Friday, June 12, 2015

about law

 
CIVIL PROCEDURE
Rule 1 General Provisions
1. Civil action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong; may be ordinary or special
Criminal action – one by which the state prosecutes a person for an act or omission punishable by law
Special proceeding – remedy by which a party seeks to establish a status, a right, or a particular fact
2. Rules of Court shall NOT be applicable to the following, except by analogy or in a suppletory character, and whenever practicable and convenient
    1. Election cases;
    2. Land registration;
    3. Cadastral proceedings;
    4. Naturalization proceedings; and
    5. Insolvency proceedings
Rule 2 Cause of Action
1. Cause of action – an act or omission by which a party violates the right of another
2. Requisites of Joinder of Causes of Action:
    1. The party joining the causes of action shall comply with the rules on joinder of parties;
    2. The joinder shall NOT include special civil action or actions governed by special rules;
    3. Where the causes of action are between the same parties but pertain to different venues or jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of the RTC and the venue lies therein;
3. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.
4. Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion or motu proprio, be severed and proceeded with separately.
Rule 3 Parties to Civil Actions
1. Claims that Survive the Death of a Party:
  1. Actions to recover real and personal property against the estate;
  2. Actions to enforce liens thereon;
  3. Actions to recover for injury to persons or property by reason of tort;
  4. Actions to recover money arising from contract, express or implied.
2. Death of defendant in action on contractual money claims before judgment of RTC NOT ground for dismissal. Action continues until entry of final judgment. Any judgment against estate of deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved.
3. Requisites of Permissive Joinder of Parties:
  1. Right to relief arises out of the same transaction or series of transactions, whether jointly, severally, or in the alternative;
  2. There is a question of law or fact common to all the plaintiffs and defendants;
  3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue.
4. Requisites of a Class Suit:
  1. Subject matter of the controversy is one of common or general interest to many persons;
  2. Parties affected are so numerous that it is impracticable to bring them all to the court;
  3. Parties bringing the class suit are sufficiently numerous or representative of the class and have the legal capacity to file the action.
5. Transfer of Interest
à Action may be continued by or against the original party, unless the court, on motion, directs the transferee to be substituted in the action or joined with the original party; however, if transfer is made before commencement of the action, the transferee must necessarily be the party, since only he is the real party in interest.
Rule 4 Venue Of Actions
* Uniform rule on venue in RTC and MTC
1. Venue of real actions – in the proper court which has jurisdiction over the area wherein real property involved or a portion thereof is situated.
2. Venue for forcible entry and detainer actions – in the MTC of the municipality or city wherein the real property or a portion thereof is situated.
3. Venue of personal actions – where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.
NOTE: "residence" means place where party actually resides at time of action; does NOT mean permanent home or domicile.
4. Action against non-resident not found in the Philippines
  1. Action Affects the Plaintiff’s Personal Status - in the court of the place where the plaintiff resides.
  2. Action Affects Any Property of the Defendant in the Philippines - where the property or any portion thereof is situated or found.
5. Rules on Venue shall NOT apply:
  1. In those case where a specific rule or law provides otherwise (e.g., civil case for damages in cases of libel, where Article 360 of RPC provides specific rules on venue); OR
  2. Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.
à In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real property involved.
Rule 5 Uniform Procedure in Trial Courts
1. The procedure in the MTCs shall be the same as that in the RTC.
2. Uniform Procedure shall NOT be applicable:
  1. Where a particular provision expressly or impliedly applies only to either of said courts.
  2. In civil cases governed by the Rule on Summary Procedure.

Rule 6 Kinds of Pleadings
1. Negative Defense – specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause of action.
2. Affirmative defense – an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. Includes:
  1. Fraud
  2. Statute of limitations
  3. Release
  4. Payment
  5. Illegality
  6. Statue of frauds
  7. Estoppel
  8. Former recovery
  9. Discharge in bankruptcy
  10. Any other matter by way of confession or avoidance.
3. Compulsory counterclaim – Requisites:
  1. Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim;
  2. Does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; and
  3. Must be within the jurisdiction of the court both as to the nature and the amount, except that in an ORIGINAL action in the RTC, the counterclaim may be considered regardless of the amount.
à Agustin vs. Bacalang
A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court’s jurisdiction may only be pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s claim, but NOT to obtain affirmative relief. MOREOVER, the amount of judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the counterclaim in excess of the jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess of the jurisdiction of the trial court is void.
à Calo vs. Ajax
A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of the inferior court, will only be considered permissive. Hence, fact that it is not set-up in the inferior court will not bar plaintiff from instituting a separate action to prosecute it.
Rule 7 Parts of a Pleading
  1. Formal Requirements of Pleadings:
  1. Caption
  2. Title
  3. Body divided into headings and paragraphs
  4. Body divided into headings and paragraphs
  5. Signature and address
  6. Verification in some cases
  1. Signature of the lawyer constitutes a certification by him that:
  1. He has read pleading
  2. To the best of his knowledge, information, and belief, there is good ground to support it
  3. It is not interposed for delay.
3. How a Pleading is Verified: By an affidavit stating that
  1. Affiant (person verifying) has read the pleading
  2. Allegations therein are true and correct as of his personal knowledge or based on authentic records. (SC Circular 48-2000, effective May 1, 2000)
4. A pleading required to be verified which:
  1. Contains a verification based on "information and belief", OR
  2. Contains a verification based on "knowledge, information and belief," OR
  3. Lacks a proper verification
à Shall be treated as an unsigned pleading.
  1. What pleadings have to be verified:
  1. Petition for relief from judgment (38.3)
  2. Appeal by certiorari from CA to SC (45.1)
  3. Complaint with prayer for preliminary attachment (57. 3)
  4. Complaint for injunction (58.4)
  5. Complaint for replevin (60.2)
  6. Petition for certiorari (65.1)
  7. Petition for prohibition (65.2)
  8. Petition for mandamus (65.3)
  9. Complaint for forcible entry or unlawful detainer (70.4)
  10. Petition for appointment of general guardian (93.2)
  11. Petition for leave to sell or encumber property of estate or guardian (95.1)
  12. Petition for declaration of competency of the ward (97.1)
  13. Petition for habeas corpus (102.3)
  14. Petition for change of name (103.2)
  15. Petition for voluntary dissolution of a corporation (104.1)
  16. Petition for cancellation or correction of entries in the civil registry (108.1)
  17. Petition to take deposition in perpetuam rei memoriam (before action or pending appeal) (24.2)
  18. Motion to set aside a default order of an inferior court
  19. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the movant while the adverse party can be fully compensated
  20. Petition for appointment of receiver
  21. Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction of the inferior court, by and elevated to the CA.
  22. Pleadings that need not be verified but must be under oath:
  23. Denial of the genuineness and due execution of an actionable document (8.8)
  24. Denial of allegations of usury (8.11)
  25. Answer to written interrogatories (25.2)
  26. Answer to request for admission (26.2)
  27. Notice of appeal from administrative tribunals to the CA
6. Supporting affidavits of merit required:
  1. Motion to postpone for absence of evidence (30.3)
  2. Motion to postpone for illness of a party or counsel (30.4)
  3. Motion for summary judgment or opposition thereto (35.1,2,3,5)
  4. Motion for new trial on the ground of FAME or opposition thereto (37.2)
  5. Petition for relief from judgment (38.3)
  6. Third-party claim (39.16)
  7. Proof required of a redemptioner (39.30)
  8. Motion for preliminary attachment (57.3)
  9. Motion for dissolution of preliminary injunction (58.6)
  10. Application for writ of replevin (60.2)
  11. Claim against the estate of the decedent (86.9)
  12. Motion for new trial based on newly discovered evidence in criminal cases (121.4)
7. Certification against Forum-Shopping: Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification annexed and filed therewith:
  1. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency; to the best of his knowledge no such other claim or action pending;
  2. If there is such other pending action, a complete statement of the present status thereof;
  3. If he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same within 5 days therefrom to the court where he filed his complaint.
NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT.
à For Forum-Shopping to exist, there must be:
  1. Same transactions involved;
  2. Same essential facts and circumstances; and
  3. Actions raise identical cause of action, subject matter, and issues
Rule 8 Manner of Making Allegations in Pleadings
1. Allegations of capacity
  1. Capacity of party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association that is made a party must be averred;
  2. To raise an issue as to the legal existence of a party or the capacity of a party in a representative capacity, do so by specific denial, including such supporting particulars as are peculiarly within the pleader’s knowledge.
2. Action or defense based on document
  1. Substance of such document set forth in the pleading;
  2. Original or copy attached to the pleading as exhibit and deemed to be part of the pleading; OR
  3. Copy may be set forth in the pleading with like effect.
  1. How to contest actionable document: Genuineness and due execution of instrument deemed admitted unless adverse party:
  1. Specifically denies them under oath;
  2. Sets forth what he claims to be the facts.
à Requirement of an oath does NOT apply:
  1. When diverse party does not appear to be a party to the instrument; or
  2. When compliance with an order for an inspection of the original instrument is refused.
à Admission of genuineness and due execution:
  1. Party whose signature appears admits that he signed it, or that it was signed by another with his authority
  2. Was in words and figures as set out at the time it was signed
  3. Document was delivered
  4. Any formal requisites required by law which it lacks are waived by him
à The following defenses are cut-off by admission of genuineness and due execution of the document:
  1. Signature is a forgery
  2. Signature is unauthorized
  3. Corporation is not authorized under its charter to sign the instrument
  4. Party charged signed the instrument in some other capacity than that alleged in the pleading setting it out
  5. Document was never delivered.
  1. Specific Denial
  1. Defendant must specify each material allegation of fact the truth of which he does not admit;
  2. Defendant must set forth the substance of the matters upon which he relies to support his denial, whenever practicable;
  3. If denying only part of an averment, he shall specify so much of it as is true and material and shall deny the remainder;
  4. If defendant does not have knowledge or information sufficient to form a belief as to the truth of a material averment, he shall so state and this has effect of denial.
à Negative pregnant – a denial which at the same time involves an admission of the substantial facts in the pleading responded to.
5. Allegations not specifically denied, other than those as to amount of unliquidated damages deemed admitted.
Rule 9 Effect of Failure to Plead
1. General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived (Omnibus Motion Rule).
Exception: Court shall dismiss the claim, even without allegation in answer or motion to dismiss, if any of the following appear from the pleadings or the evidence on record:
  1. Lack of jurisdiction over the subject matter;
    2.
  2. Litis pendentia between same parties for the same cause;
  3. Res judicata
  4. Action barred by statute of limitations.
  1. Declaration of Default
  1. Defendant entitled to notice of motion to declare him in default and of order of default;
  2. Motion to set aside order of default may be filed after notice and before judgment;
  3. Party may make motion, under oath, to set aside order of default upon proper showing that failure to answer was due to FAME;
  4. Effect of order of default – party in default entitled to notice of subsequent proceedings but not to take part in trial;
  5. Partial default – if several defending parties and not all in default, the court shall try the case against all upon the answers thus filed and evidence presented;
  6. After declaration of default, court may render judgment on the basis of the complaint or require claimant to submit evidence;
  7. Judgment against party in default shall not exceed the amount or differ in kind from that prayed for nor award unliquidated damages;
  8. No defaults in action for annulment or declaration of nullity of marriage or for legal separation.
Rule 10 Amended and Supplemental Pleadings
1. Amendments of pleadings may be made once as a matter of right:
  1. At any time before responsive pleading is served
  2. In the case of a reply, anytime within 10 days after service.
à Plaintiff may amend complaint as a matter of right even after defendant files a Motion to Dismiss, since the same is not a "responsive pleading."
  1. Substantial amendments may be made only with leave of court, except as provided above.
  2. An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. (NOT judicial admissions anymore; thus, must be formally offered)
  3. Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived.
5. Amended and Supplemental pleadings distinguished:
Amended
Supplemental
Refers to facts existing at the time of the commencement of the action
Refers to facts arising after the filing of the original pleading
Results in the withdrawal of the original pleading
Merely an addition, and does NOT result in the withdrawal of, the original pleading
Can sometimes be made as a matter of right
Always filed with leave of court
Rule 11 When to File Responsive Pleadings
  1. Answer to complaint – 15 days from service, unless different period fixed by the courts;
  2. Answer of defendant foreign private juridical entity – when service of summons is made on the government official designated by law, answer to be filed within 30 days from receipt of summons by such entity.
  3. Answer to amended complaint – if amended as a matter of right, 15 days from being served with copy thereof
    4. à If amended not as a matter of right, 10 days from notice of order admitting the same
    à Answer earlier filed may be answer to amended complaint, if no new answer is filed
    à Applicable to amended counterclaim, cross, third, etc,
  4. Answer to counterclaim or cross-claim – within 10 days from service.
  5. Answer to 3rd party complaint – 15 days from service
  6. Reply – may be filed within 10 days from service of the pleading responded to
Rule 12 Bill of Particulars
  1. Bill of particulars
  1. Period of filing motion – before responding to a pleading; if pleading is a reply, within 10 days from service thereof;
  2. Order for bill must be complied with in 10 days from notice OR period fixed by court
  3. After service of bill or denial of motion – party has balance of time he was entitled to file responsive pleading, but not less than 5 days
à Motion for Bill of Particulars may NOT call for matters which form part of the proof of the complaint. Thus, motion should not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action.
Rule 13 Filing and Service of Pleadings, Judgments and Other Papers
  1. Kinds of service of pleadings:
  1. Personal service – to be done whenever practicable (Most preferred mode)
  2. Service by mail (ordinary if no registered mail)
  3. Substituted service (delivering copy to clerk of court with proof of failure of 1st 2 modes)
à Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally.
à Violation of rule may be cause to consider the paper as not filed.
  1. Kinds of service of final orders:
  1. Personal
  2. Registered mail
  3. Publication (if summons by publication)
3. Proof of personal service
  1. Written admission of party served;
  2. Official return of the server; or
  3. Affidavit of party serving, containing a full statement of the date, place and manner of service.
Rule 14 Summons
  1. Contents of summons
  1. Signed by the clerk under the seal of the court
  2. Name of the court and that parties to the action
  3. Direction that the defendant answer within the time fixed by these rules
  4. Notice that unless defendant so answers, plaintiff will take judgment by default
  1. Kinds of service of summons:
  1. Personal:
  1. Handing a copy to the defendant in person; OR
  2. If he refuses to receive and sign for it, by tendering it to him
  1. Substituted:
    1. Leave copies at his residence, with person of suitable age and discretion residing therein; OR
    2. Leave copies at defendant’s office/regular place of business, with competent person in charge thereof.
  1. By publication
  1. By whom served:
  1. Sheriff
  2. Other proper court officer
  3. Any suitable person specially authorized by the judge
  1. When extraterritorial service allowed:
  1. Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s personal status
  2. Subject of action is property within the Philippines in which the defendant has or claims a lien or interest
  3. Where relief demanded consists in whole or in part in excluding the defendant from any interest in such property
  4. When property of defendant has been attached within the Philippines
  1. Kinds of extra territorial service
  1. Personal service
  2. Publication and summons sent by registered mail to last known address
  3. Any other matter the court may deem sufficient
  1. When service by publication in a newspaper of general publication allowed:
  1. Identity of defendant unknown
  2. Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry
    3. à (a) and (b), applies to ANY action, even actions in personam
  3. Defendant is non-resident and the suit is quasi in rem
  4. Defendant is temporarily out of the country and the suit is quasi in rem
  1. Service upon private domestic juridical entity – refers to corporation, partnership, or association organized under Phil. Laws with a juridical personality:
  1. President
  2. Managing partner
  3. General manager
  4. Corporate secretary
  5. Treasurer
  6. In-house counsel
  1. Service upon private foreign juridical entity transacting business in the Phils:
  1. Resident agent designated in accord with Law
  2. If no such agent, on government official designated by law OR
  3. On any of its officers or agents within the Phils
NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE SEC.
  1. Newspaper of general circulation (RA 4883, PD 1079)
  1. Published for the dissemination of local news and general information
  2. Has a bona fide subscription list of subscribers
  3. Published at regular intervals
  4. Not published for nor devoted to the interest of a particular group of persons
  5. Must have been regularly published for at least 2 years before the date of the publication in question.
à Mere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for the purpose of sumons. It should be noted that when the appearance of the defendant is precisely to object to the jurisdiction of the court over his person, it cannot be considered as an appearance in court.
Rule 15 Motions
  1. All motions must be in writing except:
  1. Those made in open court; OR
  2. Those made in the course of a hearing or trial.
  1. Exceptions to the three-day notice rule:
  1. Ex parte motion
  2. Urgent motion
  3. When court sets hearing on shorter notice for good cause
  4. Motion for summary judgment (must be served at least 10 days before the hearing)
à A prudent judge would, in the absence of the opposing party in the hearing of a motion, inquire from the other party or inquire from the records the proof of the service of notice rather than proceed with the hearing. He should not rely on a party’s undertaking to notify the adverse party of a scheduled hearing. The judge must demand what the rule requires, i.e., proof of such notice on the adverse party. Otherwise, a contentious motion should be considered a mere scrap of paper which should not have even been received for filing.
à Subsequent service of the motion on the adverse party may be considered substantial compliance with the Rule 15, § 6. Failure to attach to the motion proof of service thereof to the adverse party is not fatal when the adverse party had actually received a copy of the motion and was in fact present in court when the motion was heard.
Rule 16 Motion to Dismiss
  1. Motion to Dismiss must be filed within the time for and before the filing of an answer to complaint.
  2. Grounds for motion to dismiss:
  1. Court has no jurisdiction over the person of the defendant- unlike old rule, inclusion in motion to dismiss of other grounds aside from lack of jurisdiction over the person does NOT constitute a waiver of the said ground or voluntary appearance;
  2. Court has no jurisdiction over the subject matter of the claim;
  3. Venue is improperly laid;
  4. Plaintiff has no legal capacity to sue;
  5. There is another action pending between the same parties for the same cause;
à Requisites of litis pendentia:
  1. Identity of parties/interest
  2. Identity of rights asserted and prayed for/relief founded on the same facts;
  3. Identity of the 2 cases (such that judgment in one would amount to res judicata in the other)
  1. Cause of action is barred by a prior judgment or by statute of limitations;
à Requisites of res judicata:
  1. Final judgment or order
  2. Rendered by court of competent jurisdiction
  3. On the merits (even without trial, such as cases decided by Judgment on the Pleadings, Summary Judgment, or dismissed for failure to prosecute or for refusal to obey an order of the court)
  4. Identity of the parties
  1. Pleading asserting claim states no cause of action;
  2. Claim or demand in the plaintiff’s pleading has been paid, waived, abandoned, extinguished;
  3. Claim on which action is founded is unenforceable under the statute of frauds;
  4. Condition precedent for filing has not been complied with (this includes prior recourse to barangay conciliation, or failure to make attempts to reach a compromise in cases between members of the same family)
à The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.
3. Actions that court may take on a Motion to Dismiss:
  1. Grant it – remedy: appeal
  2. Deny – NOT appealable; but may avail of certiorari, prohibition and mandamus
  3. Order amendment of the pleading
4. If denied, defendant must file answer within the balance of the 15-day period, but not less than 5 days from the time he received notice of the denial;
5. Subject to the right to appeal, dismissal based on the following grounds will be bar to refiling:
  1. Res judicata
  2. Extinguishment of claim or demand
  3. Prescription
  4. Unenforceability under the Statute of Frauds
6. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.
à A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. The demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts.
Rule 17 Dismissal of Actions
  1. Dismissal by the plaintiff
  1. Notice of dismissal any time before service of the answer or a motion for summary judgment;
    2. à Dismissal is without prejudice EXCEPT on 2nd notice of dismissal, which operates as adjudication on the merits when filed by same plaintiff who has once dismissed an action based on or including said claim.
  2. If answer or motion for summary judgment already served, dismissal by a Motion for Dismissal, which shall require approval of the court; shall be without prejudice unless otherwise specified by the court
à If counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s motion to dismiss, dismissal is limited to the complaint; dismissal is without prejudice to defendant’s right to prosecute counterclaim in a separate action or, if he makes a manifestation within 15 days from notice of the motion, to prosecute CC in same action.
  1. Dismissal due to plaintiff’s fault - the following must be without justifiable cause
  1. If plaintiff fails to appear on the date of presentation of his evidence in chief;
  2. Plaintiff fails to prosecute claim for an unreasonable length of time
  3. Plaintiff fails to comply with the Rules of Court or any order of the court
à Complaint may be dismissed upon defendant’s motion or motu proprio.
à Unless otherwise declared by the court, dismissal has effect of adjudication upon the merits.
RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintiff’s motion or due to plaintiff’s fault does not necessarily carry with it the dismissal of the compulsory CC; defendant is also given option to prosecute the same in same or separate action.
  1. Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must be made by claimant before a responsive pleading or a motion for summary judgment is served, or if there is none, before the introduction of evidence.
Rule 18 Pre-Trial
1. What to consider in pre-trial (with notice to counsel or party without counsel)
  1. Possibility of amicable settlement or arbitration
  2. Simplification of the issues
  3. Amendments to the pleadings
  4. Stipulations or admissions of facts and documents
  5. Limitation of number of witnesses
  6. Preliminary reference of issues to a commissioner
  7. Propriety of judgment on the pleadings, summary judgments, or dismissal of action
  8. Other matters for the prompt disposition of the action
  1. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the defendant’s counterclaim, it will be the latter’s duty to set the pre-trial.
  2. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow plaintiff to present evidence ex parte and the court to render judgment on basis thereof.
  3. Non-appearance of party excused only if:
  1. A valid cause is shown therefor OR
  2. If representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents,
  1. Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial. Failure to file brief has same effects as failure to appear at pre-trial.
  2. Proceedings recorded, and court shall issue an order reciting in detail matters taken up.
Rule 19 Intervention
  1. Grounds for intervention
  1. Legal interest in the matter in litigation
  2. Interest in the success of either or both parties or interest against both
  3. Party is so situated as to be adversely affected by the distribution of the court
  4. Disposition of property in the custody of the court or of an officer thereof.
  1. Motion may be filed at any time before rendition of judgment.
  2. Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint.
  3. Motion for intervention will be granted if it will not unduly delay or prejudice adjudication of rights or original parties and if the intervenor’s rights may be fully protected in separate proceedings.
  4. Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed if main action is dismissed.
  5. A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief. The petition will be preserved and heard regardless of the disposition of the main action.
Rule 20 Calendar of Cases
1. Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those whose trials adjourned or postponed and those with motions set for hearings.
  1. Preference given to habeas corpus, election cases, special civil actions and those so required by law.
Rule 21 Subpoena
  1. Subpoena issued by:
  1. The court before whom witness is required to attend;
  2. The court of the place where the deposition is to be taken;
  3. The officer or body authorized by law to do so in connection with its investigations;
  4. Any Justice of the SC or CA in any case or investigation pending within the Phils
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any penal institution shall be brought outside said institution for appearance or attendance in any court unless authorized by the SC.
  1. Grounds for quashing subpoena duces tecum
  1. It is unreasonable or oppressive
  2. The articles sought to be produced do not appear to be relevant
  3. Person asking for subpoena does not advance cost of production
  1. Ground for quashing subpoena ad testificandum
  1. The witness is not bound thereby – if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending
    2. à This is known as the "viatory right" of the witness; NOTE, however, that the right is available only in CIVIL cases
  2. Witness fees and kilometrage allowed by rules not tendered when subpoena served.
  1. Service of subpoena made in the same manner as personal or substituted service of summons.
  2. Person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena.
  3. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which subpoena issued.
Rule 22 Computation of Time
  1. Computing for any period of time: day of the act or event from which designated period of time begins to run is to be excluded and the date of performance included.
  2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits, the time shall not run until the next working day.
  3. If there is effective interruption of period, it shall start to run on the day after notice of the cessation of the cause of the interruption. The day of the act that caused the interruption is excluded in the computation of the period.
Rule 23 Depositions Pending Action
DEPOSITIONS DE BENE ESSE – taken for purposes of pending action
  1. Depositions pending action
  1. Taken by leave of court after court obtains jurisdiction over any defendant or property subject of the action
  2. Taken without leave after an answer has been served
  3. Upon the instance of any party
  4. May be deposition upon oral examination or written interrogatories
  1. Scope of examination – deponent may be examined regarding any matter not privileged relevant to the subject of the action
  2. Examination and cross-examination proceeds as in trials
  3. Depositions and Affidavits distinguished
    4. Depositions
    Affidavits
    Written testimony of witness in course of judicial proceedings, in advance of trial and hearing
    Mere sworn written statements
    Opportunity for cross-examination
    No cross-examination
    Can be competent testimonial evidence
    Little probative value (hearsay)
  4. Use of depositions
à Any part or all of a deposition which is admissible in evidence may be used against any party who was present or represented during the taking of the deposition or who had notice thereof as follows:
Deposition of
May be used by
Purpose
A witness
Any party
To contradict or impeach the deponent’s testimony as a witness
Any party, or anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation
An adverse party
For any purpose
Of any witness, whether a party or not
Any party
For any purpose, IF court finds that:
  1. Witness is dead;
  1. Witness resides at a distance more than 100 km from place of trial, UNLESS absence procured by party offering the deposition
  2. Witness is unable to testify because of age, sickness, infirmity, or imprisonment;
  3. Party offering the deposition has been unable to procure the attendance of the witness by subpoena; OR
  4. Other exceptional circumstances make it desirable to allow deposition to be used.
à Deponent is made the witness of the party offering the deposition.
à If only part of the deposition is introduced, adverse party may require that all of it which is relevant to the part introduced be introduced.
6. Persons before whom depositions may be taken
a. Within the Philippines
  1. Judge
  2. Notary public
  3. Any person authorized to administer oaths if the parties so stipulate in writing
b. In foreign countries
  1. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-consul, consular agent of the Phils
  2. Before such person or officer as may be appointed by commission or under letters-rogatories
  3. Any person authorized to administer oaths if the parties so stipulate.
Commission – addressed to any authority in a foreign country authorized therein to take down depositions; the taking of such depositions is subject to the rules laid down by the court issuing the commission
Letters Rogatory – addressed to judicial authority in the foreign country; the taking of the depositions is subject to the rules laid down by such foreign judicial authority.
7. Persons disqualified to take depositions
  1. Relative within 6th degree of consanguinity or affinity of any party
  2. Employee of any party
  3. Counsel of any party
  4. Relative within the same degree of party’s counsel
  5. Employee of party’s counsel
  6. Anyone financially interested in the action
8. Depositions upon written interrogatories
à Party desiring to take such deposition shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name and descriptive title of the officer before whom the deposition is to be taken;
à Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter
à Re-direct interrogatories served within 5 days
à Re-cross interrogatories served within 3 days
9. Effects of errors and irregularities in the depositions
  1. As to notice – waived unless written objection is promptly served upon the party giving the notice
  2. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence
  3. As to competency or relevancy of evidence - NOT waived by failure to make them before or during the taking of the deposition, unless ground is one which might have been obviated or removed if presented at that time
  4. As to oral exam and other particulars - Errors occurring at the oral exam in the manner of taking the deposition, in the form of questions and answers, in oath or affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition.
  5. As to form of written interrogatories - waived unless served in writing upon party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the service of the last interrogatories authorized.
  6. As to manner of preparation - errors as to manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
à A deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. IN fact, the rules on criminal practice – particularly on the defense of alibi – states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witness within the time provided for filing a pre-trial motion.
Rule 24 Depositions Pending Action
DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal.
  1. Depositions before action
A person desiring to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Phils may file a verified petition in the court of the place of the residence of any expected adverse party, which petition shall be entitled in the name of the petitioner and shall show:
  1. That petitioner expects to be a party to an action in a court of the Phils but is presently unable to bring it or cause it to be brought;
  2. The subject matter of the expected action and his interest therein;
  3. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;
  4. The names or description of the persons he expects will be the adverse parties and their addresses so far as known;
  5. The name and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each.
  1. Use of deposition
If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in evidence may be used in any action involving the same subject matter subsequent brought in accordance with the provisions of Rule 23.
Rule 25 Interrogatories to Parties
  1. Interrogatories and the answers thereto should be filed in court and served on adverse parties, so that the answers may constitute judicial admissions.
  2. Effect of failure to serve written interrogatories – a party not served with such may NOT be compelled by the adverse party to give testimony in open court or deposition pending appeal.
Rule 26 Admission by Adverse Party
  1. Request for admission
A written request for the admission of the other party of the genuineness of any material or document or request for the truth of any material and relevant matter of fact set forth in the request may be filed and served upon the other party at any time after issues have been joined.
  1. Implied admission
    2. Each of the matter requested to be admitted shall be deemed admitted within a period designated in the request, which shall not be less than 15 days after service thereof or within such further time as the court may allow on motion, UNLESS, party requested serves upon the party requesting a sworn statement either specifically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.
  2. Effect of admission
    3. Admission is only for the purpose of the pending action and shall NOT constitute an admission for any other person nor may it be used against him in any other proceeding.
  3. A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon,
Rule 27 Production or Inspection of Documents or Things
  1. Any party may move for the court in which the action is pending to order any party to:
  1. Produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which:
    1. Constitute or contain evidence material to any matter involved in the action AND
    2. Are in his possession, custody or control.
  2. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.
  1. The order:
  1. Shall specify the time, place and manner of making the inspection and taking copies AND
  2. May prescribe such terms and conditions which are just.
    3. Rule 28 Physical and Mental Examination of Persons
    1. If the mental or physical condition of a party is in controversy, the court may order him to submit to a physical or mental examination by a physician.
    2. The party examined waives any privilege he may have in that action regarding the testimony of the person who has examined or may examine him with respect to that same mental or physical examination by:
  1. Requesting and obtaining a report of the examination so ordered OR
  2. Taking the deposition of the examiner.
Rule 29 Refusal to Comply with the Modes of Discovery
1. If a party/deponent refused to answer:
  1. The examination may be completed on other matters
  2. The examination may be adjourned
  3. The proponent may apply to the court for order to compel answer
    4. à The court may then order:
    1. The refusing party or his counsel to pay the expenses incurred in obtaining the order, including the attorney’s fees (if it finds the refusal to answer without substantial justification)
    2. The proponent or his counsel to pay the expenses incurred in opposing the application, including attorney’s fees (if it finds the application to be without substantial justification)
2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court, the refusal may be considered a contempt of that court.
  1. If a party/officer or managing agent of a party refuses to obey an order requiring him:
a. To answer designated questions
b. To produce a thing for inspection or to permit entry upon property
  1. To submit to a physical or mental examination
    2. à the court may order:
      1. That the matters regarding which the questions were asked, or the character of the land or the thing, or the physical and mental condition of the party be taken to be established.
      2. The disallowance of the disobedient party’s claims
      3. The prohibition of the disobedient party to present evidence
      4. The striking out of the pleadings or parts thereof
      5. The dismissal of the action or parts thereof
      6. Rendering judgment by default against the disobedient party OR
      7. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination.
4. If a party refuses to attend or serve answers, the court may:
  1. Strike out all or any part of any pleading of that party.
  2. Dismiss the action or any part thereof.
  3. Enter a judgment by default against that party, OR/AND
  4. Order that party to pay reasonable expenses incurred, including attorney’s fees.
5. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this Rule.
Rule 30 Trial
  1. Order of trial
Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:
  1. The plaintiff shall adduce evidence in support of his complaint;
  2. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim, and third-party complaint;
  3. The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim, and 4th party complaint;
  4. The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;
  5. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court;
  6. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and
  7. 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 memoranda or any further pleadings.
  1. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case where the parties so agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk shall have no power to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from the termination of the hearing.
Rule 31 Consolidation or Severance
  1. CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue when actions involving a common question of law or fact are pending before the court.
  2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, in furtherance of convenience or in the interest of justice.
Rule 32 Trial by Commissioner
Trial by commissioner:
  1. Reference by consent of both parties
  2. Reference by motion of one of the parties or motu proprio:
  1. Trial requires examination of a long account of either side
  2. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect
  3. Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case.
Rule 33 Demurrer to Evidence
Demurrer to evidence is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.
  1. If motion denied – defendant has the right to present evidence
2. If motion granted, but reversed on appeal – defendant deemed to have waived the right to present evidence.
Rule 34 Judgment on the Pleadings
1. Judgment on the Pleadings is proper:
  1. If answer fails to tender an issue; or
  2. If answer otherwise admits the material allegations of the adverse party’s pleading
à Then court may, on motion of that party, direct judgment on the pleadings
2. However, the material facts alleged in the complaint shall always be proved in actions for:
  1. Declaration of nullity of marriage
  2. Annulment of marriage
  3. Legal separation
Rule 35 Summary Judgments
Summary judgment:
  1. Proper if no genuine issue as to any material fact (except as to damages recoverable) and if moving party is entitled to a judgment as a matter of law
  2. Based not only on pleadings but also on affidavits, deposition, and admissions of the parties showing that, exceptas to the amount of damages, there is no genuine issue.
  3. Motion shall be served at least 10 days before the time specified for the hearing.
  4. May be asked for by a party seeking to recover upon a claim, counterclaim, cross-claim or to obtain a declaratory relief.
5. Although Rule does not specifically provide, also unavailable in actions for annulment of and declaration of nullity of marriage, and for legal separation since Sec. 1 refers to actions "to recover upon a claim", or to recover a debt or a liquidated demand for money, or "to obtain declaratory relief."
6. Judgment on the pleadings and summary judgment distinguished:
Judgment on the pleadings
Summary judgment
Proper when there is no genuine issue between the parties
Proper even if there is an issue as to the damages recoverable
Based exclusively on the pleadings without introduction of evidence
Based not only on pleadings but also on affidavits, depositions and admissions of the parties
Available in any action, except the 3 exceptions
Proper only in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief
à Motions for summary judgment may be filed by the claimant or by the defending party. The defending party may file such motion, pursuant to Rule 35, §2"at any time", as distinguished from §1 where the claimant may file the motion at any time after the answer is filed.
Rule 36 Judgments, Final Orders and Entry Thereof
  1. The date of the finality of the judgment or final order shall be deemed to be the date of its entry. The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or consideration is filed within 15 days
  2. Several Judgments
    3. In action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others.
  3. Separate judgments
Judgment rendered to dispose of one of the several claims for relief presented in an action, made at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, which terminates such claim. Action shall proceed as to other claims
Rule 37 New Trial or Reconsideration
  1. Motion for new trial or reconsideration filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution.
  2. Grounds: Motion for New Trial
  1. Fraud, accident, mistake, or excusable negligence;
  2. Newly discovered evidence
à Requisites:
  1. Discovered after trial
  2. Could not have been discovered and produced at trial despite the exercise of reasonable diligence
  3. If presented, could probably alter the result of the action
3. Grounds: Motion for Reconsideration
  1. Damages awarded are excessive
  2. Evidence is insufficient to justify the decision or final order
  3. Decision is contrary to law
4. Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is expected to be given, or by duly authenticated documents to be introduced.
Motion for reconsideration shall specifically point out the findings or conclusions of the judgment which are unsupported by evidence or contrary to law, with express reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings.
5. Pro forma motion for new trial or reconsideration shall not toll the period for appeal.
6. No second motion for reconsideration allowed. Second motion for new trial must be based on a ground not existing or available when the first motion was made, which may be filed during the remainder of the 15-day period.
Rule 38 Relief From Judgments, Orders, or Other Proceedings
  1. Petition for relief from judgment filed within 60 days after learning of judgment and not more than 6 months after such judgment
    2. à Must be supported by affidavit showing the FAME and the facts constituting the petitioner’s good or substantial cause of action or defense
  2. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. The two remedies are exclusive of one another.
  3. Grounds:
  1. Judgment or final order entered against a party by FAME; or
  2. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal
à For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse party’s evidence.
à Uniform procedure for relief from judgments of MTC and RTC
  1. After petition is filed, court shall order adverse parties to answer within 15 days from receipt. After answer is filed or expiration of period therefor, court shall hear the petition.
  2. If granted, judgment set aside and court shall proceed as if timely motion for new trial has been granted; if granted against denial of appeal, court shall give due course to appeal.
Rule 39 Execution, Satisfaction and Effect of Judgments
  1. Execution as a matter of right
On motion with notice, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.
à For so long as there is a certificate of entry of judgment, execution may already be issued by the court of origin or directed to do so by the CA.
  1. Discretionary execution – pending period to appeal or during appeal; may issue only upon good reasons to be stated in a special order after hearing.
  1. By trial court – even after the perfection of the appeal for so long as the motion for execution was filed while the TC has jurisdiction over the case and is in possession or the records, upon motion of the prevailing party with notice to the adverse party
  2. Appellate court – after the TC has lost jurisdiction
    3. à Example:
    P receives judgment: June 3
    D receives judgment: June 1
    D files notice of appeal: June 5
    When does trial court lose jurisdiction? June 18
    BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.
    à Execution with respect to appealed cases- there is no need to await remand of the records.
    à Execution with respect to consequential and exemplary damages should be postponed until such time as the merits of the case have been finally determined in the regular appeal, as the amounts remain uncertain and indefinite pending resolution.
    3. a. Motion for execution of final and executory judgment should be served on adverse party and set for hearing;
    b. In case of appeal, motion is filed with court of origin supported by certified true copies of final judgment of appellate court.
  3. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No. 24-94, 4/18/94)
4. Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)
  1. Actions for injunction
  2. Receivership
  3. Accounting
  4. Support
  5. Judgments declared immediately executory
5. A final and executory judgment may be executed on motion within 5 years from entry. May be revived and enforced by action after lapse of 5 years but before 10 years from entry. Revived judgment may be enforced by motion within 5 years from entry and thereafter by action before barred by statute of limitations – file motion within 10 years from the finality of the revived judgment.
6. Execution in case of party’s death:
  1. Death of judgment obligee - application of his executor or administrator or successor-in-interest
  2. Death of judgment obligor -
  1. Against his executor, etc. if the judgment be for recovery of real or personal property or the enforcement of a lien thereon.
  2. If death after execution is actually levied upon his property, it may be sold for satisfaction of the obligation.
à If the judgment obligor dies after the entry but before levy, execution will issue if it be for the recovery of real or personal property. However, if judgment is for a sum of money, and the judgment obligor dies before levy, such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate.
7. Writ of execution:
  1. Shall issue in the name of the Republic of the Phils from court which granted the motion
  2. State the name of the court, case number and title, dispositive portion of the judgment order
  3. Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms
8. Manner of executing writ:
  1. If judgment against property of the judgment obligor – out of real or personal property with interest
  2. If against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor – out of that property, with interest
  3. If for sale of real or personal property – to sell property, describing it and apply the proceeds in conformity with judgment.
  4. If for delivery of possession of property – deliver possession of the same to the party entitled to it, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and out of real property if sufficient personal property cannot be found.
  5. In all cases, writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of date of issuance of writ, aside from principal obligation.
à Judgment obligor is given option to choose which property may be levied on sufficient to satisfy the judgment.
9. Property exempt from execution
  1. Family home as provided by law, homestead in which he resides, and land necessarily used in connection therewith;
  2. Tools and implements used in trade, employment, or livelihood;
  3. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;
  4. Necessary clothing and articles for ordinary personal use, excluding jewelry;
  5. Household furniture and utensils necessary for housekeeping not exceeding P3,000;
  6. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding P300,000;
  7. One fishing boat and accessories not more than P100,000 owned by a fisherman and by which he earns his living;
  8. Salaries, wages, or earnings for personal services within the 4 months preceding the levy which are necessary for the support of the family;
  9. Lettered gravestones;
  10. Money, benefits, annuities accruing or in any manner growing out of any life insurance;
  11. Right to receive legal support or any pension or gratuity from the government;
  12. Properties especially exempted by law.
à Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure of mortgage.
à Right of Exemption is a personal right granted to the judgment creditor. The sheriff may thus not claim it.
10. Third party claims:
  1. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not the sheriff or officer;
  2. Amount of bond not less than value of property levied on;
  3. Sheriff not liable for damages if bond is filed;
  4. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a separate action.
  5. 3rd Party claimant may vindicate his claim to property levied in a separate action because intervention is no longer allowed since judgment already executory; in preliminary attachment and replevin, 3rd party claimant may vindicate his claim to the property by intervention since the action is still pending.
11. Who may redeem real property sold:
  1. Judgment obligor or his successor in interest in the whole or any part of the property;
  2. Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold subsequent to the lien under which the property was sold. (Redeeming creditor is termed a redemptioner).
12. Judgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase, with 1% per month interest plus any assessments or taxes which he may have paid thereon after purchase with interest on said amount at 1% per month.
Redemptioners have one year to redeem from the date of registration of the certificate of sale. They may also redeem beyond one-year period within 60 days after the last redemption, with 2 % interest on the sum to be paid on the last redemption. The judgment obligor’s right to redeem within 60 days from last redemption is limited to the one-year period, beyond which he can no longer redeem.
à Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch as these belong to the judgment obligor until the expiration of the period of redemption.
13. Effect of judgment or final orders
  1. In case of judgment against a specified thing, probate of will, or administration of estate or legal condition or status, it is conclusive on the title or condition, status, relationship, will or administration.
  2. In other cases/matters directly adjudged, or matters relating thereto that could have been raised subsequent to commencement of action, judgment is conclusive between parties and their successors in interest.
  3. In any other litigation, that only is deemed to have been adjudged in a former judgment or which was actually and necessarily included therein.
14. Effect of foreign judgment
  1. Judgment upon a specific thing, conclusive upon title to the thing;
  2. If against a person, judgment is presumptive evidence of a right as between the parties and their successors in interest;
15. When foreign judgment may be repelled
  1. Evidence of want of jurisdiction
  2. Want of notice to party
  3. Collusion
  4. Fraud
  5. Clear mistake of law.
16. Requisites for res judicata
  1. Final former judgment
  2. Judgment is on the merits
  3. Rendered by a court of competent jurisdiction
  4. Between first and second actions, identity of subject matter, parties and cause of action.
17. When quashal of writ of execution proper
  1. Improperly issued
  2. Defective in substance
  3. Issued against the wrong party
  4. Judgment was already satisfied
  5. Issued without authority
  6. Change of the situation of the parties renders execution inequitable
  7. Controversy was never validly submitted to the court
  8. Writ varies the terms of the judgment
  9. Writ sought to be enforced against property exempt from execution
  10. Ambiguity in the terms of the judgment
18. SPECIAL JUDGMENT - requires the performance of any other act than the payment of money or the sale or delivery of real or personal property.
19. Remedies against executory judgments or orders:
  1. Petition for relief
  2. Direct attack
  3. Collateral attack - judgment is null on its face or court had no jurisdiction
20. When court may order execution even before an executory judgment and pending an appeal
  1. Lapse of time would make the ultimate judgment ineffective;
  2. Appeal is clearly dilatory;
  3. Judgment is for support and the beneficiary is in need thereof;
  4. Articles subject of the case are perishable;
  5. Defendants are exhausting their income and have no other property aside from the proceeds from the subdivision of lots subject of the action;
  6. Movants were in extreme need of the premises subject of the suit and the bond to answer for damages in case of reversal on appeal (supersedeas bond) was posted by them;
  7. Judgment debtor is in imminent danger of insolvency;
  8. Prevailing party is of advanced age and in a precarious state of health and the right in the judgment is non-transmissible being for support;
  9. Prevailing party posts sufficient bond to answer for damages in case of reversal of judgment
à But in most cases, the mere filing of a bond is not sufficient justification for discretionary execution.
21. Order granting writ of execution ONLY appealable when:
  1. Order varies terms of the judgment
  2. When vague and court renders what is believed to be wrong interpretation.
22. Garnishment – act of appropriation by the sheriff if the property involved is money, stocks, or other incorporeal property in the hands of third persons; merely sets apart such funds but does not constitute the creditor the owner of the garnished property.
23. Persons disqualified from participating in the execution sale:
  1. Officer conducting the execution sale or his deputy;
  2. Guardian with respect to the property under his guardianship;
  3. Agents, the property entrusted to them, unless with principal’s consent;
  4. Executors and administrators, the property of the estate under administration;
  5. Public officers and employees, the property of the State or any subdivision thereof, or any GOCC, the administration of which has been entrusted to them;
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