiction over the Section 15. Deposition upon oral examination; notice; time and place. — A party
residence of the supposed witness. desiring to take the deposition of any person upon oral examination shall give
This letter of the judge will go through reasonable notice in writing to every other party to the action. The notice shall
state the time and place for taking the deposition and the name and address of If the order made terminates the examination, it shall be resumed thereafter only
each person to be examined, if known, and if the name is not known, a general upon the order of the court in which the action is pending. Upon demand of the
description sufficient to identify him or her or the particular class or group to objecting party or deponent, the taking of the deposition shall be suspended for
which he belongs. On motion of any party upon whom the notice is served, the the time necessary to make a notice for an order. In granting or refusing such
court may for cause shown enlarge or shorten the time. order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem reasonable.
Section 16. Orders for the protection of parties and deponents. — After notice is (18a, R24)
served for taking a deposition by oral examination, upon motion seasonably
made by any party or by the person to be examined and for good cause shown, Section 19. Submission to witness; changes; signing. — When the testimony is
the court in which the action is pending may make an order that the deposition fully transcribed, the deposition shall be submitted to the witness for
shall not be taken, or that it may be taken only at some designated place other examination and shall be read to or by him or her, unless such examination and
than that stated in the notice, or that it may be taken only on written reading are waived by the witness and by the parties. Any changes in form or
interrogatories, or that certain matters shall not be inquired into, or that the substance which the witness desires to make shall be entered upon the
scope of the examination shall be held with no one present except the parties to deposition by the officer with a statement of the reasons given by the witness for
the action and their officers or counsel, or that after being sealed the deposition making them. The deposition shall Page 30 of 43 then be signed by the witness,
shall be opened only by order of the court, or that secret processes, unless the parties by stipulation waive the signing or the witness is ill or cannot
developments, or research need not be disclosed, or that the parties shall be found or refuses to sign. If the deposition is not signed by the witness, the
simultaneously file specified documents or information enclosed in sealed officer shall sign it and state on the record the fact of the waiver or of the illness
envelopes to be opened as directed by the court or the court may make any other or absence of the witness or the fact of the refusal to sign together with the reason
order which justice requires to protect the party or witness from annoyance, given therefor, if any, and the deposition may then be used as fully as though
embarrassment, or oppression. (16a, R24) signed, unless on a motion to suppress under Section 29(f) of this Rule, the court
holds that the reasons given for the refusal to sign require rejection of the
Section 17. Record of examination; oath; objections. — The officer before whom deposition in whole or in part.
the deposition is to be taken shall put the witness on oath and shall personally,
or by some one acting under his or her direction and in his or her presence, Section 20. Certification and filing by officer. — The officer shall certify on the
record the testimony of the witness. The testimony shall be taken deposition that the witness was duly sworn to by him or her and that the
stenographically unless the parties agree otherwise. All objections made at the deposition is a true record of the testimony given by the witness. He or she shall
time of the examination to the qualifications of the officer taking the deposition, then securely seal the deposition in an envelope indorsed with the title of the
or to the manner of taking it, or to the evidence presented, or to the conduct of action and marked "Deposition of (here insert the name of witness)" and shall
any party, and any other objection to the proceedings, shall be noted by the officer promptly file it with the court in which the action is pending or send it by
upon the deposition. Evidence objected to shall be taken subject to the objections. registered mail to the clerk thereof for filing.
In lieu of participating in the oral examination, parties served with notice of
taking a deposition may transmit written interrogatories to the officers, who shall Section 21. Notice of filing. — The officer taking the deposition shall give prompt
propound them to the witness and record the answers verbatim. notice of its filing to all the parties. (21, R24)
Section 18. Motion to terminate or limit examination. — At any time during the Section 22. Furnishing copies. — Upon payment of reasonable charges therefor,
taking of the deposition, on motion or petition of any party or of the deponent, the officer shall furnish a copy of the deposition to any party or to the deponent.
and upon a showing that the examination is being conducted in bad faith or in (22, R24)
such manner as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the Regional Trial Court of the Section 23. Failure to attend of party giving notice. — If the party giving the
place where the deposition is being taken may order the officer conducting the notice of the taking of a deposition fails to attend and proceed therewith and
examination to cease forthwith from taking the deposition, or may limit the scope another attends in person or by counsel pursuant to the notice, the court may
and manner of the taking of the deposition, as provided in section 16 of this Rule. order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him or her and his or her counsel in so Q: What may the other party do as notice to take the deposition is served
attending, including reasonable attorney's fees. upon him?
Section 24. Failure of party giving notice to serve subpoena. — If the party giving A: The opposing party may, through motion, ask the court to issue an order for
the notice of the taking of a deposition of a witness fails to serve a subpoena upon the protection of parties and deponents.
him or her and the witness because of such failure does not attend, and if another
party attends in person or by counsel because he or she expects the deposition of He may ask for the following orders:
that witness to be taken, the court may order the party giving the notice to pay
such other party the amount of the reasonable expenses incurred by him or (a) Not to take the deposition;
her and his or her counsel in so attending, including reasonable attorney's fees. (b) That it may be taken only at some designated place other than that stated
in the notice, or
How deposition taken (c) That it may be taken only on written interrogatories, or
(d) That certain matters shall not be inquired into, or
Q: How is deposition taken? (e) That the scope of the examination shall be held with no one present
except the parties to the action and their officers or counsel, or
A: A party desiring to take the deposition of any person upon oral examination (f) That after being sealed the deposition shall be opened only by order of
shall give reasonable notice in writing to every other party to the action. The the court, or that secret processes, developments, or research need not
notice shall state the time and place for taking the deposition and the name and be disclosed, or that the parties shall simultaneously file specified
address of each person to be examined, if known, and if the name is not known, documents or
a general description sufficient to identify him or the particular class or group to (g) Information enclosed in sealed envelopes to be opened as directed by the
which he belongs. On motion of any party upon whom the notice is served, the court or
court may for cause shown enlarge or shorten the time. (Sec. 15, Rule 23) (h) The court may make any other order which justice requires to protect
the party or witness from annoyance, embarrassment, or oppression.
(Sec. 16, Rule 23)
Q: A plaintiff would like to take the oral deposition of Juan Dela Cruz
because he needs him to become his witness. What shall he do first?
JGG: If you would like to object in the taking of the deposition, then you avail of
the remedies under Sec. 16, Rule 23. These are the grounds that you may invoke
A: He should file an ex parte motion to take the deposition of Juan Dela Cruz. More in order to prevent the taking of the deposition or in order to modify the taking
often than not, it will be granted by the court. of the deposition.
Q: The motion was granted by the court and the manner by which
• Section 16. Orders for the protection of parties and depositions.
deposition is to be taken is through oral deposition. What will the applicant
• Section 17. Record of examination; oath; objections.
do next?
• Section 18. Motion to terminate or limit examination.
• Section 19. Submission to witness; changes; signing.
A: The applicant will notify the other party in writing of –
• Section 20. Certification and filing by Officer.
• Section 21. Notice of filing
(a) The time and place for taking the deposition and • Section 22. Furnishing of copies
(b) The name and address of each person to be examined, if known, and if • Section 23. Failure to attend of party giving notice
the name is not known, a general description sufficient to identify him or • Section 24. Failure of the party giving notice to subpoena
the particular class or group to which he belongs. (Sec. 15, Rule 23)
JGG: These provisions tell us the actions that the other party may take and the
actual manner of taking the deposition. Just read this.
Section 25. Deposition upon written interrogatories; service of notice and of A: NO. It is the court which has jurisdiction over the residence of the witness or
interrogatories. — A party desiring to take the deposition of any person upon the deponent to compel the deponent to appear during the taking of the
written interrogatories shall serve them upon every other party with a notice deposition.
stating the name and address of the person who is to answer them and the name
or descriptive title and address of the officer before whom the deposition is to be EXAMPLE: The witness or the person whom you would take the deposition of is
taken. Within ten (10) calendar days thereafter, a party so served may serve residing in Davao. There was notice on the part of the deposition officer for that
cross-interrogatories upon the party proposing to take the deposition. Within witness to appear for the taking of the deposition. However, the deponent does
five (5) calendar days thereafter the latter may serve re-direct interrogatories not want to appear. The case is pending in Muntinlupa. As the applicant for the
upon a party who has served cross-interrogatories. Within three taking of the deposition, what will you do?
(3) calendar days after being served with re-direct interrogatories, a party may
serve recross-interrogatories upon the party proposing to take the deposition. A: You apply for the issuance of subpoena in DAVAO, not in Muntinlupa where
the case is pending.
Section 26. Officers to take responses and prepare record. — A copy of the notice
and copies of all interrogatories served shall be delivered by the party taking the SECTION 5. Subpoena for depositions. — Proof of service of a notice to take a
deposition to the officer designated in the notice, who shall proceed promptly, in deposition, as provided in Sections 15 and 25 of Rule 23, shall constitute
the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony sufficient authorization for the issuance of subpoenas for the persons named in
of the witness in response to the interrogatories and to prepare, certify, and file said notice by the clerk of the court of the place in which the deposition is to
or mail the deposition, attaching thereto the copy of the notice and the be taken. The clerk shall not, however, issue a subpoena duces tecum to any such
interrogatories received by him or her. person without an order of the court. (Rule 21)
Section 27. Notice of filing and furnishing copies. — When a deposition upon NOTE: In short, the court of the place where the deposition shall be taken. NOT
interrogatories is filed, the officer taking it shall promptly give notice thereof to to the court where the case is pending.
all the parties, and may furnish copies to them or to the deponent upon payment
of reasonable charges therefor. (27, R24)
Q: A plaintiff would like to take the deposition of Juan Dela Cruz because he
needs him to become his witness. What shall he do first?
Section 28. Order for the protection of parties and deponents. — After the service
of the interrogatories and prior to the taking of the testimony of the deponent,
the court in which the action is pending, on motion promptly made by a party or A: The plaintiff should file an ex parte motion before the court that he will be
a deponent, and for good cause shown, may make any order specified in sections taking the deposition.
15, 16 and 18 of this Rule which is appropriate and just or an order that the
deposition shall not be taken before the officer designated in the notice or that it Q: Assuming that the motion is granted by the court, how is the plaintiff
shall not be taken except upon oral examination. (28a, R24) going to take the deposition of Juan Dela Cruz upon written interrogatories?
Deposition upon written interrogatories A: What the proponent will do is to send copies of direct interrogatories to the
adverse party with a notice stating the name and address of the person who is to
answer them and the name or descriptive title and address of the officer before
Q: What if the party sought to be examined refused to appear? whom the deposition is to be taken.
A: The attendance of witnesses may be compelled through the use of subpoena Since it will be received by the adverse party, the latter may prepare cross-
under Rule 21. (Sec. 1, Rule 23) interrogatories which will be transmitted back to the proponent of the deposition
(within ten (10) calendar days from service of the direct interrogatories).
Q: In what court are you going to apply for the issuance of the subpoena? Is
it the court where the case is pending?
The proponent of the direct interrogatories may then prepare re-direct custody, condition, and location of any books, documents, or other tangible things
interrogatories upon a party who has served cross-interrogatories (within five and the identity and location of persons having knowledge of relevant facts. (Sec.
(5) calendar days thereafter). These re-direct interrogatories will again be sent 2, Rule 23)
to the adverse party.
Q: If during the taking of the deposition, you have objections, how would
On the basis of these re-direct interrogatories, the adverse party may serve you react?
recross-interrogatories upon the party proposing to take the deposition within
three (3) calendar days. A: You make it of record your objections. However, the deposition officer cannot
rule on your objection. You must however make it on the record that you are
JGG: There are now four sets of questions – direct, cross, re-direct and re-cross objecting on such line of questioning.
interrogatories. These questions will be sent to the applicant, which in turn will
be sent to the deposition officer. Parties will be notified as to the date of the taking Limitations on deposition taking
of the deposition.
• The matter inquired into is not privileged;
During the taking of the deposition, it will be the deposition officer who will ask • The matter inquired into is relevant to the subject of the pending action;
the questions to the deponent (Juan Dela Cruz). (Sec. 2, Rule 23);
• The court may issue orders to protect the parties. (Secs. 16 and 18, Rule
Section 2. Scope of examination. — Unless otherwise ordered by the court as 23)
provided by section 16 or 18 of this Rule, the deponent may be examined
regarding any matter, not privileged, which is relevant to the subject of the NOTE: If the matter is either not privileged or not relevant, you can go to
pending action, whether relating to the claim or defense of any other party, court to address the situation so as not to allow the party to ask such a
including the existence, description, nature, custody, condition, and location of question.
any books, documents, or other tangible things and the identity and location of
persons having knowledge of relevant facts. (2, R24) Section 6. Objections to admissibility. — Subject to the provisions of section 29 of
this Rule, objection may be made at the trial or hearing, to receiving in evidence
Scope of examination any deposition or part thereof for any reason which would require the exclusion
of the evidence if the witness were then present and testifying (6, R24)
Q: What may be asked during the taking of the deposition? Can you ask
anything? Objections to admissibility
A: NOT anything. The only thing that you are allowed to ask during the deposition Q: If the question is the admissibility of the deposition, should it be objected
is: at the time of the application for the taking of the deposition?
(a) Facts which are NOT privileged; and A: NO. In fact, you cannot even object to it because it is made ex parte. You cannot
(b) Facts which are RELEVANT to the case or subject matter of the pending even file an opposition on the motion of the other party. You may not even know
action. if it is filed because it is filed ex parte.
Unless otherwise ordered by the court as provided by section 16 or 18 of this Q: There are objectionable testimonies which happened during the taking
Rule, the deponent may be examined regarding any matter, not privileged, of the deposition. When can you object? When is objection made on the
which is relevant to the subject of the pending action, whether relating to the admissibility of the deposition?
claim or defense of any other party, including the existence, description, nature,

A: Subject to the provisions of Section 29 of this Rule, objection may be made at Use of depositions
the trial or hearing to receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the evidence if the witness were In what proceedings may it be used
then present and testifying. (Sec. 6, Rule 23)
• Trial;
JGG: Your time to object on the deposition is when it is used as evidence, whether • Hearing of motion;
testimonial evidence or documentary evidence. The time to object is when the • Hearing of interlocutory proceeding.
deposition is used and offered as evidence.
Against whom may it be used
However, as a GR, you cannot yet object to the motion to take the deposition of
somebody or even a party to the case.
• Against any party who was present;
• Against a party who was not present but notified.
Section 4. Use of depositions. — At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as admissible For what purpose it may be used
under the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions: A. For impeaching purposes if the deponent is a witness;
EXAMPLE: A moved for the taking of the deposition of Juan Dela Cruz.
(a) Any deposition may be used by any party for the purpose of contradicting or
His deposition was taken. Upon reading the transcript of the
impeaching the testimony of deponent as a witness; stenographic notes during the taking of the deposition, A found out that
the testimony of the witness is not that important. A is not compelled to
(b) The deposition of a party or of any one who at the time of taking the present such witness.
deposition was an officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party may be used by an REMEMBER: Taking the deposition of somebody does not compel such
adverse party for any purpose; party to use the testimony of the deponent. It is still his option. If what
transpired is against his cause, then why would he use such testimony?
(c) The deposition of a witness, whether or not a party, may be used by any party
for any purpose if the court finds: (1) that the witness is dead; or (2) that the EXAMPLE(2): A moved for the taking of the deposition of Juan Dela Cruz.
witness resides at a distance more than one hundred (100) kilometers from the His deposition was taken. Upon reading the transcript of the
place of trial or hearing, or is out of the Philippines, unless it appears that his or stenographic notes during the taking of the deposition, A found out that
her absence was procured by the party offering the deposition; or (3) that the the testimony of the witness will not add anything to his cause. He
witness is unable to attend or testify because of age, sickness, infirmity, or chooses to not use the testimony. Can the other party present the
imprisonment; or (4) that the party offering the deposition has been unable to deposition?
procure the attendance of the witness by subpoena; or (5) upon application and
notice, that such exceptional circumstances exist as to make it desirable, in the A: YES. There is no prohibition. The other party can present it.
interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; Q: What if the witness testified on something which is different from
and what he stated during the taking of the deposition? Can he be
impeached?
(d) If only part of a deposition is offered in evidence by a party, the adverse party
may require him or her to introduce all of it which is relevant to the part A: He may be confronted of his statement during the taking of the
introduced, and any party may introduce any other parts. deposition and to point out that there is a discrepancy between what he
said during the taking of the deposition and what he said when he modes of discovery, just file a motion in court to take the
testified in court. testimony of a witness abroad through videoconferencing.
Q: Can you use the transcript of the stenographic notes of the c. That the witness is unable to attend or testify because of age,
deposition in this case? sickness, infirmity, or imprisonment; or
A: YES, because it can be used for impeaching purposes if the deponent d. That the party offering the deposition has been unable to
is a witness. procure the attendance of the witness by subpoena; or
B. It may be used for any purpose if the deponent is a party; e. Upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of
C. It may be used for any purpose if the court finds: justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the
a. That the witness is dead; or deposition to be used.
EXAMPLE: In a land registration case, which requires tacking of Case: People v. Sergio and Lacanilao (G.R. No. 240053, 9 Oct. 2019, HERNANDO,
possession, more often than not, your witnesses will necessarily J)
be of advanced age. In cases like this, the prudent thing to do is
to file a motion to take the deposition of the witness if there is This is a criminal case for human trafficking involving Mary Jane Veloso, a Filipino
no pre-trial yet. citizen. Veloso was apprehended in Indonesia for drug trafficking. Trial was
conducted and she was convicted and imposed a penalty of death. Through the
If the witness eventually dies, the deposition will take the place intervention of the Philippine government, she was granted reprieve. The
of the direct testimony of such witness. argument of the PH government was that Veloso was just a victim of human
trafficking.
b. That the witness resides at a distance more than one hundred
(100) kilometers from the place of trial or hearing, or is out of
the Philippines, unless it appears that his or her absence was The Philippine government then filed a case against the human traffickers, Sergio
procured by the party offering the deposition; or and Lacanilao. However, the main witness for the prosecution is the victim,
Veloso, who was imprisoned in Indonesia. Remember that under Sec. 15 of Rule
EXAMPLE: The case is pending in Muntinlupa, and the witness 1193, in relation to the witnesses for the prosecution, such witnesses may be
is residing in Sulu. This can also apply if the witness is residing conditionally examined before the court where the case is pending.
abroad.
In this case, the prosecution filed a motion to take the deposition of Veloso. The
JGG: There is already a rule to take the testimony of a witness accused objected on the ground that the taking of depositions do not apply in
abroad through videoconferencing. Instead of availing of the criminal cases. What applies in criminal cases is Sec. 15 of Rule 119, which
3 Section 15. Examination of witness for the prosecution. — When it satisfactorily appears that a accused to attend the examination after notice shall be considered a waiver. The statement taken may
witness for the prosecution is too sick or infirm to appear at the trial as directed by the order of the be admitted in behalf of or against the accused. (7a)
court, or has to leave the Philippines with no definite date of returning, he may forthwith be
conditionally examined before the court where the case is pending. Such examination, in the presence
of the accused, or in his absence after reasonable notice to attend the examination has been served
on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the
requires the conditional examination for the witnesses of the prosecution in the
court where the case is pending. (b) Second, the judge would be present during the taking of the deposition,
satisfying the other purpose that the judge will be able to observe the
Further, the defense also argued that to take the deposition of Veloso would demeanor of the witness.
violate the Constitutional right of the accused to confrontation. The right to
confrontation has two-fold purposes, viz.: SC4: Section 15, Rule 119 of the Rules of Court is inapplicable in the instant case.
(1) In order for the judge to observe the demeanor of the witness; In order for the testimony of the prosecution witness be taken before the court
(2) In order to give the accused the right to cross-examine the witness. where the case is being heard, it must be shown that the said prosecution witness
is either: (a) too sick or infirm to appear at the trial as directed by the order of
In this case, the RTC granted the motion on two conditions – (1) the taking of the court, or; (b) has to leave the Philippines with no definite date of returning.
deposition should be by way of written interrogatories; and (2) the judge should
be present during the taking of the deposition. Surely, the case of Mary Jane does not fall under either category. She is neither
too sick nor infirm to appear at the trial nor has to leave the Philippines
The incident was elevated to the CA via petition for certiorari, which reversed the indefinitely. To recall, Mary Jane is currently imprisoned in Indonesia for having
decision of the RTC. According to the CA, Rule 23 under the Rules of Court is been convicted by final judgment of the crime of drug trafficking, a grave offense
applicable only in civil cases and is not applicable in criminal cases. What is in the said state. In fact, she was already sentenced to death and is only awaiting
applicable in the latter is Sec. 15 of Rule 119. Hence, the present petition. her execution by firing squad. Her situation is not akin to a person whose
limitation of mobility is by reason of ill-health or feeble age, the grounds cited in
The Supreme Court ruled that the RTC judge was correct. It explained that under Section 15 of Rule 119. In fact, Mary Jane's predicament does not in way pertain
extraordinary circumstances, Rule 23 may be applied to criminal cases. to a restriction in movement from one place to another but a deprivation of
liberty thru detention in a foreign country with little or no hope of being saved
from the extreme penalty of death by firing squad. (People v. Sergio and Lacanilao,
Q: Do we have an extraordinary case here? supra.)
A: YES. It is entirely impossible for Veloso, the witness, to come to the Philippines The extraordinary factual circumstances surrounding the case of Mary Jane
and testify pursuant to Sec. 15 of Rule 119 because the Indonesian government
warrant the resort to Rule 23 of the Rules of Court
would surely refuse.
Depositions, however, are recognized under Rule 23 of the Rules on Civil
Further, the Supreme Court ruled that there will be no violation of the
Procedure. Although the rule on deposition by written interrogatories is
Constitutional right to confrontation, taking into consideration the purpose of the
inscribed under the said Rule, the Court holds that it may be applied suppletorily
right to confrontation.
in criminal proceedings so long as there is compelling reason
(a) First, there will be a chance on the part of the accused to cross-examine.
In a catena of cases, the Supreme Court had relaxed the procedural rules by
The deposition would be taken through written interrogatories, applying suppletorily certain provisions of the Rules on Civil Procedure in
wherein the adverse party may prepare cross interrogatories and re- criminal proceedings.
cross interrogatories. In this manner, the accused would be given the
right to cross-examine.
4 Adding an extensive discussion on People v. Sergio for Bar review purposes.

A strict application of the procedural rules will defeat the very purpose for the the criminal acts will be well compensated and, most of all, that justice be
grant of reprieve by the Indonesian authorities to Mary Jane. Mary Jane's achieved. Hence, the right of the State to prosecute and prove its case have been
testimony, being the victim, is vital in the prosecution of the pending criminal fully upheld and protected.
cases that were filed against Cristina and Julius. This has been recognized by no
less than the Indonesian President, His Excellency Joko Widodo, who granted the Further, the right of the State to prove the criminal liability of Cristina and Julius
reprieve precisely to afford Mary Jane the opportunity to participate in the legal should not be derailed and prevented by the stringent application of the
proceedings obtaining in the Philippines. procedural rules. Otherwise, it will constitute a violation of the basic
constitutional rights of the State and of Mary Jane to due process which this Court
Besides, the disallowance of the written interrogatories is not in congruence with cannot disregard. (People v. Sergio, supra.)
the aim of ASEAN MLAT, that is to render mutual legal assistance in criminal
matters among signatory states including the Philippines. The ASEAN MLAT is No violation of the constitutional right to confrontation of a witness
enforced precisely to be applied in circumstances like in the case of Mary Jane. It
recognizes the significance of cooperation and coordination among the states to True, Cristina and Julius have no opportunity to confront Mary Jane face to face
prevent, investigate and prosecute criminal offenses especially if perpetuated not in light of the prevailing circumstance. However, the terms and conditions laid
only in a single state just like in the case of drug and human trafficking, and illegal down by the trial court ensure that they are given ample opportunity to cross-
recruitment, the very charges that were filed against respondents. examine Mary Jane by way of written interrogatories so as not to defeat the first
purpose of their constitutional right.
Verily, in light of the unusual circumstances surrounding the instant case, the
Court sees no reason not to apply suppletorily the provisions of Rule 23 of the To recall, the trial court requires Cristina and Julius, through their counsel, to file
Rules on Civil Procedure in the interest of substantial justice and fairness. Hence, their comment and may raise objections to the proposed questions in the written
the taking of testimony of Mary Jane through a deposition by written interrogatories submitted by the prosecution. The trial court judge shall
interrogatories is in order. (People v. Sergio, supra.) promptly rule on the objections. Thereafter, only the final questions would be
asked by the Consul of the Philippines in Indonesia or his designated
The deposition by written interrogatories is pursuant to Mary Jane's right to due representative. The answers of Mary Jane to the propounded questions must be
process written verbatim, and a transcribed copy of the same would be given to the
counsel of the accused who would, in turn, submit their proposed cross
To disallow the written interrogatories will curtail Mary Jane's right to due interrogatory questions to the prosecution. Should the prosecution raise any
process. objection thereto, the trial court judge must promptly rule on the same, and the
final cross interrogatory questions for the deposition of Mary Jane will then be
The benchmark of the right to due process in criminal justice is to ensure that all conducted. Mary Jane's answers in the cross interrogatory shall likewise be taken
the parties have their day in court. It is in accord with the duty of the government in verbatim and a transcribed copy thereof shall be given to the prosecution.
to follow a fair process of decision-making when it acts to deprive a person of his
liberty. But just as an accused is accorded this constitutional protection, so is the The second purpose of the constitutional right to confrontation has likewise been
State entitled to due process in criminal prosecutions. It must likewise be given upheld. As aptly stated in the terms and conditions for the taking of deposition,
an equal chance to present its evidence in support of a charge. the trial court judge will be present during the conduct of written interrogatories
on Mary Jane.
Here, the trial court acted within its jurisdiction when it granted the taking of
Mary Jane's deposition by written interrogatories. The grant of the written This will give her ample opportunity to observe and to examine the demeanor of
interrogatories by the Indonesian Government perceives the State's opportunity the witness closely. Although the deposition is in writing, the trial court judge can
to present all its desired witnesses in the prosecution of its cases against Cristina still carefully perceive the reaction and deportment of Mary Jane as she answers
and Julius. It is afforded fair opportunity to present witnesses and evidence it each question propounded to her both by the prosecution and the defense.
deem vital to ensure that the injury sustained by the People in the commission of

Indubitably, the constitutional rights of Cristina and Julius are equally Section 7. Effect of taking depositions. — A party shall not be deemed to make a
safeguarded. The parameters laid down by the trial court are sufficient in detail person his or her own witness for any purpose by taking his or her deposition.
ensuring that Mary Jane will give her testimony under oath to deter lying by the
threat of perjury charge. She is still subjected to cross-examination so as to
determine the presence of any falsehood in her testimony. Lastly, the guidelines Effect of taking depositions
enable the trial court judge to observe her demeanor as a witness and assess her
credibility. (People v. Sergio, supra.) A party shall not be deemed to make a person his or her own witness for any
purpose by taking his or her deposition. (Sec. 7, Rule 23)
Mary Jane’s deposition is akin to a dying declaration
JGG: You are only bound by the testimony of the deponent when you USE his
Finally, it must be mentioned that a "dying declaration" is one of the recognized deposition.
exceptions to the right to confrontation. In the case at bar, it will not be amiss to
state that Mary Jane's deposition through written interrogatories is akin to her XPN: When you use the same for IMPEACHING purposes.
dying declaration. There is no doubt that Mary Jane will be answering the written
interrogatories under the consciousness of an impending death — or execution Section 3. Examination and cross-examination. — Examination and cross-
by a firing squad to be exact. To stress, Mary Jane has been convicted by final examination of deponents may proceed as permitted at the trial under sections 3
judgment and sentenced to death by firing squad. Mary Jane has already availed to 18 of Rule 132. (3a, R24)
of all available legal remedies and there is no expectation that her conviction will
be overturned by the Indonesian authorities. The only purpose for the grant of Section 5. Effect of substitution of parties. — Substitution of parties does not
the reprieve was for Mary Jane to assist the prosecution in erecting its case affect the right to use depositions previously taken; and, when an action has been
against her recruiters and traffickers. (People v. Sergio, supra.) dismissed and another action involving the same subject is afterward brought
between the same parties or their representatives or successors in interest, all
Section 8. Effect of using depositions. — The introduction in evidence of the depositions lawfully taken and duly filed in the former action may be used in the
deposition or any part thereof for any purpose other than that of contradicting or latter as if originally taken therefor. (5, R24)
impeaching the deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the use by an adverse party Section 9. Rebutting deposition. — At the trial or hearing any party may rebut any
of a deposition as described in paragraph (b) of section 4 of this Rule. (8, R24) relevant evidence contained in a deposition whether introduced by him or by any
other party. (9, R24)
Effect of using depositions
Section 29. Effect of errors and irregularities in depositions. —
The introduction in evidence of the deposition or any part thereof for any
purpose other than that of contradicting or impeaching the deponent makes the (a) As to notice. — All errors and irregularities in the notice for taking a
deponent the witness of the party introducing the deposition, but this shall deposition are waived unless written objection is promptly served upon the party
not apply to the use by an adverse party of a deposition as described in paragraph giving the notice.
(b) of Section 4 of this rule. (Sec. 8, Rule 23)
(b) As to disqualification of officer. — Objection to taking a deposition because of
JGG: When you take the deposition of someone, you are not yet bound by the disqualification of the officer before whom it is to be taken is waived unless made
testimony of the deponent because you are not yet using him/her as your before the taking of the deposition begins or as soon thereafter as the
witness. However, the moment you use the deposition of the deponent, then you disqualification becomes known or could be discovered with reasonable
are already making the deponent your own witness. diligence.

(c) As to competency or relevancy of evidence. — Objections to the competency of However, you are short in funds to pay for the filing fees and to pay for a lawyer.
witness or the competency, relevancy, or materiality of testimony are not waived To preserve the testimony of the witnesses, you avail of Rule 24. You can take the
by failure to make them before or during the taking of the deposition, unless the deposition of a witness even before the action is filed.
ground, of the objection is one which might have been obviated or removed if
presented at that time. A person who desires to perpetuate his or her own testimony or that of another
person regarding any matter that may be cognizable in any court of the
(d) As to oral examination and other particulars. — Errors and irregularities Philippines, may file a verified petition in the court of the place of the
occurring at the oral examination in the manner of taking the deposition in the residence of any expected adverse party.
form of the questions or answers, in the oath or affirmation, or in the conduct of
the parties and errors of any kind which might be obviated, removed, or cured if NOTE: This is the same as Rule 134 (Perpetuation of Testimony).
promptly prosecuted, are waived unless reasonable objection thereto is made at
the taking of the deposition. JGG: If there is no action yet, but you would like to take the testimony or
deposition of a person, what are you going to do?
(e) As to form of written interrogatories. — Objections to the form of written
interrogatories submitted under Sections 25 and 26 of this Rule are waived A: You file a verified petition to that effect.
unless served in writing upon the party propounding them within the time
allowed for serving succeeding cross or other interrogatories and within three
(3) calendar days after service of the last interrogatories authorized. Q: Where are you going to file the petition?
(f) As to manner of preparation. — Errors and irregularities in the manner in A: Under the rules, you file the petition in the court of the place of the residence
which the testimony is transcribed or the deposition is prepared, signed, of any expected adverse party. You do NOT file it in the residence of the
certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the petitioner.
officer 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 with reasonable NOTE: Even a defendant who is expecting that a case may be filed against him
promptness after such defect is, or with due diligence might have been, may file a verified petition pursuant to Sec. 1, Rule 24 for the taking of the
ascertained. (29a, R24) deposition of his expected witnesses. The venue of this petition is the place of the
expected plaintiff because that is his adverse party.
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (RULE 24)

Section 2. Contents of petition. — The petition shall be entitled in the name of the
petitioner and shall show: (a) that the petitioner expects to be a party to an action
Section 1. Depositions before action; petition. — A person who desires to in a court of the Philippines but is presently unable to bring it or cause it to be
perpetuate his or her own testimony or that of another person regarding any brought; (b) the subject matter of the expected action and his or her interest
matter that may be cognizable in any court of the Philippines, may file a verified therein; (c) the facts which he or she desires to establish by the proposed
petition in the court of the place of the residence of any expected adverse party. testimony and his or her reasons for desiring to perpetuate it; (d) the names or a
description of the persons he or she expects will be adverse parties and their
addresses so far as known; and (e) the names and addresses of the persons to be
Depositions before action examined and the substance of the testimony which he or she expects to elicit
from each, and shall ask for an order authorizing the petitioner to take the
EXAMPLE: If your case is a petition for registration of real property, you have to depositions of the persons to be examined named in the petition for the purpose
present evidence to establish the nature of the property; that this property is of perpetuating their testimony.
being held by you whether in person or through a predecessor in interest for at
least thirty (30) years; and you have to establish tacking of possession.
Necessarily, your witnesses would be of advanced age to establish possession. Contents of petition

The petition shall be entitled in the name of the petitioner and shall show: the testimony which he or she expects to elicit from each; and (b) the reason for
perpetuating their testimony. If the court finds that the perpetuation of the
(a) That the petitioner expects to be a party to an action in a court of the testimony is proper to avoid a failure or delay of justice, it may make an order
Philippines but is presently unable to bring it or cause it to be brought; allowing the depositions to be taken, and thereupon the depositions may be taken
(b) The subject matter of the expected action and his or her interest therein; and used in the same manner and under the same conditions as are prescribed in
(c) The facts which he or she desires to establish by the proposed testimony these Rules for depositions taken in pending actions.
and his or her reasons for desiring to perpetuate it;
(d) The names or a description of the persons he or she expects will be Depositions pending appeal
adverse parties and their addresses so far as known; and
(e) The names and addresses of the persons to be examined and the JGG: In this case, there is already a decision. This is applicable in a situation in
substance of the testimony which he or she expects to elicit from each, which the court denied the presentation of a witness.
and shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the petition for the
purpose of perpetuating their testimony. For example, under the new rules, you are required to state the name of your
witnesses. If you fail to do so, or his judicial affidavit was not attached to your
pleading pursuant to Sec. 6, Rule 7, then there is a danger that such witness will
JGG: Take note of these contents. not be allowed to testify.
Procedure However, you have a justification why you were not able to attach such JA, but
the judge was very strict and did not allow you to call to the witness stand the
witness. Because of this you lost the case and you interposed an appeal. In your
assignment of errors, you noted that the judge erred in not allowing your witness
to testify despite noncompliance with Sec. 6, Rule 7. You won the appeal and the
case was remanded to the court a quo for additional reception of evidence.
Unfortunately, the supposed witness was already dead. This is the futility (sic) of
the deposition pending appeal.
If an appeal has been taken from a judgment of a court, including the Court of
Appeals in proper cases, or before the taking of an appeal if the time therefor has
not expired, the court in which the judgment was rendered may allow the taking
of depositions of witnesses to perpetuate their testimony for use in the event of
NOTE: There will be a hearing after the petition. further proceedings in the said court. (Sec. 7, Rule 24)
Section 7. Depositions pending appeal. — If an appeal has been taken from a JGG: This is the materiality of filing of a motion for the taking of a deposition
judgment of a court, including the Court of Appeals in proper cases, or before the pending appeal.
taking of an appeal if the time therefor has not expired, the court in which the
judgment was rendered may allow the taking of depositions of witnesses to Contents of the motion
perpetuate their testimony for use in the event of further proceedings in the said
court. In such case the party who desires to perpetuate the testimony may make
a motion in the said court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The motion shall state
(a) the names and addresses of the persons to be examined and the substance of
Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken
under this Rule, or if, although not so taken, it would be admissible in evidence, it
may be used in any action involving the same subject matter sub-sequently
brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a,
R134)
INTERROGATORIES TO PARTIES (RULE 25)
Section 1. Interrogatories to parties; service thereof. — Upon ex parte motion, any

JGG: How do you do it? You just file a motion to that effect. State in your motion party desiring to elicit material and relevant facts from any adverse parties shall
– file and serve upon the latter written interrogatories to be answered by the party
served or, if the party served is a public or private corporation or a partnership
(a) The names and addresses of the persons to be examined and the or association, by any officer thereof competent to testify in its behalf.
substance of the testimony which he expects to elicit from each; and
(b) The reason for perpetuating their testimony. Interrogatories to parties
Upon ex parte motion, any party desiring to elicit material and relevant facts from
any adverse parties shall file and serve upon the latter written interrogatories
If the motion is granted, the taking of the deposition shall be in accordance with to be answered by the party served or, if the party served is a public or private
Rule 23 (i.e. through written interrogatories or through oral examination). corporation or a partnership or association, by any officer thereof competent to
testify in its behalf.
Section 3. Notice and service. — The petitioner shall serve a notice upon each
person named in the petition as an expected adverse party, together with a copy JGG: The one who would like to serve written interrogatories to parties must first
of the petition, stating that the petitioner will apply to the court, at a time and file an ex parte motion for him to be allowed to serve written interrogatories to a
place named therein, for the order described in the petition. At least twenty party. You cannot just serve written interrogatories to a party; you have to file an
(20) calendar days before the date of the hearing, the court shall cause notice ex parte motion.
thereof to be served on the parties and prospective deponents in the manner
provided for service of summons. NOTE: Written interrogatories are directed to adverse parties, not strangers.
Section 4. Order and examination. — If the court is satisfied that the perpetuation Q: What is the purpose of serving written interrogatories?
of the testimony may prevent a failure or delay of justice, it shall make an order
designating or describing the persons whose deposition may be taken and A: The purpose of serving written interrogatories is to elicit facts from any
specifying the subject matter of the examination and whether the depositions adverse party. However, the answers may also be used as admissions of the
shall be taken upon oral examination or written interrogatories. The depositions adverse party. (Sec. 4, Rule 129)
may be taken in accordance with Rule 23 before the hearing. (4a, R134)
Also, it may limit the subjects of the controversy at the trial and avoid
Section 5. Reference to court. — For the purpose of applying Rule 23 to unnecessary testimony and waste of time in preparation. (Noche, Civil Procedure,
depositions for perpetuating testimony, each reference therein to the court in 2021)
which the action is pending shall be deemed to refer to the court in which the
petition for such deposition was filed. (5a, R134)

NOTE: These written interrogatories are questions that are addressed to the Q: May the adverse party object to written interrogatories?
adverse party which are required to be answered by the latter. If the adverse
party answered these questions, then such answers are deemed judicial A: YES, on the ground that the matters inquired into is not relevant and is
admissions. privileged. (Sec. 5, Rule 245, in rel. to Sec. 2, Rule 23)
Interrogatories under Rule 23 v. Interrogatories under Rule 25 The objections may be made within ten (10) calendar days after service of the
written interrogatories. (Sec. 3, Rule 25)
INTERROGATORIES (RULE 23) INTERROGATORIES (RULE 25)
Presence of deposition officer EXAMPLE: Plaintiff served written interrogatories to the defendant. Can the
There is a deposition officer. There is no deposition officer. adverse party object?
Subject of interrogatories
The subject of interrogatories are Directed to parties only; not A: YES, on the ground that what is being inquired into is something that is
either a party or non-party. applicable to strangers. privileged or irrelevant.
To whom delivered
Written interrogatories are delivered Written interrogatories are delivered
Section 2. Answer to interrogatories. — The interrogatories shall be answered
to the deposition officer. directly to the adverse party.
fully in writing and shall be signed and sworn to by the person making them. The
party upon whom the interrogatories have been served shall file and serve a copy
JGG: Under Rule 23, questions are prepared beforehand. of the answers on the party submitting the interrogatories within fifteen
(15) calendar days after service thereof, unless the court, on motion and for good
Section 5. Scope and use of interrogatories. — Interrogatories may relate to any cause shown, extends or shortens the time.
matters that can be inquired into under section 2 of Rule 23, and the answers may
be used for the same purposes provided in section 4 of the same Rule. (5a) Answer to interrogatories
Scope and use of interrogatories Q: When should answers to written interrogatories be filed?
Scope of written interrogatories A: The answers should be filed within fifteen (15) days from service of the written
interrogatories.
(a) Something which is not privileged;
(b) Something which is relevant. The answer should be under oath, filed in court and served to the requesting
party. (Sec. 2, Rule 25)
Section 3. Objections to interrogatories. — Objections to any interrogatories may
be presented to the court within ten (10) calendar days after service thereof, with Section 6. Effect of failure to serve written interrogatories. — Unless thereafter
notice as in case of a motion; and answers shall be deferred until the objections allowed by the court for good cause shown and to prevent a failure of justice, a
are resolved, which shall be at as early a time as is practicable. party not served with written interrogatories may not be compelled by the
5 I think this is a typo from the powerpoint and should be Rule 25.

adverse party to give testimony in open court, or to give a deposition pending A: NO. The only requirement is that the issues must have been joined.
appeal. (n)
Q: When do we say that issues have been joined?
Effect of failure to serve written interrogatories
A: If the issue has been filed and served, then issues have been joined and you can
GR: A party not served with written interrogatories may not be compelled by the already request for admission.
adverse party:
Q: What is the purpose of this mode of discovery?
(a) To give testimony in open court, or
(b) To give a deposition pending appeal. A: The purpose is to expedite the trial and to relieve parties of cost and labor
of proving facts which will not be disputed on the trial and the truth of which can
XPN: Unless thereafter allowed by the court for good cause shown and to prevent be ascertained by reasonable inquiry. (Noche, Civil Procedure, 2021)
a failure of justice. (Sec. 6, Rule 23)
JGG: If everything has been admitted already, then evidence is no longer required.
JGG: If written interrogatories are not served, you cannot make your adverse If there is no more factual issue, then judgment on the pleadings may be availed
party as your adverse witness. The service of written interrogatories therefore is of because everything has been admitted already.
a condition sine qua non for you to be allowed to call your adverse party as your
adverse witness. Section 2. Implied admission. — Each of the matters of which an admission is
requested shall be deemed admitted unless, within a period designated in the
Section 4. Number of interrogatories. — No party may, without leave of court, request, which shall not be less than fifteen (15) calendar days after service
serve more than one set of interrogatories to be answered by the same party. (4) thereof, or within such further time as the court may allow on motion, the party
to whom the request is directed files and serves upon the party requesting the
admission a sworn statement either denying specifically the matters of which an
ADMISSION BY ADVERSE PARTY (RULE 26) admission is requested or setting forth in detail the reasons why he or she cannot
truthfully either admit or deny those matters.
Section 1. Request for admission. — At any time after issues have been joined, a
party may file and serve upon any other party may file and serve upon any other Objections to any request for admission shall be submitted to the court by the
party a written request for the admission by the latter of the genuineness of any party requested within the period for and prior to the filing of his or her sworn
material and relevant document described in and exhibited with the request or statement as contemplated in the preceding paragraph and his or her compliance
of the truth of any material and relevant matter of fact set forth in the request. therewith shall be deferred until such objections are resolved, which resolution
Copies of the documents shall be delivered with the request unless copy have shall be made as early as practicable.
already been furnished. (1a)
Implied admission; objection to admission
Request for admission
Q: What may be done after receiving the request?
Q: When may requests for admission be filed and served?
A:
A: At any time after issues have been joined. (Sec. 1, Rule 26)
(1) Object to the request: Objections to any request for admission shall be
Q: Is it required to file an ex parte motion for you to be allowed to ask an submitted to the court by the party requested within the period for and
admission from the adverse party? prior to the filing of his or her sworn statement as contemplated in the
preceding paragraph and his or her compliance therewith shall be JGG: Failure on the party of the party requested or admission will result to an
deferred until such objections are resolved, which resolution shall be implied admission on the matters requested for admission.
made as early as practicable. (Sec. 2, Rule 26)
Section 3. Effect of admission. — Any admission made by a party pursuant to such
(2) File with the court and serve to the requesting party the verified request is for the purpose of the pending action only and shall not constitute an
reply to the request for admission: Each of the matters of which an admission by him or her for any other purpose nor may the same be used against
admission is requested shall be deemed admitted unless, within a period him or her in any other proceeding.
designated in the request, which shall not be less than fifteen (15)
calendar days after service thereof, or within such further time as the
court may allow on motion, the party to whom the request is directed Effect of admission
files and serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an admission JGG: It is for the purpose of the pending action only and does not constitute an
is requested or setting forth in detail the reasons why he or she cannot admission by him or her for any other purpose nor may the same be used against
truthfully either admit or deny those matters. (Sec. 2, Rule 26) him or her in any other proceeding.
EXAMPLE: A received a request for admission. Take note that it is the party, and Thus, while it is a judicial admission, that admission may only be used for that
not the lawyer, which will receive the request for admission. The party will then case only. It cannot be used for another case.
consult the lawyer regarding the request.
Section 5. Effect of failure to file and serve request for admission. — Unless
A can then object to the request based on 2nd par. of Sec. 2; or file with the court otherwise allowed by the court for good cause shown and to prevent a failure of
and serve to the requesting party a verified reply to the request for admission. To justice a party who fails to file and serve a request for admission on the adverse
simplify it, you may respond to the request. party of material and relevant facts at issue which are, or ought to be, within the
personal knowledge of the latter, shall not be permitted to present evidence on
Q: What may be grounds for an objection to the request for admission? such facts. (n)
A: What is asked to be admitted is either privileged or irrelevant. Effect of failure to file and serve request for admission
JGG: The two fundamental elements of the admissibility of evidence is that it must Unless otherwise allowed by the court for good cause shown and to prevent a
be relevant and it must not be excluded by the rules. Thus, you can object failure of justice a party who fails to file and serve a request for admission on the
pursuant to Sec. 24 of Rule 130 (i.e. privileged). adverse party of material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be permitted to present
NOTE: If you object to the request for admission, you are not yet bound to answer evidence on such facts. (Sec. 5, Rule 26)
until the court has resolved your objection.
JGG: If a fact is solely known to the adverse party, that there is no way for you
Q: What if you did not object but you failed to respond to the request? to know, but you failed to file and serve request for admission, you will not be
permitted to prove by evidence that fact which should have been the subject of
A: It will be considered as an implied admission of the matters being requested your request for admission.
for admission.
(For purposes of the bar, Sec. 5 is seldomly asked.)
Each of the matters of which an admission is requested shall be deemed
admitted x x x. (Sec. 2, Rule 26) NOTE: If the actionable document is already denied under oath, it need not be
subject of request for admission.
A party should not be compelled to admit matters of fact already admitted by his admission directly upon the petitioners themselves suffices to warrant denial of
pleading and concerning which there is no issue, nor should he be required to the motion to strike out petitioners’ responses to said request.
make a second denial of those already denied in his answer to the complaint.
(Po v. Court of Appeals, G.R. No. L-34341, 22 Aug. 1988) The application of the rules on modes of discovery rests upon the sound
discretion of the court. In the same vein, the determination of the sanction to be
A request for admission is not intended to merely reproduce or reiterate the imposed upon a party who fails to comply with the modes of discovery rests on
allegations of the requesting party's pleading but should set forth relevant the same sound judicial discretion. It is the duty of the courts to examine
evidentiary matters of fact, or documents described in and exhibited with the thoroughly the circumstances of each case and to determine the applicability of
request, whose purpose is to establish said party's cause of action or defense. the modes of discovery, bearing always in mind the aim to attain an expeditious
Unless it serves that purpose, it is, as correctly observed by the Court of Appeals, administration of justice. It need not be emphasized that upon the court’s
"pointless, useless," and "a mere redundancy." (Po v. Court of Appeals, supra.) shoulders likewise rests the burden of determining whether the response of the
requested party is a specific denial of the matters requested for admission.
JGG: If an actionable document has already been denied under oath in the answer (Lañada v. Court of Appeals, supra.)
or reply, then the failure to answer a request for admission with respect to such
actionable document will no longer result to an implied denial. Section 4. Withdrawal. — The court may allow the party making an admission
under the Rule, whether express or implied, to withdraw or amend it upon such
A party should not be compelled to admit matters of fact already admitted by his terms as may be just. (4)
pleading and concerning which there is no issue, nor should he be required to
make a second denial of those already denied in his answer to the complaint.
A request for admission is not intended to merely reproduce or reiterate the PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS (RULE 27)
allegations of the requesting party's pleading but should set forth relevant
evidentiary matters of fact, or documents described in and exhibited with the Section 1. Motion for production or inspection; order. — Upon motion of any party
request, whose purpose is to establish said party's cause of action or defense. It showing good cause therefor, the court in which an action is pending may (a)
is just a useless ceremony. (Briboneria v. Court of Appeals, G.R. No. 101682, 14 Dec. order any party to produce and permit the inspection and copying or
1992) photographing, by or on behalf of the moving party, of any designated documents,
papers, books, accounts, letters, photographs, objects or tangible things, not
Q: If the request is addressed to the lawyer of the adverse party and the privileged, which constitute or contain evidence material to any matter involved
latter did not answer the request, would it have the effect of admitting the in the action and which are in his or her possession, custody or control; or (b)
matters subject of the request? order any party to permit entry upon designated land or other property in his or
her possession or control for the purpose of inspecting, measuring, surveying, or
A: NO. The rule is very specific. The request should be addressed to a party and photographing the property or any designated relevant object or operation
NOT to a lawyer. thereon. The order shall specify the time, place and manner of making the
inspection and taking copies and photographs, and may prescribe such terms and
The SC held that request for admission must be served directly upon the party conditions as are just.
requested. Otherwise, that party cannot be deemed to have admitted the
genuineness of any relevant matters of the fact set forth therein on account of the Motion for production or inspection
failure to answer the request for admission. (Lañada v. Court of Appeals, G.R. No.
102390, 1 Feb. 2002) Upon motion of any party showing good cause therefor, the court in which an
action is pending may:
It is thus unfair and unreasonable for private respondents to expect the
petitioners to answer the requests for admission that they in fact did not (a) Order any party to produce and permit the inspection and copying or
personally receive. Private respondents’ failure to serve copies of the request for photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or Q: When may this mode of discovery be availed of?
tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his or A: A motion for production of documents may be availed of even beyond the pre-
her possession, custody or control; or trial stage, but before judgment is rendered by the trial court, upon showing of
good cause as required under Rule 27. (CIR v. SMC, G.R. No. 205045 & 205723, 25
(b) Order any party to permit entry upon designated land or other Jan. 2017)
property in his or her possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or any JGG: Even beyond pre-trial or during trial, you can still file a motion.
designated relevant object or operation thereon. The order shall specify
the time, place and manner of making the inspection and taking copies
and photographs, and may prescribe such terms and conditions as are HOWEVER: Under the new Rules, you have to attach or state already all your
just. (Sec. 1, Rule 27) evidence in your motion. If you file this motion after pre-trial or during the
presentation of evidence, it may be objected to on the ground that it should have
been mentioned already as one of your reserved evidence during pre-trial.
Q: The cause of action is based on an actionable document. Can you file a
motion for production or inspection of such document?
Note that CIR v. SMC, supra was decided prior to the new Rules. Thus, JGG thinks
that if a similar issue would be handled currently, a motion for inspection may no
A: YES. The basis is Sec. 1 of Rule 27. longer be filed during trial or before judgment.
Q: If the action is one of recovery of possession of real property, can you file Rule 27 v. Subpoena Duces Tecum
a motion for an ocular inspection?
RULE 27 SUBPOENA DUCES TECUM
A: YES. That is allowed under Sec. 1 of Rule 27.
Requirement of good cause for production
There is a need to show good cause Good cause is not required in
Requisites: for production or inspection of subpoena duces tecum.
documents.
(a) The party must file a motion for the production or inspection of To whom directed
documents or things, showing good cause therefor; An order for production or inspection Subpoena duces tecum may be
of documents can only be directed to directed to a non-party.
(b) Notice of the motion must be served to all other parties of the case; a party.
When used
(c) The motion must designate the documents, papers, books, accounts, An order for production or inspection Subpoena duces tecum is a process
letters, photographs, objects or tangible things which the party wishes to of documents is a pre-trial device to used during trial proper.
be produced and inspected; obtain facts to prepare for trial.
(d) Such documents, etc. are not privileged;
Q: What is the concept of subpoena duces tecum?
(e) Such documents, etc. constitute or contain evidence material to any
matter involved in the action; and A: When we request the issuance from the court of SDT, the court will issue a SDT
requiring the subject of the subpoena to produce documents or object evidence
(f) Such documents, etc. are in the possession, custody or control of the in court.
other party. (Security Bank v. Court of Appeals, G.R. No. 135874, 25 Jan.
2000)

It may also require him or her to bring with him or her any books, documents, or Unfortunately, the CA concurred with the RTC’s inaction on the ground that “the
other things under his or her control, in which case it is called a subpoena duces Stock and Transfer Book is one of the corporate books which may be examined
tecum. (Sec. 1, Rule 21) only by a stockholder-of-record.”
Q: What is subpoena ad testificandum? The rules of discovery, including Section 1, Rule 27 of the Rules of Court governing
the production or inspection of any designated documents, papers, books,
A: It is an order issued by the court for a person to come to court and testify. accounts, letters, photographs, objects or tangible things not privileged, which
contain or constitute evidence material to any matter involved in the action and
Subpoena is a process directed to a person requiring him or her to attend and to which are in the other party’s possession, custody or control, are to be accorded
testify at the hearing or the trial of an action, or at any investigation conducted broad and liberal interpretation.
by competent authority, or for the taking of his or her deposition.
The STB would definitely be relevant and necessary for the purpose of
Case: Chan v. Chan ascertaining whether or not the petitioners’ subscriptions to the authorized and
unissued capital stock of Abra Valley had been duly registered. (Insigne v. Abra
Valley Colleges, G.R. No. 204089, 29 July 2015)
If sought to be examined is a record regarding the drug rehabilitation of a party,
then such matter cannot be the subject of an order for examination of documents
because it is a matter of privilege. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (RULE 28)
SC: To allow, however, the disclosure during discovery procedure of the hospital Section 1. When examination may be ordered. — In an action in which the mental
records—the results of tests that the physician ordered, the diagnosis of the or physical condition of a party is in controversy, the court in which the action is
patient’s illness, and the advice or treatment he gave him—would be to allow pending may in its discretion order him or her to submit to a physical or mental
access to evidence that is inadmissible without the patient’s consent. Physician examination by a physician.
memorializes all these information in the patient’s records. Disclosing them
would be the equivalent of compelling the physician to testify on privileged
matters he gained while dealing with the patient, without the latter’s prior When examination may be ordered
consent. (Chan v. Chan, G.R. No. 179786, 24 July 2013)
Q: When may an examination be ordered?
Case: Insigne vs. Abra Valley Colleges
A: In an action in which the mental or physical condition of a party is in
In a complaint for inspection of corporate books, the plaintiff can file for a motion controversy. (Sec. 1, Rule 28)
for production/inspection of documents to compel the defendant to produce the
stock-and-transfer book, even if the latter interpose the defense that plaintiff is not EXAMPLES:
a stockholder.
• Action for annulment of contract on the ground of insanity;
SC: Considering that Abra Valley’s STB was not in the possession of the • Petition for guardianship of a person alleged to be insane;
petitioners, or at their disposal, they could not be reasonably expected or justly • Action to recover damages for personal injury where the issue is the
compelled to prove that their stock subscriptions and purchases were recorded extent of the injuries of the plaintiff.
therein. This, more than any other, was precisely why they filed their Motion for
Production/Inspection of Documents to compel the respondents to produce the NOTE: It’s not the witness or any person, it is directed to a PARTY.
STB, but the RTC did not act on the motion.

Section 2. Order for examination. — The order for examination may be made only Q: What is the effect if the party examined requests and obtains a report of
on motion for good cause shown and upon notice to the party to be examined and the examination so ordered or take the deposition of the examiner?
to all other parties, and shall specify the time, place, manner, conditions and
scope of the examination and the person or persons by whom it is to be made. (2) A: By requesting and obtaining a report of the examination so ordered or by
taking the deposition of the examiner, the party examined waives any privilege he
Order for examination or she may have in that action or any other involving the same controversy,
regarding the testimony of every other person who has examined or may
thereafter examine him or her in respect of the same mental or physical
Q: How is this mode of discovery done? examination. (Sec. 4, Rule 28)
A: JGG: You have to relate Sec. 4 with Sec. 24 of Rule 130, specifically par. (c), viz.:
(1) The requesting party shall file a motion in court requesting the physical Section 24. Disqualification by reason of privileged communications. - The
or mental examination of a party; following persons cannot testify as to matters learned in confidence in the
(2) The party to be examined and other parties must be notified; following cases: x x x
(3) The motion shall specify the time, place, manner, conditions and scope
of examination and the person to whom it is to be made;
(4) The motion must show good cause for examination. (Sec. 2, Rule 28) (c) A physician, psychotherapist or person reasonably believed by the patient to
be authorized to practice medicine or psychotherapy cannot in a civil case,
without the consent of the patient, be examined as to any confidential
Q: What is the effect if the party refused to be examined? communication made for the purpose of diagnosis or treatment of the patient's
physical, mental or emotional condition, including alcohol or drug addiction,
A: The requesting party may request the Court to issue an order (i.e. motion) between the patient and his or her physician or psychotherapist. This privilege
that the designated facts subject of the request shall be deemed established. (Sec. also applies to persons, including members of the patient's family, who have
3(a), Rule 29) participated in the diagnosis or treatment of the patient under the direction of
the physician or psychotherapist. x x x
BUT: The party sought to be examined cannot be arrested, even if he refused the
follow the order of the court. (Sec. 3(d), Rule 29) This is the doctor-patient privilege. If you move for examination, either a doctor
or a psychiatrist examines the patient. You will then call the doctor/psychiatrist
Q: Can the requesting party file a motion to declare the party sought to be to testify.
examined in contempt and for him to be arrested to compel examination?
If Sec. 4, Rule 28 does not exist, then objection may be made to the calling of the
A: NO. D/P to testify because of the doctor-patient privilege. This would render useless
the motion to examine, because it would not be the subject of testimony. Thus,
Section 4. Waiver of privilege. — By requesting and obtaining a report of the the necessity of the waiver of the privilege.
examination so ordered or by taking the deposition of the examiner, the party
examined waives any privilege he or she may have in that action or any other NOTE: This is an IMPOSED waiver of privilege.
involving the same controversy, regarding the testimony of every other person
who has examined or may thereafter examine him or her in respect of the same Section 3. Report of findings. — If requested by the party examined, the party
mental or physical examination. causing the examination to be made shall deliver to him or her a copy of a detailed
written report of the examining physician setting out his or her findings and
Waiver of privilege conclusions. After such request and delivery, the party causing the examination
to be made shall be entitled upon request to receive from the party examined a
like report of any examination, previously or thereafter made, of the same mental A: The proponent may thereafter apply to the proper court of the place where the
or physical condition. If the party examined refuses to deliver such report, the deposition is being taken, for an order to compel an answer. The same procedure
court on motion and notice may make an order requiring delivery on such terms may be availed of when a party or a witness refuses to answer any interrogatory
as are just, and if a physician fails or refuses to make such a report the court may submitted under Rules 23 or 25. (Sec. 1, Rule 29)
exclude his or her testimony if offered at the trial.
NOTE: This is applicable in taking of depositions under Rules 23 and 25.
Q: What if the party examined refused to deliver the report or the physician
fails to make such report, what is the remedy of the requesting party? JGG: This applies to a situation where the deponent refused to answer OR refused
to appear. Your remedy is to request for the issuance of a subpoena under Rule
A: If the party examined refuses to deliver such report, the court on motion and 21.
notice may make an order requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report the court may exclude his or her Q: Where are you going to request for the issuance of the subpoena?
testimony if offered at the trial. (Sec. 3e, Rule 28)
A: With the court in the place where the deposition is being conducted.
REFUSAL TO COMPLY WITH MODES OF DISCOVERY (RULE 29)
Section 3. Other consequences. — If any party or an officer or managing agent of
a party refuses to obey an order made under Section 1 of this Rule requiring
Section 1. Refusal to answer. — If a party or other deponent refuses to answer
him or her to answer designated questions, or an order under Rule 27 to produce
any question upon oral examination, the examination may be completed on other
any document or other thing for inspection, copying, or photographing or to
matters or adjourned as the proponent of the question may prefer. The
permit it to be done, or to permit entry upon land or other property, or an order
proponent may thereafter apply to the proper court of the place where the
made under Rule 28 requiring him or her to submit to a physical or mental
deposition is being taken, for an order to compel an answer. The same procedure
examination, the court may make such orders in regard to the refusal as are just,
may be availed of when a party or a witness refuses to answer any interrogatory
and among others the following:
submitted under Rules 23 or 25.
(a) An order that the matters regarding which the questions were asked, or the
If the application is granted, the court shall require the refusing party or character or description of the thing or land, or the contents of the paper, or the
deponent to answer the question or interrogatory and if it also finds that the
physical or mental condition of the party, or any other designated facts shall be
refusal to answer was without substantial justification, it may require the
taken to be established for the purposes of the action in accordance with the claim
refusing party or deponent or the counsel advising the refusal, or both of them,
of the party obtaining the order;
to pay the proponent the amount of the reasonable expenses incurred in
obtaining the order, including attorney's fees.
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him or her from introducing in
If the application is denied and the court finds that it was filed without substantial
evidence designated documents or things or items of testimony, or from
justification, the court may require the proponent or the counsel advising the
introducing evidence of physical or mental condition;
filing of the application, or both of them, to pay to the refusing party or deponent
the amount of the reasonable expenses incurred in opposing the application,
including attorney's fees. (1a) (c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgment by default against the disobedient
Refusal to answer party; and
Q: What is the result if there is refusal to comply with the modes of

discovery?
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing proceeding or any part thereof, or rendering a judgment by default
the arrest of any party or agent of a party for disobeying any of such orders except against the disobedient party; (Sec 3(c), Rule 29)
an order to submit to a physical or mental examination. (3a)
NOTE: This remedy is available in case of failure of the party to attend in
Other consequences deposition taking or failed to serve answers to written interrogatories
under Rule 25. (Sec. 5, Rule 29)
Other consequences of refusal to answer questions during deposition, or order of JGG: Recall that the common connotation of default is that the other
documents or things under Rule 27 or refused to submit himself for examination party failed to file an answer. However, there are other reasons for a
under Rule 28; a party may ask from the court the following: party to be declared in default, such as failure to comply with the modes
of discovery.
• An order that the matters regarding which the questions were asked, or
the character or description of the thing or land, or the contents of the If it is the defendant who failed to comply with the modes of discovery,
paper, or the physical or mental condition of the party, or any other you can declare the defendant in default. If it is the plaintiff who failed to
designated facts shall be taken to be established for the purposes of the comply with the order of the modes of discovery, then you can move for
action in accordance with the claim of the party obtaining the order; (Sec. the dismissal of the complaint, not only on the basis of Sec. 3, Rule 27,
3(a), Rule 29) but also pursuant to Sec. 3, Rule 17 (i.e. failure to follow the order of the
court).
EXAMPLE: Refusal to be examined by the physician. You file an order,
but the order for examination was not complied with. You need to file a • In lieu of any of the foregoing orders or in addition thereto, an order
motion with the court where the court is pending for the court to issue directing the arrest of any party or agent of a party for disobeying any of
an order that your claim will be established as a fact. such orders except an order to submit to a physical or mental
examination. (Sec. 3(d), Rule 29)
EXAMPLE(2): You believe your signature was forged in a document.
There was an order from the court to allow inspection of the document.
This was refused. File a motion with the court for an order that your Section 2. Contempt of court. — If a party or other witness refuses to be sworn or
claim (i.e. that your signature was forged) is considered established. refuses to answer any question after being directed to do so by the court of the
place in which the deposition is being taken, the refusal may be considered a
contempt of that court. (2a)
• An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him or her from
introducing in evidence designated documents or things or items of Section 4. Expenses on refusal to admit. — If a party after being served with a
testimony, or from introducing evidence of physical or mental condition; request under Rule 26 to admit the genuineness of any document or the truth of
(Sec. 3(b), Rule 29) any matter of fact, serves a sworn denial thereof and if the party requesting the
admissions thereafter proves the genuineness of such document or the truth of
JGG: If there is refusal, you can file a motion in court for the court to issue any such matter of fact, he or she may apply to the court for an order requiring
an order that if this evidence which you requested to be produced is the other party to pay him or her the reasonable expenses incurred in making
produced as evidence, it should be excluded. such proof, including reasonable attorney's fees. Unless the court finds that there
were good reasons for the denial or that admissions sought were of no substantial
EXAMPLE: If this doctor will be produced in evidence to prove the importance, such order shall be issued.
insanity of a party, it should be excluded because there was refusal to
comply with the order of modes of discovery. Section 5. Failure of party to attend or serve answers. — If a party or an officer or
managing agent of a party wilfully fails to appear before the officer who is to take
• An order striking out pleadings or parts thereof, or staying further his or her deposition, after being served with a proper notice, or fails to serve
proceedings until the order is obeyed, or dismissing the action or answers to interrogatories submitted under Rule 25 after proper service of such
interrogatories, the court on motion and notice, may strike out all or any part of the presentation of evidence shall be terminated within a period of six (6) months
any pleading of that party, or dismiss the action or proceeding or any part thereof, or one hundred eighty (180) calendar days.
or enter a judgment by default against that party, and in its discretion, order
him or her to pay reasonable expenses incurred by the other, including attorney's (c) The court shall decide and serve copies of its decision to the parties within a
fees. period not exceeding ninety (90) calendar days from the submission of the case
for resolution, with or without memoranda.
Section 6. Expenses against the Republic of the Philippines. — Expenses and
attorney's fees are not to be imposed upon the Republic of the Philippines under Section 6. Oral offer of exhibits. — The offer of evidence, the comment or
this Rule. (6) objection thereto, and the court ruling shall be made orally in accordance with
Sections 35 to 40 of Rule 132. (n)
TRIAL (RULE 30)
Schedule of Trial
Section 1. Schedule of trial. — The parties shall strictly observe the scheduled JGG: The 2019 Amendments on the Rules of Civil Procedure adopted the
hearings as agreed upon and set forth in the pre-trial order. continuous trial system in criminal cases.
(a) The schedule of the trial dates, for both plaintiff and defendant, shall be The parties shall strictly observe the scheduled hearings as agreed upon and set
continuous and within the following periods:
forth in the pre-trial order. (Sec. 1, Rule 30)
i. The initial presentation of plaintiff’s evidence shall be set not later than thirty
JGG: After pre-trial, the court will issue an order (pre-trial order), which contains,
(30) calendar days after the termination of the pre-trial conference. Plaintiff shall
among others, the dates wherein the parties will present their testimonial
be allowed to present its evidence within a period of three (3) months or ninety evidence. The date within which the witnesses will testify are indicated in the
(90) calendar days which shall include the date of the judicial dispute resolution, pre-trial order.
if necessary;
The schedule of the trial dates for both plaintiff and defendant shall be
ii. The initial presentation of defendant's evidence shall be set not later than thirty
continuous.
(30) calendar days after the court's ruling on plaintiffs formal offer of evidence.
The defendant shall be allowed to present its evidence within a period of three
(3) months or ninety (90) calendar days; Schedule of presentation of evidence
iii. The period for the presentation of evidence on the third (fourth, etc.)-party The initial presentation of plaintiff’s evidence shall be set not later than thirty
claim, counterclaim or cross-claim shall be determined by the court, the total of (30) calendar days after the termination of the pre-trial conference. (Sec. 1(a)(i),
which shall in no case exceed ninety (90) calendar days; and Rule 30)
iv. If deemed necessary, the court shall set the presentation of the parties' NOTE: After the pre-trial conference, trial will not immediately commence,
respective rebuttal evidence, which shall be completed within a period of thirty because the parties will be referred court-annexed mediation (CAM). After pre-
(30) calendar days. trial and, after issues are joined, the court shall refer the parties for mandatory
court-annexed mediation. (Sec. 8, Rule 18)
(b) The trial dates may be shortened depending on the number of witnesses to be
presented, provided that the presentation of evidence of all parties shall be Q: Who conducts CAM?
terminated within a period often (10) months or three hundred (300) calendar
days. If there are no third (fourth, etc.)-party claim, counterclaim or cross-claim, A: It is the Philippine Mediation Center (PMC).
The period for court-annexed mediation shall not exceed thirty (30) calendar The defendant shall be allowed to present its evidence within a period of three
days without further extension. (3) months or ninety (90) calendar days. (Sec. 1(a)(ii), Rule 30)
If, after CAM, nothing happens, the case will be brought back to court. The judge Under the new rule, the formal offer of evidence should be done orally. Under the
will decide whether to conduct JDR, which is not anymore mandatory. Only if the old rule, it may be done in writing.
judge of the court to which the case was originally raffled is convinced that
settlement is still possible, the case may be referred to another court for judicial The offer of evidence, the comment or objection thereto, and the court ruling shall
dispute resolution. The judicial dispute resolution shall be conducted within a be made orally in accordance with Sections 35 to 40 of Rule 132. (Sec. 6, Rule 30)
non-extendible period of fifteen (15) calendar days from notice of failure of the
court-annexed mediation. (Sec. 9, Rule 18) JGG: The comment should also be done orally, and the ruling of the court should
be done orally.
JGG: If you analyze Sec. 1(a)(i) of Rule 30 that the initial presentation of plaintiff’s
evidence shall be set not later than thirty (30) calendar days after the termination EXAMPLE: During trial, the plaintiff was able to present his last witness. The
of the pre-trial conference, it might be confusing. plaintiff’s counsel will manifest “Your honor, we no more witnesses to present.”
The court will then direct the parties to formally offer their documentary and
After pre-trial conference, you will not proceed immediately to trial but will be object evidence. The plaintiff would then formally offer its object or documentary
referred to the PMC for CAM, which will take at most 30 days. Thereafter, if the evidence. Comment should also be oral, and the ruling of the court on whether to
court decides that the parties should undergo JDR, then another 15 days will be admit or not to admit the evidence should also be done orally.
devoted thereto.
Q: When will the defendant’s presentation of evidence be set?
NOTE: CAM and JDR are part of the pre-trial.
A: The initial presentation of defendant's evidence shall be set not later than
Q: From when are we going to count the thirty (30) calendar days after the thirty (30) calendar days after the court's ruling on plaintiff’s formal offer of
termination of the pre-trial? evidence. (Sec. 1(a)(ii), Rule 30)
A: It should be thirty (30) calendar days from the termination of the CAM. JGG: Remember, the allowable period by which the defendant shall be allowed to
present its evidence within a period of three (3) months or ninety (90) calendar
Period for the plaintiff to present evidence days. (Sec. 1(a)(ii), Rule 30)
Plaintiff shall be allowed to present its evidence within a period of three (3) Period for the presentation of evidence on third-party claims, counterclaims or
months or ninety (90) calendar days which shall include the date of the judicial cross-claims
dispute resolution, if necessary. (Sec. 1(a)(i), Rule 30)
The period for the presentation of evidence on the third (fourth, etc.)-party claim,
JGG: This affirms that the counting of the thirty (30) days is from the termination counterclaim or cross-claim shall be determined by the court, the total of which
of the CAM with the PMC. shall in no case exceed ninety (90) calendar days. (Sec. 1(a)(iii), Rule 30)
Period for the defendant to present evidence Period of presentation of rebuttal evidence
The initial presentation of defendant's evidence shall be set not later than thirty If deemed necessary, the court shall set the presentation of the parties' respective
(30) calendar days after the court's ruling on plaintiff’s formal offer of rebuttal evidence, which shall be completed within a period of thirty (30)
evidence. calendar days. (Sec. 1(a)(iv), Rule 30)

Total period of presentation of evidence
The trial dates may be shortened depending on the number of witnesses to be

presented, provided that the presentation of evidence of all parties shall be
terminated within a period of ten (10) months or three hundred (300)
calendar days. (Sec. 1(b), Rule 30)
JGG: The parties must have terminated the presentation of their respective
evidence within a period of 300 calendar days.
Q: What is the expectation?

Section 2. Adjournments and postponements. — A court may adjourn a trial from
A: The goal is to terminate civil cases, at least the presentation of evidence, within day to day, and to any stated time, as the expeditious and convenient transaction
a period of 300 calendar days. of business may require, but shall have no power to adjourn a trial for a longer
period than one month for each adjournment, nor more than three months in all,
If there are no third (fourth, etc.)-party claim, counterclaim or cross-claim, the except when authorized in writing by the Court Administrator, Supreme Court.
presentation of evidence shall be terminated within a period of six (6) months or
one hundred eighty (180) calendar days. (Sec. 1(b), Rule 30) The party who caused the postponement is warned that the presentation of its
evidence must still be terminated on the remaining dates previously agreed upon.
Period for court to decide the case
Adjournments and postponements
The court shall decide and serve copies of its decision to the parties within a
period not exceeding ninety (90) calendar days from the submission of the case The 2019 amendment added the second paragraph to this section, viz.: The party
for resolution, with or without memoranda. (Sec. 1(c), Rule 30) who caused the postponement is warned that the presentation of its evidence
must still be terminated on the remaining dates previously agreed upon.
JGG: The court must decide AND serve the copy of its decision within the same
period. JGG: While the court will allow you to have your case postponed, you will NOT be
given additional days for the presentation of your evidence.
Under the old rules, it merely stated that the court must decide within 90 days. In
the new rules, the court is also required to serve copies of its decision to the EXAMPLE: You were allotted four (4) trial dates. You secured a postponement
parties. This is to prevent antedating. for one of the dates. You now only have three (3) trial dates and will have to
terminate the presentation of your evidence during such period allotted to you in
the pre-trial brief.
Section 3. Requisites of motion to postpone trial for illness of party or counsel. —

A motion to postpone a trial on the ground of illness of a party or counsel may be
granted if it appears upon affidavit or sworn certification that the presence of
such party or counsel at the trial is indispensable and that the character of his or
her illness is such as to render his or her non-attendance excusable. (4)

Section 4. Hearing days and calendar call. — Trial shall be held from Monday to
Thursday, and courts shall call the cases at exactly 8:30 a.m. and 2:00 p.m..
pursuant to Administrative Circular No. 3-99. Hearing on motions shall be held
on Fridays, pursuant to Section 8, Rule 15.
All courts shall ensure the posting of their court calendars outside their
courtrooms at least one (1) day before the scheduled hearings, pursuant to OCA
Circular No. 250-2015. (n)
Section 5. Order of trial. — Subject to the provisions of Section 2 of Rule 31, and
unless the court for special reasons otherwise directs, the trial shall be limited to
Section 7. Agreed statement of facts. — The parties to any action may agree, in
the issues stated in the pre-trial order and shall proceed as follows:
writing, upon the facts involved in the litigation, and submit the case for judgment
on the facts agreed upon, without the introduction of evidence.
(a) The plaintiff shall adduce evidence in support of his or her complaint;
If the parties agree only on some of the facts in issue, the trial shall be held as to
(b) The defendant shall then adduce evidence in support of his or her defense, the disputed facts in such order as the court shall prescribe. (6)
counterclaim, cross-claim and third-party complaint;
Section 8. Suspension of actions. — The suspension of actions shall be governed
(c) The third-party defendant, if any, shall adduce evidence of his or her defense, by the provisions of the Civil Code and other laws.
counterclaim, cross-claim and fourth-party complaint;
Section 9. Judge to receive evidence; delegation to clerk of court. — The judge of
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material the court where the case is pending shall personally receive the evidence to be
facts pleaded by them; adduced by the parties. However, in default or ex parte hearings, and in any case
where the parties agree in writing, the court may delegate the reception of
(e) The parties against whom any counterclaim or cross-claim has been pleaded, evidence to its clerk of court who is a member of the bar. The clerk of court shall
shall adduce evidence in support of their defense, in the order to be prescribed have no power to rule on objections to any question or to the admission of
by the court; exhibits, which objections shall be resolved by the court upon submission of
his or her report and the transcripts within ten (10) calendar days from
(f) The parties may then respectively adduce rebutting evidence only, unless the termination of the hearing.
court, for good reasons and in the furtherance of justice, permits them to adduce
evidence upon their original case; and
CONSOLIDATION OR SEVERANCE (RULE 31)
(g) Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective Section 1. Consolidation. — When actions involving a common question of law or
memoranda or any further pleadings. fact are pending before the court, it may order a joint hearing or trial of any or all
the matters in issue in the actions; it may order all the actions consolidated, and
If several defendants or third-party defendants, and so forth, having separate it may make such orders concerning proceedings therein as may tend to avoid
defenses appear by different counsel, the court shall determine the relative order unnecessary costs or delay. (1)
of presentation of their evidence.
Section 2. Separate trials. — The court, in furtherance of convenience or to avoid
Order of trial prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or
third-party complaint, or of any separate issue or of any number of claims, cross- However, if the mortgagor files an action for annulment of mortgage or
claims, counterclaims, third-party complaints or issues. annulment of foreclosure sale, this case may be consolidated with the petition for
writ of possession.
Consolidation or Severance
Q: May cases pending in different courts involving the same parties with
Consolidation the same issues be consolidated?
Q: When is consolidation proper? A: YES. Consolidation of cases is proper when the actions involve the same reliefs
or the same parties and basically the same issues, or when there is real need to
forestall the possibility of conflicting decisions being rendered in the cases,
A: When actions involving a common question of law or fact are pending before provided that the measure will not give one party an undue advantage over the
the court, it may order a joint hearing or trial of any oral the matters in issue in other or prejudice the substantial rights of any of the parties. (Bank of Commerce
the actions; it may order al the actions consolidated, and it may make such orders v. Perlas-Bernabe, G.R. No. 172393, 20 Oct. 2010)
concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(Sec. 1, Rule 31)
JGG: We are talking here of two cases in the same court but in different branches.
For example, in Muntinlupa, there are eight (8) branches. One case is pending in
JGG: Consolidation is proper only when there is a common question of law and one branch and another case involving the same parties and issues is pending in
fact. If there is no such common question of law and fact, despite the fact that the another branch. These cases may be consolidated, as in BOC v. Perlas-Bernabe,
two or more cases are between the same parties, consolidation will not be supra.
allowed.
Severance
Q: May an action and proceeding be consolidated?
Q: When may actions be severed?
A: YES. The technical difference between an action or a proceeding, involving the
same parties and subject matter, becomes insignificant and consolidation
becomes a logical conclusion in order to avoid confusion and unnecessary A: The court, in furtherance of convenience or to avoid prejudice, may order a
expenses with multiplicity of suits. (Active Wood Products v. Court of Appeals, G.R. separate trial of any claim, cross-claim, counterclaim, or third-party complaint,
No. 86603, 5 Feb. 1990) or of any separate issue or of any number of claims, cross-claims, counterclaims,
third-party complaints or issues. (Sec. 2, Rule 31)
In fact, ordinary civil action may be consolidated with writ of possession. (PSBank
v. Manalac, G.R. No. 145441, 26 Apr. 2005) JGG: A typical example of this is if the counterclaim is permissive. The court may
order that the permissive counterclaim be severed from the main action.
JGG: Writ of possession is actually an ex parte proceeding. However, based on the
ruling of the Supreme Court in PSBank v. Manalac, supra., the ordinary civil action DEMURRER TO EVIDENCE (RULE 33)
may be consolidated with (an action for) writ of possession.
Section 1. Demurrer to evidence. — After the plaintiff has completed the
EXAMPLE: X filed an action to annul REM, foreclosure sale and certificate of sale. presentation of his or her evidence, the defendant may move for dismissal on the
Under Act No. 135, when the mortgaged property is foreclosed and sold in public ground that upon the facts and the law the plaintiff has shown no right to relief.
auction, it is the right of the buyer in a public auction to file an action for a writ of If his or her motion is denied, he or she shall have the right to present evidence.
possession. If the motion is granted but on appeal the order of dismissal is reversed, he or
she shall be deemed to have waived the right to present evidence.

Demurrer to evidence Q: Can you file it again?
Q: When is the proper time to file Demurrer to Evidence? A: NO, because the dismissal is with prejudice.
A: After the plaintiff has completed the presentation of his evidence, the Q: What is the remedy if the demurrer is granted?
defendant may move for dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief. (Sec. 1, Rule 33) A: The remedy is appeal, because the dismissal is with prejudice.
JGG: The proper time to file DTE is after the termination of the presentation of JGG: As earlier discussed, lack of cause of action may also be a ground for
the plaintiff’s evidence. demurrer to evidence (i.e., that it was not shown that the plaintiff is entitled to
relief; because the elements of a cause of action were not present).
DTE is tantamount to or the same as motion to dismiss on the ground of lack of
cause of action. Note, that it is not failure to state a cause of action. Failure to state NOTE: An order dismissing the case on demurrer is a judgment on the merits.
a cause of action is a defect in the allegations in the complaint. Thus, it is imperative that it be a reasoned decision clearly and distinctly stating
therein the facts and the law on which it is based. (Nicos Industrial Corp. v. CA, G.R.
Lack of cause of action may be referring to insufficiency of evidence such that it No. 88709, 11 Feb. 1992)
was not established that the plaintiff is entitled to the relief that he is demanding.
Effect of Denial of Demurrer
Q: What is the effect if the motion is denied?
The defendant will present evidence.
A: If his or her motion is denied, he or she shall have the right to present evidence.
(Sec. 1, Rule 33) The denial of demurrer is, not a final order; it is an interlocutory order. (Katigbak
v. Sandiganbayan, G.R. No. 140183, 10 July 2003)
Q: How about if the motion is granted but reversed on appeal?
Effect of Grant of Demurrer
A: If the motion is granted but on appeal the order of dismissal is reversed, he or
she shall be deemed to have waived the right to present evidence. (Sec. 1, Rule 33) The case is dismissed.
Grounds for demurrer If the order is reversed in the appellate court, the defendant loses his right to
present evidence. (Sec. 1, Rule 33)
• On the ground that upon the facts and the law the plaintiff has shown no
right to relief. (Sec. 1, Rule 33) This is equivalent to insufficiency of It is not correct for the appellate court to remand the case for further
evidence. proceedings. The correct procedure is for the appellate court to render judgment
• Res judicata may also be used as a ground for demurrer. (Republic v. based on the pieces of evidence presented by the plaintiff. (Radiowealth Finance
Tuvera, G.R. No. 148246, 16 Feb. 2007) Corp. v. Del Rosario, G.R. No. 138739, 6 July 2000)
• Lack of cause of action is also a ground for demurrer. (Apostolic Vicar of
Tabuk v. Sison, G.R. No. 191132, January 27, 2016) Motion to dismiss v. Demurrer to evidence
JGG: If the DTE is granted, it will lead to the dismissal of the case, and the MOTION TO DISMISS DEMURRER TO EVIDENCE
dismissal is with prejudice. When made
Made before answer. Made after the plaintiff rests its case.
Grounds JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF (RULE 36)
There are several grounds. There is only one ground.
Effect of denial
Defendant may file answer. Defendant will present evidence. Judgment
Effect of grant
When granted, the complaint may be It is the final ruling by the court of competent jurisdiction regarding the rights or
refiled, except for grants on the May not be re-filed. The remedy is other matters submitted to it in an action or proceeding. (Macahilig v. Heirs of
ground of prescription, res judicata, appeal. Magalit)
or extinguishment of claim.
Judgment is the court’s official and final consideration and determination of the
Civil Demurrer v. Criminal Demurrer respective rights and obligations of the parties.
CIVIL CRIMINAL Q: How is judgment rendered?

Requirement of leave of court
Leave of court is not required. May be with or without leave of court. A: It is rendered by filing it with the clerk of court. (Sec. 1, Rule 36)
Appeal
If granted, the order is appealable. If granted, the order is not appealable. Therefore, it is not the signing of the decision that promulgates the judgment, it
Presentation of evidence is the filing with the clerk of court.
If denied, the accused may present
If denied, the defendant may present
evidence if he filed it with leave of JGG: The clerk of court will then send the decision to the parties.
evidence.
court.
Motu proprio dismissal If the judge has signed the decision already, but he has not yet handed it to the
The court may dismiss the case motu clerk of court, that is not yet promulgated. It is NOT the signing of the decision
It cannot be granted motu proprio.
proprio. that promulgates the judgment, but the filing of the judgment with the clerk of
court.
Section 2. Action on demurrer to evidence. — A demurrer to evidence shall be
subject to the provisions of Rule 15. Thus, the mere pronouncement of the judgment in open court with the
stenographer taking note thereof does not, therefore, constitute a rendition of the
The order denying the demurrer to evidence shall not be subject of an appeal or judgment. It is the filing of the signed decision with the clerk of court that
petition for certiorari, prohibition or mandamus before judgment. (n) constitutes rendition. (Maria v. Ubay, A.M. No. 595-CFI, 11 Dec. 1978)
EXAMPLE: If the judge announces the judgment, it is not yet considered filed and
Action on demurrer to evidence such announcement is not the reckoning point for the period to appeal.
Q: May petition for certiorari be filed if the demurrer to evidence is denied? Q: What is the constitutional requirement for a judgment?
A: NO. The order denying the demurrer to evidence shall not be subject of an A: No decision shall be rendered by any court without expressing therein clearly
appeal or petition for certiorari, prohibition or mandamus before judgment. (Sec. and distinctly the facts and law on which it is based.
2, Rule 33)
No petition for review or motion for reconsideration of a decision of the court
JGG: If your demurrer is denied, just go on with the presentation of the shall be denied without stating the legal basis therefor. (Sec. 14, Art. VIII, 1987
defendant’s evidence. Const.)
NOTE: Under Administrative Law, Sec. 14 of Art. VIII does NOT apply to quasi- Technically, this is allowed but you would not see appellate courts doing this
judicial bodies. It applies only to decisions of the court. anymore.
Requisites of a valid judgment Requirement for validity of memorandum decision
• Court must have jurisdiction over the case; A memorandum decision, to be valid, cannot incorporate the findings of fact and
• Court must have jurisdiction over the parties and subject matter; conclusions of law of the lower court only by remote reference, which is to say
• Parties must be given an opportunity to adduce evidence in their behalf; that the challenged decision is not easily and immediately available to the person
• Evidence must have been considered; reading the memorandum decision.
• In writing personally and directly prepared by the judge, stating clearly
and distinctly the facts and the law on which it is based, signed by him. For incorporation by reference to be allowed, it must provide for direct access to
the facts and the law being adopted, which must be contained in a statement
NOTE: Absence of one of these, especially the first two, would render the attached to said decision.
judgment void.
JGG: You cannot just refer the findings of fact and law of the lower court. The
Section 1. Rendition of judgments and final orders. — A judgment or final order decision itself and the decision appealed from which was incorporated by
reference by the appellate court must be proximate to each other. This is so that
determining the merits of the case shall be in writing personally and directly
it would be easy to see what the appellate court is adopting.
prepared by the judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the clerk of the court. (1a)
Factors that do not affect the validity of the judgment in relation to the judge who
rendered the judgment
Rendition of judgments and final orders
• Judgment may be penned by a judge though he did not hear the case.
Memorandum decision (Sandoval Shipyards, Inc. v. PMMA, G.R. No. 188633, 10 Apr. 2013)
Q: What is a memorandum decision? EXAMPLE: When JGG assumed office as RTC judge of Muntinlupa, there
were pending cases for decision. JGG was not the one who heard the
A: It is one rendered by the appellate court and incorporates by reference the testimonies of the witnesses. JGG can still decide the cases.
findings of fact and conclusion of law contained in the decision or order under
review. • Judgment may still be penned by a judge who was laterally transferred
to another station. (Valentin v. Sta. Maria; Marchdesh v. Vda. De Yepes)
It is allowed by Sec. 40 of B.P. Blg. 129, viz.: Every decision of final resolution of a
court in appealed cases shall clearly and distinctly state the findings of fact and EXAMPLE: When JGG was transferred from RTC Bataan to RTC
the conclusions of law on which it is based, which may be contained in the Muntinlupa, there were cases that were already submitted for decision
decision or final resolution itself, or adopted by reference from those set forth at the time of his transfer. JGG was still writing the decision when he was
in the decision, order, or resolution appealed from. transferred because it was submitted for decision at the time that he was
still incumbent RTC judge. This is valid.
JGG: When we talk of memorandum decision, we are talking of a decision of an
appellate court. It may be that of the RTC in the exercise of its appellate BUT: Judgment penned by a Judge who is retired cannot be validly promulgated.
jurisdiction or the CA exercising appellate jurisdiction. (Nazareno v. Court of Appeals)

JGG: The retired judge who pens a judgment after his retirement would not be was predicated continue to be the facts before the court. (RCPI v. CA; Mercury
valid because at such time, he has no more authority. Group of Companies v. HDMF; Yap v. Siao)
How to resolve the conflict between the body and the dispositive portion JGG: The doctrine applies when a particular issue in the case is elevated to the
higher court for resolution and the higher court resolved this issue and the
GR: The dispositive portion of the decision shall prevail. decision of the higher court became final and executory. Insofar as the parties are
concerned that is the law of the case between the parties.
JGG: This is because the dispositive portion IS the judgment. The body is the ratio
decidendi. What is to be executed is the dispositive portion. EXAMPLE: The PF filed a complaint in the RTC against the defendant. The DF filed
a MTD on the ground of res judicata. The DF can file a MTD on such ground. The
BUT: lf the inevitable conclusion from the body of the decision is so clear that court denied the MTD. The DF filed an MR. There is no prohibition to do so. The
there was a mere mistake in the dispositive portion, the body of the decision shall court similarly denied the same.
prevail. (So v. Food Fest Land, Inc.; People v. Cilot, GR No. 208410, 19 Oct. 2016)
The DF filed a petition for certiorari before the CA. The CA ruled that there is no
EXAMPLE: The body of the decision states that the defendant is liable to the res judicata. Therefore, the ruling of the RTC on the MTD is correct. The judgment
plaintiff in the amount of P100,000. However, in the judgment, the dispositive of the CA became final and executory.
portion, the defendant is being ordered to pay the plaintiff P100 million. The
P100 million will not be executed. The court rendered judgment in favor of the plaintiff. One of the assignment of
errors is that the court erred in not dismissing the case on the ground of res
Judgment upon compromise judicata.
Q: What is a judgment upon compromise? Q: Will the appellate court still resolve that issue of res judicata?
A: This is a judgment rendered by the court on the basis of the a compromise A: NO. That is already the law of the case between or among the parties.
agreement entered between the parties to the action. (Diamond Builders
Conglomeration v. Country Bankers Corp.) JGG: Therefore, the application of the doctrine of the law of the case is when the
case is elevated to the appellate court for resolution and the decision of the higher
Once approved by the court, a judicial compromise is not appealable and it court became final or executory. Whether or not the decision of the higher court
thereby becomes immediately executory. (Domingo v. Court of Appeals) is correct or wrong – it does not matter. It will be the law of the case between the
contending parties.
JGG: You cannot appeal the judgment upon compromise. It is considered final and
executory upon the approval of the court. Execution shall ensue after the court Doctrine of immutability of judgment
promulgates the judgment upon compromise.
Q: What is the doctrine of immutability of judgment?
Doctrine of the law of the case
A: Under the doctrine of immutability of judgments, a judgment that has attained
Q: What is the doctrine of the law of the case? finality can no longer be disturbed. Thus, issues actually and directly resolved in
the former suit cannot again be raised in any future case between the same
parties. (Pinero v. NLRC; Borlongan v. Buenaventura)
A: Whatever is once irrevocably established as controlling legal rule or decision
between the same parties in the case continues to be the law of the case, whether
correct on general principles or not, so long as the fact on which such decision
The doctrine prohibits any alteration, modification, or correction of final and A: Because it will not affect the disposition, and the substance and the merits of
executory judgments as what remains to be done is the purely ministerial the case.
enforcement or execution of the judgment. (Tabalno v. Dingal, Sr., G.R. No. 191526,
5 Oct. 2015) Final order v. Interlocutory order
JGG: Whether right or wrong, so long as the one that entered the decision is a The first disposes of the subject matter in its entirety or terminates a particular
court of correct jurisdiction, there is jurisdiction over the parties, it cannot be proceeding or action, leaving nothing more to be done except to enforce by
changed. execution what the court has determined, but the latter does not completely
dispose of the case but leaves something else to be decided upon.
GR: Final and executory judgments are immutable and unalterable.
An interlocutory order deals with preliminary matters and the trial on the merits
XPNs: is yet to be held and the judgment rendered.
(1) Clerical errors; The test to ascertain whether or not an order or a judgment is interlocutory or
(2) Nunc pro tunc entries which cause no prejudice to any party; and final is: does the order or judgment leave something to be done in the trial court
(3) Void judgments. with respect to the merits of the case? If it does, the order or judgment is
interlocutory; otherwise, it is final. (Spouses Teves v. Integrated Credit & Corporate
NOTE: Void judgments cannot be ratified. Services, G.R. No. 216714, 4 Apr. 2018)
Judgment nunc pro tunc Q: Why do we have to distinguish between the two?
Q: What is a judgment nunc pro tunc? A: Because there are different remedies from either. The GR is that if it is an
interlocutory order, you cannot appeal the same. If you want to question the
A: The office of a judgment nunc pro tunc is to record some act of the court done same, the remedy is petition for certiorari.
at a former time which was not then carried into the record, and the power of a
court to make such entries is restricted to placing upon the record evidence of Meanwhile, final orders as a general rule are the ones subject to appeal. However,
judicial action which has been actually taken. It may be used to make the record NOT ALL final orders have appeal as the remedy. There are final orders whose
speak the truth, but not to make it speak what it did not speak but ought to have remedy is certiorari.
spoken. (Briones-Vasquez v. CA)
EXAMPLE: Sec. 1(g), Rule 41: An order dismissing an action without prejudice.
JGG: In judgments nunc pro tunc, you are moving or asking for the amendment of This is a final order. This is not appealable but the remedy is an appropriate civil
judgment. However, it will not affect the parties to the case. action under Rule 65.
EXAMPLE: The judgment states that the PF presented evidence of up to Exhibit JGG: If there is still something to be done after an order is issued, then that order
“X”. However, in reality, the PF presented evidence of up to Exhibit “Z”. This has is an interlocutory order. When there is nothing more to be done after the order
no effect on the substance of the judgment. Asking for this to be changed is has been issued, then that is a final order.
innocuous and would not affect the rights of the parties. You only want the
judgment to be a faithful compliance with the records of the case. EXAMPLE: When a MTD is granted, that is a final order because there is nothing
more to be done insofar is concerned.
Q: Why is this allowed?

When a MTD is denied, that is an interlocutory order because there is still juridical personality, the judgment shall set out their individual or proper names,
something to be done. if known. (6a)
Remedy in interlocutory order

JUDGMENT ON THE PLEADINGS (RULE 34)
The proper remedy to question an improvident interlocutory order is a petition
for certiorari under Rule 65, not Rule 45. Section 1. Judgment on the pleadings. — Where an answer fails to tender an
issue, or otherwise admits the material allegations of the adverse party's
A petition for review under Rule 45 is the proper mode of redress to question pleading, the court may; on motion of that party, direct judgment on such
only final judgments. (Silverio, Jr. v. Filipino Business Consultants) pleading. However, in actions for declaration of nullity or annulment of marriage
or for legal separation, the material facts alleged in the complaint shall always be
proved.
Section 2. Entry of judgments and final orders. — If no appeal or motion for new
trial or reconsideration is filed within the time provided in these Rules, the
judgment or final order shall forthwith be entered by the clerk in the book of Judgment on the Pleadings
entries of judgments. The date of finality of the judgment or final order shall be
deemed to be the date of its entry. The record shall contain the dispositive part of Q: When can you file a motion for judgment on the pleadings?
the judgment or final order and shall be signed by the clerk, within a certificate
that such judgment or final order has become final and executory. (2a, 10, R51) A: When –
Section 3. Judgment for or against one or more of several parties. — Judgment may (1) An answer fails to tender an issue; or
be given for or against one or more of several plaintiffs and for or against one or (2) Otherwise admits the material allegations of the adverse party’s
more of several defendants. When justice so demands, the court may require the pleading. (Sec. 1, Rule 34)
parties on each side to file adversary pleadings as between themselves and
determine their ultimate rights and obligations. (3) JGG: If all allegations of the PF are all admitted by the DF, there is no more need
to go to trial.
Section 4. Several judgments. — In an action against several defendants, the court
may, when a several judgment is proper, render judgment against one or more of Q: When do we say that an answer fails to tender an issue?
them, leaving the action to proceed against the others. (4)
A: If it does not comply with the requirements of specific denial under Secs. 8 and
Section 5. Separate judgments. — When more than one claim for relief is 10 of Rule 8, viz.:
presented in an action, the court, at any stage, upon a determination of the issues
material to a particular claim and all counterclaims arising out of the transaction
Section 8. How to contest such documents. — When an action or
or occurrence which is the subject matter of the claim, may render a separate
defense is founded upon a written instrument, copied in or
judgment disposing of such claim. The judgment shall terminate the action with
attached to the corresponding pleading as provided in the
respect to the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered the court by order may preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party,
stay its enforcement until the rendition of a subsequent judgment or judgments
under oath specifically denies them, and sets forth what he claims
and may prescribe such conditions as may be necessary to secure the benefit
to be the facts, but the requirement of an oath does not apply when
thereof to the party in whose favor the judgment is rendered. (5a)
the adverse party does not appear to be a party to the instrument
or when compliance with an order for an inspection of the original
Section 6. Judgment against entity without juridical personality. — When instrument is refused.
judgment is rendered against two or more persons sued as an entity without
Section 10. Specific denial. — A defendant must specify each indebtedness to B. A filed an answer denying the material allegation in B’s
material allegation of fact the truth of which he does not admit and, complaint in a general manner.
whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a defendant If you are B’s counsel, what will you do to protect the interest of your client,
desires to deny only a part of an averment, he shall specify so much B?
of it as is true and material and shall deny only the remainder.
Where a defendant is without knowledge or information sufficient A: I will file a motion for judgment on the pleadings. By not specifically denying
to form a belief as to the truth of a material averment made to the the material allegation in the complaint, A impliedly admitted the allegations in
complaint, he shall so state, and this shall have the effect of a denial. the complaint.
Manner of denying an allegation Material averments in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not specifically denied.
(Sec. 11, Rule 8)
Case: Comglasco Corp. v. Santos Car Check Center (G.R. No. 202989, 25 Mar
2015)
Petitioner entered into 5-year lease contract with respondent. Petitioner, after
one year, pre-terminated the contract. Respondent filed answer interposes the
defense of 1) rebus sic stantibus6 under Article 1267 of the civil code invoking the
Asian Financial crisis; 2) legal impossibility of performance under Article 1266.
JGG: The denial should ALWAYS be specific. General denial is not allowed. Because of these defenses, the respondent filed a motion for judgment on the
pleadings.
Effect of Defective Denial
Should the motion be granted?
Material averments in a pleading asserting a claim or claims, other than those as
to the amount of unliquidated damages, shall be deemed admitted when not A: YES. As there was no issue of fact, the Court should grant the motion. By
specifically denied. (Sec. 11, Rule 8) interposing such defenses, the defendant admitted the material allegation in
the complaint. Hence, judgment on the pleading may be availed.
Q: A is indebted to B in the amount of Php500,000.00 covered by a
Promissory Note (PN). The PN is due and demandable on March 1, 2017. On JGG: The defendant is not actually denying that there was pre-termination
March 1, 2017, A failed to pay his obligation. B sent a Demand Letter to A. because his defense was that he was justified in pre-terminating. That is an
Despite receipt of the same, A did not pay. B filed a complaint for sum of admission.
money against A. B attached to his complaint, the Promissory Note executed
by A, the demand letter, and a letter from A purportedly acknowledging his Section 2. Action on motion for judgment on the pleadings. — The court may motu
proprio or on motion render judgment on the pleadings if it is apparent that the
6 A change in relations of the parties that would relief the party of his obligation under the agreement.

answer fails to tender an issue, or otherwise admits the material allegations of BUT: The judgment on the pleading is a FINAL order and that is the one that is
the adverse party's pleadings. Otherwise, the motion shall be subject to the subject of appeal.
provisions of Rule 15 of these Rules.
NOTE: If the order of the court granting JOTP ALSO includes the judgment itself,
Any action of the court on a motion for judgment on the pleadings shall not be then that judgment is a final order and therefore may be subject to appeal.
subject of an appeal or petition for certiorari, prohibition or mandamus.
SUMMARY JUDGMENTS (RULE 35)
Action on motion for judgment on the pleadings
Section 1. Summary judgment for claimant. — A party seeking to recover upon a

The new Rules allows the court to motu proprio render judgment on the pleadings
claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any
if it is apparent that the answer fails to tender an issue, or otherwise admits the
time after the pleading in answer thereto has been served, move with supporting
material allegations of the adverse party’s pleadings.
affidavits, depositions or admissions for a summary judgment in his or her favor
upon all or any part thereof.
If it is by motion from the party, then the procedure in Rule 15 shall apply.
Section 2. Summary judgment for defending party. — A party against whom a
JGG: Sec. 2 of Rule 34 may be read in conjunction with Sec. 10 of Rule 18. The rule claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought
on pre-trial provides that the court may declare that it will render judgment on may, at any time, move with supporting affidavits, depositions or admissions for
the pleadings and if that happens, such declaration of the court will be indicated a summary judgment in his or her favor as to all or any part thereof.
in the pre-trial order.
Summary judgments
Under the old rule, the court cannot render JOTP without a motion from either
party. Under the new rule, the court may motu proprio render judgment on the
pleadings if it is apparent that the answer fails to tender an issue or otherwise Q: When may a motion for summary judgment be availed of?
admits the material allegations of the adverse party’s pleading.
A: It may be availed of when a responsive pleading has been filed, however, the
NOTE: Any action of the court on a motion for judgment on the pleadings shall same did not establish a genuine issue.
not be subject of an appeal or petition for certiorari, prohibition or mandamus.
What triggers a summary judgment is the absence of genuine issue of fact.
EXAMPLE: The PF filed a motion for JOTP. The motion is denied. The same is not
appealable. In the first place, it is not subject to appeal because it is an Q: In cases of summary judgment, does the answer conform with the rules
interlocutory order. on denial?
The PF also cannot file a petition for certiorari pursuant to Sec. 2 of Rule 34. A: YES. There is a specific denial, which gave rise to a factual issue. The only
problem is that the issue is not a genuine issue. There was an issue of fact but it
Q: Can you appeal the JOTP? was not genuine.
A: YES. An order DENYING the JOTP is an interlocutory order. Issues are joined
An order GRANTING JOTP is an interlocutory order. Issues are joined because the responsive pleading is filed. However, the
allegations in the responsive pleading do not establish a real and genuine factual

issue, because, for one, the issue tendered is sham, fictitious, and patently time after the pleading in answer thereto has been served, move with supporting
unsubstantial. affidavits, depositions or admissions for a summary judgment in his or her favor
upon all or any part thereof.
Q: A is indebted to B in the amount of Php500,000.00 covered by a
Promissory Note (PN). The PN is due and demandable on March 1, 2017. On Section 2. Summary judgment for defending party. — A party against whom a
March 1, 2017, A failed to pay his obligation. B sent a Demand Letter to A. claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought
Despite receipt of the same, A did not pay. B filed a complaint for sum of may, at any time, move with supporting affidavits, depositions or admissions for
money against A. B attached to his complaint, the Promissory Note executed a summary judgment in his or her favor as to all or any part thereof.
by A, and the demand letter. A denied the allegations in B’s Complaint. A
further alleged in his answer that B already condoned his debt. However, JGG: As such, both the PF and the DF may file a motion for summary judgment.
said allegation is totally false.
Section 3. Motion and proceedings thereon. — The motion shall cite the
What procedural action will you advice B to take to expedite the resolution supporting affidavits, depositions or admissions, and the specific law relied upon.
of the case? The adverse party may file a comment and serve opposing affidavits, depositions,
or admissions within a non-extendible period of five (5) calendar days from
A: I will file a motion for summary judgment because there is no genuine issue. receipt of the motion. Unless the court orders the conduct of a hearing, judgment
sought shall be rendered forthwith if the pleadings, supporting affidavits,
A "genuine issue" is an issue of fact which requires the presentation of evidence depositions and admissions on file, show that, except as to the amount of
as distinguished from a sham, fictitious, contrived or false claim. When the facts damages, there is no genuine issue as to any material fact and that the moving
as pleaded appear uncontested or undisputed, then there is no real or genuine party is entitled to judgment as a matter of law.
issue or question as to the facts, and summary judgment is called for. (Yap v. Siao,
G.R. No. 212493, 1 June 2016) Any action of the court on a motion for summary judgment shall not be subject of
an appeal or petition for certiorari, prohibition or mandamus.
JGG: If the factual circumstances are such that it is very easy to prove that the
defense of the defendant is completely false, then summary judgment may be Motion and proceedings thereon
proper.
JGG: In your motion, you are supposed to prove that there is no genuine issue. As
NOTE: The party who moves for summary judgment has the burden of such, when you file the same, you must attach affidavits of the witnesses that
demonstrating clearly the absence of any genuine issue of fact, or that the would establish that there is really no genuine issue.
issue posed in the complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. Trial courts have limited authority to
render summary judgments and may do so only when there is clearly no genuine Under the new rules, the judicial affidavits of the witnesses are already attached
issue as to any material fact. When the facts as pleaded by the parties are disputed to the pleading. Therefore, you can already analyze if there is indeed a genuine
or contested, proceedings for summary judgment cannot take the place of trial. issue. This is why in the pre-trial, the court can declare that it will render JOTP or
SJ.
JGG: Unless it is clear from the records that there are no genuine issues, summary
judgment is usually not granted. The new Rule specifies that the motion for summary judgment must be
accompanied by supporting affidavits, depositions or admissions, and the specific
law relied upon. (Sec. 3, Rule 35)
Who may file
Section 1. Summary judgment for claimant. — A party seeking to recover upon

a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any
The adverse party may file a comment and serve opposing affidavits, depositions, papers or parts thereof referred to in the affidavit shall be attached thereto or
or admissions within a non-extendible period of five (5) calendar days from served therewith.
receipt of the motion. (Sec. 3, Rule 35)
Section 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time
Hearing is optional on the court. that any of the affidavits presented pursuant to this Rule are presented in bad
faith, or solely for the purpose of delay, the court shall forthwith order the
NOTE: Any action of the court on a motion for summary judgment shall not be offending party or counsel to pay to the other party the amount of the reasonable
subject of appeal or petition for certiorari, prohibition or mandamus. (Sec. 3, Rule expenses which the filing of the affidavits caused him or her to incur, including
35) attorney's fees, it may, after hearing further adjudge the offending party or
counsel guilty of contempt.
JGG: Take note that you have to distinguish the ORDER granting or denying SJ
(interlocutory) from the judgment itself (final order). POST-JUDGMENT REMEDIES
JUDGMENT ON THE PLEADINGS SUMMARY JUDGMENT BEFORE JUDGMENT BECOMES

Existence of issue AFTER JUDGMENT BECAME FINAL
FINAL
There is absence of factual issue Answers tenders an issue, but the
because the answer tenders no issue. issue is not genuine. • Petition for relief from judgment
Who may file • Motion for New Trial • Annulment of judgment
Only the claiming party can file the The motion may be filed by the • Motion for Reconsideration • Certiorari
motion. claiming party or defending party. • Appeal
• Collateral attack
Basis
It is based on pleadings, affidavits,
It is based on pleadings alone.
depositions and admissions.
Notice required NEW TRIAL OR RECONSIDERATION (RULE 37)
Only three (3) day notice is required. Five (5) day notice is required.
Section 1. Grounds of and period for filing motion for new trial or reconsideration.
JGG: There is no more three-day JGG: There is no more five-day notice — Within the period for taking an appeal, the aggrieved party may move the trial
notice under the new rule. under the new rule. court to set aside the judgment or final order and grant a new trial for one or
more of the following causes materially affecting the substantial rights of said
Section 4. Case not fully adjudicated on motion. — If on motion under this Rule, party:
judgment is not rendered upon the whole case or for all the reliefs sought and a
trial is necessary, the court may, by examining the pleadings and the evidence (a) Fraud, accident, mistake or excusable negligence which ordinary prudence
before it and by interrogating counsel, ascertain what material facts exist without could not have guarded against and by reason of which such aggrieved party has
substantial controversy, including the extent to which the amount of damages or probably been impaired in his rights; or
other relief is not in controversy, and directing such further proceedings in the
action as are just. The facts so ascertained shall be deemed established, and the (b) Newly discovered evidence, which he could not, with reasonable diligence,
trial shall be conducted on the controverted facts accordingly. have discovered and produced at the trial, and which if presented would probably
alter the result.
Section 5. Form of affidavits and supporting papers. — Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would Within the same period, the aggrieved party may also move for reconsideration
be admissible in evidence, and shall show affirmatively that the affiant is upon the grounds that the damages awarded are excessive, that the evidence is
competent to testify to the matters stated therein. Certified true copies of all
insufficient to justify the decision or final order, or that the decision or final order The fraud referred to in Section I, Rule 37 is extrinsic fraud, that is, deception or
is contrary to law. (1a) trickery by which the aggrieved party was prevented from having his day in
court or presenting his case before the court. It should be distinguished from
New trial intrinsic fraud which involves the presentation of false or perjured testimony but
did not otherwise prevent the aggrieved party from presenting his case.
Grounds
EXAMPLES:
(a) Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such • When a party connived with the court personnel so that notices of trial
aggrieved party has probably been impaired in his rights; or dates were sent to the old address of the aggrieved party’s counsel
(b) Newly discovered evidence, which he could not, with reasonable although a notice of change of address was filed already.
diligence, have discovered, and produced at the trial, and which if • The aggrieved party’s lawyer betrays him and sells out his case to the
presented would probably alter the result. other side.
• The judge is bribed by the adverse party to render a decision in his favor.
When to file • Bribing the sheriff so that the notice of court hearing will not be served
to the party.
It is filed within a period for taking an appeal. (Sec. 1, Rule 37)
JGG: If you present a perjured document during the trial, that is intrinsic fraud
because it was done during the proceedings. Being intrinsic, that kind of fraud
Where appeal is by notice of appeal, within 15 days from notice of judgment or cannot be used as a ground for NT.
final order. (Sec. 2, Rule 40; Sec. 3, Rule 41)
Accident
Where record on appeal is required, within 30 days from notice of judgment or
order. (Sec. 2, Rule 40; Sec. 3, Rule 41)
Accident is similar to the concept of fortuitous event in civil law. It is something
which ordinary prudence on the part of party or counsel could not have guarded.
Record on appeal is allowable when a case is susceptible to multiple appeals.
Mistake
EXAMPLE: Settlement of estate proceedings. Appointment of administrator,
allowance of the will, appointment of special administrator are all susceptible to
If a party, because of a pending compromise agreement believed in good faith that
appeals.
it was not necessary for him to answer, appear at the trial and put up a defense,
there is a mistake which would constitute a sufficient ground for new trial.
In actions for partition, there are two phases – first, the determination of co- (Salazar v. Salazar)
ownership and the right to partition; and second, the partition itself. Both phases
are susceptible to appeal.
REMEMBER: The mistake we are referring here is not a mistake of law but a
mistake of fact.
In these cases, you don’t appeal by notice of appeal but by record on appeal.
An error or mistake committed by a counsel in the course of judicial
Discussion of grounds proceedings is not a ground for new trial.
Fraud FURTHER: It has been repeatedly enunciated that "a client is bound by the action
of his counsel in the conduct of a case and cannot be heard to complain that the

result might have been different if he proceeded differently. A client is bound by Motion for new trial, formalities
the mistakes of his lawyer. (Briones v. People, G.R. No. 156000, 5 June 2009)
A motion for the cause mentioned in paragraph (a) [FAME] of the preceding
XPN: An exception to the principle that a client is bound by the mistakes of his section shall be supported by:
counsel is one wherein the negligence of the latter is so gross that the former
was deprived of his day in court, as a result of which he is deprived of property (a) Affidavits of merits;
without due process of law. (Amil v. CA, G.R. No. 125271, 7 Oct. 1999)
JGG: This affidavit of merit must show FAME.
Newly discovered evidence, requisites
(b) Which may be rebutted by affidavits.
(a) Evidence must be discovered after trial;
(b) Such evidence could not have been produced during trial even with A motion for the cause mentioned in paragraph (b) [NEWLY DISCOVERED
exercise of reasonable diligence; EVIDENCE] shall be supported by:
(c) Evidence is material not merely cumulative, corroborative or
impeaching; (a) Affidavits of the witnesses by whom such evidence is expected to be
(d) The evidence would have changed the result of the case. (Ybiernas v. given; or by
Tanco-Gabaldon, G.R. No. 178925, 1 June 2011) (b) Duly authenticated documents which are proposed to be introduced in
evidence. (Sec. 2, Rule 37)
Section 2. Contents of motion for new trial or reconsideration and notice
thereof. — The motion shall be made in writing stating the ground or grounds Effect of filing on period to appeal
therefor, a written notice of which shall be served by the movant on the adverse
party. The filing of the motion for new trial interrupts the period to appeal.
A motion for new trial shall be proved in the manner provided for proof of Q: If the MNT is denied, can you file a motion for reconsideration on such
motion. A motion for the cause mentioned in paragraph (a) of the preceding denial?
section shall be supported by affidavits of merits which may be rebutted by
affidavits. A motion for the cause mentioned in paragraph (b) shall be supported A: NO.
by affidavits of the witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be introduced in
JGG: You are not anymore allowed to file a petition for certiorari on the decision
evidence.
of the court denying the MNT. Your remedy is to appeal.
A motion for reconsideration shall point out specifically the findings or
conclusions of the judgment or final order which are not supported by the Q: What is the remedy if the motion is denied?
evidence or which are contrary to law making express reference to the
testimonial or documentary evidence or to the provisions of law alleged to be A: Section 9. Remedy against order denying a motion for new trial or
contrary to such findings or conclusions. reconsideration. — An order denying a motion for new trial or reconsideration is
not appealable, the remedy being an appeal from the judgment or final order.
(Rule 37)
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (2a)
Fresh Period or Neypes Rule
Contents of motion for new trial or reconsideration and notice thereof

If the motion is denied, the movant has a “fresh period” of fifteen (15) days/ thirty Where record on appeal is required, within 30 days from notice of judgment or
(30) days from receipt of the notice of the order denying or dismissing the motion order. (Sec. 2, Rule 40; Sec. 3, Rule 41)
for reconsideration within which to file the notice of appeal.
Effect of filing on period to appeal
The “fresh period” rule applies not only in Rule 41 (RTC à CA), but also in:
The filing of the motion for reconsideration interrupts the period to appeal.
(a) Rule 40 (MTC à RTC);
(b) Rule 42 (Petrev, RTC à CA); Grounds for MR
(c) Rule 43 (Petrev, QJA à CA); and
(d) Rule 45 (RTC, CA à SC). (a) That the damages awarded are excessive;
(b) That the evidence is insufficient to justify the decision or final order; or
This was adopted to standardize the appeal period. (Neypes v. Court of Appeals, (c) That the decision or final order is contrary to law. (Sec. 1, Rule 37)
G.R. No. 141524, 14 Sept. 2005)
Contents of MR
Q: May motion for new trial be filed in the Court of Appeals?
A motion for reconsideration shall point out:
A: YES. Section 1. Period for filing; ground. — At any time after the appeal from
the lower court has been perfected and before the Court of Appeals loses (a) Specifically point out the findings or conclusions of the judgment or final
jurisdiction over the case, a party may file a motion for a new trial on the ground order which are not supported by the evidence or which are contrary to
of newly discovered evidence which could not have been discovered prior to law;
the trial in the court below by the exercise of due diligence and which is of such a (b) Making express reference to the testimonial or documentary evidence
character as would probably change the result. The motion shall be accompanied or to the provisions of law alleged to be contrary to such findings or
by affidavits showing the facts constituting the grounds therefor and the newly conclusions. (Sec. 2, Rule 37)
discovered evidence. (Rule 53)
Effect of failure to conform to formalities
JGG: If you file a MNT before the CA, there is only one ground – newly discovered
evidence.
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (Sec. 2, Rule 37)
Motion for Reconsideration
JGG: It will lead to the judgment being final and executory.
Within the same period, the aggrieved party may also move for reconsideration
upon the grounds that the damages awarded are excessive, that the evidence is
insufficient to justify the decision or final order, or that the decision or final order Q: What is the remedy if the motion is denied?
is contrary to law. (Sec. 1, Rule 37)
A: Section 9. Remedy against order denying a motion for new trial or
When to file reconsideration. — An order denying a motion for new trial or reconsideration is
not appealed, the remedy being an appeal from the judgment or final order. (Rule
37)
It is filed within a period for taking an appeal. (Sec. 1, Rule 37)
JGG: You are not allowed to file petition for certiorari on the order denying the
Where appeal is by notice of appeal, within 15 days from notice of judgment or MR.
final order. (Sec. 2, Rule 40; Sec. 3, Rule 41)

Fresh Period or Neypes Rule Section 7. Partial new trial or reconsideration. — If the grounds for a motion
under this Rule appear to the court to affect the issues as to only a part, or less
[See earlier discussion.] than an of the matter in controversy, or only one, or less than all, of the parties to
it, the court may order a new trial or grant reconsideration as to such issues if
When new trial/MR is not allowed severable without interfering with the judgment or final order upon the rest. (6a)
(a) Cases covered by Rules on Summary Procedure; Section 8. Effect of order for partial new trial. — When less than all of the issues
are ordered retried, the court may either enter a judgment or final order as to the
NOTE: MR is not allowed on the JUDGMENT in RSP. However, there is no rest, or stay the enforcement of such judgment or final order until after the new
prohibition against MRs in interlocutory orders. trial. (7a)
(b) Cases covered by the Rules on Small Claims; Section 9. Remedy against order denying a motion for new trial or reconsideration.
(c) In environmental cases, except in highly meritorious cases or to prevent — An order denying a motion for new trial or reconsideration is not appealed,
miscarriage of justice. the remedy being an appeal from the judgment or final order. (n)
Section 3. Action upon motion for new trial or reconsideration. — The trial court APPEAL
may set aside the judgment or final order and grant a new trial, upon such terms
as may be just, or may deny the motion. If the court finds that excessive damages
have been awarded or that the judgment or final order is contrary to the evidence
or law, it may amend such judgment or final order accordingly. (3a)
Section 4. Resolution of motion. — A motion for new trial or reconsideration shall

be resolved within thirty (30) days from the time it is submitted for resolution.
(n)
Section 5. Second motion for new trial. — A motion for new trial shall include all
grounds then available and those not so included shall be deemed waived. A REMEMBER: Not all final orders are appealable.
second motion for new trial, based on a ground not existing nor available when
the first motion was made, may be filed within the time herein provided Judgments or orders not appealable
excluding the time during which the first motion had been pending.
No appeal may be taken from:
No party shall be allowed a second motion for reconsideration of a judgment or
final order (4a, 4, IRG) (a) An order denying a petition for relief or any similar motion seeking relief
from judgment;
Section 6. Effect of granting of motion for new trial. — If a new trial is granted in (b) An interlocutory order;
accordance with the provisions of this Rules the original judgment or final order (c) An order disallowing or dismissing an appeal;
shall be vacated, and the action shall stand for trial de novo; but the recorded (d) An order denying a motion to set aside a judgment by consent,
evidence taken upon the former trial, insofar as the same is material and confession or compromise on the ground of fraud, mistake or duress, or
competent to establish the issues, shall be used at the new trial without retaking any other ground vitiating consent;
the same. (5a) (e) An order of execution;
(f) A judgment or final order for or against one or more of several parties or
in separate claims, counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless the court allows an APPEAL FROM MUNICIPAL TRIAL COURTS
appeal therefrom; and TO THE REGIONAL TRIAL COURTS (RULE 40)
(g) An order dismissing an action without prejudice. (Sec. 1, Rule 41)
REMEDY: In all the above instances where the judgment or final order is not Section 1. Where to appeal. — An appeal from a judgment or final order of a
appealable, the aggrieved party may file an appropriate special civil action under Municipal Trial Court may be taken to the Regional Trial Court exercising
Rule 65. (Sec. 1, Rule 41) jurisdiction over the area to which the former pertains. The title of the case shall
remain as it was in the court of origin, but the party appealing the case shall be
NOTE: As of December 27, 2007, an aggrieved party may no longer assail an order further referred to as the appellant and the adverse party as the appellee. (a)
denying a motion for new trial or motion for reconsideration by way of Rule 65,
as per A.M. No. 07-7-12-SC, such ground having been removed from the Section 2. When to appeal. — An appeal may be taken within fifteen (15) days
enumeration in Sec. 1 of Rule 41. The proper remedy is to appeal from the after notice to the appellant of the judgment or final order appealed from. Where
judgment pursuant to Sec. 9, Rule 37. a record on appeal is required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days after notice of the judgment or final
order.
The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
Where to appeal
An appeal from a judgment or final order of a Municipal Trial Court may be taken
to the Regional Trial Court exercising jurisdiction over the area to which the
former pertains. The title of the case shall remain as it was in the court of origin,
but the party appealing the case shall be further referred to as the appellant and
the adverse party as the appellee. (Sec. 1, Rule 40)
Rule 41 & 42: There are two kinds of decisions of the RTC which may be subject When to appeal
to appeal – decisions rendered in its original jurisdiction (appeal to CA via Rule
41) and decisions in the exercise of its appellate jurisdiction (appeal to CA via An appeal may be taken within fifteen (15) days after notice to the appellant of
Rule 42: Petition for Review). the judgment or final order appealed from. Where a record on appeal is required,
the appellant shall file a notice of appeal and a record on appeal within thirty (30)
Rule 43: There are two powers that an administrative body may exercise – quasi- days after notice of the judgment or final order. (Sec. 2, Rule 40)
legislative and quasi-judicial. The mode of review for the exercise of quasi-
legislative power is NOT Rule 43, which is applicable only for quasi-judicial Section 3. How to appeal. — The appeal is taken by filing a notice of appeal with
powers. the court that rendered the judgment or final order appealed from. The notice of
appeal shall indicate the parties to the appeal, the judgment or final order or part
Rule 45: Appeal of the decision of the RTC or CA to the Supreme Court through thereof appealed from, and state the material dates showing the timeliness of the
petition for review. There is only one ground – pure question of law. appeal.

A record on appeal shall be required only in special proceedings and in other JGG: When you file a NOA and your appeal is perfected, it does not necessarily
cases of multiple or separate appeals. mean that the court will lose its jurisdiction.
The form and contents of the record on appeal shall be as provided in section 6, Q: When will the court a quo lose jurisdiction?
Rule 41.
A:
Copies of the notice of appeal, and the record on appeal where required, shall be
served on the adverse party. (n) (a) In appeals by notice of appeal, the court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the expiration of
How to appeal the time to appeal of the other parties.
The appeal is taken by filing a notice of appeal with the court that rendered the EXAMPLE: PF received an adverse decision. He filed a NOA and paid the
judgment or final order appealed from. The notice of appeal shall indicate the appeal fee. The appeal is perfected as to him. However, it will not yet
parties to the appeal, the judgment or final order or part thereof appealed from, cause the losing of jurisdiction of the court a quo. The court will lose
and state the material dates showing the timeliness of the appeal. jurisdiction upon the expiration of the time to appeal of the other parties.
(b) In appeals by record on appeal, the court loses jurisdiction only over
A record on appeal shall be required only in special proceedings and in other the subject matter thereof upon the approval of the records on appeal
cases of multiple or separate appeals. (Sec. 3, Rule 40) filed in due time and the expiration of the appeal of the other parties.
(Sec. 9, Rule 41)
Section 4. Perfection of appeal; effect thereof. — The perfection of the appeal and
the effect thereof shall be governed by the provisions of section 9, Rule 41. (n) Court’s residual jurisdiction
Perfection of appeal In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of the
The perfection of the appeal and the effect thereof shall be governed by the rights of the parties which do not involve any matter litigated by the appeal,
provisions of section 9, Rule 41. (Sec. 4, Rule 40) approve compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the
(a) A party's appeal by notice of appeal is deemed perfected as to him upon appeal. (Sec. 9, Rule 41)
the filing of the notice of appeal in due time.
(b) A party's appeal by record on appeal is deemed perfected as to him with JGG: Despite the fact that the court has already lost jurisdiction, it can still act on
respect to the subject matter thereof upon the approval of the record some things.
on appeal filed in due time. (Sec. 9, Rule 41)
Section 5. Appellate court docket and other lawful fees. — Within the period for
NOTE: There is also another requirement aside from filing a NOA/ROA within the taking an appeal, the appellant shall pay to the clerk of the court which rendered
period to appeal – the payment of the appeal fee. If there is no payment of the the judgment or final order appealed from the full amount of the appellate court
appeal fee, it will NOT perfect the appeal. docket and other lawful fees. Proof of payment thereof shall be transmitted to the
appellate court together with the original record or the record on appeal, as the
The appeal is perfected AS TO the one appealing by filing of the NOA/ROA + the case may be. (n)
payment of the appeal fee. However, with respect to the other party, the appeal
has not yet been perfected because there is a different period. Section 6. Duty of the clerk of court. — Within fifteen (15) days from the
perfection of the appeal, the clerk of court or the branch clerk of court of the lower
court shall transmit the original record or the record on appeal, together with the Thereafter, the case shall be submitted for resolution.
transcripts and exhibits, which he shall certify as complete, to the proper
Regional Trial Court. A copy of his letter of transmittal of the records to the Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. —
appellate court shall be furnished the parties. (n) If an appeal is taken from an order of the lower court dismissing the case without
a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case
Section 7. Procedure in the Regional Trial Court. — may be. In case of affirmance and the ground of dismissal is lack of jurisdiction
over the subject matter, the Regional Trial Court, if it has jurisdiction thereover,
(a) Upon receipt of the complete record or the record on appeal, the clerk of court shall try the case on the merits as if the case was originally filed with it. In case of
of the Regional Trial Court shall notify the parties of such fact. reversal, the case shall be remanded for further proceedings.
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant If the case was tried on the merits by the lower court without jurisdiction over
to submit a memorandum which shall briefly discuss the errors imputed to the the subject matter, the Regional Trial Court on appeal shall not dismiss the case
lower court, a copy of which shall be furnished by him to the adverse party. if it has original jurisdiction thereof, but shall decide the case in accordance with
Within fifteen (15) days from receipt of the appellant's memorandum, the the preceding section, without prejudice to the admission of amended pleadings
appellee may file his memorandum. Failure of the appellant to file a and additional evidence in the interest of justice. (n)
memorandum shall be a ground for dismissal of the appeal.
Appeal from orders dismissing case without trial; lack of jurisdiction
(c) Upon the filing of the memorandum of the appellee, or the expiration of the
period to do so, the case shall be considered submitted for decision. The Regional
JGG: This contemplates a situation when there is appeal from an order dismissing
Trial Court shall decide the case on the basis of the entire record of the
the case without trial or lack of jurisdiction.
proceedings had in the court of original and such memoranda as are filed. (n)
If an appeal is taken from an order of the lower court dismissing the case without
Procedure in RTC in appeal from MTC a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case
may be.
In case of affirmance and the ground of dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try
the case on the merits as if the case was originally filed with it. In case of
reversal, the case shall be remanded for further proceedings. (Sec. 8, Rule 40)
EXAMPLE: An MTC dismissed a case without trial, such that the affirmative
NOTE: The NOA is filed with the MTC which rendered the judgment. defense was improper venue. In case of reversal by RTC, the case will be
remanded to the MTC.
Once the NOA is filed, the MTC will transmit the records of the case to the RTC. If
the records of the case are already with the RTC, the latter will notify the parties If the ground of dismissal by the MTC is lack of jurisdiction over the SM, the RTC,
that the records are already with the court. In such notice, it is contained that the if it has jurisdiction thereover, shall try the case on the merits as if the case was
appellant shall file their appellant’s memorandum. originally filed with it.
The appellee, within fifteen (15) days from receipt of the appellant’s If the case was tried on the merits by the lower court without jurisdiction over
memorandum, may file his appellee’s memorandum. the subject matter, the Regional Trial Court on appeal shall not dismiss the case
if it has original jurisdiction thereof, but shall decide the case in accordance with

the preceding section, without prejudice to the admission of amended pleadings (a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by the
and additional evidence in the interest of justice. (Sec. 8, Rule 40) Regional Trial Court in the exercise of its original jurisdiction shall be taken by
filing a notice of appeal with the court which rendered the judgment or final order
Section 9. Applicability of Rule 41. — The other provisions of Rule 41 shall apply appealed from and serving a copy thereof upon the adverse party. No record on
to appeals provided for herein insofar as they are not inconsistent with or may appeal shall be required except in special proceedings and other cases of multiple
serve to supplement the provisions of this Rule. (n) or separate appeals where law on these Rules so require. In such cases, the record
on appeal shall be filed and served in like manner.
APPEAL FROM THE REGIONAL TRIAL COURTS (RULE 41) (b) Petition for review. — The appeal to the Court of Appeals in cases decided by
the Regional Trial Court in the exercise of its appellate jurisdiction shall be by
petition for review in accordance with Rule 42.
Section 1. Subject of appeal. — An appeal may be taken from a judgment or final
order that completely disposes of the case, or of a particular matter therein when
declared by these Rules to be appealable. (c) Appeal by certiorari. — In all cases where only questions of law are raised or
involved, the appeal shall be to the Supreme Court by petition for review
on certiorari in accordance with the Rule 45. (n)
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration; Modes of appeal (from RTC)
(b) An order denying a petition for relief or any similar motion seeking relief from
judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent, confession or

compromise on the ground of fraud, mistake or duress, or any other ground
vitiating consent;
(f) An order of execution; (a) Ordinary appeal; (Rule 41)

(b) Petition for review; (Rule 42)
(c) Appeal by certiorari. (Rule 45)
(g) A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third-party complaints, while
the main case is pending, unless the court allows an appeal therefrom; and Ordinary appeal
(h) An order dismissing an action without prejudice. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in
the exercise of its original jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order appealed from and
In all the above instances where the judgment or final order is not appealable, the
serving a copy thereof upon the adverse party. No record on appeal shall be
aggrieved party may file an appropriate special civil action under Rule 65. (n)
required except in special proceedings and other cases of multiple or separate
Section 2. Modes of appeal. —
appeals where law on these Rules so require. In such cases, the record on appeal The appeal shall be taken within fifteen (15) days from notice of the judgment or
shall be filed and served in like manner. (Sec. 2(a), Rule 41) final order appealed from. Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal within thirty (30) days from
Petition for review notice of the judgment or final order. (Sec. 3, Rule 41)
The appeal to the Court of Appeals in cases decided by the Regional Trial Court in Section 4. Appellate court docket and other lawful fees. — Within the period for
the exercise of its appellate jurisdiction shall be by petition for review in taking an appeal, the appellant shall pay to the clerk of the court which rendered
accordance with Rule 42. (Sec. 2(b), Rule 41) the judgment or final order appealed from, the full amount of the appellate court
docket and other lawful fees. Proof of payment of said fees shall be transmitted
Appeal by certiorari to the appellate court together with the original record or the record on appeal.
(n)
In all cases where only questions of law are raised or involved, the appeal shall
be to the Supreme Court by petition for review on certiorari in accordance with Payment of appeal fee
the Rule 45. (Sec. 2(c), Rule 41)
Within the period for taking an appeal, the appellant shall pay to the clerk of the
JGG: This is available when the only issues are questions of law and there are no court which rendered the judgment or final order appealed from, the full amount
issues of fact. of the appellate court docket and other lawful fees. (Sec. 4, Rule 41)
Q: Carlito filed an unlawful detainer case against Matilde with the Municipal Q: Is payment of appeal fee within the period for appeal mandatory?
Trial Court. After due proceedings, the MTC rendered a decision in favor of
Matilde. Carlito appealed the decision to the RTC by notice of appeal. The A: The Court has consistently upheld the dismissal of an appeal or notice of appeal
RTC rendered a decision in favor of Carlito. for failure to pay the full docket fees within the period for taking the appeal. Time
and again, this Court has consistently held that the payment of docket fees within
Matilde wants to appeal the decision of the RTC. Where will he file his the prescribed period is mandatory for the perfection of the appeal.
appeal? And under what mode?
Without such payment, the appellate court does not acquire jurisdiction over the
A: The appeal to the Court of Appeals in cases decided by the Regional Trial Court subject matter of the court does not acquire jurisdiction over the subject matter
in the exercise of its appellate jurisdiction shall be by petition for review in of the action and the decision sought to be appealed from becomes final and
accordance with Rule 42. (Sec. 2(b), Rule 41) executory. (Fil-Estate Properties v. Homena-Valencia; citing Manalili v. De Leon, St.
Louis University v. Cordero)
Section 3. Period of ordinary appeal. — The appeal shall be taken within fifteen
(15) days from notice of the judgment or final order appealed from. Where a Section 9. Perfection of appeal; effect thereof. — A party's appeal by notice of
record on appeal is required, the appellant shall file a notice of appeal and a appeal is deemed perfected as to him upon the filing of the notice of appeal in due
record on appeal within thirty (30) days from notice of the judgment or final time.
order.
A party's appeal by record on appeal is deemed perfected as to him with respect
The period of appeal shall be interrupted by a timely motion for new trial or to the subject matter thereof upon the approval of the record on appeal filed in
reconsideration. No motion for extension of time to file a motion for new trial or due time.
reconsideration shall be allowed. (n)
When to appeal
In appeals by notice of appeal, the court loses jurisdiction over the case upon the filed a notice of appeal and paid the corresponding appeal fee before the
perfection of the appeals filed in due time and the expiration of the time to appeal RTC. Does the RTC lose jurisdiction on July 10, the date when Marino filed his
of the other parties. notice of appeal?
In appeals by record on appeal, the court loses jurisdiction only over the subject A: NO.
matter thereof upon the approval of the records on appeal filed in due time and
the expiration of the appeal of the other parties. Q: If not, when will the Court lose its jurisdiction?
In either case, prior to the transmittal of the original record or the record on A: The court will lose jurisdiction only upon the perfection of appeal by the one
appeal, the court may issue orders for the protection and preservation of the appealing AND the expiration of the period to appeal of the other parties.
rights of the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order execution Q: If the RTC jurisdiction is already lost, can it still entertain any motion
pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the from the parties?
appeal. (9a)
A: YES. This is because of the doctrine of residual jurisdiction.
Perfection of appeal; effect thereof
Concept of residual jurisdiction
Q: When is appeal perfected?
The court may issue orders for the protection and preservation of the rights of
A: A party's appeal by notice of appeal is deemed perfected as to him upon the the parties which do not involve any matter litigated by the appeal:
filing of the notice of appeal in due time.
(1) Approve compromises;
JGG: This is plus payment of appeal fee. (2) Permit appeals of indigent litigants;
(3) Order execution pending appeal in accordance with 2 of Rule 39; and
A party's appeal by record on appeal is deemed perfected as to him with respect (4) Allow withdrawal of the appeal. (Sec. 9, Rule 41)
to the subject matter thereof upon the approval of the record on appeal filed in
due time. NOTE: This is prior to the transmittal of the records (i.e. the original record or
the record on appeal). (Sec. 9, Rule 41)
In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to Section 5. Notice of appeal. — The notice of appeal shall indicate the parties to
appeal of the other parties. the appeal, specify the judgment or final order or part thereof appealed from,
specify the court to which the appeal is being taken, and state the material dates
In appeals by record on appeal, the court loses jurisdiction only over the subject showing the timeliness of the appeal. (4a)
matter thereof upon the approval of the records on appeal filed in due time and
the expiration of the appeal of the other parties. (Sec. 9, Rule 41) Section 6. Record on appeal; form and contents thereof. — The full names of all
the parties to the proceedings shall be stated in the caption of the record on
JGG: This is subject to the doctrine of residual jurisdiction. appeal and it shall include the judgment or final order from which the appeal is
taken and, in chronological order, copies of only such pleadings, petitions,
Q: Marina filed a case against Marino before the RTC. The RTC decided in motions and all interlocutory orders as are related to the appealed judgment or
favor of Marina. Marino received the copy the decision on July 2. While final order for the proper understanding of the issue involved, together with such
Marina received the copy of the decision on August 2. On July 10, Marino data as will show that the appeal was perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall include by reference all the evidence, (d) To transmit the records to the appellate court.
testimonial and documentary, taken upon the issue involved. The reference shall
specify the documentary evidence by the exhibit numbers or letters by which it If the efforts to complete the records fail, he shall indicate in his letter of
was identified when admitted or offered at the hearing, and the testimonial transmittal the exhibits or transcripts not included in the records being
evidence by the names of the corresponding witnesses. If the whole testimonial transmitted to the appellate court, the reasons for their non-transmittal, and the
and documentary evidence in the case is to be included, a statement to that effect steps taken or that could be taken to have them available.
will be sufficient without mentioning the names of the witnesses or the numbers
or letters of exhibits. Every record on appeal exceeding twenty (20) pages must The clerk of court shall furnish the parties with copies of his letter of transmittal
contain a subject index. (6a) of the records to the appellate court. (10a)
Section 7. Approval of record on appeal. — Upon the filing of the record on appeal Section 11. Transcript. — Upon the perfection of the appeal, the clerk shall
for approval and if no objection is filed by the appellee within five (5) days from immediately direct the stenographers concerned to attach to the record of the
receipt of a copy thereof, the trial court may approve it as presented or upon its case five (5) copies of the transcripts of the testimonial evidence referred to in
own motion or at the instance of the appellee, may direct its amendment by the the record on appeal. The stenographers concerned shall transcribe such
inclusion of any omitted matters which are deemed essential to the testimonial evidence and shall prepare and affix to their transcripts an index
determination of the issue of law or fact involved in the appeal. If the trial court containing the names of the witnesses and the pages wherein their testimonies
orders the amendment of the record, the appellant, within the time limited in the are found, and a list of the exhibits and the pages wherein each of them appears
order, or such extension thereof as may be granted, or if no time is fixed by the to have been offered and admitted or rejected by the trial court. The transcripts
order within ten (10) days from receipt thereof, shall redraft the record by shall be transmitted to the clerk of the trial court who shall thereupon arrange
including therein, in their proper chronological sequence, such additional the same in the order in which the witnesses testified at the trial, and shall cause
matters as the court may have directed him to incorporate, and shall thereupon the pages to be numbered consecutively. (12a)
submit the redrafted record for approval, upon notice to the appellee, in like
manner as the original draft. (7a)
Section 12. Transmittal. — The clerk of the trial court shall transmit to the
appellate court the original record or the approved record on appeal within thirty
Section 8. Joint record on appeal. — Where both parties are appellants, they may (30) days from the perfection of the appeal, together with the proof of payment
file a joint record on appeal within the time fixed by section 3 of this Rule, or that of the appellate court docket and other lawful fees, a certified true copy of the
fixed by the court. (8a) minutes of the proceedings, the order of approval, the certificate of correctness,
the original documentary evidence referred to therein, and the original and three
Section 10. Duty of clerk of court of the lower court upon perfection of appeal. — (3) copies of the transcripts. Copies of the transcripts and certified true copies of
Within thirty (30) days after perfection of all the appeals in accordance with the the documentary evidence shall remain in the lower court for the examination of
preceding section, it shall be the duty of the clerk of court of the lower court: the parties. (11a)
(a) To verify the correctness of the original record or the record on appeal, as the Section 13. Dismissal of appeal. — Prior to the transmittal of the original record
case may be aid to make certification of its correctness; or the record on appeal to the appellate court, the trial court may motu propio or
on motion dismiss the appeal for having been taken out of time. (14a)
(b) To verify the completeness of the records that will be, transmitted to the
appellate court;
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS (RULE 42)
(c) If found to be incomplete, to take such measures as may be required to
complete the records, availing of the authority that he or the court may exercise
for this purpose; and Section 1. How appeal taken; time for filing. — A party desiring to appeal from a
decision of the Regional Trial Court rendered in the exercise of its appellate
jurisdiction may file a verified petition for review with the Court of Appeals, The petition shall be filed and served within fifteen (15) days from notice of the
paying at the same time to the clerk of said court the corresponding docket and decision sought to be reviewed or of the denial of petitioner's motion for new trial
other lawful fees, depositing the amount of P500.00 for costs, and furnishing the or reconsideration filed in due time after judgment. (Sec. 1, Rule 42)
Regional Trial Court and the adverse party with a copy of the petition. The
petition shall be filed and served within fifteen (15) days from notice of the Upon proper motion and the payment of the full amount of the docket and other
decision sought to be reviewed or of the denial of petitioner's motion for new trial lawful fees and the deposit for costs before the expiration of the reglementary
or reconsideration filed in due time after judgment. Upon proper motion and the period, the Court of Appeals may grant an additional period of fifteen (15) days
payment of the full amount of the docket and other lawful fees and the deposit only within which to file the petition for review. No further extension shall be
for costs before the expiration of the reglementary period, the Court of Appeals granted except for the most compelling reason and in no case to exceed fifteen
may grant an additional period of fifteen (15) days only within which to file the (15) days. (Sec. 1, Rule 42)
petition for review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days. (n) Q: Marina filed a Petition for Certiorari before RTC to assail the Order of the
MTC quashing the Information. The RTC dismissed the Petition. Marina
How appeal taken; time for filing received the decision on July 2. On July 10, Marina filed a Petition for Review
before the CA with payment of the corresponding docket fee therein.
Is the mode of appeal availed by Marina proper?
A: NO. The proper remedy should be appeal.
It is fundamental that a petition for certiorari is an original action and, as such,

it cannot be gainsaid that the RTC took cognizance of and resolved the aforesaid
petition in the exercise of its original jurisdiction. Hence, based on the above-
cited rule, Marina should have filed a notice of appeal with the RTC instead of a
petition for review with the CA. (Yalong v. People, G.R. No. 187174, 28 Aug. 2013)
JGG: Rule 42 is available when the RTC decides the case in the exercise of its
Q: Assuming that it is improper, may the Petition for Review be treated as a
appellate jurisdiction. The mode of appeal is via petition for review.
notice of appeal?
How appeal taken
A: NO, it cannot be treated as notice of appeal.
A party desiring to appeal from a decision of the Regional Trial Court rendered in
For one, a notice of appeal is filed with the regional trial court that rendered the
the exercise of its appellate jurisdiction may file a verified petition for review
assailed decision, judgment or final order, while a petition for review is filed with
with the Court of Appeals, paying at the same time to the clerk of said court the
the CA.
corresponding docket and other lawful fees, depositing the amount of P500.00
for costs, and furnishing the Regional Trial Court and the adverse party with
a copy of the petition. (Sec. 1, Rule 42) Also, a notice of appeal is required when the RTC issues a decision, judgment or
final order in the exercise of its original jurisdiction, while a petition for review is
required when such issuance was in the exercise of its appellate jurisdiction.
Period to file
(Yalong v. People, supra.)

Section 8. Perfection of appeal; effect thereof. — (a) Upon the timely filing of a (a) Issue orders for the protection and preservation of the rights of the
petition for review and the payment of the corresponding docket and other lawful parties which do not involve any matter litigated by the appeal;
fees, the appeal is deemed perfected as to the petitioner. (b) Approve compromises;
(c) Permit appeals of indigent litigants;
The Regional Trial Court loses jurisdiction over the case upon the perfection of (d) Order execution pending appeal in accordance with section 2 of Rule 39,
the appeals filed in due time and the expiration of the time to appeal of the other and allow withdrawal of the appeal. (Sec. 8(a), Rule 42)
parties.
Q: Will the filing of the petition stay the judgment or order appealed from?
However, before the Court of Appeals gives due course to the petition, the
Regional Trial Court may issue orders for the protection and preservation of the A: YES. Except in civil cases decided under the Rules on Summary Procedure, the
rights of the parties which do not involve any matter litigated by the appeal, appeal shall stay the judgment or final order unless the Court of Appeals, the law,
approve compromises, permit appeals of indigent litigants, order execution or these Rules shall provide otherwise. (Sec. 8(b), Rule 42)
pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of
the appeal. (9a, R41) Section 2. Form and contents. — The petition shall be filed in seven (7) legible
copies, with the original copy intended for the court being indicated as such by
(b) Except in civil cases decided under the Rule on Summary Procedure, the the petitioner, and shall (a) state the full names of the parties to the case, without
appeal shall stay the judgment or final order unless the Court of Appeals, the law, impleading the lower courts or judges thereof either as petitioners or
or these Rules shall provide otherwise. (a) respondents; (b) indicate the specific material dates showing that it was filed on
time; (c) set forth concisely a statement of the matters involved, the issues raised,
Perfection of appeal; effect thereof the specification of errors of fact or law, or both, allegedly committed by the
Regional Trial Court, and the reasons or arguments relied upon for the allowance
of the appeal; (d) be accompanied by clearly legible duplicate originals or true
Q: When is appeal perfected under Rule 42? copies of the judgments or final orders of both lower courts, certified correct by
the clerk of court of the Regional Trial Court, the requisite number of plain copies
A: Upon the timely filing of a petition for review and the payment of the thereof and of the pleadings and other material portions of the record as would
corresponding docket and other lawful fees, the appeal is deemed perfected as to support the allegations of the petition.
the petitioner. (Sec. 8(a), Rule 42)
The petitioner shall also submit together with the petition a certification under
Q: When will the court lose jurisdiction under Rule 42? oath that he has not theretofore commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals or different divisions thereof,
A: The Regional Trial Court loses jurisdiction over the case upon the perfection of or any other tribunal or agency; if there is such other action or proceeding, he
the appeals filed in due time and the expiration of the time to appeal of the other must state the status of the same; and if he should thereafter learn that a similar
parties. (Sec. 8(a), Rule 42) action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or agency,
Residual jurisdiction applies he undertakes to promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. (n)
The Regional Trial Court loses jurisdiction over the case upon the perfection of
the appeals filed in due time and the expiration of the time to appeal of the other Section 3. Effect of failure to comply with requirements. — The failure of the
parties. petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of service
However, before the Court of Appeals gives due course to the petition, the of the petition, and the contents of and the documents which should accompany
Regional Trial Court may: the petition shall be sufficient ground for the dismissal thereof. (n)

Section 4. Action on the petition. — The Court of Appeals may require the Section 2. Time for filing; extension. — The petition shall be filed within fifteen
respondent to file a comment on the petition, not a motion to dismiss, within ten (15) days from notice of the judgment or final order or resolution appealed from,
(10) days from notice, or dismiss the petition if it finds the same to be patently or of the denial of the petitioner's motion for new trial or reconsideration filed in
without merit, prosecuted manifestly for delay, or that the questions raised due time after notice of the judgment. On motion duly filed and served, with full
therein are too insubstantial to require consideration. (n) payment of the docket and other lawful fees and the deposit for costs before the
expiration of the reglementary period, the Supreme Court may for justifiable
Section 5. Contents of comment. — The comment of the respondent shall be filed reasons grant an extension of thirty (30) days only within which to file the
in seven (7) legible copies, accompanied by certified true copies of such material petition. (1a, 5a)
portions of the record referred to therein together with other supporting papers
and shall (a) state whether or not he accepts the statement of matters involved in Appeal by certiorari
the petition; (b) point out such insufficiencies or inaccuracies as he believes exist
in petitioner's statement of matters involved but without repetition; and (c) state
the reasons why the petition should not be given due course. A copy thereof shall
be served on the petitioner. (a)
Section 6. Due course. — If upon the filing of the comment or such other
pleadings as the court may allow or require, or after the expiration of the period
for the filing thereof without such comment or pleading having been submitted,
the Court of Appeals finds prima facie that the lower court has committed an
error of fact or law that will warrant a reversal or modification of the appealed
decision, it may accordingly give due course to the petition. (n)
Section 7. Elevation of record. — Whenever the Court of Appeals deems it

necessary, it may order the clerk of court of the Regional Trial Court to elevate
the original record of the case including the oral and documentary evidence JGG: You cannot file a petition for review on certiorari under Rule 45 with the
within fifteen (15) days from notice. (n) Court of Appeals.
Section 9. Submission for decision. — If the petition is given due course, the Court Questions of law v. Questions of fact
of Appeals may set the case for oral argument or require the parties to submit
memoranda within a period of fifteen (15) days from notice. The case shall be There is question of law when there is doubt as to what the law is on a certain
deemed submitted for decision upon the filing of the last pleading or state of facts.
memorandum required by these Rules or by the court itself. (n)
There is question of fact when doubt arises as to the truth or falsity of the alleged
APPEAL BY CERTIORARI TO THE SUPREME COURT (RULE 45) facts.
NOTE: The only issue in a petition for review under Rule 45 is issue of law.
Section 1. Filing of petition with Supreme Court. — A party desiring to appeal
by certiorari from a judgment or final order or resolution of the Court of Appeals, Factual-issue-bar rule
the Sandiganbayan, the Regional Trial Court or other courts whenever authorized
by law, may file with the Supreme Court a verified petition for review
Petition for review under Rule 45 is discretionary. It may only be availed if the
on certiorari. The petition shall raise only questions of law which must be
appeal is on pure question of law. Thus, question of fact is not allowed to be raised
distinctly set forth. (1a, 2a)
because the Supreme Court is not a trier of facts. Consequently, calibration of
evidence, as a rule may not be entertained by the Supreme Court. (Roman Catholic resolution certified by the clerk of court of the court a quo and the requisite
Archbishop of Manila v. Sta. Teresa) number of plain copies thereof, and such material portions of the record as would
support the petition; and (e) contain a sworn certification against forum
Instances when the SC may pass upon questions of fact shopping as provided in the last paragraph of section 2, Rule 42. (2a)
• The conclusions of CA is grounded entirely on speculations, surmises and Section 5. Dismissal or denial of petition. — The failure of the petitioner to comply
conjectures; with any of the foregoing requirements regarding the payment of the docket and
• The inference is manifestly mistaken; other lawful fees, deposit for costs, proof of service of the petition, and the
• There is grave abuse of discretion; contents of and the documents which should accompany the petition shall be
• Judgment is based on misapprehension of facts; sufficient ground for the dismissal thereof.
• Findings of fact are conflicting;
• The CA went beyond the issues of the case or its judgment is contrary to The Supreme Court may on its own initiative deny the petition on the ground that
the admission of the parties; the appeal is without merit, or is prosecuted manifestly for delay, or that the
• The findings of CA is contrary to lower court; questions raised therein are too unsubstantial to require consideration. (3a)
• Finding of fact are conclusion without basis in evidence;
• Findings of fact of CA are premised on the supposed absence of evidence Section 6. Review discretionary. — A review is not a matter of right, but of sound
and contradicted by evidence on record. judicial discretion, and will be granted only when there are special and important
reasons thereof. The following, while neither controlling nor fully measuring the
JGG: Just memorize five instances.7 court's discretion, indicate the character of the reasons which will be considered:
(a) When the court a quo has decided a question of substance, not theretofore
Section 3. Docket and other lawful fees; proof of service of petition. — Unless he determined by the Supreme Court, or has decided it in a way probably not in
has theretofore done so, the petitioner shall pay the corresponding docket and accord with law or with the applicable decisions of the Supreme Court; or
other lawful fees to the clerk of court of the Supreme Court and deposit the
amount of P500.00 for costs at the time of the filing of the petition. Proof of
service of a copy, thereof on the lower court concerned and on the adverse party (b) When the court a quo has so far departed from the accepted and usual course
of judicial proceedings, or so far sanctioned such departure by a lower court, as
shall be submitted together with the petition. (1a)
to call for an exercise of the power of supervision. (4a)
Section 4. Contents of petition. — The petition shall be filed in eighteen (18)
Section 7. Pleadings and documents that may be required; sanctions. — For
copies, with the original copy intended for the court being indicated as such by
purposes of determining whether the petition should be dismissed or denied
the petitioner and shall (a) state the full name of the appealing party as the
pursuant to section 5 of this Rule, or where the petition is given due course under
petitioner and the adverse party as respondent, without impleading the lower
section 8 hereof, the Supreme Court may require or allow the filing of such
courts or judges thereof either as petitioners or respondents; (b) indicate the
pleadings, briefs, memoranda or documents as it may deem necessary within
material dates showing when notice of the judgment or final order or resolution
such periods and under such conditions as it may consider appropriate, and
subject thereof was received, when a motion for new trial or reconsideration, if
impose the corresponding sanctions in case of non-filing or unauthorized filing
any, was filed and when notice of the denial thereof was received; (c) set forth
of such pleadings and documents or non-compliance with the conditions
concisely a statement of the matters involved, and the reasons or arguments
therefor. (n)
relied on for the allowance of the petition; (d) be accompanied by a clearly legible
duplicate original, or a certified true copy of the judgment or final order or
7 Judge Gito said this. In class.

Section 8. Due course; elevation of records. — If the petition is given due course, payment of the full amount of the docket fee before the expiration of the
the Supreme Court may require the elevation of the complete record of the case reglementary period, the Court of Appeals may grant an additional period of
or specified parts thereof within fifteen (15) days from notice. (2a) fifteen (15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case
Section 9. Rule applicable to both civil and criminal cases. — The mode of appeal to exceed fifteen (15) days. (n)
prescribed in this Rule shall be applicable to both civil and criminal cases, except
in criminal cases where the penalty imposed is death, reclusion perpetua or life Section 5. How appeal taken. — Appeal shall be taken by filing a verified petition
imprisonment. (n) for review in seven (7) legible copies with the Court of Appeals, with proof of
service of a copy thereof on the adverse party and on the court or agency a quo.
The original copy of the petition intended for the Court of Appeals shall be
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL indicated as such by the petitioner.
AGENCIES TO THE COURT OF APPEALS (RULE 43)
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the
Section 1. Scope. — This Rule shall apply to appeals from judgments or final Court of Appeals the docketing and other lawful fees and deposit the sum of
orders of the Court of Tax Appeals and from awards, judgments, final orders or P500.00 for costs. Exemption from payment of docketing and other lawful fees
resolutions of or authorized by any quasi-judicial agency in the exercise of its and the deposit for costs may be granted by the Court of Appeals upon a verified
quasi-judicial functions. Among these agencies are the Civil Service Commission, motion setting forth valid grounds therefor. If the Court of Appeals denies the
Central Board of Assessment Appeals, Securities and Exchange Commission, motion, the petitioner shall pay the docketing and other lawful fees and deposit
Office of the President, Land Registration Authority, Social Security Commission, for costs within fifteen (15) days from notice of the denial. (n)
Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration, Energy Regulatory Board, Section 6. Contents of the petition. — The petition for review shall (a) state the
National Telecommunications Commission, Department of Agrarian Reform full names of the parties to the case, without impleading the court or agencies
under Republic Act No. 6657, Government Service Insurance System, Employees either as petitioners or respondents; (b) contain a concise statement of the facts
Compensation Commission, Agricultural Invention Board, Insurance and issues involved and the grounds relied upon for the review; (c) be
Commission, Philippine Atomic Energy Commission, Board of Investments, accompanied by a clearly legible duplicate original or a certified true copy of the
Construction Industry Arbitration Commission, and voluntary arbitrators award, judgment, final order or resolution appealed from, together with certified
authorized by law. (n) true copies of such material portions of the record referred to therein and other
supporting papers; and (d) contain a sworn certification against forum shopping
Section 2. Cases not covered. — This Rule shall not apply to judgments or final as provided in the last paragraph of section 2, Rule 42. The petition shall state the
orders issued under the Labor Code of the Philippines. (n) specific material dates showing that it was filed within the period fixed herein.
(2a)
Section 3. Where to appeal. — An appeal under this Rule may be taken to the
Court of Appeals within the period and in the manner herein provided, whether Section 7. Effect of failure to comply with requirements. — The failure of the
the appeal involves questions of fact, of law, or mixed questions of fact and law. petitioner to comply with any of the foregoing requirements regarding the
(n) payment of the docket and other lawful fees, the deposit for costs, proof of service
of the petition, and the contents of and the documents which should accompany
Section 4. Period of appeal. — The appeal shall be taken within fifteen (15) days the petition shall be sufficient ground for the dismissal thereof. (n)
from notice of the award, judgment, final order or resolution, or from the date of
its last publication, if publication is required by law for its effectivity, or of the Section 8. Action on the petition. — The Court of Appeals may require the
denial of petitioner's motion for new trial or reconsideration duly filed in respondent to file a comment on the petition not a motion to dismiss, within ten
accordance with the governing law of the court or agency a quo. Only one (1) (10) days from notice, or dismiss the petition if it finds the same to be patently
motion for reconsideration shall be allowed. Upon proper motion and the without merit, prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration. (6a)
Section 9. Contents of comment. — The comment shall be filed within ten (10)
days from notice in seven (7) legible copies and accompanied by clearly legible
certified true copies of such material portions of the record referred to therein
together with other supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioner's statement of facts and issues; and
(b) state the reasons why the petition should be denied or dismissed. A copy
thereof shall be served on the petitioner, and proof of such service shall be filed
with the Court of Appeals. (9a)
Section 10. Due course. — If upon the filing of the comment or such other
pleadings or documents as may be required or allowed by the Court of Appeals
or upon the expiration of the period for the filing thereof, and on the records the
Court of Appeals finds prima facie that the court or agency concerned has
committed errors of fact or law that would warrant reversal or modification of
the award, judgment, final order or resolution sought to be reviewed, it may give
due course to the petition; otherwise, it shall dismiss the same. The findings of
REMEMBER: Under Rule 42, it will stay the execution of the decision.
fact of the court or agency concerned, when supported by substantial evidence,
shall be binding on the Court of Appeals. (n)
Under Rule 43, Sec. 12, it will NOT stay the execution of the decision unless
restrained.
Section 11. Transmittal of record. — Within fifteen (15) days from notice that the
petition has been given due course, the Court of Appeals may require the court or
agency concerned to transmit the original or a legible certified true copy of the REMEDIES AFTER JUDGMENT BECAME FINAL AND EXECUTORY
entire record of the proceeding under review. The record to be transmitted may
be abridged by agreement of all parties to the proceeding. The Court of Appeals
may require or permit subsequent correction of or addition to the record. (8a)
Section 12. Effect of appeal. — The appeal shall not stay the award, judgment,
final order or resolution sought to be reviewed unless the Court of Appeals shall
direct otherwise upon such terms as it may deem just. (10a)
Section 13. Submission for decision. — If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the parties to
submit memoranda within a period of fifteen (15) days from notice. The case
shall be deemed submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the court of Appeals. (n) RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS (RULE 38)
Appeal from QJA Section 1. Petition for relief from judgment, order, or other proceedings. — When
a judgment or final order is entered, or any other proceeding is thereafter taken
against a party in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the same case praying that
the judgment, order or proceeding be set aside. (2a)

Section 2. Petition for relief from denial of appeal. — When a judgment or final (1) Within 60 days after the petitioner learns the judgment, etc.;
order is rendered by any court in a case, and a party thereto, by fraud, accident, (2) Within 6 months after entry.
mistake, or excusable negligence, has been prevented from taking an appeal, he
may file a petition in such court and in the same case praying that the appeal be EXAMPLES:
given due course. (1a)
Marina learns the judgment by default on September 1. The Judgment was
Petition for relief from judgment entered on January 2. The Petition was filed on October 1.
Q: Is it filed within the period?
A: NO. It is within the 60-day period but is beyond the 6-month period after entry.

entered on May 2. The Petition was filed on October 1.
A: YES. It is within the twin periods.

entered on July 2. The Petition was filed on December 1.

Section 3. Time for filing petition; contents and verification. — A petition
provided for in either of the preceding sections of this Rule must be verified, filed A: NO. It is within the 6-month period but beyond the 60-day period.
within sixty (60) days after the petitioner learns of the judgment, final order, or
other proceeding to be set aside, and not more than six (6) months after such Q: Is petition for relief available in the SC or CA?
judgment or final order was entered, or such proceeding was taken, and must be
accompanied with affidavits showing the fraud, accident, mistake, or excusable
A: NO. (Purcon v. MRM Philippines)
negligence relied upon, and the facts constituting the petitioner's good and
substantial cause of action or defense, as the case may be. (3)
JGG: This was first resolved by the court in Redeña v. Redeña (G.R. No. 146611, 6
Feb. 2007).
Period to file
SC: Under Section 2 of Rule 38, supra, of the Rules of Court, a party prevented
A petition provided for in either of the preceding sections of this Rule must be from taking an appeal from a judgment or final order of a court by reason of fraud,
verified, filed within sixty (60) days after the petitioner learns of the judgment, accident, mistake or excusable negligence, may file in the same court and in the
final order, or other proceeding to be set aside, and not more than six (6) months same case a petition for relief praying that his appeal be given due course. This
after such judgment or final order was entered, or such proceeding was taken. presupposes, of course, that no appeal was taken precisely because of any of the
(Sec. 3, Rule 38) aforestated reasons which prevented him from appealing his case.
Two periods / twin period rule

Hence, a petition for relief under Rule 38 cannot be availed of in the CA, the latter Section 1. Coverage. — This Rule shall govern the annulment by the Court of
being a court of appellate jurisdiction. For sure, under the present Rules, petitions Appeals of judgments or final orders and resolutions in civil actions of Regional
for relief from a judgment, final order or other proceeding rendered or taken Trial Courts for which the ordinary remedies of new trial, appeal, petition for
should be filed in and resolved by the court in the same case from which the relief or other appropriate remedies are no longer available through no fault of
petition arose. Thus, petition for relief from a judgment, final order or proceeding the petitioner. (n)
involved in a case tried by a municipal trial court shall be filed in and decided by
the same court in the same case, just like the procedure followed in the present
Regional Trial Court. (Redeña v. Redeña, supra.) This Rule shall govern the annulment by the Court of Appeals of judgments or
final orders and resolutions in civil actions of Regional Trial Courts for which the
ordinary remedies of new trial, appeal, petition for relief or other appropriate
Section 4. Order to file an answer. — If the petition is sufficient in form and remedies are no longer available through no fault of the petitioner. (Sec. 1, Rule
substance to justify relief, the court in which it is filed, shall issue an order 47)
requiring the adverse parties to answer the same within fifteen (15) days from
the receipt thereof. The order shall be served in such manner as the court may NOTE: What may be annulled only is the resolution of the RTC in civil actions.
direct, together with copies of the petition and the accompanying affidavits. (4a)
Section 5. Preliminary injunction pending proceedings. — The court in which the Section 2. Grounds for annulment. — The annulment may be based only on the
petition is filed may grant such preliminary injunction as may be necessary for grounds of extrinsic fraud and lack of jurisdiction.
the preservation of the rights of the parties, upon the filing by the petitioner of a
bond in favor of the adverse party, conditioned that if the petition is dismissed or Extrinsic fraud shall not be a valid ground if it was availed of, or could have been
the petitioner fails on the trial of the case upon its merits, he will pay the adverse availed of, in a motion for new trial or petition for relief. (n)
party all damages and costs that may be awarded to him by reason of the issuance
of such injunction or the other proceedings following the petition, but such Grounds for annulment
injunction shall not operate to discharge or extinguish any lien which the adverse
party may have acquired upon, the property, of the petitioner. (5a) (1) Extrinsic fraud; and
(2) Lack of jurisdiction. (Sec. 2, Rule 47)
Section 6. Proceedings after answer is filed. — After the filing of the answer or the
expiration of the period therefor, the court shall hear the petition and if after such REMEMBER: Extrinsic fraud shall not be a valid ground if it was availed of, or
hearing, it finds that the allegations thereof are not true, the petition shall be could have been availed of, in a motion for new trial or petition for relief. (Sec. 2,
dismissed; but if it finds said allegations to be true, it shall set aside the judgment Rule 47; Republic v. “G” Holdings, Inc.)
or final order or other proceeding complained of upon such terms as may be just.
Thereafter the case shall stand as if such judgment, final order or other
proceeding had never been rendered, issued or taken. The court shall then Extrinsic fraud
proceed to hear and determine the case as if a timely motion for a new trial or
reconsideration had been granted by it. (6a) Fraud is regarded as extrinsic where it prevents a party from having a trial or
from presenting his entire case to the court or where it operates upon matters
Section 7. Procedure where the denial of an appeal is set aside. — Where the pertaining not to the judgment itself but the manner in which it is procured. The
denial of an appeal is set aside, the lower court shall be required to give due overriding consideration when extrinsic fraud is alleged is that the fraudulent
course to the appeal and to elevate the record of the appealed case as if a timely scheme of the prevailing party litigant prevented a party from having his day in
and proper appeal had been made. (7a) court. (Alaban v. CA)
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS (RULE 47)
Section 3. Period for filing action. — If based on extrinsic fraud, the action must This is done when you attack the
A collateral attack is made when, in judgment directly.8
be filed within four (4) years from its discovery; and if based on lack of another action to obtain a different
jurisdiction, before it is barred by laches or estoppel. (n)
relief, an attack on the judgment is
made as an incident in said action. JGG: This is done through a petition
Period to file for annulment of judgment.
(a) If based on extrinsic fraud, the action must be filed within four (4) years EXAMPLE: A sum of money case was filed against ABC Corp. There was an
from its discovery; and improper service of summons. The court did not acquire jurisdiction over the
(b) If based on lack of jurisdiction, before it is barred by laches or estoppel. person of the DF. Nevertheless, the court rendered a decision against the
(Sec. 3, Rule 47) defendant, which became final and executory. The PF filed a motion for execution.
The court issued a writ of execution. The DF thus appeared through counsel, filing
a motion to quash the writ of execution on the ground that the decision is void for
Section 10. Annulment of judgments or final orders of Municipal Trial Courts. — lack of jurisdiction over the person of the defendant.
An action to annul a judgment or final order of a Municipal Trial Court shall be
filed in the Regional Trial Court having jurisdiction over the former. It shall be Q: What kind of attack is this?
treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall
be applicable thereto. (n)
A: This is a collateral attack on the judgment. What the DF was attacking is the
writ of execution using as argument the voidness of the judgment.
Annulment of judgments or final orders of Municipal Trial Courts
Section 4. Filing and contents of petition. — The action shall be commenced by
Q: Does RTC have jurisdiction to entertain petition for annulment of
filing a verified petition alleging therein with particularity the facts and the law
judgment of MTC?
relied upon for annulment, as well as those supporting the petitioner's good and
substantial cause of action or defense, as the case may be.
A: YES. An action to annul a judgment or final order of a Municipal Trial Court
shall be filed in the Regional Trial Court having jurisdiction over the former. It
The petition shall be filed in seven (7) clearly legible copies, together with
shall be treated as an ordinary civil action and Sections 2, 3, 4, 7, 8 and 9 of this
sufficient copies corresponding to the number of respondents. A certified true
Rule shall be applicable thereto. (Sec. 10, Rule 47) copy of the judgment or final order or resolution shall be attached to the original
copy of the petition intended for the court and indicated as such by the petitioner.
Collateral Attack on Judgment
The petitioner shall also submit together with the petition affidavits of witnesses
A collateral attack is made when, in another action to obtain a different relief, an or documents supporting the cause of action or defense and a sworn certification
attack on the judgment is made as an incident in said action. This is proper only that he has not theretofore commenced any other action involving the same
when the judgment, on its face, is null and void, as where it is patent that the issues in the Supreme Court, the Court of Appeals or different divisions thereof,
court, which rendered said judgment, has no jurisdiction. (Co v. CA) or any other tribunal or agency if there is such other action or proceeding, he
must state the status of the same, and if he should thereafter learn that a similar
COLLATERAL ATTACK DIRECT ATTACK action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or agency,
8 This is how Judge Gito defined it.

he undertakes to promptly inform the aforesaid courts and other tribunal or DECISION/RULING MODE OF APPEAL
agency thereof within five (5) days therefrom. (n) Rule 65 (St. Martin Funeral Homes v.
NLRC)
Section 5. Action by the court. — Should the court find no substantial merit in the Review of decision of NLRC
petition, the same may be dismissed outright with specific reasons for such This is filed with the CA pursuant to
dismissal. St. Martin Funeral Homes.
Review of decision of VA in labor Rule 43 (Royal Plant Workers Union v.
Should prima facie merit be found in the petition, the same shall be given due cases Coca-Cola Bottlers Phils.)
course and summons shall be served on the respondent. (n) Administrative: Rule 43 (Pia v.
Gervacio)
Section 6. Procedure. — The procedure in ordinary civil cases shall be observed. Review of rulings of Ombudsman Criminal: Rule 65 to the SC (Cabrera
Should trial be necessary, the reception of the evidence may be referred to a v. Lapid)
member of the court or a judge of a Regional Trial Court. (n)
JGG: This involves the finding of
Section 7. Effect of judgment. — A judgment of annulment shall set aside the probable cause by the Ombudsman.
questioned judgment or final order or resolution and render the same null and Appeals from CTA en banc Rule 45 (Sec. 11, R.A. No. 9282)
void, without prejudice to the original action being refiled in the proper court. Review of decision of COMELEC Rule 64, 65
However, where the judgment or final order or resolution is set aside on the Review of decision of COA Rule 64, 65
ground of extrinsic fraud, the court may on motion order the trial court to try the Appeals from decision of CSC Rule 43
case as if a timely motion for new trial had been granted therein. (n)
Case: Carpio-Morales v. Court of Appeals
Section 8. Suspension prescriptive period. — The prescriptive period for the
refiling of the aforesaid original action shall be deemed suspended from the filing Section 14. Restrictions. — No writ of injunction shall be issued by any court to
of such original action until the finality of the judgment of annulment. However, delay an investigation being conducted by the Ombudsman under this Act,
the prescriptive period shall not be suspended where the extrinsic-fraud is unless there is a prima facie evidence that the subject matter of the investigation
attributable to the plaintiff in the original action. (n) is outside the jurisdiction of the Office of the Ombudsman.
Section 9. Relief available. — The judgment of annulment may include the award No court shall hear any appeal or application for remedy against the decision or
of damages, attorney's fees and other relief. findings of the Ombudsman, except the Supreme Court, on pure question of law.
If the questioned judgment or final order or resolution had already been executed The second paragraph: “No court shall hear any appeal or application for remedy
the court may issue such orders of restitution or other relief as justice and equity against the decision or findings of the Ombudsman, except the Supreme Court, on
may warrant under the circumstances. (n) pure question of law” was declared unconstitutional for violating Section 30,
Article VI, viz.: No law shall be passed increasing the appellate jurisdiction of the
Supreme Court as provided in this Constitution without its advice and
OTHER APPEALS/REVIEWS
concurrence.
The first paragraph: “No writ of injunction shall be issued by any court to delay
an investigation being conducted by the Ombudsman under this Act was
declared ineffective until the Court adopts the same as part of the rules of
procedure through an administrative circular duly issued therefor.

Promulgate rules concerning the protection and enforcement of constitutional Q: When is execution a matter of right?
rights, pleading, practice, and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal assistance to the underprivileged. A: Execution shall issue as a matter of right, on motion, upon a judgment or order
Such rules shall provide a simplified and inexpensive procedure for the speedy that disposes of the action or proceeding upon the expiration of the period to
disposition of cases, shall be uniform for all courts of the same grade, and shall appeal therefrom if no appeal has been duly perfected. (Sec. 1, Rule 39)
not diminish, increase, or modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless disapproved by the It is a ministerial duty of the court to issue writ of execution when the judgment
Supreme Court. (Sec. 5(5), Art. VIII, 1987 Const.) is already final. Thus, the act may be compelled by mandamus. This is based on
the principle of immutability of judgment. (PTC v. Roxas)
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS (RULE 39)
Q: When is execution a matter of discretion?
Execution
Execution of a judgment or final order pending appeal. — On motion of the
Execution is a remedy afforded for the satisfaction of a judgment. Its object being prevailing party with notice to the adverse party filed in the trial court while it
to obtain satisfaction of the judgment on which the writ is issued (Cagayan de Oro has jurisdiction over the case and is in possession of either the original record or
Coliseum v. CA) the record on appeal, as the case may be, at the time of the filing of such motion,
said court may, in its discretion, order execution of a judgment or final order even
before the expiration of the period to appeal.
It is the fruit and the end of the suit, and is the life of the law. (Ayo v. Violago-
Isnani)
After the trial court has lost jurisdiction, the motion for execution pending appeal
may be filed in the appellate court. (Sec. 2(a), Rule 39)
Q: Which part of the decision is executed?
NOTE: Discretionary execution may only issue upon good reasons to be stated in
A: The dispositive portion of the decision is that part of the decision which is a special order after due hearing.
executed.
Q: What are the requisites for discretionary execution?
The dispositive portion is that which vests rights upon the parties, sets condition
for the exercise of those rights, and imposes the corresponding duties and
obligations. Hence if there is a conflict between the dispositive portion of the A:
decision and the body thereof, the dispositive portion controls irrespective of
what appears in the body. (Globe Telecom, Inc. v. Florendo-Flores) (a) There must be motion filed by the prevailing party with notice to the
adverse party;
Writ of execution should conform to the dispositive portion (b) There must be a hearing of the motion for discretionary execution;
(c) The motion must be filed in the trial court while it has jurisdiction over
the case and is in possession of either the original record or record on
The writ may not vary the terms of judgment to be executed. (Buan v. CA)
appeal;
(d) There must be good reason to justify the discretionary; Good reason
Thus, if the judgment does not provide for the payment of interest, the writ of must be stated in a special order.
execution cannot modify the judgment by requiring the judgment obligor to pay
interest. That part of the writ imposing interest is void. (Solidbank Corporation v.
Q: Is frivolous appeal a good reason to grant a discretionary execution of
CA) An order of execution which does not conform to the dispositive portion of
judgment?
the decision sought to be enforced is null and void. (Lao v. King)

A: NO. Where the sole reason given by the trial court in allowing execution is that The judge, therefore, may not order the execution motu proprio. (Lou v. Siapno)
the appeal is frivolous and dilatory, execution pending appeal cannot be justified
because the authority to disapprove an appeal pertains to the appellate court. Q: Is it required that the losing party be notified of the motion for
(International School, Inc., [Manila] v. Court of Appeals) execution?
Mere allegation that the appeal is dilatory is not a good reason to merit A: We have repeatedly held that once a judgment becomes final, the prevailing
discretionary execution. (Intramuros Tennis Club v. CA) party is entitled as a matter of right to a writ of execution and its issuance is the
trial court's ministerial duty. When a prevailing party files a motion for execution
Q: Is posting of bond enough reason to grant execution pending appeal? of a final and executory judgment, it is not mandatory for such party to serve a
copy of the motion to the adverse party and to set it for hearing. The absence of
A: NO. The mere filing of a bond by the successful party is not in itself a good such advance notice to the judgment debtor does not constitute an infringement
reason for ordering execution pending appeal, because it is the combination of of due process. (Mejia-Espinoza v. Carino, G.R. No. 193397, 25 Jan. 2017)
circumstances which is the dominating reason that would justify immediate
execution, the bond only an additional factor. (International School, Inc., [Manila] Q: Where should one file his motion for execution?
v. Court of Appeals)
A: Execution shall be applied for in the COURT OF ORIGIN.
Otherwise, what the prevailing party would do is just to post a bond, and
execution pending appeal will be issued as a matter of course. (Roxas v. CA) If the appeal has been duly perfected and finally resolved, the execution may
forthwith be applied for in the court of origin, on motion of the judgment obligee,
Good reasons, examples submitting therewith certified true copies of the judgment or judgments or final
order or orders sought to be enforced and of the entry thereof, with notice to the
• Where there is danger of the judgment becoming ineffectual, as where adverse party. (Sec. 1, Rule 39)
the losing party is disposing of its assets (Scottish Union & National
Insurance Co. v. Macadaeg) or where the articles subject of the case NOTE: In an appealed decision, there is no need to wait for the records of the
would deteriorate. (Federation of United NAMARCO v. CA) case.
• Where the judgment debtor is insolvent or in imminent danger of being
insolvent. (Santos v. Mojica) Q: May one file the motion for execution with the appellate court?
Q: Suppose the Court granted the motion for execution in cases where it is A: The appellate court may, on motion in the same case, when the interest of
discretionary, how can execution be stayed? justice so requires, direct the court of origin to issue the writ of execution. (Sec. 1,
Rule 39).
A: It can be stayed by filing a sufficient supersedeas bond which will guaranty the
performance of the judgment or order allowed to be executed in case it shall be Q: What is the lifetime of the writ of execution?
finally sustained in whole or in part. (Sec. 3, Rule 39)
A: The writ shall continue in effect during the period within which the judgment
Q: Is motion necessary for the issuance of writ of execution? may be enforced. Hence the writ may be enforced within the five-year period
from entry of judgment because within that period, the writ may be enforced by
A: YES, motion is necessary. It is extant from the Sec. 1, Rule 39. Motion is motion. (Sec. 6, Rule 39)
required even if the judgment is already final and executory. (Ilaw Buklod ng
Manggagawa [IMB] v. Nestle Philippines, Inc.) Q: How may final and executory judgment or order be executed?

A: The rule abandoned the previous ruling of the Supreme Court in PNB v. Deloso
and Luzon Surety v. IAC.
Q: Which court has jurisdiction over an action for revival of judgment?
A: An action for revival of judgment may be filed either in the same court where
the judgment was rendered or in the place where the plaintiff or defendant
resides or in any other place designated by the statutes. (Heirs of Miranda, Sr., v.
Miranda, G.R. No. 179638, 8 July 2013)
VENUE: Proper venue depends on the determination of whether the present

action for revival judgment is real or personal action. (Infante v. Aran Builders)
Q: What is revival of judgment?
REMEMBER:
A: It is an action intended to secure the execution of a previous judgment which
has become dormant after the passage of five years without it being executed
upon motion of the prevailing party. If the writ of execution was issued and levy made within five years from entry of
the judgment, the auction sale may be made even after the five year period. The
sale of the property and the proceeds are merely means to carry the writ of
It is not intended to re-open any issue affecting the merits of the case judgment execution and a levy already validly made. Accordingly and the application of the
debtor’s case nor the propriety or correctness of the first judgment. proceeds are merely, the levy is the essential act by which the property is set
apart for the satisfaction of judgment. (Government v. Echaus; Vda de Quiambao v.
It is a new and an independent action separate and distinct from the previous Manila Motor)
action sought to be revived. The cause of action is the judgment itself. (Saligumba
v. Palanog) Q: May the running of the five-year period be interrupted?
Q: What are the defenses that may be invoked in an action to revive? A: The Court in certain instances, allowed execution of the judgment by mere
motion despite the lapse of the five-year time. In many instances, the delays in
A: the execution of judgment were through causes clearly attributable to the
judgment debtor as when he employs legal maneuvers to block the enforcement
• Jurisdictional defenses of the judgment. Delays attributable to the defendant have the effect of
• Prescription suspending the running of the prescriptive period for the enforcement of the
• Payment judgment. (Camacho v. CA; Republic v. CA)
• Other defenses arising after the finality of judgment
Q: What are the judgments that are not stayed by appeal?
NOTE: It may even be subject to counterclaims arising out of the transactions not
connected with the former controversy. (Basilonia v. Villaruz) Judgments in actions for 1) injunction, 2) receivership, 3) accounting and 4)
support, and such other judgments as are now or may hereafter be declared to be
REMEMBER: immediately executory, shall be enforceable after their rendition and shall not be
stayed by an appeal taken therefrom, unless otherwise ordered by the trial court.
The revived judgment may also be enforced by motion within five (5) years from
the date of its entry and thereafter by action before it is barred by the statute of
limitations. (Sec. 6, Rule 39; PNB v. Bondoc)
On appeal therefrom, the appellate court in its discretion may make an order Q: How is garnishment effected?
suspending, modifying, restoring or granting the injunction, receivership,
accounting, or award of support. (Sec. 4, Rule 39) A:
Q: How is execution effected if the obligee or judgment obligor dies? (1) By serving notice upon the person owing such debts or having in his
possession or control such credits to which the judgment obligor is
A: entitled.
(2) The garnishee shall make a written report to the court within five (5)
(a) In case of the death of the judgment obligee, upon the application of his days from service of the notice of garnishment stating whether or not the
executor or administrator, or successor in interest. (Sec. 7[a], Rule 39) judgment obligor has sufficient funds or credits to satisfy the amount of
(b) In case of the death of the judgment obligor, against his executor or the judgment. (Sec. 9[c], Rule 39)
administrator or successor in interest, if the judgment be for the
recovery of real or personal property, or the enforcement of a lien If not, the report shall state how much funds or credits the garnishee holds for
thereon. (Sec. 7[b], Rule 39) the judgment obligor. The garnished amount in cash, or certified bank check
(c) In case of the death of the judgment obligor, after execution is actually issued in the name of the judgment obligee, shall be delivered directly to the
levied upon any of his property, the same may be sold for the satisfaction judgment obligee within ten (10) working days from service of notice on said
of the judgment obligation, and the officer making the sale shall account garnishee requiring such delivery, except the lawful fees which shall be paid
to the corresponding executor or administrator for any surplus in his directly to the court. (Sec. 9[c], Rule 39)
hands. (Sec. 7[c], Rule 39)
Execution of money judgment, simplified:
How to execute a money judgment
The officer shall enforce an execution of a judgment for money be demanding

from the judgment obligor the immediate payment of the full amount stated in
the writ of execution and all lawful fees. Judgment obligor shall pay in cash or
certified check. It shall be paid directly to the judgment oblige or his
representative. If not available, to the executing sheriff. (Sec. 9[a], Rule 39)
If the cash payment is not sufficient, then the sheriff shall levy any properties
which may be disposed of for value, except properties exempt from execution.
The judgment obligor has the right to choose what properties to be levied NOTE: It is not proper for the sheriff to immediately levy the property of the
sufficient to satisfy the judgment. If the obligor did not choose, the officer shall judgment debtor. He must first make a demand to pay. Only when the judgment
levy personal property first that are sufficient to satisfy the judgment, then the debtor does not pay, after demand that the sheriff is authorized to levy the
real properties. (Sec. 9[a], Rule 39) properties of the judgment debtor. (Leachon v. Pascua, A.M. No. P-11-2972, 28
Sept. 2011)
The officer may levy on debts due the judgment obligor and other credits,
including bank deposits, financial interests, royalties, commissions and other Q: How is specific act executed?
personal property not capable of manual delivery in the possession or control of
third parties. This is garnishment. (Sec. 9[c], Rule 39) A: If a judgment directs a party to execute a conveyance of land or personal
property, or to deliver deeds or other documents, or to perform any other specific
act in connection therewith, and the party fails to comply within the time A: NO. what the sheriff should do is to dispossess him of the property and if after
specified, the court may direct the act to be done at the cost of the disobedient dispossession, the judgment debtor should execute acts of ownership or
party by some other person appointed by the court and the act when so done possession or in any manner disturb the possession of the judgment creditor,
shall have like effects as if done by the party. If real or personal property is then and only then may he be punished for contempt. (Pascua v. Heirs of Segundo
situated within the Philippines, the court in lieu of directing a conveyance thereof Simeon)
may by an order divesting the title of any party and vest it in others, which shall
have the force and effect of a conveyance executed in due form of law. (Sec. 10 [a], Q: What is the effect of levy on execution to third person?
Rule 39)
A: The levy on execution shall create a lien in favor of the judgment obligee over
Q: How is sale of personal or real property executed? the right, title and interest of the judgment obligor in such property at the time of
the levy, subject to liens and encumbrances then existing. (Sec. 12, Rule 12)
A: If the judgment be for the sale of real or personal property, to sell such
property, describing it, and apply the proceeds in conformity with the judgment. Q: What are properties not subject to execution?
(Sec. 10[b], Rule 39)
A:
Q: How is delivery or restitution of real property executed?
(a) The judgment obligor's family home as provided by law, or the
A: The officer shall demand of the person against whom the judgment for the homestead in which he resides, and land necessarily used in connection
delivery or restitution of real property is rendered and all persons claiming rights therewith;
under him to peaceably vacate the property within three (3) working days, and (b) Ordinary tools and implements personally used by him in his trade,
restore possession thereof to the judgment obligee; otherwise, the officer shall employment, or livelihood;
oust all such persons therefrom with the assistance, if necessary, of appropriate (c) Three horses, or three cows, or three carabaos, or other beasts of burden,
peace officers, and employing such means as may be reasonably necessary to such as the judgment obligor may select necessarily used by him in his
retake possession, and place the judgment obligee in possession of such property. ordinary occupation;
(Sec. 10 [c], Rule 39) (d) His necessary clothing and articles for ordinary personal use, excluding
jewelry;
Q: How is removal of improvements on property subject of execution (e) Household furniture and utensils necessary for housekeeping, and used
enforced? for that purpose by the judgment obligor and his family, such as the
judgment obligor may select, of a value not exceeding one hundred
A: The officer shall not destroy, demolish or remove said improvements except thousand pesos;
upon special order of the court, issued upon motion of the judgment obligee after (f) Provisions for individual or family use sufficient for four months;
due hearing and after the former has failed to remove the same within a (g) The professional libraries and equipment of judges, lawyers, physicians,
reasonable time fixed by the court. (Sec. 10 [d], Rule 39) pharmacists, dentists, engineers, surveyors, clergymen, teachers, and
other professionals, not exceeding three thousand pesos in value;
Q: How is delivery of personal property executed? (h) One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of
which he earns his livelihood;
A: In judgments for the delivery of personal property, the officer shall take (i) So much of the salaries, wages, or earnings of the judgment obligor for
possession of the same and forthwith deliver it to the party entitled thereto and
his personal services within the four months preceding the levy as are
satisfy any judgment for money as therein provided. (Sec. 10 [e], Rule 39) necessary for the support of his family;
(j) Lettered gravestones;
Q: Is contempt a proper remedy in case the judgment obligor refused to (k) Monies, benefits, privileges, or annuities accruing or in any manner
vacate the property? growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as such A:
support, or any pension or gratuity from the Government;
(m) Properties specially exempted by law.
Q: What is the procedure if the property of third party is levied?
A: Basic principle: the execution may issue only upon a person who is a party to
the action or proceeding, and not against one who did not have his day in court.
(Philippine Coconut Federation, Inc., v. Republic)
Thus, the property not owned by the judgment debtor or by one not a party to
the case should not be levied.
Q: What is the remedy of the judgment oblige in case the claim of the third
Q: What is the procedure if the property of third party is levied? party is frivolous?
A: Under the Rules, a person not a party to the action, claiming a property levied A: The judgment obligee may claim damages in the same or a separate action
upon may execute an affidavit of his title or right of possession over the property. against a third-party claimant who filed a frivolous or plainly spurious claim. (Sec.
The affidavit shall be served upon the officer making a levy and a copy thereof 16, Rule 39)
must also be served upon the judgment obligee. (Sec. 16, Rule 39) This remedy of
the claiming party is called TERCERIA. Examination of Judgment Obligor When Judgment Unsatisfied
Q: After receipt of the affidavit of claim, what should the sheriff do? When the return of a writ of execution issued against property of a judgment
obligor, or any one of several obligors in the same judgment, shows that the
The officer shall not be bound to keep the property, unless such judgment obligee, judgment remains unsatisfied, in whole or in part, the judgment obligee, at any
on demand of the officer, files a bond approved by the court to indemnify the time after such return is made, shall be entitled to an order from the court which
third-party claimant in a sum not less than the value of the property levied on. rendered the said judgment, requiring such judgment obligor to appear and be
The officer shall not be liable for damages for the taking or keeping of the examined concerning his property and income before such court or before a
property, to any third-party claimant if such bond is filed. (Sec. 16, Rule 39) commissioner appointed by it, at a specified time and place; and proceedings may
thereupon be had for the application of the property and income of the judgment
Q: Suppose damage was incurred by the third party on account of officer’s obligor towards the satisfaction of the judgment. (Sec. 36, Rule 39)
taking and keeping of his property, when should the action against the bond
be filed? Examination of Judgment Obligor
A: The action should be filed within one hundred twenty (120) days from the date When the return of a writ of execution against the property of a judgment obligor
of the filing of the bond. Under Sec. 16, Rule 39, it is provided that No claim for shows that the judgment remains unsatisfied, in whole or in part, and upon proof
damages for the taking or keeping of the property may be enforced against the to the satisfaction of the court which issued the writ, that a person, corporation,
bond unless the action therefor is filed within one hundred twenty (120) days or other juridical entity has property of such judgment obligor or is indebted to
from the date of the filing of the bond. him, the court may, by an order, require such person, corporation, or other
juridical entity, or any officer or member thereof, to appear before the court or a
Q: What are the remedies of a third party in case his property is levied? commissioner appointed by it, at a time and place within the province or city
where such debtor resides or is found, and be examined concerning the same.
(Sec. 37, Rule 39)
PROVISIONAL REMEDIES Thus, the plaintiff in this case can move for the issuance of a preliminary writ of
attachment. The purpose is to secure judgment, so that when the judgment is
rendered in favor of the plaintiff, there is a possibility that the judgment would
be satisfied considering that the properties of the defendant were preserved and
attached such that it cannot be disposed by the defendant and can be used to
satisfy the eventual judgment of the court.
Receivership: the purpose is to preserve the subject matter of litigation.
EXAMPLE: A real property is mortgaged. X is the mortgagee and Y, the defendant

is the mortgagor. X noticed that Y is dilapidating the property mortgaged such
that if eventually Y will not be able to pay, the value of the property will be
Characteristics of Provisional Remedies depreciated.
• Temporary: Even if it is granted, there is no certainty that it will be X’s remedy in this case is the provisional remedy of receivership. The property
will be under the receivership of a person, who will preserve the property so that
forever; it is dependent on the main action.
when it is eventually foreclosed, its value will be preserved.
JGG: If the plaintiff does not prove his cause of action, the provisional
remedy that was granted to the plaintiff will also be dissolved. A Injunction: the purpose is to preserve the status quo.
provisional remedy is always dependent on a cause of action.
EXAMPLE: A encroached on B’s property, with the latter claiming that the
• Auxiliary: It is attached to the main cause of action. property is his. A successfully entered the property of B and exercised acts of
ownership, like destroying the structures located thereon. B filed a case for
• Ancillary: Provisional remedies are not the main cause of action. recovery of possession of real property. However, this will take some time.
Purpose of Provisional Remedies In order to momentarily stop the defendant A from destroying the structures, B
can apply for the provisional remedy of a writ of preliminary injunction to enjoin
(1) Preserve and protect their rights or interest while the main action is the defendant from doing such actions.
pending;
(2) To secure judgment; Support pendente lite: the purpose is to preserve and protect their rights or
(3) Preserve the status quo; interest while the main action is pending.
(4) Preserve the subject matter of litigation.
EXAMPLE: An illegitimate child, through his mother, filed a petition for support.
Illustrations The petitioner need not wait for the decision of the court after trial on the merits.
He can ask, during the pendency of the case, for support from respondent.
Attachment: the purpose of attachment is to secure judgment.
EXAMPLE: The defendant is indebted to the plaintiff in the amount of P10 million.
However, the plaintiff received information that the defendant is already Replevin: the purpose is to preserve and protect their rights or interest while the
disposing his property. There is a danger that when the plaintiff files a case, it will main action is pending.
just be a paper victory because he will not be able to collect from the defendant
inasmuch as the defendant has no more property.
Replevin may be the main cause of action or a provisional remedy. It is recovery Allegedly, Lim connived with the tenants and told them not to leave the premises
of possession of real property. so that the balance of P18 million would be consumed by the penalty.
EXAMPLE: The defendant borrowed your car, promising to return on a particular Reyes thus sent a letter to Lim rescinding the sale. However, in reality, Reyes sold
date. However, the defendant does not want to return on said date. Your cause of the property to another buyer. He filed a case to rescind the sale but refused to
action is for recovery of property. You can also pray for the issuance of replevin deposit the downpayment for lack of provision in procedure. By way of motion,
because the main cause of action will take some time but meanwhile, you may not the buyer Lim requested the court to require the seller to deposit the P10 million
be allowed to use your property. in court pending litigation.
Jurisdiction Reyes argued that he could not be compelled to deposit the P10 million because
there is no provisional remedy under the Rules of Court which would require
• Dependent on the main action the seller to deposit the amount of downpayment pending litigation.
JGG: Provisional remedies will not have their own jurisdiction. The court which SC: The trial court in the exercise of its equity jurisdiction may validly order the
will grant the provisional remedy will be the court which has jurisdiction over deposit of the P10 million down payment in court. The purpose of the exercise of
the main cause of action. equity jurisdiction in this case is to prevent unjust enrichment and to ensure
restitution. Equity jurisdiction aims to do complete justice in cases where a court
A court without jurisdiction on the main action cannot grant provisional of law is unable to adapt its judgments to the special circumstances of a case
remedies because a provisional remedy is ALWAYS dependent on the main because of the inflexibility of its statutory or legal jurisdiction. Equity is the
principle by which substantial justice may be attained in cases where the
action. What determines jurisdiction on the provisional remedy is the jurisdiction
prescribed or customary forms of ordinary law are inadequate.
of the main action.
Q: When can the court exercise equity jurisdiction?

Provisional Remedies, not exclusive
A: When there is no clear and specific law that is available in a specific

• Reyes v. Lim
circumstance or situation. Under the Civil Code, whenever a case has been filed
• Section 1, Rule 111
in court, the judge has to decide on the case – whether there are applicable rules
• Section 2, Rule 127 or not, it has to do so. One instance in which the judge has to decide is when there
is no applicable provision of the law in a particular situation.
Q: Can you ask from the court other interim relief not included from Rule
57 to Rule 61? In Reyes v. Lim, there is no applicable provision on the deposit of the purchase
price in cases of cancellation of sale. But in the exercise of equity jurisdiction, the
A: YES. The court, in the exercise of its equity jurisdiction, can grant provisional court granted the same.
remedies other than those mentioned in Rules 57-61.
Section 1, Rule 111
Case: Reyes v. Lim
Q: Can you apply provisional remedies in criminal cases?
Reyes is the seller of a parcel of land for P28 million. The buyer was Lim. They
stipulated that P10 million will be paid as initial payment. Since the property was A: YES. This is because every person who is criminally liable is also civilly liable.
being leased to tenants at the time of the sale, there was a provision in the Whenever you file a criminal case, coupled with it is a civil action.
contract that if Reyes fails to eject the tenant within a certain period, then he
would pay a penalty to the buyer Lim at P400,000 per day of delay.
RULE 127, Section 2. Attachment. — When the civil action is properly instituted concealed, removed, or disposed of to prevent its being found or taken by the
in the criminal action as provided in Rule 111, the offended party may have the applicant or an authorized person;
property of the accused attached as security for the satisfaction of any judgment
that may be recovered from the accused in the following cases: (d) In an action against a party who has been guilty of a fraud in contracting the
debt or incurring the obligation upon which the action is brought, or in the
(a) When the accused is about to abscond from the Philippines; performance thereof;
(b) When the criminal action is based on a claim for money or property (e) In an action against a party who has removed or disposed of his property, or
embezzled or fraudulently misapplied or converted to the use of the accused who is about to do so, with intent to defraud his creditors; or
is a public officer, officer of a corporation, attorney, factor, broker, agent, or clerk,
in the course of his employment as such, or by any other person in a fiduciary (f) In an action against a party who does not reside and is not found in the
capacity, or for a willful violation of duty; Philippines, or on whom summons may be served by publication. (1a)
(c) When the accused has concealed, removed, or disposed of his property, or is Section 2. Issuance and contents of order. — An order of attachment may be
about to do so; and issued either ex parte or upon motion with notice and hearing by the court in
which the action is pending, or by the Court of Appeals or the Supreme Court, and
(d) When the accused resides outside the Philippines. must require the sheriff of the court to attach so much of the property in the
Philippines of the party against whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand, unless such party makes
JGG: There are instances in Sec. 2 of Rule 127 wherein the private complainant
deposit or gives a bond as hereinafter provided in an amount equal to that fixed
may apply for the provisional remedy of attachment in criminal cases.
in the order, which may be the amount sufficient to satisfy the applicant's demand
or the value of the property to be attached as stated by the applicant, exclusive of
PRELIMINARY ATTACHMENT (RULE 57) costs. Several writs may be issued at the same time to the sheriffs of the courts of
different judicial regions. (2a)
Section 1. Grounds upon which attachment may issue. — At the commencement
Section 3. Affidavit and bond required. — An order of attachment shall be granted
of the action or at any time before entry of judgment, a plaintiff or any proper
only when it appears by the affidavit of the applicant, or of some other person
party may have the property of the adverse party attached as security for the
who personally knows the facts, that a sufficient cause of action exists, that the
satisfaction of any judgment that may be recovered in the following cases:
case is one of those mentioned in section 1 hereof, that there is no other sufficient
security for the claim sought to be enforced by the action, and that the amount
(a) In an action for the recovery of a specified amount of money or damages, other due to the applicant, or the value of the property the possession of which he is
than moral and exemplary, on a cause of action arising from law, contract, quasi- entitled to recover, is as much as the sum for which the order is granted above all
contract, delict or quasi-delict against a party who is about to depart from the legal counterclaims. The affidavit, and the bond required by the next succeeding
Philippines with intent to defraud his creditors; section, must be duly filed with the court before the order issues. (3a)
(b) In an action for money or property embezzled or fraudulently misapplied or Section 4. Condition of applicant's bond. — The party applying for the order must
converted to his own use by a public officer, or an officer of a corporation, or an thereafter give a bond executed to the adverse party in the amount fixed by the
attorney, factor, broker, agent, or clerk, in the course of his employment as such, court in its order granting the issuance of the writ, conditioned that the latter will
or by any other person in a fiduciary capacity, or for a willful violation of duty; pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally
(c) In an action to recover the possession of property unjustly or fraudulently adjudge that the applicant was not entitled thereto. (4a)
taken, detained or converted, when the property, or any part thereof, has been

Section 5. Manner of attaching property. — The sheriff enforcing the writ shall certificate of title, the volume and page in the registration book where the
without delay and with all reasonable diligence attach, to await judgment and certificate is registered, and the registered owner or owners thereof.
execution in the action, only so much of the property in the Philippines of the
party against whom the writ is issued, not exempt from execution, as may be The registrar of deeds must index attachments filed under this section in the
sufficient to satisfy the applicant's demand, unless the former makes a deposit names of the applicant, the adverse party, or the person by whom the property is
with the court from which the writ is issued, or gives a counter-bond executed to held or in whose name it stands in the records. If the attachment is not claimed
the applicant, in an amount equal to the bond fixed by the court in the order of on the entire area of the land covered by the certificate of title, a description
attachment or to the value of the property to be attached, exclusive of costs. No sufficiently accurate for the identification of the land or interest to be affected
levy on attachment pursuant to the writ issued under section 2 hereof shall be shall be included in the registration of such attachment;
enforced unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment (b) Personal property capable of manual delivery, by taking and safely keeping it
the applicant's affidavit and bond, and the order and writ of attachment, on the in his custody, after issuing the corresponding receipt therefor.
defendant within the Philippines.
(c) Stocks or shares, or an interest in stocks or shares, of any corporation or
The requirement of prior or contemporaneous service of summons shall not company, by leaving with the president or managing agent thereof, a copy of the
apply where the summons could not be served personally or by substituted writ, and a notice stating that the stock or interest of the party against whom the
service despite diligent efforts, or the defendant is a resident of the Philippines attachment is issued is attached in pursuance of such writ;
temporarily absent therefrom, or the defendant is a non-resident of the
Philippines, or the action is one in rem or quasi in rem. (5a)
(d) Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery, by
Section 6. Sheriff's return. — After enforcing the writ, the sheriff must likewise leaving with the person owing such debts, or having in his possession or under
without delay make a return thereon to the court from which the writ issued, with his control, such credits or other personal property, or with his agent, a copy of
a full statement of his proceedings under the writ and a complete inventory of the the writ, and notice that the debts owing by him to the party against whom
property attached, together with any counter-bond given by the party against attachment is issued, and the credits and other personal property in his
whom attachment is issued, and serve copies thereof on the applicant. (6a) possession, or under his control, belonging to said party, are attached in
pursuance of such writ;
Section 7. Attachment of real and personal property; recording thereof. — Real
and personal property shall be attached by the sheriff executing the writ in the (e) The interest of the party against whom attachment is issued in property
following manner: belonging to the estate of the decedent, whether as heir, legatee, or devisee, by
serving the executor or administrator or other personal representative of the
(a) Real property, or growing crops thereon, or any interest therein, standing decedent with a copy of the writ and notice that said interest is attached. A copy
upon the record of the registry of deeds of the province in the name of the party of said writ of attachment and of said notice shall also be filed in the office of the
against whom attachment is issued, or not appearing at all upon such records, or clerk of the court in which said estate is being settled and served upon the heir,
belonging to the party against whom attachment is issued and held by any other legatee or devisee concerned.
person, or standing on the records of the registry of deeds in the name of any
other person, by filing with the registry of deeds a copy of the order, together If the property sought to be attached is in custodia legis, a copy of the writ of
with a description of the property attached, and a notice that it is attached, or that attachment shall be filed with the proper court or quasi-judicial agency, and
such real property and any interest therein held by or standing in the name of notice of the attachment served upon the custodian of such property. (7a)
such other person are attached, and by leaving a copy of such order, description,
and notice with the occupant of the property, if any, or with such other person or
his agent if found within the province. Where the property has been brought Section 8. Effect of attachment of debts, credits and all other similar personal
under the operation of either the Land Registration Act or the Property property. — All persons having in their possession or under their control any
Registration Decree, the notice shall contain a reference to the number of the credits or other similar personal property belonging to the party against whom
attachment is issued, or owing any debts to him, at the time of service upon them the person appearing on his behalf, may move for the discharge of the attachment
of the copy of the writ of attachment and notice as provided in the last preceding wholly or in part on the security given. The court shall, after due notice and
section, shall be liable to the applicant for the amount of such credits, debts or hearing, order the discharge of the attachment if the movant makes a cash
other similar personal property, until the attachment is discharged, or any deposit, or files a counter-bond executed to the attaching party with the clerk of
judgment recovered by him is satisfied, unless such property is delivered or the court where the application is made, in an amount equal to that fixed by the
transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of court in the order of attachment, exclusive of costs. But if the attachment is sought
the court issuing the attachment. (8a) to be discharged with respect to a particular property, the counter-bond shall be
equal to the value of that property as determined by the court. In either case, the
Section 9. Effect of attachment of interests in property belonging to the estate of a cash deposit or the counter-bond shall secure the payment of any judgment that
decedent. — The attachment of the interest of an heir, legatee, or devisee in the the attaching party may recover in the action. A notice of the deposit shall
property belonging to the estate of a decedent shall not impair the powers of the forthwith be served on the attaching party. Upon the discharge of an attachment
executor, administrator, or other personal representative of the decedent over in accordance with the provisions of this section, the property attached, or the
such property for the purpose of administration. Such personal representative, proceeds of any sale thereof, shall be delivered to the party making the deposit
however, shall report the attachment to the court when any petition for or giving the counter-bond, or to the person appearing on his behalf, the deposit
distribution is filed, and in the order made upon such petition, distribution may or counter-bond aforesaid standing in place of the property so released. Should
be awarded to such heir, legatee or devisee, but the property attached shall be such counter-bond for any reason be found to be or become insufficient, and the
ordered delivered to the sheriff making the levy, subject to the claim of such heir, party furnishing the same fail to file an additional counter-bond, the attaching
legatee, or devisee, or any person claiming under him. (9a) party may apply for a new order of attachment. (12a)
Section 10. Examination of party whose property is attached and persons indebted Section 13. Discharge of attachment on other grounds. — The party whose
to him or controlling his property; delivery of property to sheriff. — Any person property has been ordered attached may file a motion with the court in which he
owing debts to the party whose property is attached or having in his possession action is pending, before or after levy or even after the release of the attached
or under his control any credit or other personal property belonging to such property, for an order to set aside or discharge the attachment on the ground that
party, may be required to attend before the court in which the action is pending, the same was improperly or irregularly issued or enforced, or that the bond is
or before a commissioner appointed by the court, and be examined on oath insufficient. If the attachment is excessive, the discharge shall be limited to the
respecting the same. The party whose property is attached may also be required excess. If the motion be made on affidavits on the part of the movant but not
to attend for the purpose of giving information respecting his property, and may otherwise, the attaching party may oppose the motion by counter-affidavits or
be examined on oath. The court may, after such examination, order personal other evidence in addition to that on which the attachment was made. After due
property capable of manual delivery belonging to him, in the possession of the notice and hearing, the court shall order the setting aside or the corresponding
person so required to attend before the court, to be delivered to the clerk of the discharge of the attachment if it appears that it was improperly or irregularly
court or sheriff on such terms as may be just, having reference to any lien thereon issued or enforced, or that the bond is insufficient, or that the attachment is
or claim against the same, to await the judgment in the action. (10a) excessive, and the defect is not cured forthwith. (13a)
Section 11. When attached property may be sold after levy on attachment and Section 14. Proceedings where property claimed by third person. — If the
before entry of judgment. — Whenever it shall be made to appear to the court in property attached is claimed by any person other than the party against whom
which the action is pending, upon hearing with notice to both parties, that the attachment had been issued or his agent, and such person makes an affidavit of
property attached is perishable, or that the interests of all the parties to the action his title thereto, or right to the possession thereof, stating the grounds of such
will be subserved by the sale thereof, the court may order such property to be right or title, and serves such affidavit upon the sheriff while the latter has
sold at public auction in such manner as it may direct, and the proceeds of such possession of the attached property, and a copy thereof upon the attaching party,
sale to be deposited in court to abide the judgment in the action. (11a) the sheriff shall not be bound to keep the property under attachment, unless the
attaching party or his agent, on demand of the sheriff, shall file a bond approved
Section 12. Discharge of attachment upon giving counter-bond. — After a writ of by the court to indemnify the third-party claimant in a sum not less than the value
attachment has been enforced, the party whose property has been attached, or of the property levied upon. In case of disagreement as to such value, the same
shall be decided by the court issuing the writ of attachment. No claim for damages Section 16. Balance due collected upon an execution; excess delivered to judgment
for the taking or keeping of the property may be enforced against the bond unless obligor. — If after realizing upon all the property attached, including the proceeds
the action therefor is filed within one hundred twenty (120) days from the date of any debts or credits collected, and applying the proceeds to the satisfaction of
of the filing of the bond. the judgment less the expenses of proceedings upon the judgment any balance
shall remain due, the sheriff must proceed to collect such balance as upon
The sheriff shall not be liable for damages for the taking or keeping of such ordinary execution. Whenever the judgment shall have been paid, the sheriff,
property to any such third-party claimant, if such bond shall be filed. Nothing upon reasonable demand, must return to the judgment obligor the attached
herein contained shall prevent such claimant or any third person from property remaining in his hands, and any proceeds of the sale of the property
vindicating his claim to the property, or prevent the attaching party from attached not applied to the judgment. (16a)
claiming damages against a third-party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action. Section 17. Recovery upon the counter-bond. — When the judgment has become
executory, the surety or sureties on any counter-bond given pursuant to the
When the writ of attachment is issued in favor of the Republic of the Philippines, provisions of this Rule to secure the payment of the judgment shall become
or any officer duly representing it, the filing of such bond shall not be required, charged on such counter-bond and bound to pay the judgment obligee upon
and in case the sheriff is sued for damages as a result of the attachment, he shall demand the amount due under the judgment, which amount may be recovered
be represented by the Solicitor General, and if held liable therefor, the actual from such surety or sureties after notice and summary hearing in the same action.
damages adjudged by the court shall be paid by the National Treasurer out of the (17a)
funds to be appropriated for the purpose. (14a)
Section 18. Disposition of money deposited. — Where the party against whom
Section 15. Satisfaction of judgment out of property attached, return of sheriff. — attachment had been issued has deposited money instead of giving counter-bond,
If judgment be recovered by the attaching party and execution issue thereon, the it shall be applied under the direction of the court to the satisfaction of any
sheriff may cause the judgment to be satisfied out of the property attached, if it judgment rendered in favor of the attaching party, and after satisfying the
be sufficient for that purpose in the following manner: judgment the balance shall be refunded to the depositor or his assignee. If the
judgment is in favor of the party against whom attachment was issued, the whole
(a) By paying to the judgment obligee the proceeds of all sales of perishable or sum deposited must be refunded to him or his assignee. (18a)
other property sold in pursuance of the order of the court, or so much as shall be
necessary to satisfy the judgment; Section 19. Disposition of attached property where judgment is for party against
whom attachment was issued. — If judgment be rendered against the attaching
(b) If any balance remains due, by selling so much of the property, real or party, all the proceeds of sales and money collected or received by the sheriff,
personal, as may be necessary to satisfy the balance, if enough for that purpose under the order of attachment, and all property attached remaining in any such
remain in the sheriff's hands, or in those the clerk of the court; officer's hands, shall be delivered to the party against whom attachment was
issued, and the order of attachment discharged. (19a)
(c) By collecting from all persons having in their possession credits belonging to
the judgment obligor, or owing debts to the latter at the time of the attachment Section 20. Claim for damages on account of improper, irregular or excessive
of such credits or debts, the amount of such credits and debts as determined by attachment. — An application for damages on account of improper, irregular or
the court in the action, and stated in the judgment, and paying the proceeds of excessive attachment must be filed before the trial or before appeal is perfected
such collection over to the judgment obligee. or before the judgment becomes executory, with due notice to the attaching party
and his surety or sureties setting forth the facts showing his right to damages and
the amount thereof. Such damages may be awarded only after proper hearing and
The sheriff shall forthwith make a return in writing to the court of his proceedings shall be included in the judgment on the main case.
under this section and furnish the parties with copies thereof. (15a)
If the judgment of the appellate court be favorable to the party against whom the
attachment was issued he must claim damages sustained during the pendency of
the appeal by filing an application in the appellate court, with notice to the party Q: What is the nature of attachment?
in whose favor the attachment was issued or his surety or sureties, before the
judgment of the appellate court becomes executory. The appellate court may A: Attachment is in the nature of a proceeding quasi in rem (Banco-Espanol v.
allow the application to be heard and decided by the trial court. Palanca) although sometimes referred to as action in rem. (Valdevieso v.
Damalerio)
Nothing herein contained shall prevent the party against whom the attachment
was issued from recovering in the same action the damages awarded to him from JGG: The correct description is it is an action quasi in rem.
any property of the attaching party not exempt from execution should the bond
or deposit given by the latter be insufficient or fail to fully satisfy the award. (20a) NOTE: This classification becomes relevant only when the defendant does not
appear in the action as when the defendant is a non-resident who, at the same
Preliminary Attachment time, is outside of the Philippines.
It is a provisional remedy issued by the court where the action is pending levying JGG: If the court acquired jurisdiction over the person of the defendant, then that
the property or properties of the defendant to serve as security for whatever action is an action in personam.
judgment the said court might render in favor of the plaintiff.
Q: What is the purpose of preliminary attachment?
It is provisional because it constitutes temporary measure availed of during the
pendency of action and they are ancillary because it is dependent upon the main A: Preliminary attachment is designed to seize the property of the debtor before
action. final judgment and put the same in custodia legis even while the action is pending
for the satisfaction of a later judgment and to acquire jurisdiction over the
Q: Will the writ of preliminary attachment be dissolved if the parties had property in those instances where personal or substituted services of summons
already entered into compromise agreement? on the defendant cannot be effected. (Philippine Commercial International Bank v.
Alejandro)
A: NO. The parties to the compromise agreement should not be deprived of the
protection provided by an attachment lien. If the rule were otherwise, it is easier JGG: The purpose is to secure judgment.
for the debtor whose property was attached to have the lien released by entering
into a compromise agreement without the intention of actually honoring it. (Lim, Q: Who may apply for preliminary attachment?
Jr., v. Sps. Lazaro, G.R. No. 185734, 3 July 2013)
A:
EXAMPLE: The PF filed a complaint with prayer for preliminary attachment. The
court granted the same. During pre-trial, the parties entered into a compromise
agreement. It was approved by the court and the latter rendered judgment based
on compromise.
Assuming that what was promised during the compromise agreement has yet to
be complied with, the Supreme Court ruled that the writ of preliminary
attachment is not yet dissolved.
JGG: If the ruling were otherwise, the defendant would just enter into a
compromise agreement without any intention of honoring what they agreed
upon.

About to depart with intent to defraud is required for the issuance. (K.O. Glass
Construction v. Valenzuela)
JGG: NOT ALL actions for recovery of sum of money can you ask for PA. You can
only ask for PA if the defendant is about to depart from the Philippines with intent
to defraud his creditors. That is the indispensable requirement.
EXAMPLE: X executed a PN in favor of Y. When the PN became D/D without

payment, Y filed an action for collection of sum of money with prayer for the
issuance of a preliminary writ of attachment. The court will not grant the same
because there is no allegation in the complaint that the defendant is about to
depart from the Philippines with intent to defraud his creditors.
B. Action for money or property embezzled.

Q: Can the defendant apply for preliminary attachment?
In an action for money or property embezzled or fraudulently misapplied or
A: YES. The claiming party can file for preliminary attachment. If the defendant is converted to his own use by a public officer, or an officer of a corporation, or an
a claiming party, then he can file for such. attorney, factor, broker, agent, or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or for a willful violation of duty.
Q: At what stage may preliminary attachment be applied? (Sec. 1(b), Rule 57)
A: JGG: The defendant in this case may be –
• At the commencement of the action; (a) A public officer, or

(b) An officer of a corporation, or
EXAMPLE: X files a complaint and coupled with that complaint is a (c) An attorney, factor, broker, agent, or clerk, in the course of his
prayer for preliminary attachment. employment as such, or by
(d) Any other person in a fiduciary capacity or for a willful violation of duty.
• Any time before entry of judgment. (Sec. 1, Rule 57)
For public officers and officers of a corporation, it may be that the government or
Q: What are the cases where preliminary attachment is proper? the corporation, respectively, are the ones filing the case.
(MEMORIZE)
C. Action for recovery of property unjustly or fraudulently taken.
A: In the following cases, viz. –
In an action to recover the possession of property unjustly or fraudulently taken,
A. Recovery of a specified amount of money or damages. detained or converted, when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being found or taken by the
In an action for the recovery of a specified amount of money or damages, other applicant or an authorized person. (Sec. 1(c), Rule 57)
than moral and exemplary, on a cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party who is about to depart from the D. Fraud in contracting or performing an obligation.
Philippines with intent to defraud his creditors. (Sec. 1(a), Rule 57)

In an action against a party who has been guilty of a fraud in contracting the debt JGG: You can apply for PA if a case is filed against a NON-RESIDENT. In this case,
or incurring the obligation upon which the action is brought, or in the you do the summons by publication.
performance thereof. (Sec. 1(d), Rule 57)
SUMMONS BY PUBLICATION
Dolo causante v. Dolo incidente Service upon defendant
Residents temporarily out of
whose identity or Extraterritorial service (Sec.
the Philippines (Sec. 18, Rule
whereabouts are unknown 17, Rule 14)
14)
Dolo causante (fraud in the perfection) is a fraud that is committed in order to (Sec. 16, Rule 14)
SECURE an obligation. If this is the case, then it will make the obligation void. Applicability
When the defendant does not
reside and is not found in the
EXAMPLE: X sold a ring to Y with the representation that the ring has a 24k Philippines, and the action:
diamond, but in reality, it is just glass. It will make the obligation void.
(1) Affects the personal
status of the plaintiff or
Dolo incidente is fraud in the performance of the obligation. It will not make the (2) Relates to, or the subject
obligation void but will make the defendant liable for damages. of which is, property
In any action where the within the Philippines, in
When any action is
defendant is designated as an which the defendant has
EXAMPLE: X bought 20 barrels of wine from Y. For every barrel, Y takes one glass commenced against a
unknown owner, or the like, or or claims a lien or interest,
of wine and dilutes it with one glass of water. This is fraud in the performance of defendant who ordinarily
whenever his or her actual or contingent, or in
resides within the Philippines,
the obligation. whereabouts are unknown which the relief
but who is temporarily out of
and cannot be ascertained by demanded consists,
it.
diligent inquiry. wholly or in part, in
REMEMBER: For the purpose of the issuance of a preliminary attachment, there excluding the defendant
is NO distinction – whether DC or DI, you can apply for the issuance of preliminary from any interest therein,
attachment. or
(3) The property of the
defendant has been
E. Removal or disposal of property with intent to defraud. attached within the
Philippines.
In an action against a party who has removed or disposed of his property, or is

about to do so, with intent to defraud his creditors. (Sec. 1(e), Rule 57) Type of action
Actions in rem or quasi in
Actions in personam, in rem or quasi in rem.
rem.
EXAMPLE: X is indebted to Y. The debt is not yet D/D but Y noticed that X is How made
disposing his property left and right with the intention to defraud his creditors. Within ninety (90) calendar
days from the commencement
In this case, Y can file a case for rescission. He can also file and ask for the issuance of the action, service may, by
of PA. Publication in a newspaper of general circulation in such places
leave of court, be effected
and for such time as the court may order, in which case a copy of
upon him or her by
the summons and order of the court shall be sent by registered
publication in a newspaper of
F. Action against non-residents or on whose summons may be served by general circulation and in such
mail to the last known address of the defendant.
publication. places and for such time as the
court may order.
In an action against a party who does not reside and is not found in the Leave of court
Philippines, or on whom summons may be served by publication. (Sec. 1(f), Rule Leave of court is required.
57)
NOTE: Summons by publication is also provided under Sec. 14, Rule 14, when a foreign private
juridical entity is not registered in the Philippines, or has no resident agent but has transacted or
is doing business in it.
NOTE: Read this in relation to Secs. 16, 17 and 18, Rule 14 of the Rules of Court. JGG: You do not have to hear the other party. If you file a complaint with prayer
for the issuance of PA, it will be heard by the court ex parte. The court will not
JGG: You can not apply for preliminary attachment in ALL cases, but only the notify the other party of your application. The plaintiff will be the only one to be
cases specified above. Memorize the cases. heard by the court without the participation of the defendant.
Requisites for issuance of preliminary writ of attachment REMEMBER: It is ex parte when it is included in the filing of the complaint. There
has to be an element of surprise. If the defendant is already informed of your
(a) Applicant's bond must be filed; application for the issuance of a writ of PA, the defendant may be alerted such
that before the court issues the writ, he might successfully hide his property
JGG: This is to recompense the other party for whatever damages that already and there might be nothing more to attach.
the issuance of the writ will result in.
Upon motion with notice and hearing
(b) Affidavit of merit stating –
JGG: When you apply for PA when the case is pending, it will always be upon
• Sufficient cause of action exists; motion and there will always be notice and hearing.
• The case is one of those mentioned in Section 1 hereof;
• There is no other sufficient security for the claim sought to be enforced Stages in the grant of preliminary attachment
by the action; and
• The amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for
which the order is granted above all legal counterclaims. (Sec. 3, Rule 57)
JGG: On top of all the documents you are required to include in your pleading, you
must have an affidavit of merit when you apply for preliminary attachment.
NOTE: If the obligation is already secured, then there is no need for attachment.
Your prayer for the issuance of PA will be denied. This is because one of the
requirements is that there is no other sufficient security for the claim sought to
be enforced by the action.
JGG: What is to be implemented by the court is the WRIT itself and not the order.
Q: How may preliminary writ of attachment be issued?
Contemporaneous service of summons in implementation of writ
A: An order of attachment may be issued either:
Q: Is it necessary for the court to have acquired jurisdiction over the person
(a) Ex parte or of the defendant when the writ is implemented?
(b) Upon motion with notice and hearing;
(c) On appeal before the Court of Appeals or Supreme Court. (Sec. 2, Rule 57)
A: YES, because under the rules: “No levy on attachment pursuant to the writ
issued under Section 2 hereof shall be enforced unless it is preceded, or
Ex parte contemporaneously accompanied, by service of summons, together with a copy
of the complaint, the application for attachment, the applicant's affidavit and

bond, and the order and writ of attachment, on the defendant within the Where the property is registered under the Land Registration Act, the notice shall
Philippines.” (Sec. 5, Rule 57) contain a reference to the number of the certificate of title, the volume and page
in the registration book where the certificate is registered, and the registered
Thus, there must be prior or contemporaneous service of summons. owner or owners thereof. (Sec. 7(b), Rule 57)
JGG: The implementation of the writ CANNOT precede service of summons. The Q: How is personal property attached?
service of summons can precede implementation of the writ. At the very least, the
two must be done contemporaneously. A: Personal property capable of manual delivery, by taking and safely keeping it
in his custody, after issuing the corresponding receipt therefor. (Sec. 7(c), Rule
The conclusion that can be derived in this rule is that the court must first acquire 57)
jurisdiction over the PERSON of the defendant before the writ of attachment
may be implemented. JGG: Usually, the property will be taken by the sheriff and brought to the court.
Q: Are there exceptions to prior or contemporaneous service of summons? Q: How are bank deposits and other credits attached?
A: YES. The requirement of prior or contemporaneous service of summons shall A: By leaving with the person owing such debts, or having in his possession or
not apply where: under his control, such credits or other personal property, or with his agent, a
copy of the writ, and notice that the debts owing by him to the party against
(1) The summons could not be served personally or by substituted whom attachment is issued, and the credits and other personal property in his
service despite diligent efforts; or possession, or under his control, belonging to said party, are attached in
pursuance of such writ. (Sec. 7(d), Rule 57)
EXAMPLE: The DF’s whereabouts are unknown.
Q: How is interest belonging to estate of the decedent attached?
(2) The defendant is a resident of the Philippines temporarily absent
therefrom; or A: By serving the executor or administrator or other personal representative of
(3) The defendant is a non-resident of the Philippines; or the decedent with a copy of the writ and notice that said interest is attached. A
(4) The action is one in rem or quasi in rem. (Sec. 5, Rule 57) copy of said writ of attachment and of said notice shall also be filed in the office
of the clerk of the court in which said estate is being settled and served upon the
In these cases, you can implement the writ of attachment prior to the service of heir, legatee or devisee concerned. (Sec. 7(e), Rule 57)
summons.
Q: May a property under custodia legis be attached?
How property attached
A: YES. If the property sought to be attached in custodia legis, a copy of the writ
Q: How is real property attached? of attachment shall be filed with the proper court or quasi-judicial agency, and
notice of the attachment served upon the custodian of such property (Sec. 7, Rule
A: It is attached by the sheriff by filing with the RD a copy of the order together 57)
with a description of the property attached, and a notice that it is attached leaving
a copy of such order, description, and notice with the occupant of the property, if EXAMPLE: X is indebted to Y and Z. Y was able to attach X’s property in Ayala-
any. Alabang. Z can also attach the same property in custodia legis.

Q: Supposing the sheriff attached the property of the third party, what are EXAMPLE: There is no affidavit of merit; or the case does not fall under
the remedies of the latter if any? the aforementioned grounds; or the attachment was irregularly issued.
A: He may avail of the following remedies – Q: What are grounds which may be invoked in the motion to discharge
attachment?
• He may avail the remedy of terceria; (Sec. 14, Rule 57)
• The third party-claimant may also invoke the court’s authority in the A:
same case and move for a summary hearing on his claim. If his claim is
meritorious, the court shall lift the attachment; (Ching v. Court of • Attachment was improperly or irregularly issued;
Appeals) or • Bond is insufficient;
• The third party may file a separate civil action to nullify the levy. (Ching, • Attachment is excessive with respect to the excess;
ibid.) • Property is exempt from execution.
Terceria Q: May a party whose property was attached recover damages from the
attaching party though the former lost the case?
If the property of a third person is attached, but the latter is not a party to the
case, he will file an affidavit of third party claim, which would be given to the A: YES. This is implied from Section 20, Rule 57 which provides that: “An
sheriff. The sheriff will then refrain from attaching such property but he will application for damages on account of improper, irregular or excessive
inform the applicant claiming party that the property cannot be attached because attachment must be filed before the trial or before appeal is perfected or before
someone is claiming the property as his own. the judgment becomes executory, with due notice to the attaching party and his
surety or sureties.” (Carlos v. Sandoval)
However, the sheriff may still continue to attach the property if the plaintiff
executes a bond in favor of the third-party claimant which will secure whatever
PRELIMINARY INJUNCTION (RULE 58)
damages that the third-party claimant may suffer. If the plaintiff fails to post a
bond, the sheriff is NOT bound to attach the property.
Section 1. Preliminary injunction defined; classes. — A preliminary injunction is
The third party-claimant may also invoke the court’s authority in the same case and an order granted at any stage of an action or proceeding prior to the judgment or
move for a summary hearing on his claim. If his claim is meritorious, the court shall final order, requiring a party or a court, agency or a person to refrain from a
lift the attachment particular act or acts. It may also require the performance of a particular act or
acts, in which case it shall be known as a preliminary mandatory injunction. (1a)
The third party can file a motion in court to LIFT the order of attachment. He may
also file a separate civil action to nullify the attachment. Section 2. Who may grant preliminary injunction. — A preliminary injunction
may be granted by the court where the action or proceeding is pending. If the
Q: How may a writ of attachment be discharged? action or proceeding is pending in the Court of Appeals or in the Supreme Court,
it may be issued by said court or any member thereof. (2a)
(1) By filing a motion to discharge the attachment and making a deposit or
counter-bond in an amount equal to that fixed by the court or value of Section 3. Grounds for issuance of preliminary injunction. — A preliminary
the property attached; (Sec. 12, Rule 57) injunction may be granted when it is established:
(2) By filing a motion to set aside or discharge the attachment on other
grounds without need of filing a counterbond. (a) That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or acts

complained of, or in requiring the performance of an act or acts either for a conducted within twenty-four (24) hours after the sheriff's return of service
limited period or perpetually; and/or the records are received by the branch selected by raffle and to which the
records shall be transmitted immediately.
(b) That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the Section 5. Preliminary injunction not granted without notice; exception. — No
applicant; or preliminary injunction shall be granted without hearing and prior notice to the
party or person sought to be enjoined. If it shall appear from facts shown by
(c) That a party, court, agency or a person is doing, threatening, or is attempting affidavits or by the verified application that great or irreparable injury would
to do, or is procuring or suffering to be done some act or acts probably in violation result to the applicant before the matter can be heard on notice, the court to
of the rights of the applicant respecting the subject of the action or proceeding, which the application for preliminary injunction was made, may issue a
and tending to render the judgment ineffectual. (3a) temporary restraining order to be effective only for a period of twenty (20) days
from service on the party or person sought to be enjoined, except as herein
Section 4. Verified application and bond for preliminary injunction or temporary provided. Within the said twenty-day period, the court must order said party or
restraining order. — A preliminary injunction or temporary restraining order person to show cause, at a specified time and place, why the injunction should
may be granted only when: not be granted, determine within the same period whether or not the preliminary
injunction shall be granted, and accordingly issue the corresponding order. (Bar
Matter No. 803, 17 February 1998)
(a) The application in the action or proceeding is verified, and shows facts
entitling the applicant to the relief demanded; and
However, and subject to the provisions of the preceding sections, if the matter is
of extreme urgency and the applicant will suffer grave injustice and irreparable
(b) Unless exempted by the court the applicant files with the court where the
injury, the executive judge of a multiple-sala court or the presiding judge of a
action or proceeding is pending, a bond executed to the party or person enjoined,
single sala court may issue ex parte a temporary restraining order effective for
in an amount to be fixed by the court, to the effect that the applicant will pay to only seventy-two (72) hours from issuance but he shall immediately comply with
such party or person all damages which he may sustain by reason of the the provisions of the next preceding section as to service of summons and the
injunction or temporary restraining order if the court should finally decide that documents to be served therewith. Thereafter, within the aforesaid seventy-two
the applicant was not entitled thereto. Upon approval of the requisite bond, a writ (72) hours, the judge before whom the case is pending shall conduct a summary
of preliminary injunction shall be issued. (4a) hearing to determine whether the temporary restraining order shall be extended
until the application for preliminary injunction can be heard. In no case shall the
(c) When an application for a writ of preliminary injunction or a temporary total period of effectivity of the temporary restraining order exceed twenty (20)
restraining order is included in a complaint or any initiatory pleading, the case, if days, including the original seventy-two hours provided herein.
filed in a multiple-sala court, shall be raffled only after notice to and in the
presence of the adverse party or the person to be enjoined. In any event, such In the event that the application for preliminary injunction is denied or not
notice shall be preceded, or contemporaneously accompanied, by service of resolved within the said period, the temporary restraining order is deemed,
summons, together with a copy of the complaint or initiatory pleading and the automatically vacated. The effectivity of a temporary restraining order is not
applicant's affidavit and bond, upon the adverse party in the Philippines. extendible without need of any judicial declaration to that effect and no court
shall have authority to extend or renew the same on the same ground for which
However, where the summons could not be served personally or by substituted it was issued.
service despite diligent efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a nonresident thereof, the However, if issued by the Court of Appeals or a member thereof, the temporary
requirement of prior or contemporaneous service of summons shall not apply. restraining order shall be effective for sixty (60) days from service on the party
or person sought to be enjoined. A restraining, order issued by the Supreme Court
(d) The application for a temporary restraining order shall thereafter be acted or a member thereof shall be effective until further orders. (5a)
upon only after all parties are heard in a summary hearing which shall be
Section 6. Grounds for objection to, or for motion of dissolution of, injunction or Preliminary injunction is an order granted at any stage of an action, prior to the
restraining order. — The application for injunction or restraining order may be judgment or final order, requiring a party, court, agency or person to perform or
denied, upon a showing of its insufficiency. The injunction or restraining order refrain from performing an act or acts. (Sec. 1, Rule 58)
may also be denied, or, if granted, may be dissolved, on other grounds upon
affidavits of the party or person enjoined, which may be opposed by the applicant (a) Preliminary mandatory injunction – order to require the doing of an act.
also by affidavits. It may further be denied, or if granted, may be dissolved, if it (b) Preliminary prohibitory injunction – order to refrain from doing an act.
appears after hearing that although the applicant is entitled to the injunction or
restraining order, the issuance or continuance thereof, as the case may be, would Q: What is the purpose of preliminary injunction?
cause irreparable damage to the party or person enjoined while the applicant can
be fully compensated for such damages as he may suffer, and the former files a
bond in an amount fixed by the court conditioned that he will pay all damages A: A writ of injunction is issued by the court to prevent threatened or continuous
which the applicant may suffer by the denial or the dissolution of the injunction irreparable injury to parties before their claims can be thoroughly studied and
or restraining order. If it appears that the extent of the preliminary injunction or adjudicated and during the pendency of the action. (MIAA v. Rivera Village Lessee
restraining order granted is too great, it may be modified. (6a) Homeowners’ Assn., Inc.)
Section 7. Service of copies of bonds; effect of disapproval of same. — The party Hence, in order to protect the rights of the parties before the main action is
filing a bond in accordance with the provisions of this Rule shall forthwith serve resolved, there is need to preserve the status quo.
a copy of such bond on the other party, who may except to the sufficiency of the
bond, or of the surety or sureties thereon. If the applicant's bond is found to be Q: What is the status quo?
insufficient in amount, or if the surety or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient sureties approved after justification is A: It is defined as the last actual, peaceful, and uncontested status that precedes
not filed forthwith the injunction shall be dissolved. If the bond of the adverse the actual controversy, that which is existing at the time of the filing of the case.
party is found to be insufficient in amount, or the surety or sureties thereon fail (Spouses Dulnuan v. MBTC)
to justify a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the injunction shall be granted or restored, as JGG: The status quo is the state of the parties before the institution of the case. It
the case may be. (8a) is the reality existing between the parties at the time of the filing of the case.
Section 8. Judgment to include damages against party and sureties. — At the trial, Mandatory v. Prohibitory
the amount of damages to be awarded to either party, upon the bond of the
adverse party, shall be claimed, ascertained, and awarded under the same MANDATORY PROHIBITORY
procedure prescribed in section 20 of Rule 57. (9a)
When one is required to perform an When one is required to refrain from
act doing an act
Section 9. When final injunction granted. — If after the trial of the action it The act has already been performed The act has not yet been performed
appears that the applicant is entitled to have the act or acts complained of and this act violated the rights of because it is restrained or prevented
permanently enjoined the court shall grant a final injunction perpetually another. Since the act has already by injunction. Its purpose is to
restraining the party or person enjoined from the commission or continuance of been performed, the purpose of the prevent a future or threatened injury.
the act or acts of confirming the preliminary mandatory injunction. (10a) injunction is to restore the status quo.
Preliminary Injunction Q: Which court should issue writ of preliminary injunction?
A: It shall be issued by the court where the principal action is pending. (Sec. 2,
Rule 58)
ILLUSTRATION: An appeal from the judgment of CA may be appealed through A:
petition for review under Rule 45. The petition may include prayer for
preliminary injunction. Since it is the SC which has jurisdiction over the appeal, it • There must be a verified application; (Sec. 4(a), Rule 58)
has also jurisdiction to issue writ of preliminary injunction. • The applicant must post a bond; (Sec.4 (b), Rule 58)
• There must be notice and hearing. (Sec. 5, Rule 58)
Under Section 20, Rule 70, the plaintiff may appeal the decision to the RTC. Here,
it is the RTC which has jurisdiction to issue writ of preliminary injunction. Q: Can preliminary injunction be issued without notice and hearing?
If a Petition for Certiorari is pending with the CA, it is the CA which has A: NO. No preliminary injunction shall be granted without hearing and prior
jurisdiction to issue writ of preliminary injunction. notice to the party or person sought to be enjoined. (Sec. 5, Rule 58)
Q: What are the grounds for the issuance of a preliminary injunction? Q: Is the rule on contemporaneous service of summons applicable to
application for preliminary injunction?
A: Section 3, Rule 58 can be capsulized as follows –
A: YES. When an application for a writ of preliminary injunction or a temporary
(1) There exists a clear and unmistakable right to be protected; restraining order is included in a complaint or any initiatory pleading, the case, if
filed in a multiple-sala court, shall be raffled only after notice to and in the
JGG: This is why it is difficult to secure from the court a writ of presence of the adverse party or the person to be enjoined. In any event, such
preliminary injunction. For you to be entitled to such remedy, you must notice shall be preceded, or contemporaneously accompanied, by service of
be able to show to the court your clear and unmistakable legal right. summons, together with a copy of the complaint or initiatory pleading and the
applicant's affidavit and bond, upon the adverse party in the Philippines. (Sec. 4
(2) This right is directly threatened by an act sought to be enjoined; (c), Rule 58)
(3) The invasion of the right is material and substantial; and
(4) There is an urgent and paramount necessity for the writ to prevent Q: Are there exceptions?
serious and irreparable damage. (Sps. Dulnuan v. MBTC, G.R. No. 196864,
8 July 2015)
A: YES. However, where the summons could not be served personally or by
substituted service despite diligent efforts, or the adverse party is a resident of
EXAMPLE: A encroached on B’s property by means of force. B has the title to his the Philippines temporarily absent therefrom or is a nonresident thereof, the
property which is uncontested. A has no claim whatsoever on the property. B can requirement of prior or contemporaneous service of summons shall not apply.
ask the court for the issuance of a preliminary mandatory injunction. (Sec. 4 (c), Rule 58)
Clear and Unmistakable Legal Right Q: What is a temporary restraining order?
The Court cannot enjoin the termination of an employee whose contract of A: It is an order issued to preserve the status quo until the hearing of the
employment has already expired. (Thunder Security and Investigation Agency v. application for a writ of preliminary injunction because preliminary injunction
NFA) cannot be issued ex-parte. (Bacolod Water District v. Labayen)
The Court cannot enjoin the bank from possessing foreclosed property even By its nature, it could be considered as a provisional remedy within a provisional
during the period for redemption. (Sps. Dulnuan v. MBTC, supra.) The right is remedy because it is issued to preserved the status quo for a limited period until
given to the bank pursuant to Act 3135. the court decides to issue a writ of preliminary injunction.
Q: What are the formal requisites of the issuance of preliminary injunction?

JGG: A TRO only has a 20-day period. During the 20-day period, the court will JGG: If the case is raffled, the judge of the court before which the case was raffled
hear the application for the issuance of a preliminary writ of injunction. to may issue an extension to the TRO. However, this is no longer ex parte and
there must be a summary hearing.
Q: May a TRO be issued ex parte?
Effectively, the extension is only for 17 days because the EJ has already granted
A: YES. If it shall appear from facts shown by affidavits or by the verified three days.
application that great or irreparable injury would result to the applicant before
preliminary injunction can be heard, the court to which the application for Q: Is 20-day TRO extendible?
preliminary injunction was made, may issue ex parte a temporary restraining
order to be effective only for a period of twenty (20) days from service on the A: NO. In no case shall the total period of effectivity of the temporary restraining
party or person sought to be enjoined x x x. (Sec. 5, Rule 58) order exceed twenty (20) days, including the original seventy-two hours
provided herein. (Sec. 5, Rule 58)
Q: May TRO be issued by the EJ?
JGG: If the court extends it, the judge would be liable for gross ignorance of the
A: YES. If the matter is of extreme urgency and the applicant will suffer grave law.
injustice and irreparable injury, the executive judge of a multiple-sala court or
the presiding judge of a single-sala court may issue ex-parte a temporary Instances where preliminary injunction may not be issued by the Court
restraining order effective for only seventy-two (72) hours from issuance but
he shall immediately comply with the provisions of the next preceding section as (a) No court, except SC, can issue injunctive relief against lawful action of the
to service of summons and the documents to be served therewith. (Sec. 5, Rule government agencies that enforce environmental laws. (Sec. 10, Rule 2,
58) Part II, A.M. 09- 6-8-SC)
(b) P.D. 605 bans the issuance of injunctive relief in cases involving
JGG: It may be issued by the EJ in multi-sala courts. concessions, licenses issued by the government for exploitation of
natural resources.
EXAMPLE: A owns a parcel of land. Unbeknownst to A, his brother B mortgaged (c) P.D. 1818 prohibits issuance of TRO, PI against the execution of
the parcel of land for a loan. The property is now about to be foreclosed. A filed a government infrastructure projects.
complaint for annulment of REM on the ground that he did not execute the same. (d) PARC cannot be enjoined by court in the implementation or enforcement
However, there is an impending foreclosure sale which is about to happen in five of CARP under the CARP law.
days. He may apply with the EJ.
Q: May criminal prosecution be restrained?
The TRO that the EJ may issue is only for three days.
A: As a GR, no.
Q: What should the judge where the case is raffled do after the EJ issues the
72-hour TRO? XPNs:
A: Within the aforesaid seventy-two (72) hours, the judge before whom the case • To afford adequate protection to the constitutional rights of the accused;
is raffled shall conduct a summary hearing to determine whether the temporary • When double jeopardy is apparent;
restraining order shall be extended until the application for preliminary • When necessary for the orderly administration of justice or to avoid
injunction can be heard. In no case shall the total period of effectivity of the oppression;
temporary restraining order exceed twenty (20) days, including the original • Where the charges are manifestly false and motivated by lust for
seventy-two hours provided herein. (Sec. 5, Rule 57) vengeance;

• When there is strictly no prima facie case against the accused and the may, in its discretion, at any time after the appointment, require an additional
motion to quash on that ground has been denied. bond as further security for such damages. (3a)
RECEIVERSHIP (RULE 59) Section 3. Denial of application or discharge of receiver. — The application may
be denied, or the receiver discharged, when the adverse party files a bond
executed to the applicant, in an amount to be fixed by the court, to the effect that
Section 1. Appointment of receiver. — Upon a verified application, one or more such party will pay the applicant all damages he may suffer by reason of the acts,
receivers of the property subject of the action or proceeding may be appointed omissions, or other matters specified in the application as ground for such
by the court where the action is pending or by the Court of Appeals or by the appointment. The receiver may also be discharged if it is shown that his
Supreme Court, or a member thereof, in the following cases: appointment was obtained without sufficient cause. (4a)
(a) When it appears from the verified application, and such other proof as the Section 4. Oath and bond of receiver. — Before entering upon his duties, the
court may require, that the party applying for the appointment of a receiver has receiver shall be sworn to perform them faithfully, and shall file a bond, executed
an interest in the property or fund which is the subject of the action or to such person and in such sum as the court may direct, to the effect that he will
proceeding, and that such property or fund is in danger of being lost, removed, or faithfully discharge his duties in the action or proceeding and obey the orders of
materially injured unless a receiver be appointed to administer and preserve it; the court. (5a)
(b) When it appears in an action by the mortgagee for the foreclosure of a Section 5. Service of copies of bonds; effect of disapproval of same. — The person
mortgage that the property is in danger of being wasted or dissipated or filing a bond in accordance with the provisions of this Rule shall forthwith serve
materially injured, and that its value is probably insufficient to discharge the a copy thereof on each interested party, who may except to its sufficiency or of
mortgage debt, or that the parties have so stipulated in the contract of mortgage; the surety or sureties thereon. If either the applicant's or the receiver's bond is
found to be insufficient in amount, or if the surety or sureties thereon fail to
(c) After judgment, to preserve the property during the pendency of an appeal, or justify, and a bond sufficient in amount with sufficient sureties approved after
to dispose of it according to the judgment, or to aid execution when the execution justification is not filed forthwith, the application shall be denied or the receiver
has been returned unsatisfied or the judgment obligor refuses to apply his discharged, as the case may be. If the bond of the adverse party is found to be
property in satisfaction of the judgment, or otherwise to carry the judgment into insufficient in amount or the surety or sureties thereon fail to justify, and a bond
effect; sufficient in amount with sufficient sureties approved after justification is not
filed forthwith, the receiver shall be appointed or re-appointed, as the case may
(d) Whenever in other cases it appears that the appointment of a receiver is the be. (6a)
most convenient and feasible means of preserving, administering, or disposing of
the property in litigation. Section 6. General powers of receiver. — Subject to the control of the court in
which the action or proceeding is pending a receiver shall have the power to bring
During the pendency of an appeal, the appellate court may allow an application and defend, in such capacity, actions in his own name; to take and keep
for the appointment of a receiver to be filed in and decided by the court of origin possession of the property in controversy; to receive rents; to collect debts due
and the receiver appointed to be subject to the control of said court. (1a) to himself as receiver or to the fund, property, estate, person, or corporation of
which he is the receiver; to compound for and compromise the same; to make
transfers; to pay outstanding debts; to divide the money and other property that
Section 2. Bond on appointment of receiver. — Before issuing the order
shall remain among the persons legally entitled to receive the same; and
appointing a receiver the court shall require the applicant to file a bond executed
generally to do such acts respecting the property as the court may authorize.
to the party against whom the application is presented, in an amount to be fixed
However, funds in the hands of a receiver may be invested only by order of the
by the court, to the effect that the applicant will pay such party all damages he
court upon the written consent of all the parties to the action. (7a)
may sustain by reason of the appointment of such receiver in case the applicant
shall have procured such appointment without sufficient cause; and the court
No action may be filed by or against a receiver without leave of the court which
appointed him. (n) NOTE: This involves the property or fund in litigation.
Section 7. Liability for refusal or neglect to deliver property to receiver. — A • The mortgaged property subject of action for judicial foreclosure is in
person who refuses or neglects, upon reasonable demand, to deliver to the danger of being wasted or dissipated or materially injured and its value
receiver all the property, money, books, deeds, notes, bills, documents and papers may be insufficient to discharge the mortgage debt;
within his power or control, subject of or involved in the action or proceeding, or
in case of disagreement, as determined and ordered by the court, may be • There is agreement between the parties;
punished for contempt and shall be liable to the receiver for the money or the
value of the property and other things so refused or neglected to be surrendered, • After judgment, to preserve the property, or to dispose it according to
together with all damages that may have been sustained by the party or parties the judgment;
entitled thereto as a consequence of such refusal or neglect. (n)
NOTE: The application to appoint a receiver is available even after
Section 8. Termination of receivership; compensation of receiver. — Whenever judgment and pending appeal.
the court, motu proprio or on motion of either party, shall determine that the
necessity for a receiver no longer exists, it shall, after due notice to all interested • To aid when execution is unsatisfied;
parties and hearing, settle the accounts of the receiver, direct the delivery of the
funds and other property in his possession to the person adjudged to be entitled • The judgment obligor refuses to apply his property;
to receive them and order the discharge of the receiver from further duty as such.
The court shall allow the receiver such reasonable compensation as the • When the appointment of a receiver is the most convenient was of
circumstances of the case warrant, to be taxed as costs against the defeated party, preserving, administering or disposing the property in litigation. (Sec. 1,
or apportioned, as justice requires. (8a) Rule 59)
Section 9. Judgment to include recovery against sureties. — The amount, if any, to Q: When may it be filed?
be awarded to any party upon any bond filed in accordance with the provisions
of this Rule, shall be claimed, ascertained, and granted under the same procedure A:
prescribed in section 20 of Rule 57. (9a)
• At any stage of the proceeding
Receivership • While pending trial
• While on appeal
It is a provisional remedy in which the court appoints a person to preserve, • Even after finality of judgment (e.g. when the judgment obligor refuses
administer or dispose of and prevent the loss or dissipation of real or personal to apply his property)
property in litigation during the pendency of the action or during the pendency
of appeal or as an aid in the execution of judgment when the writ of execution has JGG: Even on the execution stage, you can apply for the appointment of a receiver.
been returned unsatisfied.
Q: What are the requisites for the appointment of a receiver?
Q: What are the situations where a receiver may be appointed?
A:
A:
(a) The applicant must have interest in the property in litigation;
• The property or fund is in danger of being lost, removed or materially (b) Verified application must be filed (i.e., the application must be under
injured; oath);
(c) The applicant must post bond (in favor of the party against whom the Q: What is the effect on the contract entered into by the receiver without
application is made); court approval?
(d) The property or fund is in danger of being lost, wasted or dissipated; and
(e) Receiver must be sworn to an oath to perform his duties dutifully. A: It is not binding on the property or fund being administered by the receiver. It
will be the personal responsibility of the receiver and is not binding on
Q: Is the filing of the bond mandatory? receivership. (Pacific Merchandising Corp v. Consolation Insurance & Surety Co.,
G.R. No. L- 30204, 29 Oct. 1976)
A: YES. It is mandatory. The language of Section 2, Rule 59 is very clear. It uses
the word “shall” which denotes its mandatory character. Thus, the filing of the JGG: Remember that the receiver cannot enter a contract involving the property
bond is required at all times, even if there is a clear and sufficient cause for the administered without the approval of the court. Otherwise, it will not bind the
appointment of a receiver. (Tantano v. Espina-Caboverde, G.R. No. 203585, 29 July property or fund and it will be the personal obligation of the receiver.
2013)
NOTE: No action may be filed by or against a receiver without leave of the court
Q: What may be done to frustrate the appointment of a receiver? which appointed him. (Sec. 6, Rule 59)
A: Section 3 provides that the application may be denied is the adverse party files EXAMPLE: A property was subject to receivership. An action was filed for
a bond in favor of the applicant to answer for all the damages he may suffer by recovery of possession of the property. Before you can file an action involving the
reason of the acts, omissions, or other matters specified in the application as property which has been the subject of receivership, you must apply for leave of
ground for such appointment. (Sec. 3, Rule 59) court with the court which subjected such property under receivership.
JGG: If the other party posts a bond, a receiver will not be appointed by the court. Grounds for discharge of receiver
Q: What are the powers of a receiver? • Posting of counter-bond; (Sec. 3, Rule 59)
• The appointment was without sufficient cause; (Sec. 3, Rule 59)
A:
JGG: If the situation is not under Sec. 2 where the court can appoint a
(a) Bring and defend, actions in his own name; receiver, then you can file a motion for the discharge of a receiver.
(b) Take and keep possession of the property in controversy;
(c) Receive rents; • The applicant’s bond is insufficient; (Sec. 8, Rule 59)
(d) Collect debts due to himself; • The receiver is no longer necessary. (Sec. 8, Rule 59)
(e) Collect debts due or to the fund, property, estate, person, or corporation
of which he is the receiver; REPLEVIN (RULE 60)
(f) Compound for and compromise the debts collected
(g) Make transfers;
(h) Pay outstanding debts; Section 1. Application. — A party praying for the recovery of possession of
(i) Divide the money and other property that shall remain among the personal property may, at the commencement of the action or at any time before
persons legally entitled to receive the same answer, apply for an order for the delivery of such property to him, in the manner
(j) Do such acts respecting the property as the court may authorize. Invest hereinafter provided. (1a)
funds in the hands only by order of the court upon the written consent
of all the parties to the action. (Sec. 6, Rule 59) Section 2. Affidavit and bond. — The applicant must show by his own affidavit or
that of some other person who personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly delivery thereof to the applicant, if such delivery be adjudged, and for the
describing it, or is entitled to the possession thereof; payment of such sum, to him as may be recovered against the adverse party, and
by serving a copy of such bond on the applicant. (5a)
(b) That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge, information, Section 6. Disposition of property by sheriff. — If within five (5) days after the
and belief ; taking of the property by the sheriff, the adverse party does not object to the
sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party
(c) That the property has not been distrained or taken for a tax assessment or a so objects and the court affirms its approval of the applicant's bond or approves
fine pursuant to law, or seized under a writ of execution or preliminary a new bond, or if the adverse party requires the return of the property but his
attachment, or otherwise placed under custodia legis, or if so seized, that it is bond is objected to and found insufficient and he does not forthwith file an
exempt from such seizure or custody; and approved bond, the property shall be delivered to the applicant. If for any reason
the property is not delivered to the applicant, the sheriff must return it to the
(d) The actual market value of the property. adverse party. (6a)
The applicant must also give a bond, executed to the adverse party in double the Section 7. Proceedings where property claimed by third person. — If the property
value of the property as stated in the affidavit aforementioned, for the return of taken is claimed by any person other than the party against whom the writ of
the property to the adverse party if such return be adjudged, and for the payment replevin had been issued or his agent, and such person makes an affidavit of his
to the adverse party of such sum as he may recover from the applicant in the title thereto, or right to the possession thereof, stating the grounds therefor, and
action. (2a) serves such affidavit upon the sheriff while the latter has possession of the
property and a copy thereof upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the applicant unless the
Section 3. Order. — Upon the filing of such affidavit and approval of the bond, the
applicant or his agent, on demand of said sheriff, shall file a bond approved by the
court shall issue an order and the corresponding writ of replevin, describing the court to indemnify the third-party claimant in a sum not less than the value of the
personal property alleged to be wrongfully detained and requiring the sheriff property under replevin as provided in section 2 hereof. In case of disagreement
forthwith to take such property into his custody. (3a) as to such value, the court shall determine the same. No claim for damages for the
taking or keeping, of the property may be enforced against the bond unless the
Section 4. Duty of the sheriff. — Upon receiving such order, the sheriff must serve action therefor is filed within one hundred twenty (120) days from the date of
a copy thereof on the adverse party, together with a copy of the application, the filing of the bond.
affidavit and bond, and must forthwith take the property, if it be in the possession
of the adverse party, or his agent, and retain it in his custody. If the property or The sheriff shall not be liable for damages, for the taking or keeping of such
any part thereof be concealed in a building or enclosure, the sheriff must demand property, to any such third-party claimant if such bond shall be filed. Nothing
its delivery, and if it be not delivered, he must cause the building or enclosure to herein contained shall prevent such claimant or any third person from
be broken open and take the property into his possession. After the sheriff has vindicating his claim to the property, or prevent the applicant from claiming
take possession of the property as herein provided, he must keep it in a secure damages against a third-party claimant who filed a frivolous or plainly spurious
place and shall be responsible for its delivery to the party entitled thereto upon claim, in the same or a separate action.
receiving his fees and necessary expenses for taking and keeping the same. (4a)
When the writ of replevin is issued in favor of the Republic of the Philippines, or
Section 5. Return of property. — If the adverse party objects to the sufficiency of any officer duly representing it, the filing of such bond shall not be required, and
the applicant's bond, or of the surety or sureties thereon, he cannot immediately in case the sheriff is sued for damages as a result of the replevin, he shall be
require the return of the property, but if he does not so object, he may, at any time represented by the Solicitor General, and if held liable therefor, the actual
before the delivery of the property to the applicant, require the return thereof, by damages adjudged by the court shall be paid by the National Treasurer out of the
filing with the court where the action is pending a bond executed to the applicant, funds to be appropriated for the purpose. (7a)
in double the value of the property as stated in the applicant's affidavit for the
Section 8. Return of papers. — The sheriff must file the order, with his (a) The commencement of the action or
proceedings indorsed, thereon, with the court within ten (10) days after taking (b) Any time before answer. (Sec. 1, Rule 60)
the property mentioned therein. (8a)
A party praying for the recovery of possession of personal property may, at the
Section 9. Judgment. — After trial of the issues the court shall determine who has commencement of the action or at any time before answer, apply for an order for
the right of possession to and the value of the property and shall render judgment the delivery of such property to him, in the manner hereinafter provided. (Sec. 1,
in the alternative for the delivery thereof to the party entitled to the same, or for Rule 60)
its value in case delivery cannot be made, and also for such damages as either
party may prove, with costs. (9a) Q: May it be filed AFTER the answer?
Section 10. Judgment to include recovery against sureties. — The amount, if any, A: There is no prohibition.
to be awarded to any party upon any bond filed in accordance with the provisions
of this Rule, shall be claimed, ascertained, and granted under the same procedure Before the application may be granted, it must be shown by affidavit that:
as prescribed in section 20 of Rule 57.
a) That the applicant is the owner of the property claimed, particularly
Replevin describing it, or is entitled to the possession thereof;
b) That the property is wrongfully detained by the adverse party, alleging
It is an action whereby the owner or person entitled to repossession of goods or the cause of detention thereof according to the best of his knowledge,
chattels may recover those goods or chattels from one who has wrongfully information, and belief;
distrained or taken or who wrongfully detains such goods or chattels. (Jim’s c) That the property has not been distrained or taken for a tax assessment
Furniture Mart, Inc., v. Harris) or a fine pursuant to law, or seized under a writ of execution or
preliminary attachment, or otherwise placed under custodia legis, or if
JGG: Simply put, it is an action for recovery of chattel or personal property. so seized, that it is exempt from such seizure or custody; and
As provisional remedy: It is a remedy applied by a person entitled to possess JGG: If the property is ALREADY under custodia legis, the writ of replevin
the personal property, to hold possession of the personal property during the will NOT be granted.
pendency of the case.
d) The actual market value of the property. (Sec. 2, Rule 60)
Q: What is the nature of replevin?
NOTE: This is important in determining the jurisdiction of the court.
A: Replevin, broadly understood, is both a form of principal remedy and of a

Necessity of filing a bond
provisional relief. It may refer either to the action itself, i.e., to regain the
possession of personal chattels being wrongfully detained from the plaintiff by
another, or to the provisional remedy that would allow the plaintiff to retain the The applicant must also give a bond, executed to the adverse party in double the
thing during the pendency of the action and hold it pendente lite. The action is value of the property as stated in the affidavit aforementioned, for the return of
primarily possessory in nature and generally determines nothing more than the the property to the adverse party if such return be adjudged, and for the payment
right of possession. (Central Visayas Finance Corp. v. G.R. No. 212674, 25 March to the adverse party of such sum as he may recover from the applicant in the
2019) action. (Sec. 2, Rule 60)
Q: When may the remedy be applied? NOTE: Replevin is not available when the property is under custodia legis, under
attachment or seized pursuant to law. (Pagkalinawan v. Gomez; Sec. 2, Rule 60)
A: It may be applied at:
The fact that a property is subject of litigation would not necessarily mean that The sheriff will then implement the writ of replevin. He will look for the property,
such property is under custodia legis. Only when property is lawfully taken by and if it is found in the possession of the defendant, it will be taken by the sheriff.
virtue of legal process is it considered in custody of the law (Bagalihug v.
Fernandez) Q: How is the writ of replevin implemented?
JGG: Custodia legis means the property is under the custody of the court due to A:
some process such as attachment. Even if the property is subject matter of the
case, but is not under the custody of the court, then it cannot be considered as (a) The sheriff must serve a copy thereof on the adverse party, together with
under custodia legis. a copy of the application, affidavit and bond.
(b) Sheriff will take custody of the property and retain it.
REMEMBER: Replevin is only applicable for personal property. (c) If the property is concealed in a building, he must demand its delivery,
otherwise the enclosure may be broken to secure the property.
Q: Properties were seized by the Bureau of Customs. The plaintiff claiming (d) Sheriff must keep the property in a secure place. (Sec. 5, Rule 60)
to have a right over the properties seized by the Bureau of Customs, filed an
action for recovery of properties with prayer for issuance of writ of replevin Q: When will the property taken by the sheriff be delivered to the applicant?
on the ground that the seizure of the properties was illegal. Can the court
issue writ of replevin? A:
A: NO. The court has no jurisdiction to take cognizance of the petition for replevin. (a) If within five (5) days from the taking of the property by the sheriff, the
The court is devoid of any competence to pass upon the validity or regularity of adverse does not object to the sufficiency of the bond; or
seizure and forfeiture proceedings conducted by the Bureau of Customs and to (b) The court approves the bond despite objection of the adverse party; or
enjoin or otherwise interfere with its proceedings. It is the collector of Customs, (c) If the counter-bond is insufficient or the counter-bond was not filed.
sitting in seizure and forfeiture proceedings, who has the exclusive jurisdiction
to hear and determine all questions touching on seizure or forfeiture of
dutiable goods. (ATI v. Bautista) The property shall be delivered to the applicant. (Sec. 6, Rule 60)
JGG: Similarly, in this case, since the property is under custodia legis, then writ of JGG: Take note, in attachment, the property will be brought to the COURT. In
replevin should not have been issued or should not be issued. replevin, if the writ of replevin is issued and implemented, the property will be
brought to the court first, and after five days as stated above, it will be given to
the applicant.
Action of the Court on the application
Q: How may the adverse party seek the return of the property?
Upon the filing of such affidavit and approval of the bond, the court shall issue an
order and the corresponding writ of replevin, describing the personal property
alleged to be wrongfully detained and requiring the sheriff forthwith to take such A:
property into his custody. (Sec. 3, Rule 60)
• He should post a counter-bond which is double the value of the
JGG: The affidavit is contained in the complaint. Usually, the plaintiff would file a property; (Sec. 5, Rule 60)
case for recovery of possession and attached to the complaint is the affidavit and • The bond is executed to the applicant; (Sec. 5, Rule 60)
approval of the bond. After it is granted, the court will issue an order granting the • He should serve copy of the bond to the applicant; (Sec. 5, Rule 60)
issuance of a writ of replevin. • He must perform the above acts before the delivery of the property to
the applicant. This means within five (5) days from the taking of the
property by the sheriff; (Secs. 5 and 6, Rule 60)
• The bond is sufficient. • The applicant may file a bond to indemnify the third-party claimant in a
sum not less than the value of the property under replevin.
JGG: Within five (5) days, file a counter-bond so that the property may be • In case of disagreement as to value, the court will fix the value of the
returned to you. property.
• No claim for damages for the taking or keeping, of the property may be
Q: The action for replevin wherein the writ of replevin was issued and enforced against the bond unless the action therefor is filed within one
implemented, was dismissed without prejudice because of the failure of the hundred twenty (120) days from the date of the filing of the bond. (Sec.
plaintiff to prosecute. Should the defendant return the property? 7, Rule 60)
A: YES. Upon the dismissal of the replevin case for failure to prosecute, the writ NOTE: The party claimant is not precluded from vindicating his claim to the
of seizure, which is merely ancillary in nature, became functus officio and should property. He may even maintain separate action and seek injunctive relief against
have been lifted. There was no adjudication on the merits, which means that there the sheriff.
was no determination of the issue who has the better right to possess the subject
car. Advent, the petitioner, cannot therefore retain possession of the subject car The applicant is also not precluded from claiming damages against the third-
considering that it was not adjudged as the prevailing party entitled to the party claimant who filed a frivolous claim in a separate controversy. (Sec. 7, Rule
remedy of replevin. (Advent Capital Corp. v. Young, G.R. No. 183018, 3 Aug. 2011) 60)
JGG: Replevin is a provisional remedy and it cannot stand alone. It is dependent Q: What is the judgment in a replevin suit?
on the principal action.
A:
Q: What is the procedure if property is claimed by third person?
A:
• The third person shall serve to the sheriff the affidavit of his title as well
as to the applicant.
• He should file the affidavit when the property is still in the in the custody
of the sheriff.
• In this case, the sheriff is not bound to keep the property. (Sec. 7, Rule 60)
EXAMPLE: X bought a car subject to a chattel mortgage with the bank. The bank
later filed a case for recovery of possession and the court issued a writ of replevin. SUPPORT PENDENTE LITE (RULE 61)
However, X has already sold the car to Y, a third person. Y must execute an
affidavit of third-party claim. He must serve the same to the sheriff and the Section 1. Application. — At the commencement of the proper action or
applicant. In this case, the sheriff is not bound to keep the property. proceeding, or at any time prior to the judgment or final order, a verified
application for support pendente lite may be filed by any party stating the
Q: If the applicant wants to deliver the property to him despite the third grounds for the claim and the financial conditions of both parties, and
party claim, what should he do? accompanied by affidavits, depositions or other authentic documents in support
thereof. (1a)
A:

Section 2. Comment. — A copy of the application and all supporting documents shall order the recipient thereof to return to the former the amounts already paid
shall be served upon the adverse party, who shall have five (5) days to comment with legal interest from the dates of actual payment, without prejudice to the
thereon unless a different period is fixed by the court upon his motion. The right of the recipient to obtain reimbursement in a separate action from the
comment shall be verified and shall be accompanied by affidavits, depositions or person legally obliged to give the support. Should the recipient fail to reimburse
other authentic documents in support thereof. (2a, 3a) said amounts, the person who provided the same may likewise seek
reimbursement thereof in a separate action from the person legally obliged to
Section 3. Hearing. — After the comment is filed, or after the expiration of the give such support. (n)
period for its filing, the application shall be set for hearing not more than three
(3) days thereafter. The facts in issue shall be proved in the same manner as is Support pendente lite
provided for evidence on motions. (4a)
Support pendente lite is a proceeding where the amount of support is
Section 4. Order. — The court shall determine provisionally the pertinent facts, provisionally fixed by the court in favor of a person or persons entitled thereto
and shall render such orders as justice and equity may require, having the regard during the pendency of the action for support or any applicable principal action.
to the probable outcome of the case and such other circumstances as may aid in
the proper resolution of the question involved. If the application is granted, the It may also be applied in proceedings for legal separation, annulment of marriage,
court shall fix the amount of money to be provisionally paid or such other forms declaration of nullity of marriage.
of support as should be provided, taking into account the necessities of the
applicant and the resources or means of the adverse party, and the terms of
In custody of minors, the same may be asked. (David v. Court of Appeals)
payment or mode for providing the support. If the application is denied, the
principal case shall be tried and decided as early as possible. (5a)
JGG: Support pendente lite is not limited to actions for support. That is a
Section 5. Enforcement of order. — If the adverse party fails to comply with an misconception. It may even be availed of in criminal cases.
order granting support pendente lite, the court shall, motu proprio or upon
motion; issue an order of execution against him, without prejudice to his liability NOTE: Support can also be the principal action.
for contempt. (6a)
Q: Who may apply for remedy?
When the person ordered to give support pendente lite refuses or fails to do so,
any third person who furnished that support to the applicant may, after due A: It may filed by any party.
notice and hearing in the same case obtain a writ of execution to enforce his right
of reimbursement against the person ordered to provide such support. (h) A verified application for support pendente lite may be filed by any party stating
the grounds for the claim and the financial conditions of both parties, and
Section 6. Support in criminal cases. — In criminal actions where the civil liability accompanied by affidavits, depositions or other authentic documents in support
includes support for the offspring as a consequence of the crime and the civil thereof. (Sec. 1, Rule 61)
aspect thereof has not been waived, reserved and instituted prior to its filing, the
accused may be ordered to provide support pendente lite to the child born to the Q: When does one apply for support pendente lite?
offended party allegedly because of the crime. The application therefor may be
filed successively by the offended party, her parents, grandparents or guardian A: At the commencement of the proper action or proceeding, or at any time prior
and the State in the corresponding criminal case during its pendency, in to the judgment or final order. (Sec. 1, Rule 61)
accordance with the procedure established under this Rule. (n)
Procedure
Section 7. Restitution. — When the judgment or final order of the court finds that
the person who has been providing support pendente lite is not liable therefor, it

(a) A verified application shall be filed which shall state: 1) the grounds for support pendente lite to the child born to the offended party allegedly because of
the claim, and 2) financial condition of both parties. (Sec. 1, Rule 61) the crime. The application therefor may be filed successively by the offended
party, her parents, grandparents or guardian and the State in the corresponding
JGG: The ground for the claim is that the defendant is legally obliged to criminal case during its pendency, in accordance with the procedure established
support the plaintiff. Meanwhile, the financial condition must be alleged under this Rule. (Sec. 6, Rule 61)
because that will be the basis for the amount of support.
There should be restitution if the applicant is not entitled for support
(b) The adverse party shall be asked to comment within five (5) days from
service. The comment shall be verified. (Sec. 2, Rule 61) When the judgment or final order of the court finds that the person who has been
(c) After comment is filed or expiration of the period to file the same, hearing providing support pendente lite is not liable therefor, it shall order the recipient
shall be conducted. (Sec. 3, Rule 61) thereof to return to the former the amounts already paid with legal interest from
(d) If the application is granted, the court shall fix the amount of money to the dates of actual payment, without prejudice to the right of the recipient to
be provisionally paid or such other form of support. (Sec. 4, Rule 61) obtain reimbursement in a separate action from the person legally obliged to give
the support. Should the recipient fail to reimburse said amounts, the person who
JGG: “Other form of support” means SPL is not limited to financial support. provided the same may likewise seek reimbursement thereof in a separate action
from the person legally obliged to give such support. (Sec. 7, Rule 61)
Q: How is the order enforced?
SPECIAL CIVIL ACTIONS
If the adverse party fails to comply with an order granting support pendente lite,
the court shall, motu proprio or upon motion; issue an order of execution against
him, without prejudice to his liability for contempt. (Sec. 5, Rule 61)
NOTE: When the person ordered to give support pendente lite refuses or fails to
do so, any third person who furnished that support to the applicant may, after
due notice and hearing in the same case obtain a writ of execution to enforce his
right of reimbursement against the person ordered to provide such support.
(Sec. 5, Rule 61)
EXAMPLE: The court issued an order requiring the defendant to give SPL to the
plaintiff at P5,000 per month. The DF did not pay despite order of the court. The
remedy of the applicant is to move for execution of the order, not to mention the
liability of the defendant for contempt.
Further, if it is the friend of the plaintiff who in the meantime provided the
support, then the friend may file for execution to enforce his right of
reimbursement.
INTERPLEADER (RULE 62)
Support in Criminal Cases
Section 1. When interpleader proper. — Whenever conflicting claims upon the

In criminal actions where the civil liability includes support for the offspring as a
same subject matter are or may be made against a person who claims no interest
consequence of the crime and the civil aspect thereof has not been waived,
whatever in the subject matter, or an interest which in whole or in part is not
reserved and instituted prior to its filing, the accused may be ordered to provide
disputed by the claimants, he may bring an action against the conflicting
claimants to compel them to interplead and litigate their several claims among It is a special civil action filed by a person against whom two conflicting claims
themselves. (1a, R63) are made upon the same subject matter and over which he claims no interest, or
if he claims interest, the same is not disputed by the parties. This action is brought
Section 2. Order. — Upon the filing of the complaint, the court shall issue an order against the conflicting claimants to compel them to interplead and litigate their
requiring the conflicting claimants to interplead with one another. If the interests claims among themselves.
of justice so require, the court may direct in such order that the subject matter be
paid or delivered to the court. (2a, R63) EXAMPLE: X is occupying a property. He is not claiming ownership over the
property. There are two persons who are trying to recover the property from X.
Section 3. Summons. — Summons shall be served upon the conflicting claimants, Each of them is claiming that they own the property. X may file an action for
together with a copy of the complaint and order. (3, R63) interpleader so that the two claimants would interplead with each other for the
court to determine which claimant is the owner of the property.
Section 4. Motion to dismiss. — Within the time for filing an answer, each
claimant may file a motion to dismiss on the ground of impropriety of the Q: When is interpleader proper?
interpleader action or on other appropriate grounds specified in Rule 16. The
period to file the answer shall be tolled and if the motion is denied, the movant A: Whenever conflicting claims upon the same subject matter are or may be made
may file his answer within the remaining period, but which shall not be less than against a person who claims no interest whatever in the subject matter, or an
five (5) days in any event, reckoned from notice of denial. (n) interest which in whole or in part is not disputed by the claimants, he may bring
an action against the conflicting claimants to compel them to interplead and
Section 5. Answer and other pleadings. — Each claimant shall file his answer litigate their several claims among themselves. (Sec. 1, Rule 62)
setting forth his claim within fifteen (15) days from service of the summons upon
him, serving a copy thereof upon each of the other conflicting claimants who may Requisites of Interpleader
file their reply thereto as provided by these Rules. If any claimant fails to plead
within the time herein fixed, the court may, on motion, declare him in default and (a) There must be two or more claimants with adverse and conflicting
thereafter render judgment barring him from any claim in respect to the subject interest upon a subject matter;
matter. (b) The conflicting claims involve the same subject matter;
(c) The conflicting claims are made upon the same person;
The parties in an interpleader action may file counterclaims, cross-claims, third- (d) The plaintiff has no claim or his interest, in whole or in part in the subject
party complaints and responsive pleadings thereto, as provided by these Rules. is not disputed by the claimants.
(4a, R63)
Q: What is the jurisdiction of interpleader?
Section 6. Determination. — After the pleadings of the conflicting claimants have
been filed, and pre-trial has been conducted in accordance with the Rules, the A: It depends on the subject matter of the conflicting claims –
court shall proceed to determine their respective rights and adjudicate their
several claims. (5a, R63) (a) If the subject matter of the action is personal property – determine the
value of the property;
Section 7. Docket and other lawful fees, costs and litigation expenses as liens. — (b) If the conflicting claims involve right to receive particular sum –
The docket and other lawful fees paid by the party who filed a complaint under determine the amount of the sum claimed;
this Rule, as well as the costs and litigation expenses, shall constitute a lien or (c) If the subject matter is real property – determine the assessed value of
change upon the subject matter of the action, unless the court shall order the property;
otherwise. (6a, R63) (d) If the subject matter is incapable of pecuniary estimation – RTC.
Interpleader
JGG: An action for interpleader is not automatically incapable of estimation. You Section 6. Conversion into ordinary action. — If before the final termination of the
have to determine the subject matter of the conflicting claims. case, a breach or violation of an instrument or a statute, executive order or
regulation, ordinance, or any other governmental regulation should take place,
the action may thereupon be converted into an ordinary action, and the parties
DECLARATORY RELIEF AND SIMILAR REMEDIES (RULE 63)
shall be allowed to file such pleadings as may be necessary or proper. (6a, R64)
Section 1. Who may file petition. — Any person interested under a deed, will, Declaratory relief
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental regulation
Declaratory relief is defined as an action by any person interested in a deed, will,
may, before breach or violation thereof bring an action in the appropriate
contract or other written instrument, executive order or resolution, to determine
Regional Trial Court to determine any question of construction or validity arising,
any question of construction or validity arising from the instrument, executive
and for a declaration of his rights or duties, thereunder. (Bar Matter No. 803, 17 order or regulation, or statute; and for a declaration of his rights and duties
February 1998) thereunder.
An action for the reformation of an instrument, to quiet title to real property or

The only issue that may be raised in such a petition is the question of construction
remove clouds therefrom, or to consolidate ownership under Article 1607 of the
or validity of provisions in an instrument or statute. (Province of Camarines Sur v.
Civil Code, may be brought under this Rule. (1a, R64)
CA)
Section 2. Parties. — All persons who have or claim any interest which would be
Q: For what purpose is declaratory relief filed?
affected by the declaration shall be made parties; and no declaration shall, except
as otherwise provided in these Rules, prejudice the rights of persons not parties
to the action. (2a, R64) A:
Section 3. Notice on Solicitor General. — In any action which involves the validity (a) To determine any question of construction or validity arising from the
of a statute, executive order or regulation, or any other governmental regulation, subject of the action;
the Solicitor General shall be notified by the party assailing the same and shall be (b) Seek a declaration of petitioner’s rights thereunder.
entitled to be heard upon such question. (3a, R64)
Q: What are the actions that may be brought under Rule 63?
Section 4. Local government ordinances. — In any action involving the validity of
a local government ordinance, the corresponding prosecutor or attorney of the A: An action to determine any question of construction or validity arising, and for
local governmental unit involved shall be similarly notified and entitled to be a declaration of his rights or duties, thereunder – Declaratory Relief.
heard. If such ordinance is alleged to be unconstitutional, the Solicitor General
shall also be notified and entitled to be heard. (4a, R64) An action for the reformation of an instrument, to quiet title to real property
or remove clouds therefrom, or to consolidate ownership under Article 1607
Section 5. Court action discretionary. — Except in actions falling under the of the Civil Code. (Sec. 1, Rule 63)
second paragraph of section 1 of this Rule, the court, motu proprio or upon
motion, may refuse to exercise the power to declare rights and to construe EXAMPLE: During the pandemic, the IATF required the use of face shields.
instruments in any case where a decision would not terminate the uncertainty or However, the City of Manila later on issued a regulation which states that face
controversy which gave rise to the action, or in any case where the declaration or shields are no longer mandatory. There are two regulations in this case. If you are
construction is not necessary and proper under the circumstances. (5a, R64) in the City of Manila and you are not wearing a face shield, and you are
apprehended by national authorities, can you invoke the EO issued by the mayor
of Manila?

There is here a question of validity of the EO issued by the mayor. Prior to breach, Illustrations of exclusivity of grounds
you can file an action for declaratory relief to determine the validity of said EO.
An order of the RTC denying petitioner’s motion to suspend the implementation
EXAMPLE: X and Y entered into a contract. A provision in such contract is vague, of writ of execution cannot become a subject matter of declaratory relief.
such that you want the a definitive interpretation as to the rights of the parties (Mangahas v. Paredes)
under such contract. Prior to breach, you can file an action for declaratory relief
in order for the court to define the extent of responsibilities of the parties in such JGG: An order of the court cannot be the subject of declaratory relief. For example,
contract. you cannot file an action for declaratory relief to determine the tenor of an order
of a court.
Q: What are the requisites of declaratory relief?
Final decision of the court cannot be the subject of declaratory relief. (Reyes v.
A: Dison)
(a) The subject matter must be deed, will, contract or other written Q: Who may file the petition?
instrument, or whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation; A:
(b) The terms of said statute or document and the validity thereof are
doubtful and require judicial construction;
(c) There must have been no breach of the statute or document;
(d) There must be actual justiciable controversy;
(e) The issue is ripe for judicial determination;
(f) Adequate relief is not available.
NOTE: Declaratory relief must be filed before any breach or violation. If the law
or contract has been violated prior to the filing of declaratory relief, the latter
recourse should be dismissed. (Malana v. Tappa)
BUT: If the breach occurred during the pendency of declaratory relief, the latter
will converted to ordinary civil action. (Sec. 6, Rule 63) EXAMPLE: An LGU passed an ordinance which would be implemented two weeks
from now. This ordinance is of doubtful validity for being violative of the due
process clause. Residents of the LGU are considered persons whose rights are
Q: What are the subject matter in a petition for declaratory relief? (CESO-
affected by the implementation of such ordinance. Prior to breach, they can avail
DAW)
of the remedy of declaratory relief.
(a) Deed;
Q: Which court has jurisdiction?
(b) Will;
(c) Contract or other written instrument;
(d) Statute; A: The RTC has jurisdiction as declaratory relief raises issue which is incapable of
(e) Executive order or regulation; pecuniary estimation. (Sec. 19[1], BP 129; Sec. 1, Rule 63)
(f) Ordinance;
(g) Any other governmental regulation. SC has no original jurisdiction over declaratory relief. (Clark Investors and
Locators Assn. v. Secretary) The CA also has no jurisdiction over declaratory relief.
NOTE: These are exclusive.
If the action is for quieting of title to real property, the jurisdiction depends upon Q: When should the petition be filed?
the assessed value of the real property. (Heirs of Valeriano S. Concha v. Sps.
Lumucso) A: The petition shall be filed within thirty (30) days from notice of the judgment
or final order or resolution sought to be reviewed. (Sec 3, Rule 64)
Action for reformation of contract should be treated as action incapable of
pecuniary estimation, hence RTC. JGG: This is how Rule 64 is different from Rule 65. The period to file PFC under
Rule 65 is 60 days. However, if you are going to question the decision of the
An action for consolidation of ownership is an action incapable of pecuniary COMELEC or COA, you do it through Rule 65 but the period to file the same must
estimation. (Cruz v. Leis) conform with the mandate of Rule 64, which is 30 days.
JGG: An action for quieting of title, since it is a real action, would be filed with the Q: Does the Neypes Rule or “fresh period” rule apply to judgments or final
court which has jurisdiction over the assessed value of the real property. orders of COMELEC and COA?
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE A: NO. Section 3, Rule 64 provides: “If the motion is denied, the aggrieved party
COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT (RULE 64) may file the petition within the remaining period, but which shall not be less than
five (5) days in any event, reckoned from notice of denial.” (Pates v. COMELEC;
Lokin v. COMELEC)
Review of the Judgment or Final Order of COMELEC and COA
Q: What is the period to file the Petition?
Rule 64 governs the review of the judgment or final order of the COMELEC and
COA.
A: The petition shall be filed within thirty (30) days from notice of the judgment
or final order or resolution sought to be reviewed. (Sec. 3, Rule 64)
The mode of review is via Petition for Certiorari under Rule 65. (Aratuc v.
COMELEC)
Q: What is the effect of filing the petition on the judgment or final order?
JGG: Rule 64 should be read in conjunction with Rule 65 because it is provided in

A: The filing of a petition for certiorari shall not stay the execution of the
Rule 64 that the manner of reviewing the judgments of COMELEC and COA should
judgment or final order or resolution sought to be reviewed, unless the Supreme
be through petition for certiorari under Rule 65.
Court shall direct otherwise upon such terms as it may deem just. (Sec. 8, Rule
64)
The ground upon which the petition must be filed is on jurisdictional ground,
that is, the COMELEC or COA acted without jurisdiction or committed grave abuse
of discretion amounting to lack or excess of jurisdiction. CERTIORARI, PROHIBITION, MANDAMUS (RULE 65)
NOTE: Take note that the Constitutional commissions that are covered by Rule Certiorari
64 are COMELEC and COA.
• It is also called “prerogative writ” because it is not demandable as a
Q: What about CSC? How are the decisions of the CSC reviewed? matter of right.
A: The manner of reviewer is petition for review under Rule 43. JGG: In fact, jurisprudence calls certiorari a remedy in extremis, or an
extreme remedy, because it is available only when there is no appeal or
Art. IX of the Constitution provides that the Supreme Court, through a PFC, may other speedy remedy in the ordinary course of law.
review the decisions of the Constitutional commissions, except the CSC.
• Its purpose is the correction of errors of jurisdiction which includes The parties in certiorari under Rule The parties in Rule 65 are the
commission of grave abuse of discretion amounting to lack or excess of 45 are the same parties to the action. tribunal, board or officer exercising
jurisdiction. quasi-judicial function.
• It is an original and independent action and not a mode of appeal. Certiorari under Rule 45 may only be Certiorari under Rule 65 may be filed
• Certiorari cannot be substitute for appeal or lost appeal. filed before SC. with the RTC.
If you still have a remedy, EVEN IF there is GAD on the part of the court, your Essential requisites for a petition for certiorari
proper remedy is not certiorari, but appeal.
(1) The petition is directed against a tribunal, board, or officer exercising
JGG: This is why an order dismissing a case without prejudice is not appealable judicial or quasi-judicial functions.
pursuant to Sec. 1, Rule 41. Since it is not appealable, it may be questioned by (2) Such tribunal, board, or officer has acted without or in excess of
certiorari jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.
REMEMBER: Certiorari cannot be substitute for lost appeal. (3) There is neither appeal nor plain, speedy or adequate remedy in the
ordinary course of law for the purpose annulling or modifying the
XPNs: proceeding.
(a) When public welfare and the advancement of public policy dictates. First requisite: The respondent must be exercising judicial or quasi-judicial
(b) When broader interest of justice so require. function.
(c) When writs issued are null and void.
(d) When the questioned order amounts to an oppressive exercise of judicial Q: What is judicial function?
authority.
A: It is the power to determine what the law is and what the legal rights of the
Rule 45 v. Rule 65 parties are, and then undertakes to determine these questions and adjudicate the
rights of the parties (Aquino v. Municipality of Malay, Aklan)
RULE 45 RULE 65
Certiorari under Rule 45 is a mode of Certiorari under Rule 65 is a special Q: What is quasi-judicial function?
appeal. civil action.
Certiorari under Rule 45 is just a Certiorari under Rule 65 is an original A: It is the power of an administrative agency to investigate facts or ascertain the
continuation of the appellate process action. existence of facts, hold hearings, and draw conclusions from them as a basis for
of the original case. its official action and to exercise discretion of a judicial nature. (Aquino v.
Certiorari under Rule 45 seeks to Certiorari under Rule 65 seeks to Municipality of Malay, Aklan)
review the judgment. annul the proceedings or judgment.
Certiorari under Rule 45 raises Certiorari under Rule 65 raises JGG: If the respondent is not exercising a judicial or quasi-judicial function, then
questions of law. questions of jurisdiction. a petition for certiorari is NOT the correct remedy.
Certiorari under Rule 45 is to be filed The period to file certiorari under
within 15 days from receipt of Rule 65 is either 30 or 60 days. EXAMPLES:
judgment or final order.
Certiorari under Rule 45 does not In certiorari under Rule 65, the filing A petition for certiorari challenging the validity of the Human Security Act of
require filing of MR. of MR is required. 2007 filed against the Anti-Terrorism Council and its members was dismissed as
said council is not exercising judicial or quasi-judicial function. (Southern
Hemisphere Engagement Network v. Anti-Terrorism Council)
Petition for certiorari will not lie against the RTWPB for the wage order that it Third Requisite: No appeal and other speedy remedy
issued because what was exercised is quasi-legislative function. (MBTC v.
NWPC) Certiorari is not available where the aggrieved party’s remedy of appeal is plain,
speedy and adequate remedy in the ordinary course of law.
Petition for certiorari will not lie to question the EO issued by the President for
the reason that the same was issued in the exercise of the president’s quasi- Certiorari cannot be a substitute for appeal much less lost appeal.
legislative power. (Galicto v. Aquino)
Requirement of MR
JGG: The ruling in these cases were actually qualified in Araullo v. Aquino,
discussed infra. GR: Motion for reconsideration is required.
Expanded scope of certiorari XPNs:
Petition for certiorari and prohibition are appropriate remedies to raise (a) The order is patent nullity.
constitutional issues and to review and/or prohibit or nullify the acts of (b) The issue has been duly raised and passed by the lower court.
legislative and executive officials. (Araullo v. Aquino, III) (c) There is an urgent necessity for the resolution of the question.
(d) The subject matter of the action is perishable.
The basis of this pronouncement is the second paragraph of Section 1, Article VIII (e) Petitioner is deprived of due process.
of the Constitution – the power of the court to determine whether there is grave (f) MR would be useless under the circumstances.
abuse of discretion amounting to lack or excess of jurisdiction on the part of any (g) Relief from arrest is urgent.
branch or instrumentality of the Government. (h) The proceedings is a total nullity.
(i) The issue is one purely of law.
JGG: What is bewildering is the recent case of Pangilinan v. Cayetano. In that case,
Pangilinan filed a petition for certiorari questioning the withdrawal of the Q: What are the formal requirements for filing the petition?
president from the ICC. The unanimous Court ruled that one cannot avail of
petition for certiorari to question the acts of a respondent which is not judicial or (a) Filing of a verified petition.
quasi-judicial. It reverted back to the requisites of certiorari. However, this is just (b) The petition shall be accompanied by a certified true copy of the
an obiter. It was not even raised as one of the issues. judgment, order or resolution subject thereof.
(c) Copies of all pleadings and documents relevant and pertinent thereto.
Second Requisite: Lack, excess, grave abuse (d) Sworn certification of non-forum shopping as provided in the
paragraph of Section 3, Rule 46. (Sec. 1, Rule 65)
Without jurisdiction: denotes the tribunal, board or officer acted with absolute
lack of authority. Q: What is the effect if the formal requirements are not complied with?
Excess of jurisdiction: when the public respondent exceeds its power or acts A: A petition is procedurally flawed if Sec. 1 of Rule 65 is not complied with
without statutory authority. because there are documents important for the court’s appraisal, evaluation and
judicious disposition of the case. Non-observance of the rule is a sufficient cause
Grave abuse of discretion: connotes such capricious and whimsical exercise of for dismissal of the petition and cannot be merely brushed a mere technicality
judgment as to be equivalent to lack or excess of jurisdiction or the power is (Lim v. Vianzon)
exercised in an arbitrary or despotic manner by reason of passion, prejudice or
personal hostility. Q: What is the period to file the petition?

A: The petition may be filed not later than sixty (60) days from notice of the Prohibition
judgment, order or resolution sought to be assailed in the Supreme Court or, if
it relates to the acts or omissions of a lower court or of a corporation, board, It is an extra-ordinary writ commanding the tribunal, corporation, board, officer
officer or person, in the Regional Trial Court exercising jurisdiction over the or person, whether exercising judicial, quasi-judicial or ministerial functions, to
territorial area as defined by the Supreme Court. It may also be filed in the Court desist from further proceedings when such are conducted without or in excess of
of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the its or his jurisdiction, or with grave abuse of discretion amounting to lack or
Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions excess of jurisdiction, there being no appeal or any other plain, speedy, and
of a quasi- judicial agency, and unless otherwise provided by law or these Rules, adequate remedy in the ordinary course of law. (Sec. 2, Rule 65)
the petition shall be filed in and cognizable only by the Court of Appeals. (Sec. 4,
Rule 65) Requisites
JGG: Sandiganbayan, when in aid of its jurisdiction. (a) It must be directed against a tribunal, corporation, board or person
exercising functions, judicial or ministerial;
Q: May the period be extended? (b) The tribunal, corporation, board or person has acted without or in excess
of its jurisdiction, or with grave abuse of discretion; and
A: YES, when – (c) There is no appeal or any other plain, speedy, and adequate remedy in
the ordinary course of law. (Belmonte v. Deputy Ombudsman)
• Most persuasive and weighty reasons.
• To relieve a litigant from injustice Prohibition v. Certiorari
• Good faith of the defaulting party
• Compelling circumstances In prohibition, the writ is directed against the respondent exercising judicial,
• Merits of the case quasi-judicial and ministerial function while writ of certiorari is directed against
• Cause not entirely attributable to the defaulting party respondent exercising judicial and quasi-judicial.
• No showing that it is frivolous
• In the name of substantial justice and fair play In writ of prohibition the objective is for the respondent to desist while in
• Importance of issues involved (Labao v. Flores) certiorari, the objective is to annul.
Q: Does the filing of petition stay the proceedings? Mandamus
A: NO. The petition shall not interrupt the course of the principal case unless a When any tribunal, corporation, board, officer or person unlawfully neglects the
temporary restraining order or a writ of preliminary injunction has been issued performance of an act which the law specifically enjoins as a duty resulting from
against the public respondent from further proceeding in the case. (Sec. 7, Rule an office, trust, or station, or unlawfully excludes another from the use and
65) enjoyment of a right or office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person
JGG: Since it is an independent action, it is not dependent on the main case. aggrieved thereby may file a verified petition for mandamus to command the
respondent to do the act required to be done to protect the rights of the
EXAMPLE: Judgment of the NLRC in the exercise of its appellate jurisdiction. The petitioner. (Sec. 3, Rule 65)
manner of reviewing the decision of the NLRC is via PFC because it is already final
and executory. You can already execute the judgment of the LA even if there is a JGG: Essentially a petition for mandamus is a petition to command the doing of
pending PFC before the Supreme Court. If you want to restrain the execution of an act.
the decision of the NLRC, then you apply for the issuance of TRO from the
Supreme Court or CA. Subjects of Mandamus
• Neglect to perform an act which the specifically enjoins as a duty. QUO WARRANTO (RULE 66)
JGG: If the law requires a government agency to perform an act, and the
same neglects to perform it, then a petition for mandamus may be filed Section 1. Action by Government against individuals. — An action for the
to compel such government agency to do the act. usurpation of a public office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of the Philippines against:
• Unlawful exclusion of another from the use and enjoyment of a right or
office to which such other is entitled. (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
EXAMPLE: X is a budget officer of a particular provincial government. He
was disallowed by the governor to perform his function as such. X’s (b) A public officer who does or suffers an act which, by the provision of law,
remedy is to file a petition for mandamus to compel the provincial constitutes a ground for the forfeiture of his office; or
governor to allow him to perform his function as a budget officer.
(c) An association which acts as a corporation within the Philippines without
Mandamus will lie only to compel the doing of a ministerial act being legally incorporated or without lawful authority so to act. (1a)
The act is ministerial if the act is should be performed under a given state of facts, Section 2. When Solicitor General or public prosecutor must commence action. —
in a prescribed manner, in obedience to the mandate of a legal authority, without The Solicitor General or a public prosecutor, when directed by the President of
regard to the exercise of judgment upon the propriety or impropriety of the act the Philippines, or when upon complaint or otherwise he has good reason to
done. (Cudia v. Superintendent of PMA) believe that any case specified in the preceding section can be established by
proof, must commence such action. (3a)
JGG: If the act is discretionary, then it is not compellable by mandamus.
Section 3. When Solicitor General or public prosecutor may commence action with
Mandamus will not lie on the following cases: permission of court. — The Solicitor General or a public prosecutor may, with the
permission of the court in which the action is to be commenced, bring such an
(a) Mandamus will not lie to compel the discretion of the judge to decide a action at the request and upon the relation of another person; but in such case
motion pending before him in a particular way. (Morada v. Caluag) the officer bringing it may first require an indemnity for the expenses and costs
of the action in an amount approved by and to be deposited in the court by the
JGG: What is compellable is for the judge to decide the case WITHIN the person at whose request and upon whose relation the same is brought. (4a)
timeframe. It is a ministerial duty of the judge to decide the case within
the prescribed period provided by the rules. Section 4. When hearing had on application for permission to commence action.
— Upon application for permission to commence such action in accordance with
(b) Mandamus will not lie against a government school or an official with the the next preceding section, the court shall direct that notice be given to the
duty that involves exercise of discretion like admission of the students. respondent so that he may be heard in opposition thereto; and if permission is
(UP v. Ayson) granted, the court shall issue an order to that effect, copies of which shall be
(c) Mandamus will not lie to compel UP to allow the graduation of a student served on all interested parties, and the petition shall then be filed within the
who failed to meet the requirements. (Magtibay v. Garcia) period ordered by the court. (5a)
(d) Mandamus will not lie to compel the prosecutor to file an Information.
(Hegerty v. CA) Section 5. When an individual may commence such an action. — A person
(e) Mandamus will not lie to compel the PMA to restore cadet’s rights and claiming to be entitled to a public office or position usurped or unlawfully held or
entitlement as a full-fledge graduating cadet. (Cudia v. Superintendent of exercised by another may bring an action therefor in his own name. (6)
PMA)

Section 6. Parties and contents of petition against usurpation. — When the action Section 11. Limitations. — Nothing contained in this Rule shall be construed to
is against a person for usurping a public office, position or franchise, the petition authorize an action against a public officer or employee for his ouster from office
shall set forth the name of the person who claim to be entitled thereto, if any, with unless the same be commenced within one (1) year after the cause of such ouster,
an averment of his right to the same and that the respondent is unlawfully in or the right of the petitioner to hold such office or position, arose, nor to authorize
possession thereof. All persons who claim to be entitled to the public office, an action for damages in accordance with the provisions of the next preceding
position or franchise may be made parties, and their respective rights to such section unless the same be commenced within one (1) year after the entry of the
public office, position or franchise determined, in the same action. (7a) judgment establishing the petitioner's right to the office in question. (16a)
Section 7. Venue. — An action under the preceding six sections can be brought Section 12. Judgment for costs. — In an action brought in accordance with the
only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court provisions of this Rule, the court may render judgment for costs against either
exercising jurisdiction over the territorial area where the respondent or any of the petitioner, the relator, or the respondent, or the person or persons claiming
the respondents resides, but when the Solicitor General commences the action, it to be a corporation, or may apportion the costs, as justice requires. (17a)
may be brought in a Regional Trial Court in the City of Manila, in the Court of
Appeals, or in the Supreme Court. (8a) Quo Warranto
Section 8. Period for pleadings and proceedings may be reduced; action given It is a proceeding generally defined as an action against a person who usurp,
precedence. — The court may reduce the period provided by these Rules for filing intrudes into, or unlawfully holds or exercise a public office (Tecson v. COMELEC)
pleadings and for all other proceedings in the action in order to secure the most or even a public franchise. (Sec. 1, Rule 66)
expeditious determination of the matters involved therein consistent with the
rights of the parties. Such action may be given precedence over any other civil
Literally, quo warranto means “from what authority.”
matter pending in the court. (9a)
EXAMPLE: The authority of a de facto corporation can be challenged by a direct

Section 9. Judgment where usurpation found. — When the respondent is found
attack through quo warranto.
guilty of usurping into, intruding into, or unlawfully holding or exercising a public
office, position or franchise, judgment shall be rendered that such respondent be
ousted and altogether excluded therefrom, and that the petitioner or relator, as Quo warranto may be brought by the government
the case may be, recover his costs. Such further judgment may be rendered
determining the respective rights in and to the public office, position or franchise (a) Against a person who usurps, intrudes into, or unlawfully holds or
of all the parties to the action as justice requires. (10a) exercises a public office, position or franchise;
(b) Against a public officer who does or suffers an act which, by the provision
Section 10. Rights of persons adjudged entitled to public office; delivery of books of law, constitutes a ground for the forfeiture of his office; or
and papers; damages. — If judgment be rendered in favor of the person averred (c) Against an association which acts as a corporation within the Philippines
in the complaint to be entitled to the public office he may, after taking the oath of without being legally incorporated or without lawful authority so to act.
office and executing any official bond required by law, take upon himself the (Sec. 1, Rule 66)
execution of the office, and may immediately thereafter demand of the
respondent all the books and papers in the respondent's custody or control EXAMPLE: If you are a member of the Supreme Court but you are not qualified
appertaining to the office to which the judgment relates. If the respondent refuses to be there, then the government may file a quo warranto case against you.
or neglects to deliver any book or paper pursuant to such demand, he may be (Republic v. Sereno)
punished for contempt as having disobeyed a lawful order of the court. The
person adjudged entitled to the office may also bring action against the Q: May it be filed by an individual?
respondent to recover the damages sustained by such person by reason of the
usurpation. (15a)

A: YES. A person claiming to be entitled to a public office or position usurped or damages in accordance with the provisions of the next preceding section unless
unlawfully held or exercised by another may bring an action therefor in his own the same be commenced within one (1) year after the entry of the judgment
name. (Sec. 5, Rule 66) establishing the petitioner's right to the office in question. (Sec. 11, Rule 66)
Q: Who may commence the petition? JGG: In Republic v. Sereno, one of the issues was prescription since CJ Sereno was
appointed as CJ in 2012 and the petition was filed in 2017.
A:
However, the Supreme Court ruled that first, prescription does not lie against the
(a) Solicitor General State. Second, the discovery that CJ Sereno was not qualified occurred during the
(b) Public prosecutor hearing of the impeachment case against her. If that is the reckoning point, then
(c) Private person (i.e., in case the private person is entitled to the position the action was timely filed within one year.
being held by another)
EXPROPRIATION (RULE 67)
Q: When may the solicitor general or public prosecutor commence the
petition?
Section 1. The complaint. — The right of eminent domain shall be exercised by
the filing of a verified complaint which shall state with certainty the right and
A:
purpose of expropriation, describe the real or personal property sought to be
expropriated, and join as defendants all persons owning or claiming to own, or
(a) When directed by the President of the Philippines; occupying, any part thereof or interest therein, showing, so far as practicable, the
(b) When upon complaint; or separate interest of each defendant. If the title to any property sought to be
(c) Motu proprio, if he has good reason to believe that the case should be expropriated appears to be in the Republic of the Philippines, although occupied
filed. (Sec. 2, Rule 66) by private individuals, or if the title is otherwise obscure or doubtful so that the
plaintiff cannot with accuracy or certainty specify who are the real owners,
Q: What is the jurisdiction and venue of petition? averment to that effect shall be made in the complaint. (1a)
A: Section 2. Entry of plaintiff upon depositing value with authorized government

depositary. — Upon the filing of the complaint or at any time thereafter and after
(a) An action under the preceding six sections can be brought only in the due notice to the defendant, the plaintiff shall have the right to take or enter upon
Supreme Court, the Court of Appeals, or in the Regional Trial Court the possession of the real property involved if he deposits with the authorized
exercising jurisdiction over the territorial area where the respondent or government depositary an amount equivalent to the assessed value of the
any of the respondents resides, but property for purposes of taxation to be held by such bank subject to the orders of
(b) When the Solicitor General commences the action, it may be brought in the court. Such deposit shall be in money, unless in lieu thereof the court
a Regional Trial Court in the City of Manila, in the Court of Appeals, or in authorizes the deposit of a certificate of deposit of a government bank of the
the Supreme Court. (Sec. 7, Rule 66) Republic of the Philippines payable on demand to the authorized government
depositary.
Q: What is the period for the filing of petition?
If personal property is involved, its value shall be provisionally ascertained and
A: Nothing contained in this Rule shall be construed to authorize an action against the amount to be deposited shall be promptly fixed by the court.
a public officer or employee for his ouster from office unless the same be
commenced within one (1) year after the cause of such ouster, or the right of After such deposit is made the court shall order the sheriff or other proper officer
the petitioner to hold such office or position, arose; nor to authorize an action for to forthwith place the plaintiff in possession of the property involved and

promptly submit a report thereof to the court with service of copies to the parties. Section 5. Ascertainment of compensation. — Upon the rendition of the order of
(2a) expropriation, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to ascertain and report to the court the
Section 3. Defenses and objections. — If a defendant has no objection or defense just compensation for the property sought to be taken. The order of appointment
to the action or the taking of his property, he may file and serve a notice of shall designate the time and place of the first session of the hearing to be held by
appearance and a manifestation to that effect, specifically designating or the commissioners and specify the time within which their report shall be
identifying the property in which he claims to be interested, within the time submitted to the court.
stated in the summons. Thereafter, he shall be entitled to notice of all proceedings
affecting the same. Copies of the order shall be served on the parties. Objections to the appointment
of any of the commissioners shall be filed with the court within ten (10) days from
If a defendant has any objection to the filing of or the allegations in the complaint, service, and shall be resolved within thirty (30) days after all the commissioners
or any objection or defense to the taking of his property, he shall serve his answer shall have received copies of the objections. (5a)
within the time stated in the summons. The answer shall specifically designate or
identify the property in which he claims to have an interest, state the nature and Section 6. Proceedings by commissioners. — Before entering upon the
extent of the interest claimed, and adduce all his objections and defenses to the performance of their duties, the commissioners shall take and subscribe an oath
taking of his property. No counterclaim, cross-claim or third-party complaint that they will faithfully perform their duties as commissioners, which oath shall
shall be alleged or allowed in the answer or any subsequent pleading. be filed in court with the other proceedings in the case. Evidence may be
introduced by either party before the commissioners who are authorized to
A defendant waives all defenses and objections not so alleged but the court, in the administer oaths on hearings before them, and the commissioners shall, unless
interest of justice, may permit amendments to the answer to be made not later the parties consent to the contrary, after due notice to the parties, to attend, view
than ten (10) days from the filing thereof. However, at the trial of the issue of just and examine the property sought to be expropriated and its surroundings, and
compensation whether or not a defendant has previously appeared or answered, may measure the same, after which either party may, by himself or counsel, argue
he may present evidence as to the amount of the compensation to be paid for his the case. The commissioners shall assess the consequential damages to the
property, and he may share in the distribution of the award. (n) property not taken and deduct from such consequential damages the
consequential benefits to be derived by the owner from the public use or purpose
Section 4. Order of expropriation. — If the objections to and the defenses against of the property taken, the operation of its franchise by the corporation or the
the right of the plaintiff to expropriate the property are overruled, or when no carrying on of the business of the corporation or person taking the property. But
party appears to defend as required by this Rule, the court may issue an order of in no case shall the consequential benefits assessed exceed the consequential
expropriation declaring that the plaintiff has a lawful right to take the property damages assessed, or the owner be deprived of the actual value of his property
sought to be expropriated, for the public use or purpose described in the so taken. (6a)
complaint, upon the payment of just compensation to be determined as of the
date of the taking of the property or the filing of the complaint, whichever came Section 7. Report by commissioners and judgment thereupon. — The court may
first. order the commissioners to report when any particular portion of the real estate
shall have been passed upon by them, and may render judgment upon such
A final order sustaining the right to expropriate the property may be appealed by partial report, and direct the commissioners to proceed with their work as to
any party aggrieved thereby. Such appeal, however, shall not prevent the court subsequent portions of the property sought to be expropriated, and may from
from determining the just compensation to be paid. time to time so deal with such property. The commissioners shall make a full and
accurate report to the court of all their proceedings, and such proceedings shall
not be effectual until the court shall have accepted their report and rendered
After the rendition of such an order, the plaintiff shall not be permitted to dismiss judgment in accordance with their recommendations. Except as otherwise
or discontinue the proceeding except on such terms as the court deems just and expressly ordered by the court, such report shall be filed within sixty (60) days
equitable. (4a) from the date the commissioners were notified of their appointment, which time
may be extended in the discretion of the court. Upon the filing of such report, the
clerk of the court shall serve copies thereof on all interested parties, with notice Section 11. Entry not delayed by appeal; effect of reversal. — The right of the
that they are allowed ten (10) days within which to file objections to the findings plaintiff to enter upon the property of the defendant and appropriate the same
of the report, if they so desire. (7a) for public use or purpose shall not be delayed by an appeal from the judgment.
But if the appellate court determines that plaintiff has no right of expropriation,
Section 8. Action upon commissioners' report. — Upon the expiration of the judgment shall be rendered ordering the Regional Trial Court to forthwith
period of ten (10) days referred to in the preceding section, or even before the enforce the restoration to the defendant of the possession of the property, and to
expiration of such period but after all the interested parties have filed their determine the damages which the defendant sustained and may recover by
objections to the report or their statement of agreement therewith, the court may, reason of the possession taken by the plaintiff. (11a)
after hearing, accept the report and render judgment in accordance therewith, or,
for cause shown, it may recommit the same to the commissioners for further Section 12. Costs, by whom paid. — The fees of the commissioners shall be taxed
report of facts, or it may set aside the report and appoint new commissioners; or as a part of the costs of the proceedings. All costs, except those of rival claimants
it may accept the report in part and reject it in part and it may make such order litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by
or render such judgment as shall secure to the plaintiff the property essential to the owner of the property and the judgment is affirmed, in which event the costs
the exercise of his right of expropriation, and to the defendant just compensation of the appeal shall be paid by the owner. (12a)
for the property so taken. (8a)
Section 13. Recording judgment, and its effect. — The judgment entered in
Section 9. Uncertain ownership; conflicting claims. — If the ownership of the expropriation proceedings shall state definitely, by an adequate description, the
property taken is uncertain, or there are conflicting claims to any part thereof, particular property or interest therein expropriated, and the nature of the public
the court may order any sum or sums awarded as compensation for the property use or purpose for which it is expropriated. When real estate is expropriated, a
to be paid to the court for the benefit of the person adjudged in the same certified copy of such judgment shall be recorded in the registry of deeds of the
proceeding to be entitled thereto. But the judgment shall require the payment of place in which the property is situated, and its effect shall be to vest in the plaintiff
the sum or sums awarded to either the defendant or the court before the plaintiff the title to the real estate so described for such public use or purpose. (13a)
can enter upon the property, or retain it for the public use or purpose if entry has
already been made. (9a) Section 14. Power of guardian in such proceedings. — The guardian or
guardian ad litem of a minor or of a person judicially declared to be incompetent
Section 10. Rights of plaintiff after judgment and payment. — Upon payment by may, with the approval of the court first had, do and perform on behalf of his ward
the plaintiff to the defendant of the compensation fixed by the judgment, with any act, matter, or thing respecting the expropriation for public use or purpose of
legal interest thereon from the taking of the possession of the property, or after property belonging to such minor or person judicially declared to be
tender to him of the amount so fixed and payment of the costs, the plaintiff shall incompetent, which such minor or person judicially declared to be incompetent
have the right to enter upon the property expropriated and to appropriate it for could do in such proceedings if he were of age or competent. (14a)
the public use or purpose defined in the judgment, or to retain it should he have
taken immediate possession thereof under the provisions of section 2 hereof. If Expropriation
the defendant and his counsel absent themselves from the court, or decline to
receive the amount tendered, the same shall be ordered to be deposited in court
and such deposit shall have the same effect as actual payment thereof to the • Power of eminent domain is one of the fundamental powers of the state.
defendant or the person ultimately adjudged entitled thereto. (10a) • Sec. 9, Art. III9 is not a conferment of the power, but rather a limitation.
• Two requisites for the validity of the exercise of the power of eminent
domain is that 1) it must be exercised for public purpose; 2) payment of
just compensation.
9 Private property shall not be taken for public use without just compensation.

• Power of eminent domain can be used as implement of police power. (a) There must be an ordinance enacted for the purpose.
• Expropriation is not limited to acquisition of title. Burden to a property (b) The power of eminent domain is exercised for public use, purpose or
is tantamount to “taking”. welfare or for the benefit of the poor and landless.
(c) It must be exercised through its chief executive.
Q: Why do we have Rule 67 on expropriation? (d) Payment of just compensation.
(e) There must be previous offer to buy but it was refused. (Sec. 19, LGC)
A: The power of eminent domain is legislative, since all fundamental powers of
the State are considered legislative powers. However, the determination of just JGG: Even private entities can exercise the power of eminent domain. For
compensation is within the power of the courts. Hence, Rule 67. example, MERALCO. The franchise granted to them is a law, and the law may
include that they have the right to expropriate.
Concept of “public use”
Expropriation is the only fundamental power of the state which can be delegated
to private entities.
The concept has been expanded. It is not limited to actual “public use”.
Q: What are the stages in expropriation process?
JGG: If it is not used by the public, then the exercise of eminent domain is invalid.
A: First stage – the determination of the authority of the plaintiff to expropriate.
The meaning include “usefulness, utility, or advantage or what is productive of
This determination includes an inquiry into the propriety of the expropriation –
general benefit.” (Vda de Ouano v. Republic)
its necessity and the public purpose.
EXAMPLE: Socialized housing. (Abad v. Fil-Homes Realty Development Corp.)
Second stage – determination of just compensation. (Municipality of Binan v.
Garcia)
Concept of “just compensation”
Q: What must be alleged in the petition?
It is the full and fair equivalent of property taken from its owner by the
expropriator. The measure is not the taker’s gain, but the owner’s loss. The word
A:
“just” is used to intensify the meaning of the word “compensation” and to convey
the idea that the equivalent to be rendered for the property to be taken shall be
real, substantial, full and ample. It is equivalent to the market value of the • State with certainty the right of the plaintiff to expropriation and the
property. (Republic v. Rural Bank of Kabacan, Inc.) purpose thereof;
• Describe the personal and real property sought to be expropriated;
Q: Can the government divert the use of property taken different from the • Join as defendants all person owning or claiming to own, or occupying
purpose for which the petition was filed? any property or any interest therein, showing as far as practicable the
interest of defendant. If the plaintiff cannot identify the owner, it must
be so stated. (Sec. 1, Rule 67)
A: NO, a condemnor should commit the use of the property pursuant to the
purpose stated in the petition for expropriation, failing which it should file
another petition for new purpose. If not, then it behooves the condemnor to Q: What are the defenses and objection in the answer?
return the said property to its owner, if the latter so desires. (Vda. de Ouano v.
Republic) A: If a defendant has no objection or defense to the action or the taking of his
property, he may file and serve a notice of appearance and a manifestation to that
Eminent domain of LGU, requisites effect, specifically designating or identifying the property in which he claims to
be interested, within the time stated in the summons. Thereafter, he shall be
entitled to notice of all proceedings affecting the same. (Sec. 3, Rule 67)
Q: Is omnibus motion rule applicable? based on the current tax declaration (from the assessor’s office). (Sec. 19,
LGC)
A: YES. A defendant waives all defenses and objections not so alleged but the
court, in the interest of justice, may permit amendments to the answer to be made (c) Under R.A. 8974 – with respect to government infrastructure
not later than ten (10) days from the filing thereof. (Sec. 3, Rule 67) projects, upon filing of complaint and payment to the owner of sum
equivalent 100% of the value of the property based on current
Q: May the defendant be declared in default in presenting evidence on just relevant zonal valuation (from the BIR).
compensation?
NOTE: If LGC is not applicable or that the property taken is not for government
A: NO. At the trial of the issue of just compensation, whether or not a defendant infrastructure project, it is Rule 67, Section 2 which is applicable with respect to
has previously appeared or answered, he may present evidence as to the amount when possession should be allowed. (Republic v. Gingoyon)
of the compensation to be paid for his property, and he may share in the
distribution of the award. (Sec. 3, Rule 67) JGG: Thus, if the petitioner is not an LGU, and the property would not be for a
government infrastructure project, then the issue of when possession should be
JGG: There is no declaration of default in expropriation proceedings. If the allowed is governed by Sec. 2, Rule 67.
defendant does not file an answer, the effect is that the first stage of expropriation
would be settled. There would be no more question on the authority of the Q: What is the effect if objections of the defendant are overruled or the
plaintiff to expropriate. The case would then move to the next stage – defendant did not object on the authority and purpose of the expropriation
determination of just compensation. or no party appears to object?
Q: Which court has jurisdiction? A: The court may issue an order of expropriation declaring that the plaintiff has
a lawful right to take the property sought to be expropriated, for the public use
A: It is the RTC has jurisdiction because petition for expropriation is an action or purpose described in the complaint, upon the payment of just compensation
incapable of pecuniary estimation regardless of the value of the subject to be determined as of the date of the taking of the property or the filing of the
property. (Barangay San Roque v. Heirs of Pastor) complaint, whichever came first. (Sec. 4, Rule 67)
Q: When is possession on the property allowed? JGG: The order of expropriation pertains to the order after the FIRST STAGE. It is
considered a final order which is susceptible to (record on) appeal. Such appeal,
however, shall not prevent the court from determining just compensation.
A:
Q: What is the nature of order of expropriation?
(a) Under the Rules of Court – upon the deposits by expropriator of an
amount equivalent to the assessed value of the property for purposes of
taxation with the authorized government depositary. (Sec. 2, Rule 67) A: It is a final order which susceptible to appeal. Such appeal, however, shall not
prevent the court from determining the just compensation to be paid. (Sec. 4, Rule
After such deposit is made the court shall order the sheriff or other 67)
proper officer to forthwith place the plaintiff in possession of the
property involved and promptly submit a report thereof to the court Also, the right of the plaintiff to enter upon the property of the defendant and
with service of copies to the parties. (Sec. 2, Rule 67) appropriate the same for public use or purpose shall not be delayed by an appeal
from the judgment. (Sec. 11, Rule 67)
(b) Under the LGC – LGU may take possession of the property upon filing of
petition and after making deposit of 15% of the market value of property Q: What if the RTC is reversed on appeal?

A: If the appellate court determines that plaintiff has no right of expropriation, forth the date and due execution of the mortgage; its assignments, if any; the
judgment shall be rendered ordering the Regional Trial Court to forthwith names and residences of the mortgagor and the mortgagee; a description of the
enforce the restoration to the defendant of the possession of the property, and to mortgaged property; a statement of the date of the note or other documentary
determine the damages which the defendant sustained and may recover by evidence of the obligation secured by the mortgage, the amount claimed to be
reason of the possession taken by the plaintiff. (Sec. 11, Rule 67) unpaid thereon; and the names and residences of all persons having or claiming
an interest in the property subordinate in right to that of the holder of the
Rules on ascertainment of just compensation mortgage, all of whom shall be made defendants in the action. (1a)
• Appointment of three commissioners is mandatory; (Sec. 5, Rule 67) Section 2. Judgment on foreclosure for payment or sale. — If upon the trial in such
• Hearing before commissioners are indispensable; action the court shall find the facts set forth in the complaint to be true, it shall
• Trial with aid of commissioner is a substantial right; (NPC v. De la Cruz) ascertain the amount due to the plaintiff upon the mortgage debt or obligation,
• The findings of commissioner may be disregarded by the Judge, but the including interest and other charges as approved by the court, and costs, and shall
latter may do so only for valid reason; (NPC v. Dela Cruz, id.) render judgment for the sum so found due and order that the same be paid to the
• Just compensation should be determined as of the date of the taking of court or to the judgment obligee within a period of not less than ninety (90) days
the property or the filing of the complaint, whichever came first; (Sec. 4, nor more than one hundred twenty (120) days from the entry of judgment, and
that in default of such payment the property shall be sold at public auction to
Rule 67)
satisfy the judgment. (2a)
JGG: Trial by commissioner is mandatory and indispensable in expropriation
Section 3. Sale of mortgaged property; effect. — When the defendant, after being
proceedings. Since it is a substantive right, if the judge decides without the
directed to do so as provided in the next preceding section, fails to pay the
appointment of the commissioners, the judgment is invalid for violation of the
procedural due process of the parties. amount of the judgment within the period specified therein, the court, upon
motion, shall order the property to be sold in the manner and under the
provisions of Rule 39 and other regulations governing sales of real estate under
Taking must be taking in the constitutional sense. (Republic v. Castellvi) execution. Such sale shall not affect the rights of persons holding prior
encumbrances upon the property or a part thereof, and when confirmed by an
Q: What is the effect of non-payment of just compensation? order of the court, also upon motion, it shall operate to divest the rights in the
property of all the parties to the action and to vest their rights in the purchaser,
A: Non-payment of just compensation does not automatically entitle the private subject to such rights of redemption as may be allowed by law.
landowner to recover possession of the expropriated lots. However, in cases
where the government failed to pay just compensation within five (5) years from Upon the finality of the order of confirmation or upon the expiration of the period
the finality of judgment in the expropriation proceedings, the owners concerned of redemption when allowed by law, the purchaser at the auction sale or last
shall have the right to recover possession of their property. (Republic v. Lim) redemptioner, if any, shall be entitled to the possession of the property unless a
third party is actually holding the same adversely to the judgment obligor. The
NOTE: This dictum is precedential. For the first time, the right was conferred to said purchaser or last redemptioner may secure a writ of possession, upon
the landowner whose property was taken by the government without payment motion, from the court which ordered the foreclosure. (3a)
of just compensation. It gives the landowner the right to recover possession of his
property. Section 4. Disposition of proceeds of sale. — The amount realized from the
foreclosure sale of the mortgaged property shall, after deducting the costs of the
FORECLOSURE OF REAL ESTATE MORTGAGE (RULE 68) sale, be paid to the person foreclosing the mortgage, and when there shall be any
balance or residue, after paying off the mortgage debt due, the same shall be paid
to junior encumbrancers in the order of their priority, to be ascertained by the
Section 1. Complaint in action for foreclosure. — In an action for the foreclosure court, or if there be no such encumbrancers or there be a balance or residue after
of a mortgage or other encumbrance upon real estate, the complaint shall set
payment to them, then to the mortgagor or his duly authorized agent, or to the Section 8. Applicability of other provisions. — The provisions of sections 31, 32
person entitled to it. (4a) and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate
mortgages under this Rule insofar as the former are not inconsistent with or may
Section 5. How sale to proceed in case the debt is not all due. — If the debt for serve to supplement the provisions of the latter. (8a)
which the mortgage or encumbrance was held is not all due as provided in the
judgment as soon as a sufficient portion of the property has been sold to pay the Foreclosure of Real Estate Mortgage
total amount and the costs due, the sale shall terminate; and afterwards as often
as more becomes due for principal or interest and other valid charges, the court In an action for the foreclosure of a mortgage or other encumbrance upon real
may, on motion, order more to be sold. But if the property cannot be sold in estate, the complaint shall set forth the date and due execution of the mortgage;
portions without prejudice to the parties, the whole shall be ordered to be sold in its assignments, if any; the names and residences of the mortgagor and the
the first instance, and the entire debt and costs shall be paid, if the proceeds of mortgagee; a description of the mortgaged property; a statement of the date of
the sale be sufficient therefor, there being a rebate of interest where such rebate the note or other documentary evidence of the obligation secured by the
is proper. (5a) mortgage, the amount claimed to be unpaid thereon; and the names and
residences of all persons having or claiming an interest in the property
Section 6. Deficiency judgment. — If upon the sale of any real property as subordinate in right to that of the holder of the mortgage, all of whom shall be
provided in the next preceding section there be a balance due to the plaintiff after made defendants in the action. (Sec. 1, Rule 68)
applying the proceeds of the sale, the court, upon motion, shall render judgment
against the defendant for any such balance for which, by the record of the case, JGG: These are the things that must be alleged in an action for foreclosure of
he may be personally liable to the plaintiff, upon which execution may issue mortgage.
immediately if the balance is all due at the time of the rendition of the judgment;
otherwise; the plaintiff shall be entitled to execution at such time as the balance
NOTE: In an indebtedness subject to mortgage, the creditor has the following
remaining becomes due under the terms of the original contract, which time shall
alternative remedies:
be stated in the judgment. (6a)
(a) To file an action for collection of sum of money.

Section 7. Registration. — A certified copy of the final order of the court
(b) To foreclose the mortgage.
confirming the sale shall be registered in the registry of deeds. If no right of
redemption exists, the certificate of title in the name of the mortgagor shall be
cancelled, and a new one issued in the name of the purchaser. The remedies are mutually exclusive; such that the availment of one, excludes
the other. Therefore, if one files a collection suit and then thereafter files a
Where a right of redemption exists, the certificate of title in the name of the petition for foreclosure of mortgage, the same constitutes a splitting of cause of
mortgagor shall not be cancelled, but the certificate of sale and the order action. (Bank of America, NT & SA v. American Realty Corp.; Marilag v. Martinez)
confirming the sale shall be registered and a brief memorandum thereof made by
the registrar of deeds upon the certificate of title. In the event the property is Jurisdiction of judicial foreclosure
redeemed, the deed of redemption shall be registered with the registry of deeds,
and a brief memorandum thereof shall be made by the registrar of deeds on said Judicial foreclosure is a real action. Thus, jurisdiction depends on the assessed
certificate of title. value of real property. (NOTE: Check the updated jurisdictional amounts for MTC
and RTC.)
If the property is not redeemed, the final deed of sale executed by the sheriff in
favor of the purchaser at the foreclosure sale shall be registered with the registry Q: What are the different modes of foreclosing mortgage?
of deeds; whereupon the certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser. (n) A:

A: It is the period within which the mortgagor may start exercising his equity of
redemption, which is the right to extinguish the mortgage and retain ownership
of the property by paying the debt. The payment may be made even after the
foreclosure sale provided it is made before the sale is confirmed by court. (GSIS
v. CFI)
JGG: Equity of redemption is NOT the same as right of redemption. These are two
totally different ideas.
Q: What should be alleged in the complaint?
If the defendant pays the amount due in the judgment in judicial foreclosure
A: within the period set by the court, then he is exercising equity of redemption.
(a) Date and due execution of the mortgage; If the property was sold through public auction, and the proceeds were applied
(b) Its assignments, if any; to the indebtedness, but prior to confirmation of sale, the defendant paid the
(c) The names and residences of the mortgagor and the mortgagee; amount, then the defendant exercises equity of redemption.
(d) A description of the mortgaged property; a statement of the date of the
note or other documentary evidence of the obligation secured by the Q: When will the right of redemption come in?
mortgage;
(e) The amount claimed to be unpaid thereon; and A: The ROR will come in after the sale is confirmed. In which case, the mortgagor
(f) The names and residences of all persons having or claiming an interest has a period of one year within which to redeem the property.
in the property subordinate in right to that of the holder of the mortgage,
all of whom shall be made defendants in the action. (Sec. 1, Rule 68) Q: What is the effect if the mortgagor failed to pay the sum due within the
period given?
Q: What should the judgment in judicial foreclosure contain?
A: The court, upon motion, shall order the property to be sold in the manner and
A: under the provisions of Rule 39 and other regulations governing sales of real
estate under execution. (Sec. 3, Rule 57)
(a) Ascertainment of the amount due to the plaintiff upon the mortgage
debt or obligation, including interest and other charges as approved by There should be a motion, but the motion is ex parte. (Govt. of PI v. De Las Lajigas)
the court, and costs;
(b) The sum so found due; (JGG: The sum is already due.) JGG: It is considered a non-litigious motion as it is filed ex parte.
(c) Order the amount found due to be paid to the court or to the judgment
obligee within a period of not less than ninety (90) days nor more than
Q: What should the mortgagee do, after the sale of the mortgaged property
one hundred twenty (120) days from the entry of judgment; and
is made?
(d) Admonition that in default of such payment the property shall be sold
at public auction to satisfy the judgment (Sec. 2, Rule 68)
A: He should file a motion for confirmation of sale. (Sec. 3. Rule 68) Here the
motion requires notice and hearing. (Tiglao v. Botones) Thus, it is a litigious
NOTE: The judgment is appealable.
motion.
Q: What is equity of redemption?

The confirmation of sale shall operate to divest the rights in the property of all Supposing there are other junior encumbrances aside from the mortgage subject
the parties to action and vest the rights in the purchaser, subject to the rights of of the foreclosure, such will also be paid. If, after payment, there is still an amount
redemption under the law. (Sec. 3, Rule 68) left, it will be given to the mortgagor.
NOTE: Order of confirmation is appealable. Judicial foreclosure is an action Q: Is the mortgagee entitled to deficiency?
susceptible to multiple appeals.
A: YES. If upon the sale of any real property, there be a balance due to the plaintiff
Q: What may be appealed? after applying the proceeds of the sale, the court, upon motion, shall render
judgment against the defendant for any such balance for which he may be
A: personally liable to the plaintiff, upon which execution may issue immediately if
the balance is all due at the time of the rendition of the judgment; otherwise, the
(a) The judgment itself; plaintiff shall be entitled to execution at such time as the balance remaining
(b) The order of the court on the plaintiff’s motion for confirmation of sale. becomes due under the terms of the original contract, which time shall be stated
in the judgment. (Sec. 6, Rule 68)
Q: What is the effect of finality of the confirmation of the sale?
Q: Is there still a need to file a separate case to recover the deficiency?
A: Upon the finality of the order of confirmation or upon the expiration of the
period of redemption when allowed by law, the purchaser at the auction sale or A: NO. A motion for the recovery of deficiency can be filed in the same court
last redemptioner, if any, shall be entitled to the possession of the property unless where judicial foreclosure was filed. (Sec. 6, Rule 68)
a third party is actually holding the same adversely to the judgment obligor. The
said purchaser or last redemptioner may secure a writ of possession, upon PARTITION (RULE 69)
motion, from the court which ordered the foreclosure. (Sec. 3, Rule 68)
Section 1. Complaint in action for partition of real estate. — A person having the
The motion is ex parte. (Carlos v. CA)
right to compel the partition of real estate may do so as provided in this Rule,
setting forth in his complaint the nature and extent of his title and an adequate
Disposition of the proceeds of sale description of the real estate of which partition is demanded and joining as
defendants all other persons interested in the property. (1a)
They shall, after deducting the costs of the sale, be paid to the person foreclosing
the mortgage, and when there shall be any balance or residue, after paying off the Section 2. Order for partition and partition by agreement thereunder. — If after
mortgage debt due, the same shall be paid to junior encumbrancers in the order the trial the court finds that the plaintiff has the right thereto, it shall order the
of their priority, to be ascertained by the court, or if there be no such partition of the real estate among all the parties in interest. Thereupon the parties
encumbrancers or there be a balance or residue after payment to them, then to may, if they are able to agree, make the partition among themselves by proper
the mortgagor or his duly authorized agent, or to person entitled to it. (Sec. 4, Rule instruments of conveyance, and the court shall confirm the partition so agreed
68) upon by all the parties, and such partition, together with the order of the court
confirming the same, shall be recorded in the registry of deeds of the place in
EXAMPLE: The foreclosed property was sold through public auction. The which the property is situated. (2a)
indebtedness was for P1.5 million but the property was sold for P3 million. After
deducting the costs, the proceeds will be applied to the debt. A final order decreeing partition and accounting may be appealed by any party
aggrieved thereby. (n)

Section 3. Commissioners to make partition when parties fail to agree. — If the report in part and reject it in part; and may make such order and render such
parties are unable to agree upon the partition, the court shall appoint not more judgment as shall effectuate a fair and just partition of the real estate, or of its
than three (3) competent and disinterested persons as commissioners to make value, if assigned or sold as above provided, between the several owners thereof.
the partition, commanding them to set off to the plaintiff and to each party in (7)
interest such part and proportion of the property as the court shall direct. (3a)
Section 8. Accounting for rent and profits in action for partition. — In an action
Section 4. Oath and duties of commissioners. — Before making such partition; the for partition in accordance with this Rule, a party shall recover from another his
commissioners shall take and subscribe an oath that they will faithfully perform just share of rents and profits received by such other party from the real estate
their duties as commissioners, which oath shall be filed in court with the other in question, and the judgment shall include an allowance for such rents and
proceedings in the case. In making the partition, the commissioners shall view profits. (8a)
and examine the real estate, after due notice to the parties to attend at such view
and examination, and shall hear the parties as to their preference in the portion Section 9. Power of guardian in such proceedings. — The guardian or guardian ad
of the property to be set apart to them and the comparative value thereof, and litem of a minor or person judicially declared to be incompetent may, with the
shall set apart the same to the parties in lots or parcels as will be most approval of the court first had, do and perform on behalf of his ward any act,
advantageous and equitable, having due regard to the improvements, situation matter, or thing respecting the partition of real estate, which the minor or person
and quality of the different parts thereof. (4a) judicially declared to be incompetent could do in partition proceedings if he were
of age or competent. (9a)
Section 5. Assignment or sale of real estate by commissioners. — When it is made
to appear to the commissioners that the real state, or a portion thereof, cannot be Section 10. Costs and expenses to be taxed and collected. — The court shall
divided without prejudice to the interests of the parties, the court may order it equitably tax and apportion between or among the parties the costs and expenses
assigned to one of the parties willing to take the same, provided he pays to the which accrue in the action, including the compensation of the commissioners,
other parties such amount as the commissioners deem equitable, unless one of having regard to the interests of the parties, and execution may issue therefor as
the interested parties asks that the property be sold instead of being so assigned, in other cases. (10a)
in which case the court shall order the commissioners to sell the real estate at
public sale under such conditions and within such time as the court may Section 11. The judgment and its effect; copy to be recorded in registry of deeds. —
determine. (5a) If actual partition of property is made, the judgment shall state definitely, by
metes and bounds and adequate description, the particular portion of the real
Section 6. Report of commissioners; proceedings not binding until confirmed. — estate assigned to each party, and the effect of the judgment shall be to vest in
The commissioners shall make a full and accurate report to the court of all their each party to the action in severalty the portion of the real estate assigned to him.
proceedings as to the partition, or the assignment of real estate to one of the If the whole property is assigned to one of the parties upon his paying to the
parties, or the sale of the same. Upon the filing of such report, the clerk of court others the sum or sums ordered by the court, the judgment shall state the fact of
shall serve copies thereof on all the interested parties with notice that they are such payment and of the assignment of the real estate to the party making the
allowed ten (10) days within which to file objections to the findings of the report, payment, and the effect of the judgment shall be to vest in the party making the
if they so desire. No proceeding had before or conducted by the commissioners payment the whole of the real estate free from any interest on the part of the
and rendered judgment thereon. (6a) other parties to the action. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the purchaser or purchasers and a
Section 7. Action of the court upon commissioners report. — Upon the expiration definite description of the parcels of real estate sold to each purchaser, and the
of the period of ten (10) days referred to in the preceding section or even before effect of the judgment shall be to vest the real estate in the purchaser or
the expiration of such period but after the interested parties have filed their purchasers making the payment or payments, free from the claims of any of the
objections to the report or their statement of agreement therewith the court may, parties to the action. A certified copy of the judgment shall in either case be
upon hearing, accept the report and render judgment in accordance therewith, recorded in the registry of deeds of the place in which the real estate is situated,
or, for cause shown recommit the same to the commissioners for further report and the expenses of such recording shall be taxed as part of the costs of the action.
of facts; or set aside the report and appoint new commissioners; or accept the (11a)
Section 12. Neither paramount rights nor amicable partition affected by this Rule. A: Partition is a real action. Thus, jurisdiction depends on the assessed value of
— Nothing in this Rule contained shall be construed so as to prejudice, defeat, or real property.
destroy the right or title of any person claiming the real estate involved by title
under any other person, or by title paramount to the title of the parties among Q: What are the stages of partition?
whom the partition may have been made, nor so as to restrict or prevent persons
holding real estate jointly or in common from making an amicable partition (a) First phase: Determination whether co-ownership exists. This phase
thereof by agreement and suitable instruments of conveyance without recourse may end up with the declaration that plaintiff is not entitled to partition
to an action. (12a) (i.e. whether plaintiff is entitled to partition).
Section 13. Partition of personal property. — The provisions of this Rule shall (b) Second phase: Partition shall be done by the court in case the parties
apply to partitions of estates composed of personal property, or of both real and could not agree among themselves.
personal property, in so far as the same may be applicable. (13)
NOTE: Both phases are subject to appeal. The action for partition is subject to
Partition multiple appeals and would require record on appeal. (Roman Catholic
Archbishop of Manila v. CA)
Partition is defined as the separation, division and assignment of a thing held in
common among those to whom it may belong. (Art. 1079, NCC) Q: Who may file the petition?
Partition presupposes the existence of a co-ownership over a property between A: A person having the right to compel the partition of real estate may do so. (Sec.
two or more persons. Thus, a division of property cannot be ordered by the court 1, Rule 69)
unless the existence of co-ownership is first established. (Co Giuk Lun v. Co)
Q: What has to be alleged in the complaint?
When partition may not be demanded
A:
(a) There is agreement not to divide for a period of time, not exceeding ten
(10) years; (Art. 494, NCC) (a) The nature and extent of his title;
(b) The partition is prohibited by the donor for a period not exceeding 20 (b) Adequate description of the real estate of which partition is demanded;
years; (Arts. 494 and 1083, NCC) (c) Joining as defendants all other persons interested in the property. (Sec.
(c) When partition is prohibited by law; (Art. 494, NCC) 1, Rule 69)
(d) When property is not subject to a physical division; (Art. 495, NCC)
(e) When condition is imposed but not yet fulfilled. (Art. 1084, NCC) Q: What is the procedure after the court declared that co-ownership exists
and that the plaintiff has the right to partition the property?
Prescription of action for partition
A:
It does not prescribe. Thus, a co-owner may filed the action for partition anytime.
(Art. 494, NCC) (a) Court will direct the parties to partition the property among themselves.
(Sec. 2, Rule 69)
However, when of the co-owner repudiated the co-ownership, and the co-owner (b) If the parties don’t agree, the parties shall appoint three (3) independent
is advice of the repudiation such repudiating co-owner may acquire ownership commissioners to make the partition. (Sec. 2, Rule 69)
thereof thru prescription. (Heirs of Restar v. Heirs of Cichon) (c) Commissioners will submit their full and accurate report. The Court
upon receipt of the report, shall through its clerk of court furnished the
Q: Which court has jurisdiction?
parties of the report. They are allowed to comment or register their Section 3. Summary procedure. — Except in cases covered by the agricultural
objection to the report within (10) days from the receipt thereof. (Sec. 7, tenancy laws or when the law otherwise expressly provides, all actions for
Rule 69) forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered, shall be governed by the summary
Q: What should be the action of the court after the filing of the report? procedure hereunder provided. (n)
A: Section 4. Pleadings allowed. — The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and cross-claim pleaded in the answer, and
(a) Court may, upon hearing, accept the report and render judgment in the answers thereto. All pleadings shall be verified. (3a, RSP)
accordance therewith;
(b) For cause shown (JGG: If the report is not acceptable to the judge), Section 5. Action on complaint. — The court may, from an examination of the
recommit the same to the commissioners for further report of facts; or allegations in the complaint and such evidence as may be attached thereto,
(c) Set aside the report and appoint new commissioners; or dismiss the case outright on any of the grounds for the dismissal of a civil action
(d) Accept the report in part and reject it in part; and may make such order which are apparent therein. If no ground for dismissal is found, it shall forthwith
and render such judgment as shall effectuate a fair and just partition of issue summons. (n)
the real estate, or of its value, if assigned or sold as above provided,
between the several owners thereof. (Sec. 7, Rule 69) Section 6. Answers. — Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed
FORCIBLE ENTRY and UNLAWFUL DETAINER (RULE 70)
waived, except lack of jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be considered barred.
Section 1. Who may institute proceedings, and when. — Subject to the provisions The answer to counterclaims or cross-claims shall be served and filed within ten
of the next succeeding section, a person deprived of the possession of any land or (10) days from service of the answer in which they are pleaded. (5 RSP)
building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person against whom the possession of any land or building is Section 7. Effect of failure to answer. — Should the defendant fail to answer the
unlawfully withheld after the expiration or termination of the right to hold complaint within the period above provided, the court, motu proprio or on
possession, by virtue of any contract, express or implied, or the legal motion of the plaintiff, shall render judgment as may be warranted by the facts
representatives or assigns of any such lessor, vendor, vendee, or other person, alleged in the complaint and limited to what is prayed for therein. The court may
may, at any time within one (1) year after such unlawful deprivation or in its discretion reduce the amount of damages and attorney's fees claimed for
withholding of possession, bring an action in the proper Municipal Trial Court being excessive or otherwise unconscionable, without prejudice to the
against the person or persons unlawfully withholding or depriving of possession, applicability of section 3 (c), Rule 9 if there are two or more defendants.
or any person or persons claiming under them, for the restitution of such (6, RSP)
possession, together with damages and costs. (1a)
Section 8. Preliminary conference; appearance of parties. — Not later than thirty
Section 2. Lessor to proceed against lessee only after demand. — Unless otherwise (30) days after the last answer is filed, a preliminary conference shall be held. The
stipulated, such action by the lesser shall be commenced only after demand to provisions of Rule 18 on pre-trial shall be applicable to the preliminary
pay or comply with the conditions of the lease and to vacate is made upon the conference unless inconsistent with the provisions of this Rule.
lessee, or by serving written notice of such demand upon the person found on the
premises if no person be found thereon, and the lessee fails to comply therewith The failure of the plaintiff to appear in the preliminary conference shall be cause
after fifteen (15) days in the case of land or five (5) days in the case of buildings. for the dismissal of his complaint. The defendant who appears in the absence of
(2a) the plaintiff shall be entitled to judgment on his counterclaim in accordance with
the next preceding section. All cross-claims shall be dismissed. (7, RSP)

If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to within fifteen (15) days after the receipt of the last affidavit or the expiration of
judgment in accordance with the next preceding section. This procedure shall not the period for filing the same.
apply where one of two or more defendants sued under a common cause of action
defense shall appear at the preliminary conference. The court shall not resort to the foregoing procedure just to gain time for the
rendition of the judgment. (n)
No postponement of the preliminary conference shall be granted except for
highly meritorious grounds and without prejudice to such sanctions as the court Section 12. Referral for conciliation. — Cases requiring referral for conciliation,
in the exercise of sound discretion may impose on the movant. (n) where there is no showing of compliance with such requirement, shall be
dismissed without prejudice, and may be revived only after that requirement
Section 9. Record of preliminary conference. — Within five (5) days after the shall have been complied with. (18a, RSP)
termination of the preliminary conference, the court shall issue an order stating
the matters taken up therein, including but not limited to: Section 13. Prohibited pleadings and motions. — The following petitions,
motions, or pleadings shall not be allowed:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms
thereof; 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction
over the subject matter, or failure to comply with section 12;
2. The stipulations or admissions entered into by the parties; 2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of
3. Whether, on the basis of the pleadings and the stipulations and admission made trial;
by the parties, judgment may be rendered without the need of further 4. Petition for relief from judgment;
proceedings, in which event the judgment shall be rendered within thirty (30) 5. Motion for extension of time to file pleadings, affidavits or any other paper;
days from issuance of the order; 6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory
4. A clear specification of material facts which remain converted; and order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
5. Such other matters intended to expedite the disposition of the case. (8, RSP) 10. Reply;
11. Third-party complaints;
Section 10. Submission of affidavits and position papers. — Within ten (10) days 12. Interventions. (19a, RSP)
from receipt of the order mentioned in the next preceding section, the parties
shall submit the affidavits of their witnesses and other evidence on the factual
Section 14. Affidavits. — The affidavits required to be submitted under this Rule
issues defined in the order, together with their position papers setting forth the
shall state only facts of direct personal knowledge of the affiants which are
law and the facts relied upon by them. (9, RSP) admissible in evidence, and shall show their competence to testify to the matters
stated therein.
Section 11. Period for rendition of judgment. — Within thirty (30) days after
receipt of the affidavits and position papers, or the expiration of the period for A violation of this requirement may subject the party or the counsel who submits
filing the same, the court shall render judgment. the same to disciplinary action, and shall be cause to expunge the inadmissible
affidavit or portion thereof from the record. (20, RSP)
However, should the court find it necessary to clarify certain material facts,
during the said period, issue an order specifying the matters to be clarified, and Section 15. Preliminary injunction. — The court may grant preliminary
require the parties to submit affidavits or other evidence on the said matters injunction, in accordance with the provisions of Rule 58 hereof, to prevent the
within ten (10) days from receipt of said order. Judgment shall be rendered defendant from committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible from the filing of the supersedeas bond shall be transmitted by the Municipal Trial Court, with the
complaint, present a motion in the action for forcible entry or unlawful detainer papers, to the clerk of the Regional Trial Court to which the action is appealed.
for the issuance of a writ of preliminary mandatory injunction to restore him in
his possession. The court shall decide the motion within thirty (30) days from the All amounts so paid to the appellate court shall be deposited with said court or
filing thereof. (3a) authorized government depositary bank, and shall be held there until the final
disposition of the appeal, unless the court, by agreement of the interested parties,
Section 16. Resolving defense of ownership. — When the defendant raises the or in the absence of reasonable grounds of opposition to a motion to withdraw,
defense of ownership in his pleadings and the question of possession cannot be or for justifiable reasons, shall decree otherwise. Should the defendant fail to
resolved without deciding the issue of ownership, the issue of ownership shall be make the payments above prescribed from time to time during the pendency of
resolved only to determine the issue of possession. (4a) the appeal, the appellate court, upon motion of the plaintiff, and upon proof of
such failure, shall order the execution of the judgment appealed from with
Section 17. Judgment. — If after trial court finds that the allegations of the respect to the restoration of possession, but such execution shall not be a bar to
complaint are true, it shall render judgment in favor of the plaintiff for the the appeal taking its course until the final disposition thereof on the merits.
restitution of the premises, the sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises, attorney's fees and After the case is decided by the Regional Trial Court, any money paid to the court
costs. If a counterclaim is established, the court shall render judgment for the sum by the defendant for purposes of the stay of execution shall be disposed of in
found in arrears from either party and award costs as justice requires. (6a) accordance with the provisions of the judgment of the Regional Trial Court. In any
case wherein it appears that the defendant has been deprived of the lawful
Section 18. Judgment conclusive only on possession; not conclusive in actions possession of land or building pending the appeal by virtue of the execution of
involving title or ownership. — The judgment rendered in an action for forcible the judgment of the Municipal Trial Court, damages for such deprivation of
entry or detainer shall be conclusive with respect to the possession only and shall possession and restoration of possession and restoration of possession may be
in no wise bind the title or affect the ownership of the land or building. Such allowed the defendant in the judgment of the Regional Trial Court disposing of
judgment shall not bar an action between the same parties respecting title to the the appeal. (8a)
land or building.
Section 20. Preliminary mandatory injunction in case of appeal. — Upon motion
The judgment or final order shall be appealable to the appropriate Regional Trial of the plaintiff, within ten (10) days from the perfection of the appeal to the
Court which shall decide the same on the basis of the entire record of the Regional Trial Court, the latter may issue a writ of preliminary mandatory
proceedings had in the court of origin and such memoranda and/or briefs as may injunction to restore the plaintiff in possession if the court is satisfied that the
be submitted by the parties or required by the Regional Trial Court. (7a) defendant's appeal is frivolous or dilatory or that the appeal of the plaintiff
is prima facie meritorious. (9a)
Section 19. Immediate execution of judgment; how to stay same. — If judgment is
rendered against the defendant, execution shall issue immediately upon motion Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court.
unless an appeal has been perfected and the defendant to stay execution files a — The judgment of the Regional Trial Court against the defendant shall be
sufficient supersedeas bond, approved by the Municipal Trial Court and executed immediately executory, without prejudice to a further appeal that may be taken
in favor of the plaintiff to pay the rents, damages, and costs accruing down to the therefrom. (10a)
time of the judgment appealed from, and unless, during the pendency of the
appeal, he deposits with the appellate court the amount of rent due from time to Forcible Entry and Unlawful Detainer
time under the contract, if any, as determined by the judgment of the Municipal
Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Q: What are the three (3) kinds of possessory action?
Court the reasonable value of the use and occupation of the premises for the
preceding month or period at the rate determined by the judgment of the lower
court on or before the tenth day of each succeeding month or period. The A:

(a) Accion interdictal A:
(b) Accion publiciana
(c) Accion reinvindicatoria (a) Plaintiff had prior physical possession;
(b) That defendant deprived plaintiff of his possession by means of force,
NOTE: All of these are real actions. intimidation, threat, strategy or stealth (FISTS).
(c) JGG: There must be showing that the complaint was filed within one year
Q: Which court has jurisdiction over possessory actions? from dispossession. HOWEVER, if the ground is stealth, the one-year
period should be counted from the discovery.
A:
NOTE: Prior physical possession is the primary consideration in a forcible entry
(a) Accion interdictal – MTC, regardless of the value of real property and case. A party who can prove prior physical possession can recover such
amount of damages or unpaid rentals. possession even against the owner himself. (Antazo v. Doblada)
(b) Accion publiciana – MTC or RTC, depending on the assessed value of the
real property. Q: What is the meaning of prior physical possession in forcible entry cases?
(c) Accion reindivicatoria – MTC or RTC, depending on the value of the real
property. A: While prior physical possession is an indispensable requirement in forcible
entry cases, emphasis should be made however that possession can be acquired
Q: What are the two causes of actions under Rule 70? not only by material occupation, but also by the fact that a thing is subject to the
action of one's will or by the proper acts and legal formalities established for
A: acquiring such right.
(a) Forcible entry – an action to recover possession of a property from the Possession can be acquired by juridical acts. These are acts to which the law gives
defendant whose occupation thereof is illegal from the beginning since the force of acts of possession.
he acquired possession by force, intimidation, threat, strategy or stealth.
(b) Unlawful detainer – an action for recovery of possession from the Juridical acts were sufficient to establish the plaintiff's prior possession of the
defendant whose possession of the property was lawful from the subject property. (Mangaser v. Ugay)
beginning, but became illegal when he continued his possession despite
the termination of his right thereunder. (Sarmieta v. Manalite JGG: Prior physical possession should not be interpreted literally. It should also
Homeowners Association) include possession by juridical acts.
Section 1, Rule 70 gives the two causes of action EXAMPLE: Under the law on Sales, the contract of sale will not ownership over
the buyer. What will confer ownership is tradition or delivery, either actual or
A person deprived of the possession of any land or building by force, intimidation, constructive. Constructive delivery includes delivery by juridical acts, for
threat, strategy, or stealth – forcible entry example, execution of a notarized deed of sale. This can be the basis of prior
physical possession.
Lessor, vendor, vendee, or other person against whom the possession of any land
or building is unlawfully withheld after the expiration or termination of the right Q: What should be alleged in the complaint for unlawful detainer?
to hold possession, by virtue of any contract, express or implied – unlawful
detainer A:
Q: What should be alleged in forcible entry?

(a) Possession of the property by the defendant was by contract with or by When possession is by tolerance, it becomes illegal upon demand to vacate by the
tolerance of the plaintiff; owner and the possessor by tolerance refuses to comply with such demand.
(b) Such possession became illegal upon notice by the plaintiff to the (Piedad v. Gurieza)
defendant of the termination of the latter’s possession;
(c) Defendant remained in possession of the property and deprived the The rule on tolerance does not apply in a case where there was forcible entry at
plaintiff enjoyment thereof; the start. (Munoz v. CA) Hence, in this case, unlawful detainer is not the proper
(d) Within one (1) year from the last demand on the defendant to vacate the remedy. (Jose v. Alfuerto)
property, the plaintiff instituted the complaint for ejectment. (Romullo v.
Samahang Magkakapitbahay ng Bayanihan Compound Homeowners REMEMBER: A forcible entry case CANNOT be converted into an unlawful
Association) detainer case. Once a forcible entry, always a forcible entry.
Q: What is the effect if there is failure to allege facts necessary for forcible EXAMPLE: By means of threat and intimidation, X was able to enter the property
entry and unlawful detainer? of Y on Jan. 1, 2021. Y has a period of one year from Jan. 1, 2021 to Jan. 1, 2022 to
file a complaint for forcible entry. He failed to file the same on the period.
A: The jurisdictional facts must appear on the face of the complaint. When the However, on Feb. 1, 2022, he sent a demand letter to X to vacate the property. He
complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as filed the complaint on May 1, 2022 for unlawful detainer. Will the complaint
where it does not state how entry was effected or how and when dispossession prosper?
started, the remedy should either be an accion publiciana or accion
reinvindicatoria. (Jose v. Alfuerto; Suarez v. Emboy) A: NO. Forcible entry cannot be converted into an unlawful detainer case. The rule
on tolerance does not apply in a case where there was forcible entry at the start.
JGG: If the facts are not stated on the complaint, the result would be the MTC does
not have jurisdiction. Nature of interdictal cases
Forcible entry v. unlawful detainer It is both real and in personam.
FORCIBLE ENTRY UNLAWFUL DETAINER Unlawful detainer in lease contract cases

Allegation
The allegation should show the
There must be an allegation of prior Unless otherwise stipulated, such action by the lessor shall be commenced only
possession of the defendant becomes
possession of the plaintiff. after demand to pay or comply with the conditions of the lease and to vacate
illegal.
is made upon the lessee, or by serving written notice of such demand upon the
Demand to vacate person found on the premises, or by posting such notice on the premises if no
Demand to vacate is not needed. Demand to vacate is a prerequisite. person be found thereon, and the lessee fails to comply therewith after fifteen
When to file (15) days in the case of land or five (5) days in the case of buildings. (Sec. 2,
The one-year period to file action The one-year period to file action Rule 70)
should be counted from the date of must be counted from the date of the
actual entry. last demand to vacate.
Q: Demand is to “pay unpaid rental or to vacate”. Will this make out a case
of unlawful detainer?
NOTE: When the entry is by stealth, the one-year period to file action should
reckoned from the discovery of entry. (Nunez v. SLTEAS Phoenix Solutions, Inc.)
A: NO. It should be demand to pay and vacate.

A demand in the alternative to pay the increased rental or otherwise vacate the A: YES. The court may, from an examination of the allegations in the complaint
land is not a demand that will give rise to an unlawful detainer case. (Penas v. CA) and such evidence as may be attached thereto, dismiss the case outright on any
of the grounds for the dismissal of a civil action which are apparent therein. If no
Q: What is the form of demand? ground for dismissal is found, it shall forthwith issue summons. (Sec. 5, Rule 5)
A: Written notice of such demand upon the person found on the premises, or by Answer to Complaint
posting such notice on the premises if no person be found thereon. (Sec. 2, Rule
70) Within ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and
Q: How about verbal demand? negative defenses not pleaded therein shall be deemed waived, except lack of
jurisdiction over the subject matter.
A: YES. (Jakihaca v. Aquino)
Cross-claims and compulsory counterclaims not asserted in the answer shall be
Q: When is right to commence action in lease contract? considered barred. The answer to counterclaims or cross-claims shall be served
and filed within ten (10) days from service of the answer in which they are
pleaded. (Sec. 6, Rule 70)
A: When the lessee fails to comply therewith after fifteen (15) days in the case of
land or five (5) days in the case of buildings.
Q: Is there default in ejectment cases?
Tacita reconduccion (Implied, automatic renewal of the contract of lease)
A: NO. Should the defendant fail to answer the complaint within the period above
provided, the court, motu proprio or on motion of the plaintiff, shall render
At the end of the lease contract, the lessee should continue enjoying the property judgment as may be warranted by the facts alleged in the complaint and limited
leased for 15 days with the consent of the lessor, and no notice to the contrary to what is prayed for therein. (Sec. 7, Rule 70)
has been given, it is understood that there is an implied new lease contract. (Art.
1670, NCC)
Q: What should the court do in case tenancy relationship is alleged in the
answer?
Q: What procedure should govern ejectment cases?
A: Where tenancy is raised as a defense, the court must conduct a hearing on the
A: Except in cases covered by the agricultural tenancy laws or when the law matter to determine the veracity of the allegations of tenancy. (Onquit v.
otherwise expressly provides, all actions for forcible entry and unlawful detainer,
Binamira-Parcia)
irrespective of the amount of damages or unpaid rentals sought to be recovered,
shall be governed by the summary procedure hereunder provided. (Sec. 3, Rule
70) Procedure in the MTC
Pleadings allowed
The only pleadings allowed to be filed are the complaint, compulsory

counterclaim and cross-claim pleaded in the answer, and the answers thereto. All
pleadings shall be verified. (Sec. 4, Rule 70)
Q: Can the court motu proprio dismiss the complaint?

JGG: Aside from perfecting the appeal and the SB, the defendant must deposit
with the RTC (appellate court) the rent or the reasonable value of the use and
occupation of the premises.
Decision of the RTC is executory
The judgment of the Regional Trial Court against the defendant shall be
immediately executory, without prejudice to a further appeal that may be taken
therefrom. (Sec. 21, Rule 70)
NOTE: The decision of the RTC in the exercise of its appellate jurisdiction is
appealed by way of PFR under Rule 42.
CONTEMPT (RULE 71)
Section 1. Direct contempt punished summarily. — A person guilty of misbehavior

in the presence of or so near a court as to obstruct or interrupt the proceedings
Immediate execution before the same, including disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as a witness, or to subscribe
If judgment is rendered against the defendant, execution shall issue immediately an affidavit or deposition when lawfully required to do so, may be summarily
upon motion. adjudged in contempt by such court and punished by a fine not exceeding two
thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a
How to stay the execution of judgment Regional Trial Court or a court of equivalent or higher rank, or by a fine not
exceeding two hundred pesos or imprisonment not exceeding one (1) day, or
Appeal is perfected and the defendant files a sufficient supersedeas bond, both, if it be a lower court. (1a)
approved by the Municipal Trial Court and executed in favor of the plaintiff to pay
the rents, damages, and costs accruing down to the time of the judgment appealed Section 2. Remedy therefrom. — The person adjudged in direct contempt by any
from. (Sec. 19, Rule 70) court may not appeal therefrom, but may avail himself of the remedies
of certiorari or prohibition. The execution of the judgment shall be suspended
JGG: If there is no supersedeas bond, the execution of the judgment of the MTC pending resolution of such petition, provided such person files a bond fixed by
may not be stopped. the court which rendered the judgment and conditioned that he will abide by and
perform the judgment should the petition be decided against him. (2a)
And during the pendency of the appeal, he deposits with the appellate court the
amount of rent due from time to time under the contract, if any, as determined by Section 3. Indirect contempt to be punished after charge and hearing. — After a
the judgment of the Municipal Trial Court. (Sec. 19, Rule 70) charge in writing has been filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court and to be heard
by himself or counsel, a person guilty of any of the following acts may be punished
In the absence of a contract, he shall deposit with the Regional Trial Court the
for indirect contempt;
reasonable value of the use and occupation of the premises for the preceding
month or period at the rate determined by the judgment of the lower court on or
before the tenth day of each succeeding month or period. (Sec. 19, Rule 70) (a) Misbehavior of an officer of a court in the performance of his official duties or
in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of Section 5. Where charge to be filed. — Where the charge for indirect contempt
a court, including the act of a person who, after being dispossessed or ejected has been committed against a Regional Trial Court or a court of equivalent or
from any real property by the judgment or process of any court of competent higher rank, or against an officer appointed by it, the charge may be filed with
jurisdiction, enters or attempts or induces another to enter into or upon such real such court. Where such contempt has been committed against a lower court, the
property, for the purpose of executing acts of ownership or possession, or in any charge may be filed with the Regional Trial Court of the place in which the lower
manner disturbs the possession given to the person adjudged to be entitled court is sitting; but the proceedings may also be instituted in such lower court
thereto; subject to appeal to the Regional Trial Court of such place in the same manner as
provided in section 11 of this Rule. (4a; Bar Matter No. 803, 21 July 1998)
(c) Any abuse of or any unlawful interference with the processes or proceedings
of a court not constituting direct contempt under section 1 of this Rule; Section 6. Hearing; release on bail. — If the hearing is not ordered to be had
forthwith, the respondent may be released from custody upon filing a bond, in an
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or amount fixed by the court, for his appearance at the hearing of the charge. On the
degrade the administration of justice; day set therefor, the court shall proceed to investigate the charge and consider
such comment, testimony or defense as the respondent may make or offer. (5a)
(e) Assuming to be an attorney or an officer of a court, and acting as such without
authority; Section 7. Punishment for indirect contempt. — If the respondent is adjudged
guilty of indirect contempt committed against a Regional Trial Court or a court of
(f) Failure to obey a subpoena duly served; equivalent or higher rank, he may be punished by a fine not exceeding thirty
thousand pesos or imprisonment not exceeding six (6) months, or both. If he is
adjudged guilty of contempt committed against a lower court, he may be
(g) The rescue, or attempted rescue, of a person or property in the custody of an
punished by a fine not exceeding five thousand pesos or imprisonment not
officer by virtue of an order or process of a court held by him.
exceeding one (1) month, or both. If the contempt consists in the violation of a
writ of injunction, temporary restraining order or status quo order, he may also
But nothing in this section shall be so construed as to prevent the court from be ordered to make complete restitution to the party injured by such violation of
issuing process to bring the respondent into court, or from holding him in custody the property involved or such amount as may be alleged and proved.
pending such proceedings. (3a)
The writ of execution, as in ordinary civil actions, shall issue for the enforcement
Section 4. How proceedings commenced. — Proceedings for indirect contempt of a judgment imposing a fine unless the court otherwise provides. (6a)
may be initiated motu propio by the court against which the contempt was
committed by an order or any other formal charge requiring the respondent to Section 8. Imprisonment until order obeyed. — When the contempt consists in the
show cause why he should not be punished for contempt. refusal or omission to do an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court concerned until he performs
In all other cases, charges for indirect contempt shall be commenced by a verified it. (7a)
petition with supporting particulars and certified true copies of documents or
papers involved therein, and upon full compliance with the requirements for Section 9. Proceeding when party released on bail fails to answer. — When a
filing initiatory pleadings for civil actions in the court concerned. If the contempt respondent released on bail fails to appear on the day fixed for the hearing, the
charges arose out of or are related to a principal action pending in the court, the court may issue another order of arrest or may order the bond for his appearance
petition for contempt shall allege that fact but said petition shall be docketed, to be forfeited and confiscated, or both; and, if the bond be proceeded against, the
heard and decided separately, unless the court in its discretion orders the
measure of damages shall be the extent of the loss or injury sustained by the
consolidation of the contempt charge and the principal action for joint hearing aggrieved party by reason of the misconduct for which the contempt charge was
and decision. (n) prosecuted, with the costs of the proceedings, and such recovery shall be for the
benefit of the party injured. If there is no aggrieved party, the bond shall be liable
and disposed of as in criminal cases. (8a)
Section 10. Court may release respondent. — The court which issued the order The person adjudged in direct contempt by any court may not appeal therefrom,
imprisoning a person for contempt may discharge him from imprisonment when but may avail himself of the remedies of certiorari or prohibition. The
it appears that public interest will not be prejudiced by his release. (9a) execution of the judgment shall be suspended pending resolution of such petition,
provided such person files a bond fixed by the court which rendered the
Section 11. Review of judgment or final order; bond for stay. — The judgment or judgment and conditioned that he will abide by and perform the judgment should
final order of a court in a case of indirect contempt may be appealed to the proper the petition be decided against him. (Sec. 2, Rule 71)
court as in criminal cases. But execution of the judgment or final order shall not
be suspended until a bond is filed by the person adjudged in contempt, in an Acts constituting indirect contempt
amount fixed by the court from which the appeal is taken, conditioned that if the
appeal be decided against him he will abide by and perform the judgment or final • Misbehavior of an officer of a court in the performance of his official
order. (10a) duties or in his official transactions;
• Disobedience of or resistance to a lawful writ, process, order, or
Section 12. Contempt against quasi-judicial entities. — Unless otherwise judgment of a court;
provided by law, this Rule shall apply to contempt committed against persons, • Any abuse of or any unlawful interference with the processes or
entities, bodies or agencies exercising quasi-judicial functions, or shall have proceedings of a court not constituting direct contempt under Section 1
suppletory effect to such rules as they may have adopted pursuant to authority of this Rule;
granted to them by law to punish for contempt. The Regional Trial Court of the • Any improper conduct tending, directly or indirectly, to impede,
place wherein the contempt has been committed shall have jurisdiction over such obstruct, or degrade the administration of justice;
charges as may be filed therefor. (n) • Assuming to be an attorney or an officer of a court, and acting as such
without authority;
Contempt • Failure to obey a subpoena duly served;
• The rescue, or attempted rescue, of a person or property in the custody
Direct contempt of an officer by virtue of an order or process of a court held by him. (Sec.
3, Rule 71)
A person guilty of misbehavior in the presence of or so near a court as to obstruct
or interrupt the proceedings before the same, including disrespect toward the Q: How is indirect contempt commenced?
court, offensive personalities toward others, or refusal to be sworn or to answer
as a witness, or to subscribe an affidavit or deposition when lawfully required to A:
do so, may be summarily adjudged in contempt by such court. (Sec. 1, Rule 71)
(a) By order of the court, or a formal charge by the offended court. This is in
JGG: The initiator of the action for contempt is the court itself. the nature of a show cause order.
(b) By verified petition with full requirements of initiatory pleading for civil
Penalty for direct contempt action. It is treated as a separate case to be docketed separately. (Sec. 4,
Rule 71)
(a) A fine not exceeding two thousand pesos or imprisonment not exceeding
ten (10) days, or both, if it be a Regional Trial Court or a court of Q: Where should the charge be filed?
equivalent or higher rank, or by
(b) A fine not exceeding two hundred pesos or imprisonment not exceeding A:
one (1) day, or both, if it be a lower court. (Sec. 1, Rule 71)
(a) Where the charge for indirect contempt has been committed against a
Remedy of the person adjudged of direct contempt Regional Trial Court or a court of equivalent or higher rank, or against an
officer appointed by it, the charge may be filed with such court;
(b) Where such contempt has been committed against a lower court, the
charge may be filed with the Regional Trial Court of the place in which
the lower court is sitting.
(c) Proceedings may also be instituted in such lower court subject to appeal
to the Regional Trial Court of such place in the same manner as provided
in Section 2 of this Rule. (Sec. 5, Rule 71)

RemRev 1 - Judge Gito - FINALS

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Remedial Law Review I • Rule 24: Depositions Before Action or Pending Appeal

Judge Gener Gito

Q: Is it necessary to ask permission from the court for the taking of

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 1

Section 14. Stipulations regarding taking of depositions. — If the parties so

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 7

4 Adding an extensive discussion on People v. Sergio for Bar review purposes.

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 10

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 11

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 12

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (RULE 24)

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 13

INTERROGATORIES TO PARTIES (RULE 25)

Section 1. Interrogatories to parties; service thereof. — Upon ex parte motion, any

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 15

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 16

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 20

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 21

Q: What is the result if there is refusal to comply with the modes of

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 26

The trial dates may be shortened depending on the number of witnesses to be

Q: What is the expectation?

Section 3. Requisites of motion to postpone trial for illness of party or counsel. —

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 27

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 29

CIVIL CRIMINAL Q: How is judgment rendered?

Requisites of a valid judgment Requirement for validity of memorandum decision

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 32

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 34

Remedy in interlocutory order

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 36

Section 1. Summary judgment for claimant. — A party seeking to recover upon a

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 37

Section 1. Summary judgment for claimant. — A party seeking to recover upon

JUDGMENT ON THE PLEADINGS SUMMARY JUDGMENT BEFORE JUDGMENT BECOMES

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 40

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 41

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 42

Section 4. Resolution of motion. — A motion for new trial or reconsideration shall

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 44

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 46

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent, confession or

(f) An order of execution; (a) Ordinary appeal; (Rule 41)

Is the mode of appeal availed by Marina proper?

A: NO. The proper remedy should be appeal.

It is fundamental that a petition for certiorari is an original action and, as such,

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 51

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 52

Section 7. Elevation of record. — Whenever the Court of Appeals deems it

7 Judge Gito said this. In class.

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 54

Ephraim Bie – UST Faculty of Civil Law – 4C ’22 – ’23 | 56

Q: Is it filed within the period?

Marina learns the judgment by default on September 1. The Judgment was

Q: Is it filed within the period?

A: YES. It is within the twin periods.

Marina learns the judgment by default on September 1. The Judgment was

Q: Is it filed within the period?