Civpro Lecture Rule 19-50

7/24/2019 Civpro Lecture Rule 19-50

1/36BVTC |

ESCOLIN LECTURES+ Transcription from AMEV 1

N.B Read at your own risk. May contain grammatical,

typographical and other errors. Most transcriptions are credited to:

AMEV.

RULE 17

DISMISSAL OF ACTIONS

Sec 2

EFFECT: w/o prejudice unless otherwise indicated in the order

Secs 1 2 and 4-dismissal by fault of plaintiff; upon motion

Sec. 3. Dismissal due to fault of plaintiff.

when a complaint be dismissed?

1. motion of D

2. motu propio by court

If, for no justifiable cause, the :

1) plaintiff fails to appear on the date of the

presentation of his evidence in chief on the

complaint, or

- under old rules not added, its only added because

of the FERMIN JALOVER vs. PORFERIO YTORIAGA

failure to present evidence in chief. P was not

around on the scheduled date for the D to present

evidence hence the D filed a motion to dismiss:

ground for failure to prosecute. Trial judge

dismissed the complaint based on the ground failure to prosecute; Upon MR opposed in two

grounds 1)order of dismissal is final 2)that theres

really ground for failure to prosecute

- J Escolin ruled- no failure to prosecute here bec

there was already Ps presentation of evidence, the

effects are merely a waiver of his right to cross-

examine and to obj to the admissibility of evidence.

private respondents' absence at the hearing

scheduledonJanuary6,1970"canonlybeconstrued

as a waiver on their part to cross-examine the

witnesses that defendants might present at the

continuation of trial and to object to the

admissibilityofthelatter'sevidence.

- The judgment in the absence of qualification , the

dismissal is w/ prejudice.

- Under Sec 6 Rule 16, if the court grants

thecounterclaim

- Escolin: Yes, just to recover your cause. Pinagastos

mo yung party, bayaran mo yon. Read the case of

HEIRS OF PINGA vs HEIRS OF SANTIAGO

2)to prosecute his action for an unreasonable length of

time, or

3)to comply with these Rules or any order of the court

- ReOrdertake note lesson Sec 16 of Rule 3 : if party

tydies, duty of counsel to inform the court of fact of

death and order substitution of representative to apper

for substitution. Without such procedure , court cannot

proceed in the case unless tapos n presentation of

evidence. The proper procedure to effect substitution is

nt by amendment but rather notice to the heirs to appear

w/in 30 days. If they fail to appear, require the executor

to open for settlement. Escolin: theres fundamental

defect also: If dismissal I not questione,d then thats the

law of the case. Res judicata, whethere decision is right or

worng, if theres final judgment, res judicata.

- HOW DEFENDNAT may prosecuto coubnterclaim:

i. in the same or separate action

ii. manifestation of preference that defendant

wants to prosecute counterclaim is not

necessary under Sec 3 while under Sec 2

theres manifrstation of preference to have his

counterclaim in the action.

EFFECT: w/ prejudice; adjudication in the

merits unless court orders otherwise

Sec. 4. Dismissal of counterclaim cross-claim or third-party

complaint.

The provisions of this Rule shall apply to the dismissal of any

counterclaim, cross-claim, or third-party complaint. A voluntary

dismissal by the claimant by notice as in section 1 of this Rule, shal

be made before a responsive pleading or a motion for summary

judgment is served or, if there is none, before the introduction of

evidence at the trial or hearing.

- If there is none, its either walang sagotor sometimes in

in rem actions theres no opposition, if theres no

opposition, can be dismissed before introduction of the

evidence.

RULE 18

RE TRIAL

Sec 1 When Conducted Old rule: the clerk of court shall moved fo

set of pre-trial

NEW RULE: the plaibntiff shall promptylymove for ex parte the case

be set fr trial. Failure- the court may dismiss for failure to prosecute

within reasonable time.

Sec 2 Nature and Purpose - When amendments may be allowed

befre or after answer upon motion of plaintiff or pleader; it may be

allowed also if to cure defects. For i.e fails to statecause of action,

raised in objection of trial, may still amend kasi di naman ni raise

motion to dismiss. If upon motion b ydefendant not upon pre-trial

upon 10 days of notice of order admitting the pleading. Amendmen

can aso be done during pre-trial.

Sec. 3. Notice of pre-trial.

The notice of pre-trial shall be served on counsel, or on the party who

has no counsel. The counsel served with such notice is charged with

the duty of notifying the party represented by him.

- Under OLD RULES: both party and cunsel

- NOW!! If a party is represented by counsel, notice to thecounsel is notice to the party. It becomes the duty

counsel to notify the schedule of preliminary conference.

Sec. 4. Appearance of parties.

It shall be the duty of the parties and their counsel to appear at the

pre-trial.

GR: parties and counsel shall appear in ore-trial conference

XPNS: where a party is represented by atty-in-fact, he must be

clothed with SPA. What are the minimum powers for a valid

appearance in pre-trial cpnfeen: 1) to enter tot amicable selltemnt 2

sumbit to ADR 3) to enter into stipulations or admissions.

- Usually in coprotion, even the power to makeverifications and sign certification of forum shopping

- Why shall the representative be armed w/ SPA? A

Because these are acts of dominion/ownership. A

compromise isan act of ownership.

- If juridical eprdoality, a CORPORATE SECRETARY

CERTIFICT where corsec atetts tajt Boar convened in a

meeting and passed reso authorizeing the aty in fact to

repreent. PAti mediation, lagay mo na rin, pre-tria

conference, meditaion,

- EFFECT OF FAILURE: may be penalized under Sc 5 of Rule

18; dismissal w/ prejudice; presentation may be allowed


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BVTC |ESCOLIN LECTURES

+ Transcription from AMEV 2

for ex parteits like asking the party in default (ask in

default; not to declare him in default)

- REMEDY WHEN PARTY IS DECLRED IN DEFAULT:

A: motion to set aside order of default

REQS:

i.

FAME

ii.

MERITORIOUS DEFENSE

iii.

Must be VERIFIED

- REMEDY for order of failure to appear : motion for

reconsideration

EFFECT if plaintiff fails to appear:

EFFECT if plaintiff fails to appear:

The non-appearance of a party may be excused only :

1.

if a valid cause is shown therefor ( may sakit) or

2.

if a 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.

Sec. 6. Pre-trial brief.before pre-trial they are reqd to submit this

The parties shall file with the court and serve on the adverse party, in

such manner as shall ensure their receipt thereof at least three (3)

days before the date of the pre-trial, their respective pre-trial briefs

which shall contain, among others:

(a)

A statement of their willingness to enter into

amicable settlement or alternative modes of dispute

resolution, indicating the desired terms thereof;

alternative modes of dispute resolution

in Katarungang Pambrgy- even the law does not

require it the court may refer it to the brgy- that is

an alternative mode of dispute resolution

(b)

A summary of admitted facts and proposed

stipulation of facts;

- compare the complaint and answer

(c) The issues to be tried or resolved;

- factual and legal issues

(d) The documents or exhibits to be presented, stating the

purpose thereof;

- kaya dun pa lang sa pre-trial may marking na

(e) A manifestation of their having availed or their

intention to avail themselves of discovery procedures or

referral to commissioners; and

(f) The number and names of the witnesses, and the

substance of their respective testimonies.

Failure to file the pre-trial brief shall have the same effect

as failure to appear at the pre-trial.

- pwd ka rin ma- as in default if D, dismissed if P

- in pre-trial brief, be careful and explicitly limit your issues;

- If you tried issues beyond stated in pre-trial, you object. I

you dont what will happen? Amenndmenttoconformto

evidence.

- READ CIRCULAR 03-1-09 SC

- Other Alternative Modes of Reoslution is to refer it to

Barangay Conciliaiton

May rfeer back to clerk of court:

1) Possible amicable settlements

2) Mark documents and exhibit

During PC, the clerk of courts shall also ascertain

admission of facts and due execution of evidence.

If all efforts to settle fail, the Trial judge shall:

3 KINDS OF EVIDENCE

1) Object

2) Documentformal offer after

3) Testimonialpresented before a wtiness testify

After the last winess of party OFFER > object cour

will rule on the objections; court then will determine the

most important witness (most important witness rule)

RULE 19

INTERVENTION

- proceeding in a suit or action where 3rd

person i

permitted by the court either joining the P or D- 3

rdparty complaint purpose: to make a person not et a

party in the case to be a party of the case; the initiative

does not come from the aprties of the casse. In

intwrvention, initiative is from not a party.

- Intervention are sometimes allowed even on appeal

REQS in intervention:

1) Must be real-party in interest- one who will be

benefited or injured in the judgment of the court;

Note: intervention must always be byleaveofcourt;

- how may a 3rd

person intervene?

party must file a motion to intervene

(1) shall file motion for leave (w/ notice to all parties in the

action)

Purpose: not to obstruct nor nnesecessary delay of

machinery of trial but to afford one not orifgnal party yet

may inetrest and has right to protct

WHO MAY INTERVENE

Section 1. Who may intervene.

1.

A person who has a legal interest in the matter in

litigation, or

For i.e action of hereditary rights---heirs may

intervene when acts of administrator is prejudicia

to their interest, an interest in the estate of the

deceased.

2.

or an interest in the success of either of the parties

or

for ie action for recovery of debt -principal debto

has the right to intervene to defeat claim of P

3.

an interest against both, or

for i.e action for recovery of RP- person who claims

to be the owner of prop has a claim against both

parties may properly intervene in the action

4.

is so situated as to be adversely affected by a

distribution or other disposition of property in the

custody of the court or of an officer thereof may


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with leave of court, be allowed to intervene in the

action.

For i.e for recovery for money. the owner of

Personal prop, attached by writ, may intervene to

have the writ quashed

The court shall consider whether or not the

intervention will unduly delay or prejudice the

adjudication of the rights of the original parties, and

whether or not the intervenor's rights may be fully

protected in a separate proceeding.

- In order for the intervenor to be allowed, he must be a

real party in interest = he will be benefited or injured by

the judgment

Sec. 2. Time to intervene.

The motion to intervene may be filed at any time before rendition

of judgment by the trial court. A copy of the pleading-in-

intervention shall be attached to the motion and served on the

original parties.

GR: cannot intervene while on appeal (Reason: might raise matters

when other arties have no more oportunit to rebut those claim)

XPNS: when CA made a ruling that the ombudsman has no authotiy

to suspend or dismiss a govt employee (an admin charge was filed

against govt employee so ombudsman imposed penalty. Employee

made an appeal to CA. CA ruled that ombudsman has noa uthoity to

impose such action SC. While the matter was pedning to SC, the

ombudsman made an intervention. It was allowed because to

portect its interes.

Sec. 3. Pleadings-in-intervention.

The intervenor shall file a :

1.

complaint-in-intervention if he asserts a claim

against either or all of the original parties, or an

2.

answer-in-intervention if he unites with the

defending party in resisting a claim against the

latter.

Sec. 4. Answer to complaint-in-intervention.

The answer to the complaint-in -intervention shall be filed within

fifteen (15) days from notice of the order admitting the same,

unless a different period is fixed by the court.

shld a complaint in intervention be answered?

Yes. The answer shall be filed w/in 15 days

from the the nptice of admitting the same.

- real-party-in-interest: reconveyance or reversion- you

must established that you are the owner, not squatters

NOTES:

GR: Intervention is ancillary to the main case (ORDONEZ vs GUSTILO)

- Plaintiff filed an action to enforce a reclamation contract

w/ Municipality of Rosario (defendants). Thereafter the

brgy captain and barangay officials intervened alleging

that the claimed area did not come from reclamation but

by accretion and no reclamation was done by plaintiff.

- There was a Compromise Agrement bet the plaintiff and

respondent and submitted to the court.

- Intervenors filed to set aside the Agreement. Court

denied it. While plaintiffs moved for joint dismissal of the

case

- YES. An inteevention is a mere,collateral and ancillary to

the principal action. It is not an independen

proceecdings. The approval of agreement has been fina

and executor. Therefor,a all ancillary issues become moot

and academic.

Once intevrnetion is granted by the court, the intervenor is now

entitled to all notices. And failure to give notice to innetrvebor is not

bining to intervenor. Once it was granted, intervenor becomes a rea

part in interest and therefore entiled to all notices. (METROBANK v

PRESIDING JUDGE OF MANILA

- MEtrobank sued BPI Consortium for replevin over theaircon units installe din in Good Earth Emporium buuldng

which was mortgaged b yGoodearth

- Reycor Air Control System (supplied the air condition

units) filed a motion to intervene for the payment of 150k

w/c should be paid to him out of the debt from

Metrobank (hindi p daw sya nabayaran)

- Court allowed chu intervention to protct its 150k unpaid

w/c should be given tohim from the proceeds of the loan

form EMtrobank. HTerafter, Metrobank and BPI filed a

compromise agreement w/c was approved. They then

filed a joint motion to dismiss. Court approved the

compromise anddismsised the case w/ prejudced

- When Reycor knew about the C.Agrement, moved for the

Motion for Reconsideration.

- TC granted MR filed by intevrenor. Thus the issue before

SC.

- SC: reycor was not notified . fter the intevrenor has

appeared in court, the plaintiff has no absltue right out o

court by dismissal of action. Once the intervention is

allowed, intevrenor become sparty of the case and hence

etitled to all nmotices. In thid case, Reycor was neve

notifed of the Compromise Agreement.

The interest of intevenor must be material and

direct (be benefited or affected b ythe

judgment)

Is the predecessor in interest of the defendan

an indispensable part? NO.

HEIRS OF OROSA vs MIGIRON

- The claim of Goldenrod basis: in a seprate case, delta

Motors acquired the rights of Orosa (heir of origina

applicant MAyuga) over the property as well as the

conflicting claims of Velasquez. That Goldnerod as selle

has the warranty to defend the property against claim o

any.

- Intevenor here is successor-interest of present owner . Is

sellerofpropertyarealpropertyininterest? NO. Because

ecomplete relief must be had. The underling reason to

consider a party indispensable: (1) that judgment cannot

ber eoslved without such party (2)issues cannot be

reoslved

- NO. whatever direct and actual legal interest it may have

had over the land had been disposed of by it for value in

favor of the consortium in 1989 and that whatever

residual legal interest in the property can be premised on

Goldenrod's contractual undertaking, actually an express

warranty against eviction, is expectant or contingent in

nature. Presently, Goldenrod has no legal interest in the

property and its warranty can only be enforced by the

consortium if the latter is dispossessed of the land by

virtue of a proper action instituted by the Orosa heirs as

registered owners thereof. But, the legal interest which

entitles a person to intervene in a suit must be actual and


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material, direct and immediate. A party seeking to

intervene in a pending case must show that he will either

gain or lose by the direct legal operation and effect of a

judgment.

- In the present case, Goldenrod has failed to meet this

criteria and the lower court gravely abused its discretion

in permitting intervention after having overlooked this

matter.

uAlthogh seller warrants the buyer shall have

peacebl possession and title of property is

merely warranty to t cannot intervene. Why?

Already parted away its ownership

Intevrention is always by leave of court. Cort

may refuse intervention 1) if delay of the case

2) if it will expand the (blank)

To put it simply, if yung bay boyfriend mo may

nagkakagsuto iba= inteveention yun. Depende

sa chicks kung i-allow nya,

(RE LRA LRA is the clerk of court hence all the records and

administratie matters are within its office thats why such office

is a party in a Land registration case. Before, for purposes of

juridcitoton, for the court to acquire jurisdiction of the case, dapat

the tracing cloth is ma pass)

RULE 20

CALENDAR OF CASES

RULE 21

SUBPOENA

Comes from the latin word SUB & POENA under pain of penalty

1) Subpoena Testificandum required to attend in or for

the taking of his deposition

- NBI may subpoena but cannot issue sanctions.

2) subpoena duces tecum- to require person to bring books,documents or other records

Sec. 2. By whom issued.

The subpoena may be issued by:

1. the court before whom the witness is required to attend;

- if the deposition is taken on a place other that where the

court sits (Manila) the taking of deposition in Angeles

City, the one who will issue is the Angeles court

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 investigations conducted by said officer

or body; or

4. Senate and certain laws that give power---NBI,

nagkakaiba lang sa penalty, NBI cannot penalize you, shld

still be the court

5. any Justice of the Supreme Court or of the Court of

Appeals in any case or investigation pending within the

Philippines .

When application for a subpoena to a prisoner

is made, the judge or officer shall examine and

study carefully such application to determine

whether the same is made for a valid purpose.

Is it necessary that the Court shall approve for

application of subpoena? GR: no need. Just go

to clerk of court, write a formal lette

(Greetings AM I request the issuance o

subpoena to the ff. person..ff. dates.. ff place

The clerk of Court can issue subpoena

However, when the applcition for subpoena to

a prisoner is made: When application for a

subpoena to a prisoner is made, the judge or

officer shall examine and study carefully such

application to determine whether the same i

made for a valid purpose.

Permission of the SC is with respect to: No

prisoner sentenced to death, reclusion

perpetua or life imprisonment and who is

confined in any penal institution shall be

brought outside the said penal institution fo

appearance or attendance in any court unles

authorized by the Supreme Court.

Sec. 3. Form and contents.

A subpoena shall state the name of the court and the title of the

action or investigation, shall be directed to the person whose

attendance is required, and in the case of a subpoena duces tecum, it

shall also contain a reasonable description of the books, documents

or things demanded which must appear to the court prima facie

relevant.

Sec. 4. Quashing a subpoena.

The court may quash a subpoena duces tecum upon motion

promptly made and, in any event, at or before the time specified

therein if it is unreasonable and oppressive, or the relevancy of the

books, documents or things does not appear, or if the person in

whose behalf the subpoena is issued fails to advance the reasonable

cost of the production thereof.

TWO REQS FOR EVIDENCE BE ADMISIBLE

1. Evidence is relevant when it has a

relation to the fact in issue as to induced

belief in its existence or non-existence o

it tends toa resoanble degree to establishprobability or improality of fact in an

issue.

For i.e sub poena duces tecum in books o

account, subpoena lang yung yea

involved, you nee dnot inclsde all othe

irerelavant dates.

2. Competent evidence

The court may quash a subpoena ad testificandum on the ground

that the witness is not bound thereby. In either case, the subpoena

may be quashed on the ground that the witness fees and kilometrage

allowed by these Rules were not tendered when the subpoena was

served.

When witness not bound for Subpoena?Sec10

Rule shall not apply to a witness who(1) resides

more than one hundred (100) kilometers from

his residence to the place where he is to testify

by the ordinary course of travel, or to a(2

detention prisoner if no permission of the

court in which his case is pending was obtained

Sec. 5. Subpoena for depositions.

Proof of service of a notice to take a deposition, as provided in


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sections 15 and 25 of Rule 23, shall constitute sufficient authorization

for the issuance of subpoenas for the persons named in said notice

by the clerk of the court of the place in which the deposition is to be

taken. The clerk shall not however issue a subpoena duces tecum to

any such person without an order of the court.

- Show to the court proof of service to take a deposition;

Kung mag take ka ng deposition you want to take for

instance the deposition of Mr. X, Do you have to go to

judge and seek his approval for the taking of

deposition?No. wirte to kalaban and witness that you will

take deposition on this date.- Different in subpoena duces tecum. But note that the

approval of the judge is only required or the taking of

deposition but not if the purpose is to brought before the

court in a pending case.

Sec. 6. Service.

Service of a subpoena shall be made in the same manner as personal

or substituted service of summons. The original shall be exhibited and

a copy thereof delivered to the person on whom it is served,

tendering to him the fees for one days attendance and the

kilometrage allowed by these Rules, except that, when a subpoena is

issued by or on behalf of the Republic of the Philippines or an officer

or agency thereof, the tender need not be made. The service must be

made so as to allow the witness a reasonable time for preparation

and travel to the place of attendance. If the subpoena is duces

tecum, the reasonable cost of producing the books, documents or

things demanded shall also be tendered.

- Illustration: Escolins client is a bank (only bank engages in

pawnshop business)

Sec. 7. Personal appearance in court.

A person present in court before a judicial officer may be required to

testify as if he were in attendance upon a subpoena issued by such

court or officer.

- if a person is in court, you cannot refuse if called by the judge if you

will not answer- contempt of court. Why? Because if youre inside inthe courtroom. You can testify as if you are summoned.

Sec. 8. Compelling attendance. In case of failure of a witness to

attend, the court or judge issuing the subpoena, upon proof of the

service thereof and of the failure of the witness, may issue a

warrant to the sheriff of the province, or his deputy, to arrest the

witness and bring him before the court or officer where his

attendance is required, and the cost of such warrant and seizure of

such witness shall be paid by the witness if the court issuing it shall

determine that his failure to answer the subpoena was willful and

without just excuse.

causes of unjustifiable refusal to obey a sub poena?

1. court may issue a warrant for the arrest of witness and make him

pay the cost for such warrant and seizureSec 8

2. refusal to obey sub poena is a contempt to issue itsec 9

3. if sub poena not issued by court- disobedience will be punished by

applicable laws or rules.

- congress may sariling rules- arrest ka nila

Sec. 9. Contempt. Failure by any person without adequate cause to

obey a subpoena served upon him shall be deemed a contempt of

the court from which the subpoena is issued. I f the subpoena was not

issued by a court, the disobedience thereto shall be punished in

accordance with the applicable law or Rule.

- Some agencies of govt has subpoena powrr in thei

charte. Eg NBI. But if you do not appear, di ka ma

cocontempt here.

Sec. 10. Exceptions.The provisions of sections 8 and 9 of this Rule

shall not apply to a witness who resides more than one hundred

(100) kilometers from his residence to the place where he is to

testify by the ordinary course of travel, or to a detention prisoner if

no permission of the court in which his case is pending was obtained

NOTES:

(LIEBKNOW vs PHILIPPINE VEGTABLE OIL)

Defect here: asked issuance of the subpoena of the entire record

. = not allowed, because that tantamount to fishing of evidence. If

you fish evidence, must adopt modes of discovery. In subpoena, i

must be specific. The motion to vacate or set aside the subpoena

gives the court the requisite opportunity to examine the issues raised

by the pleadings in the cause and to consider not only the relevancy

of the evidence which is to be elicited but also to consider whether

an order for the production of the document would constitute an

unlawful invasion of privacy.

In determining whether the production of the documents described

in a subpoena duces tecum should be enforced by the court, it i

proper to consider, first, whether the subpoena calls for the

production of specific documents, or rather for specific proof, and

secondly, whether that proof is prima facie sufficiently relevant to

justify enforcing its production. A general inquisitorial examination o

all the books, papers, and documents of an adversary, conducted

with a view to ascertain whether something of value may not show

up, will not be enforced ( bec that is fishing for evidence).

RULE 22

COMPUTATION OF TIME

Illustration:

File motion to dismiss (interrupsts; you only have the balance of thepriod but no less than 5 days)

LUZ vs NAC

RULES apply only on the extension of time

1) Must file before the expiration of the original period In

this case, 15 dyas. If it falls on Sunday, Friday pa lang i-file

mo na. Can you file on Sunday? NO. If you file it on next

day, late.

2) The counting then is upon the expiration of the origina

period, whther the last day of original period Is Sunday o

holiday.

INTERVENTION WHEN NOT ALLOWED

i. If it will unduly delay or prejudice the rights of the

intevring parties

READ: BIG COUNTRY RANCH CORP vs CA Oct 12, 1993

F: Intervenor her was filing anintervention injecting new and

unrelated issues on claims and ownership not related to the issues

raised by the parties. Mr. X filed an action for rpelevin for the return

of 2 barges against Phil Coast Guard then the court garnted the writ

of replevin after plaintiff filed bond of 600K, here comes Interveno

#1, X saing that he has an interest over the barges, that they were

him upon obtaining from auction sale. Court allowed intervention


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since there were documents of sherifs sale. Then Intevreno #2- Y,

also intevne claiming hes the owner saying that while theres

public aauction, nonetheless, theres many defects on the auction

sale. TC denied Ys intervention.

TC: it will unduly delay the proceedings and prjeudcie the rights of

the parties. The issues raised by intevrnor Y are unrelated to the

issues in the main case. He was attacking the validy of auction sale

in favor of X

SC: TC correct. New and unrelated conflicting issues of ownership ,

etc. could ineffectively cause delay. It isfirmly settled in this

jruisdiciton that intervention cant be allowed if 1) it will unduly

delay 2) cannot change the nature the ction of the case 3)remedy of

intevrntion not porper when it has effect of retardingthe suit.

Intervention will not be allowed if it will delay the resolution of the

case, if new and conflicting clims of issues

RULE 30

TRIAL

- an examination before a competent tribunal of facts

and law in a case for the purpose of determining

such issue. (Ballantine)

Section 1. Notice of trial. Upon entry of a case in the trial calendar,

the clerk shall notify the parties of the date of its trial in suchmanner as shall ensure his receipt of that notice at least five (5) days

before such date.

- In Pre-trial itself, the court will already ask on their

available dates.

- You do trial if there are controverted factual matters. Puti

ditto tapos sa kabila itim. But if both parties agree that

its b;ack. Court will render judgment that it is indeed

color black. No need to undergo trial since admitted na.

Sec. 2. Adjournments and postponements. A court may adjourn a trial

from day to day, and to any stated time, as the expeditious and

convenient transaction of business may require, but shall have no

power to adjourn a trial for a l onger period than one month for eachadjournment, nor more than three months in all, except when

authorized in writing by the Court Administrator, Supreme Court.

- Inreality:such doesnt happen.

- eg there are 35 cs scheduled for the day, judge will come

10am---adjourn, adjourn etc.

- by the time na natapos na tawagan ng 35cs 1230 na,- lack

of material time- the cs is reset.

Sec. 3. Requisites of motion to postpone trial for absence of evidence.

A motion to postpone a trial on the ground of absence of evidence

can be granted :

1.

only upon affidavit showing the materiality or

relevancy of such evidence, and

2.

that due diligence has been used to procure it.

- But if the adverse party admits the facts to be given in

evidence, even if he objects or reserves the right to their

admissibility, the trial shall not be postponed.

- Dont postpone if parties admit the facts but I reserve

my right

Sec. 4. 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 :

1.

affidavit (refers to the party) or sworn certification

(issued by the physician) that the presence of such

party or counsel at the trial is indispensable and

2.

that the character of his illness is such as to rende

his non-attendance excusable.

- In actual practice, if may LBM- no need for affidavit since

u need not go to hospital( qn: baka medica

certificatep376 of Regalado)

WHAT IS THE ORDER OF TRIAL

Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule

31 ( Consolidation and Severance), and unless the court for specia

reasons otherwise directs, the trial shall be limited to the issues

stated in the pre-trial order and shall proceed as follows:

- Take note the importance of the issues laid down in the

pre-trial kaya tignan mabuti kung may mali dun or else

youll be bound on those issues.

- (Side lesson: You cant have it all)

the pre-trial sets forth the manner, issues and will control the trial

you cannot subject a non-issue to the trial

(a) The plaintiff shall adduce evidence in support of his

complaint;

present evidence in chief to support his action

(b) The defendant shall then adduce evidence in support

of his defense, counterclaim, cross-claim and third-party

complaint;

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

evidence of his defense, counterclaim, cross-claim and

fourth-party complaint;

(d) The fourth-party, and so forth, if any, shall adduce

evidence of the material facts pleaded by them;

(e) The parties against whom any counterclaim or cross

claim has been pleaded, shall adduce evidence in suppor

of their defense, in the order to be prescribed by the

court;

(f) The parties may then respectively adduce rebutting

evidence only, unless the court, for good reasons and in

the furtherance of justice, permits them to adduceevidence upon their original case; and

- pagdating sa rebuttal, only to rebut the evidence of the

defense only but you cannot anymore present evidence

in-chief to support your complaint unless the court fo

goodreasonandinfurtheranceofjustice

(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

memoranda or any further pleadings.

- Generally when is the case deemed submitted fo

decision, upon submission of evidence.

- Why is it necessary to know when is it deemed to be

sumbittedf or decision? To toll the running of period.

(The Sandiganbayan is composed of subdivision

composing 3 judges. When they shall render decision? If

ifits inthe exerciseoforiginaljurisdicition, acting as TC

then misut rneer decision w/in 90 days. Whereitexecise

appellatejurisdciton,1 year.

- If several defendants or third-party defendants, and so

forth, having separate defenses appear by differen

counsel, the court shall determine the relative order o

presentation of their evidence.


7/36



- If there are lot of parties, lawyers consider it as the more

the merrier :D Magulo pero Masaya (Escolin), Problems

of Physician- How to make them talk, a doctor wont

testify against a fellow doctor.

- the rules here prescribing order of trial the purpose is

FOR ORDERLY PROCEDURE IN COURT WHICH MUST BE

FOLLOWED SO THAT THERE WILL BE NO SURPRISES OR

DELAYS IN THE ADMIN OF JUSTICE

WHEN MAY ADDITIONAL EVIDENCE BE GRANTED( even during

rebuttal)? interest of justice usually when evidence adduced is1. NEWLY DISCOVERED, OR

2. WHEN OMMITED through INADVERTENCE OR MISTAKE

OR

3. WHEN ADDTL EVIDENCE IS MATL AND NOT MERELY

COMULATIVE OR IMPEACHING.

- Wheredefendantadmitstheallegationsinthecomplaint

and pleads affirmative efenses, there will bea reversal

orderoftrial.(YU vs MAPAYO)

- DISMISSAL FOR FAILURE TO PROSECUTE; NOT PROPER

WHERE ALLEGATIONS IN COMPLAINT ADMITTED IN

ANSWER. Where the answer admits defendant's

obligation as stated in the complaint, albeit special

defenses are pleaded, plaintiff has every right to insist

that it is for defendant to come forward with evidence insupport of his special defenses before P be required to

adduce his rebuttal evidence. Defendant not having

supported his special defenses, the dismissal of the case

for failure to prosecute on the part of counsel for the

plaintiff was manifestly untenable and contrary to law.

- SECTION 2 RULE 129, REVISED RULES OF COURT

SUPPORTS PLAINTIFF'S REFUSAL TO PRESENT EVIDENCE.

Plaintiffs counsel refused to comply with the order of

the trial court requiring plaintiff to present his evidence.

Instead of calling his witnesses, he moved the court to

present them after the defendant had presented their

evidence. Such a stand is supported by Section 2 of the

Revised Rule of Court 129.1

1 Now Rule 119 Sec. 11. Order of trial. The trial shall proceed in the

following order:

(a) The prosecution shall present evidence to prove the charge and, inthe proper case, the civil liability. (evidence in chief)

(b) The accused may present evidence to prove his defense and damages( pano to di ka naman pwd mag-file ng counter-claim?), if any, arising, fromthe issuance of a provisional remedy in the case.

(c) The prosecution and the defense may, in that order, present rebuttaland sur-rebuttal evidence unless the court, in furtherance of justice, permitsthem to present additional evidence bearing upon the main issue. bearingupon the main case- pag present ng evidence prosecutionmust prove,

then presentation of the rebuttal (accused)

after this the prosecution canno longer present his evidence. (reason must be controlling. so that courtmay re-open it)

- it can only be done in furtherance of justice

(d) Upon admission of evidence of the parties, the case shall be deemedsubmitted for decision unless the court directs them to argue orally or tosubmit written memoranda.

(e) When the accused admits the act or omission charged in the complaintor information but interposes a lawful defense, the order of trial may bemodified.

- self-defense, reversed trial. Accused will be the 1stto present evidence.

Sec. 6. Agreed statement of facts. The parties to any action may

agree, in writing, upon the facts involved in the litigation, and

submit the case for

judgment on the facts agreed upon, without the introduction o

evidence.

If the parties agree only on some of the facts in issue , the trial shal

be held as to the disputed facts in such order as the court shal

prescribe.

if only partial- trial on those not agreed

in Crim pro- unless signed by the party and his counsel.

Sec. 7. Statement of judge. During the hearing or trial of a case any

statement made by the judge with reference to the case, or to any

of the parties, witnesses or counsel, shall be made of record in the

stenographic notes.

Sec. 8. Suspension of actions. The suspension of actions shall be

governed by the provisions of the Civil Code.

Sec. 9. Judge to receive evidence; delegation to clerk of court. The

judge of the court where the case is pending shall personally receive

the evidence to be adduced by the parties. However, in default (no

answer) or ex parte hearings,(for i.e failure to appear in pre-trial

and in any case where the parties agree in writing, the court may

delegate the reception of evidence to its clerk of court who is a

member of the bar. The clerk of court shall have no power to rule onobjections 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 ten (10) days from termination o

the hearing.

- GR: presentation of evidence shall be recived personally

of judge

- XPN: (1) ex parte and default (2) agreement

RULE 31

CONSOLIDATION OR SEVERANCE

Section 1. Consolidation. When actions involving a common

question of law or fact are pending before thecourt, it may order ajoint hearing or trial of any or all the matters in issue in the actions

it may order all the actions consolidated; and it may make such

orders concerning proceedings therein as may tend to avoid

unnecessary costs or delay.

- If there are many actions filed before a court involving

common question of law and fact

- For i.e all of us are passengers in a bus where an accident

happened: ma sue breach of contract and quasi-delict

can you sue both? YES. In the alternative or otherwise

(kassi youre unsure) In joinder of cause of action, you

may join two causes of action even if they are not related

to each other for i.e case against quasi delict and breach

of contract)

- Situation: If one of the passengers reside in Pasig, pwede

ba majoin- if I filed in Pasig- cant be consolidated bec differen

courts ; Rebeforethecourt.

Sec. 2. Separate trials.The court, in furtherance of convenience or to

avoid prejudice, may order a separate trial of any claim, cross-claim

counterclaim, or third-party complaint, or of any separate issue o

of any number of claims, cross-claims, counterclaims, third-party

complaints or issues.

- because they are severable. In an expropriation case for i.e

Esolcin is a ___ and has a special defense. He may ask for separate

trial.


8/36



RULE 32

TRIAL BY COMMISSIONER

WHEN:

1. written consen of the parties- sec 1

2.

when parties do not consent, but COURT in certain cases

- sec2

Section 1. Reference by consent. By written consent of both parties,

the court may order any or all of the issues in a case to be referredto a commissioner to be agreed upon by the parties or to be

appointed by the court. As used in these Rules, the word

"commissioner" includes a referee, an auditor and an examiner.

Sec. 2.Reference ordered on motion. what cases may be referred

to the court ( motu propio) ? When the parties do not consent, the

court may, upon the application of either or of its own motion

(motu Propio), direct a reference to a commissioner in the following

cases:

(a) When the trial of an issue of fact requires the examination of a

long account ( mahaba lalo na accounting) on either side, in which

case the commissioner may be directed to hear and report upon the

whole issue or any specific question involved therein;

(b) When the taking of an account is necessary for the information

of the court before judgment, or for carrying a judgment or order

into effect;

to pay xx amt for yr, 2% above London Interbank

overnight rate ( LIBOR)- (what rate bank lends each other)

2% SIBOR ( S ingapore interbank overnight rate)

(c) When a question of fact, other than upon the pleadings, arises

upon motion or otherwise, in any stage of a case, or for carrying a

judgment or order into effect.

Sec. 3. Order of reference; powers of the commissioner. When a

reference is made, the clerk shall forthwith furnish the

commissioner with a copy of the order of reference. The order may

specify or limit the powers of the commissioner, and (POWERS as

highlighted)

1.

may direct him to report only upon particular issues,

or

2.

to do or perform particular acts, or

3.

to receive and report evidence only, and may fix the

date for beginning and closing the hearings and for

the filing of his report.

Subject to the specifications and limitations stated in the order, the

commissioner has and

1. shall exercise the power to regulate the proceedings

in every hearing before him and to do all acts and

2. take all measures necessary or proper for the

efficient performance of his duties under the order.

3.

He may issue subpoenas and subpoenas ducestecum, swear witnesses, and

4.

unlessotherwiseprovidedintheorderofreference,

he may rule upon the admissibility of evidence.

how trial or hearing is done?

- he trial or hearing before him shall proceed in all respects

as it would if held before the court. Thats why you also

address commissioner as your honor.

Sec. 4. Oath of commissioner. Before entering upon his duties the

commissioner shall be sworn to a faithful and honest performance

thereof.

Sec. 5. Proceedings before commissioner. Upon receipt of the orde

of reference and unless otherwise provided therein, the

commissioner shall forthwith set a time and place for the firs

meeting of the parties or their counsel to be held within ten (l0)

days after the date of the order of reference and shall notify the

parties or their counsel.

Sec. 6. Failure of parties to appear before commissioner. If a party

fails to appear at the time and place appointed, the commissioner

may :

1. proceed ex parte or,

2.

in his discretion, adjourn the proceedings to a future day

giving notice to the absent party or his counsel of the

adjournment.

Sec. 7. Refusal of witness. The refusal of a witness to obey a

subpoena issued by the commissioner or to give evidence before

him, shall be deemed a contempt of the court which appointed the

commissioner.

Sec. 8. Commissioner shall avoid delays. It is the duty of the

commissioner to proceed with all reasonable diligence. Either party

on notice to the parties and commissioner, may apply to the court

for an order requiring the commissioner to expedite the

proceedings and to make his report.

Sec. 9. Report of commissioner. most important

- WHEN: Upon the completion of the trial or hearing or

proceeding before the commissioner, he shall file with

the court his report in writing upon the matter

submitted to him by the order of reference.

- When his powers are not specified or limited, he shall set

forth his findings of fact and conclusions of law in his

report. He shall attach thereto all exhibits, affidavits

depositions, papers and the transcript, if any, of the

testimonial evidence presented before him.

- but in sec 3- court may limit- when to start and when to

end- time table

Sec. 10. Notice to parties of the filing of report.

WHEN AND HOW PARTIES MAY OBJECT TO COMM REPORT - Uponthe filing of the report, the parties shall be notified by the clerk, and

they shall be allowed ten (l0) days within which to signify grounds o

objections to the findings of the report, if they so desire. Objections

to the report based upon grounds which were available to the

parties during the proceedings before the commissioner, other than

objections to the findings and conclusions therein set forth, shall not

be considered by the court unless they were made before the

commissioner.

- if you have objections in hearing put it in writing /record

or else it may be disregarded or not entertained on the

hearing

- However, evein if not object re findings or conclusions

made by the Commisioner, you may do so.

Sec. 11. Hearing upon report. Upon the expiration of the period oten (l0) days referred to in the preceding section, the report shall be

set for hearing, after which the court shall issue an order adopting

modifying, or rejecting the report in whole or in part, o

recommitting it with instructions, or requiring the parties to presen

further evidence before the commissioner or the court.

- Q: Effect of lack of noties of parties to Commisoners

report. Notice must be sent to the parties to give them

the opportunity to object. Failure to do so constitutes as

violation to substantial rights. (MANILA tRADE vs PHIL

LABOR UNION) Although parties are not notified and

court failed to set for hearing, if parties APPEARED and w

given the opportunity to be heard, the reqt oof due


9/36



process has been met. However in one case, it was

considered violation (DE LARAMA STEAMSHIP CO.) When

the court assigned accountants , it is a clear violation of

due process without notifying the parties .

- Q: Is the commisioners report binding upon the court?

NO. Court is free to adopt, reject and it may receive

urhter evidence. However, pursuant to Sec 12, it is an

exception. It is binding upon the parties.

Sec. 12. Stipulations as to findings.When the parties stipulate that a

commissioners findings of fact shall be final, onlyquestionsoflawshallthereafterbeconsidered.

when it is mandatory to refer it to the Commissioner?

1. expropriation

2. partition

Sec. 13. Compensation of commissioner. The court shall allow the

commissioner such reasonable compensation as the circumstances

of the case warrant, to be taxed as costs against the defeated party,

or apportioned, as justice requires.

RULE 33

DEMURRER TO EVIDENCE

- A motion to dismiss the case filed by the defendant after

plaintiff has rested its case on the ground of insufficiencyof evidence. In CrimPro, a motion for judgment on

demurrer to evidence is allowed.

Section 1. Demurrer to evidence. After the plaintiff has completed

the presentation of his evidence, the defendant may move for

dismissal on the ground that upon the facts and the law the plaintiff

has shown no right to relief.

If his motion is denied, he shall have the right to present evidence.

If the motion is granted, but on appeal the order of dismissal is

reversed he shall be deemed to have waived the right to present

evidence.

EFFECTS OF FILING:

1. Defendant does not thereby waive his right to present

evidence in the event motion is denied. However, if it is

granted and the order of dismissal is rverrsed on appeal,

thats the ime defendant loses his right to present (why ?

the appellate court shall render judgment for the plaintiff

on his evidence alone)

compare this in demurrer to evidence in crimpro

CRIMINAL CASE CIVIL CASE

IFgranted-effect of acquittal

Ifdenieddepends:

i. If filed w/ leave ofcourt before filing

demurrer- - accused

has still the right to

present evidence in

his behalf

ii. if the accused did

not file motion for

leave to file

demurrer- if denied-

accused waived his

right to present

evidence in chief

If granted the order of

dismissal is reversed on

appeal, defendant loses his

right to present

If denied defendant does

not waive his right to

present evidence

cannot file an APPEAL if

denied. Why? Constitutes

double jeopardy

- only after the P has rested his cs may the D move fo

demurrer

- when you speak to demurrer- P was not able to prove his

cs- no cause of action- was not able to prove his right

- failure to state cause of action right- obli-delict no

stated

- IN CRIMINAL CASE- effect- if denied

does the accused still has right to present evidence?

depends:

1. if filed w/ leave- granted- but the motion fo

demurrer was denied- accused has still the right to

present evidence in his behalf

2. if the accused did not file motion for leave to file

demurrer- if denied- accused waived his right to

present evidence in chief

rule 119- Sec. 23. Demurrer to

evidence. After the prosecution

rests its case, the court may

dismiss the action on the ground

of insufficiency of evidence

(another difference)(1) on its own

initiative after giving the

prosecution the opportunity to be

heard or (2) upon demurrer to

evidencefiledbytheaccusedwith

orwithoutleaveofcourt.

If the court denies the demurrer

to evidence filed with leave of

court, the accused may adduce

evidence in his defense. When

the demurrer to evidence is filed

without leave of court, the

accused waives the right to

present evidence and submits the

case for judgment on the basis of

the evidence for the prosecution.

XXX

- The order denying the motion for leave of court to file

demurrer to evidence or the demurrer itself shall not be

reviewable by appeal or by certiorari before judgment.

reason for the difference

crim- if w/o leave- deemed waived right to presen

evidence

in civpro- leave or w/o leave is not necessary

- reason- in civ cs you can appeal whether denied o

granted, if denied- present evidence ; if granted- time

when movant waived

- unlike in crimcase- if there is acquittal- when to motion to

demurrer to evidence is granted it is = to acquittal

prosecution can no longer appeal bec barred by DJ

- civ cs- P was not able to prove his cs or cause of action

can a motion ask for judgment?yes, summary judgment

motion for judgment for demurrer to evidence

RULE 34

JUDGMENT ON THE PLEADINGS


10/36



- Where defendants admitted al l alegatiobs of the

complaintconsistingofthexistenceofdebtanditssnon-

payment,failureof defendantto raisematerial issues in

theanswer, judgment on the pleadings was proper. What

they did is to mereky plead an excuse (that they had

requested plaintiff to wait because apellants many

accounts receivable had not yet been collected is no

defense, for a debtor can not delay payment due just to

suit its convenience, and the creditor is not an underwriter

of his debtor's business unless so stipulated. The denial of

the averment concerning the stipulated fees of plaintiff's

attorney tendered no genuine issue, for even without

such allegation, it was discretionary in the court to allow

reasonable attorney's fees by way of damages, if it found

it just and equitable to allow their recovery (Civil Code,

Article 2208). Nor does the denial of the complaint's

averments concerning the fraudulent removal and

disposition of defendant's property constitute a bar to a

judgment on the pleadings, since the defendant neither

claimed nor asked for any damages on account of the

issuance and levy of the writ of attachment.. (APELARIO

vs CHAVEZ & CO.,)

- One who prays for judgment on the pleadings without

offeringproofas tothe truthofhis ownallegationsand

without giving the opposing party and opportunity to

indroduce evidence must be understood to admit the

truthof all the materialand relevant allegatiobsof the

opposingpartyandto resthismotionforjudgmentupon

thoseallegationstakentogetherwithsuchofhisownas

areadmitted in the pleadings. (FALCASANTOS vs HOW SUY

CHING)

Section 1. Judgment on the pleadings.

WHEN:

1. Where an answer fails to tender an issue, or it did not

make a specific denial, it is a general denial ( effect-

deemed admitted matl averments except unliquidated

damages- When an answer deemed to tender an issue . Theres

denial but not specific denial under Sec 1 of Rule 8 or

assuming theres specific denial, in other ins tances like

negative pregnant , where theres specific denial

nonetheless not under oath and therefore theres an

admission only on genuineness of the document.

- The answer would fail to tender an issue if it does not

comply with the requirements for a specific denial set out

in Section 10 (or Section 8) of Rule 8; and it would admit

the material allegations of the adverse party's pleadings

not only where it expressly confesses the truthfulness

thereof but also if it omits to deal with them at all. Now, if

an answer does in fact specifically deny the material

averments of the complaint in the manner indicated by

said Section 10 of Rule 8, and/or asserts affirmative

defenses (allegations of new matter which, while

admitting the material allegations of the complaint

expressly or impliedly, would nevertheless prevent or bar

recovery by the plaintiff) in accordance with Sections 4

and 5 of Rule 6, a judgment on the pleadings would

naturally not be proper.

2. otherwise admits the material allegations of the adverse

partys pleading,

- Defendant says I admit . Theres no more factua

controvers. The court may made its own conclusion on

the basis of admitted facts in the pleadings.

- Material averments: constituiong the cause of action

rights, delict or wrong

the court may, on motion of that party, direct judgment on such

pleading.

where no judgment on pldg may be had- However, in actions for

declaration of nullity or annulment of marriage or for lega

separation, the material facts alleged in the complaint shall always be

proved.- bec the family is protected by the State, strong family means

strong nation.

Rule 8Sec. 10. Specific denial. A defendant

must specify each material allegation of fact

the truth of which he does not admit and,

whenever practicable, shall set forth the

substance of the matters upon which he

relies to support his denial. Where a

defendant desires to deny only a part of an

averment, he shall specify so much of it as is

true and material and shall deny only the

remainder. Where a defendant is without

knowledge or information sufficient to form a

belief as to the truth of a material averment

made in the complaint, he shall so state, andthis shall have the effect of a denial.

FALCASANTOS vs HOW SU CHING- F: the elements of lega

redemption were admitted but meron syang special defense: that

the legal redemption has already prescribed. Plaintiff then filed

motion for judgment on the pleadings.

TC: that the 9 days has not yet expired since the sale was not

recorded

SC: In favor of plaintiff. SC held that defendant admitted all the

allegations.

RULE: When a party files motion for judgment of the pleadings, the

effect of it is that plaintiff also admitsthetruthofallthemateriaandrelevantallegatiobsoftheopposingpartyandtoresthismotion

forjudgmentupon thoseallegationstakentogetherwithsuchofhis

ownasareadmitted in the pleadings.

- BOTH PARTIES ADMIT!!

- If you file motion for judgment on pleadings, you are

actually adking the court to forego with th presentation

of evidence since the amterial averments are already

admitted. However, if you do that as plaintiff and you

didn not present prove of evidence and since you also

deprive the defenadant the opportunity to presen

evidence, then the movant is deemed to admit also the

material averment of opposing partys pkelading. Hence

taking together the two pleadings, the movant rests his

case based on the two pleadings. (The underlying

principle here is fairness.)

Sec. 11. Allegations not specifically denied deemed admitted.

Material averment in the complaint, other than those as to the

amountof unliquidateddamages, shall be deemed admitted when

not specifically denied. Allegations of usury in a complaint to

recover usurious interest are deemed admitted if not denied under

oath.

reply Is not mandatory except the basis of the action is an

actionable doc- applicable both as to the complaint and answer


11/36



RULE 35

SUMMARY JUDGMENT

- Summary judgment procedure is a method for promptly

disposing of actions in which there is no genuine issue as

to any material fact.\

- WHEN:

1. Claimant- A party seeking to recover upon a claim,

counterclaim, or cross-claim or to obtain a declaratory

relief may, at any time after the pleading in answer

thereto has been served ( dapat may answer na), move

with supporting affidavits, depositions or admissions for a

summary judgment in his favor upon all or any part

thereof.

2. Defendant at any time , even before answer; A party

against whom a claim, counterclaim, or cross-claim is

asserted or a declaratory relief is sought may, at any time

, move with supporting affidavits, depositions or

admissions for a summary judgment in his favor as to all

or any part thereof. (Sec 2)

- Q: Instead of answer, defendant files motion for summary

judgment, can that be allowed? YES. For the defendant,

theres no genuine issue or material fact.

- For i.e GALICIA vs POLO

- F: Prior to action or recover of ownership , there was an

unlawful detainer cae. Plaintiff who became the defendat

of second case, sued Y forcible entry. Theres award for

damages, Y does not have capacity to pay. Hence, the

land was attached and subsequently sold to satisfy the

judgment. X is the highest bidder. There was

consolidation of ownership. Here comes Y suing for

ownership. Instead of filing an answer, X filed motion for

summary judgment satingHoy ako ownr nito kasi natalo

ka. Judge granted the motion. Issue: Is there genuine

issueofmaterialfact?YES. No more issue.

- However, if its the plaintiff who filed, it can only be done

after issues has been joined on his claim. Prior to that

cannot detwrmine if its proper for summary judgment ornot.

PROCEDURE

WHEN:

- Motion must be served w/in 10 days

Sec. 3. Motion and proceedings thereon. Themotion shall be served

at least ten (10) days before the time specified for the hearing (

exception to 3 day notice rule- kasi he shld file an affidavit here).

The adverse party may serve opposing affidavits, depositions, or

admissions at least three (3) days before the hearing. After the

hearing, the judgment sought shall be rendered forthwith if thepleadings, supporting affidavits, depositions, and admissions on file,

show that, except as to the amount of (unliquidated) damages,

there is no genuine issue as to any material fact ( facts constituting

Ps or Ds cause of action) and that the moving party is entitled to a

judgment as a matter of law.

Sec. 4. Case not fully adjudicated on motion . ( If case cannot be fully

adjudicated on motion)If on motion under this Rule, judgment is not

rendered upon the whole case or for all the reliefs sought and a trial

is necessary, the court at the hearing of the motion, by examining

the pleadings and the evidence before it and by interrogating

counsel shall ascertain what material facts exist without substantial

controversy and what are actually and in good faith controverted. I

shall thereupon make an order specifying the facts (material facts

that appear without substantial controversy, including the extent to

which the amount of damages or other relief is not in controversy

and directing such further proceedings in the action as are just. The

facts so specified shall be deemed established, and the trial shall be

conducted on the controverted facts accordingly.

Sec. 5. Form of affidavits and supporting papers.reqts:

1. Supporting and opposing affidavits shall be made on

personal knowledge,

2.

shall set forth such facts as would be admissible in

evidence ( 2 rules: 1. relevant and 2. not comptent

excluded by the rules) ,

3. and shall show affirmatively that the affiant i

competent to testify on the facts ( those who can

perceive and in perceiving can be made known thei

perception eg. deaf ka- you cannot make known

your perception) to the matters stated therein.

4.

Certified true copies of all papers or parts thereo

referred to in the affidavit shall be attached thereto

or served therewith.

SUMMARY JUDGMENT JUDGMENT BASED ON

PLEADINGS

Based on the pleadings,

depositions, admissions and

affidavits

based solely on the

admissions contained in the

pleadings and its

attachments.

Available to both plaintiff and

defendant

generally available only to the

plaintiff, unless the defendant

presents a counterclaim.

There is

no genuine

issue of facts between the

parties, i.e. there may be issues

but these are irrelevant

The answer fails to tender an

issue or there is an admission

of material allegations.

10-day notice required 3-day notice required

May be interlocutory or on the

merits

On the merits

(PNB vs PHIL LEATHER CO)

Defendant here admitted all the allegations xcept on the amount of

the payment (saying na yes may utang pero compute ko pa yung

actual amount) . Hence, palitniff filed a motion for summary

judgment

SC:Escolin: AMterial facts: Mayutangba?Nabayranba?Thequestion

rehowmuchisnotamaterialgenuineissue,suchcaberesolvedn

othermeanssayfori.e,affidavit.

URMANENTA vs MANZANO

Plaitniff sued to recover a homestead land. (Cadastre subject to

cadastral proceedings * it is the government that initates the land

regsitarion, each one is called to question , as distinguished to

applicarion for land registration* initiative here comes from the

owner of the land) that defendant tookpossession thereof. He

attached the ff documents : order of Director of lands, another


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order of Director of land approving final. Defendant field motion to

dismiss for lack of cause of action attaching to his motion: order of

director of lands confirming th ownership of Manzano, certificate

that disputed land has been declared public land. TC then denied

motion to dismiss. Defendant then filed an answer alleging that he

has no legal interest over subject land except as tenant of Tedora

Manzano.

- The material issue of fact here: ownership A: no interest

VERGARA vs SUELTO

- GR: WHEN ANSWER FAILED TO TENDER AN ISSUE ajudgment on pleadings is not proper: The answer would

fail to tender an issue if it does not comply with the

requirements for a specific denial set out in Section 10 (or

Section 8) of Rule 8; and it would admit the material

allegations of the adverse party's pleadings not only

where it expressly confesses the truthfulness thereof but

also if it omits to deal with them at all. Now, if an answer

does in fact specifically deny the material averments of the

complaint in the manner indicated by said Section 10 of

Rule 8, and/or asserts affirmative defenses (allegations of

new matter which, while admitting the material

allegations of the complaint expressly or impliedly, would

nevertheless prevent or bar recovery by the plaintiff) in

accordance with Sections 4 and 5 of Rule 6, a judgment

on the pleadings would naturally not be proper.

XPN: But even if the answer does tender issues and

therefore a judgment on the pleadings is not proper a

summary judgment may still be rendered on the plaintiff's

motion if he can show to the Court's satisfaction that

"except as to the amount of damages, there is no genuine

issue as to any material fact," 18 that is to say, the issues

thus tendered are not genuine, are in other words sham,

fictitious, contrived, set up in bad faith, patently

unsubstantial. (VERGARA vs SUELTO)

Sec. 6. Affidavits in bad faith .Should it appear to its satisfaction at

any time 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 offending party or counsel to pay to

the other party the amount of the reasonable expenses which the

filing of the affidavits caused him to incur, including attorneys fees.

It may, after hearing, further adjudge the offending party or counsel

guilty of contempt.

- In their answer, the defendants admit the plaintiff's

averments excepts as to the correctness of the amounts

due, the correctness of which they were still checking, and

for that reason lacking sufficient knowledge or

information to form a belief as to the truth and veracity

of the amounts due, they deny the amounts claimed by

the plaintiff to be due them. Hence, plaintiff is entitled to

summary judgment. (PNB vs PHIL LEATHER CO)

RULE 36

JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

Judgments- disposition of rights and obligations of the parties base

don the merits of the case

Final orderdisposition not based on a merits but on technical. For

i.e action against reconveyance, motion to dismiss for lack of

jurisdiction final order; order without a prejudice. Bevause GR:

granting motion to dismiss is w/o prejudice on filig of the same case.

XPN: RE

Sec 3 Rule 27, Where the court dismiss a case for failure to

prosecute, comply w/ order of court, failure to present evidence on

scheduled date: a dismissal w/o qualification is with prejudiced.

what are thesubstantial reqts for a valid judgment?

1. J over the subj matter

2. J over the person of the D

3. if action in rem J over the res, How was it acquired?

Publication;

4. J over the issues- judgment shall decide only issues raised

in the pleadings as defined in the pldgs and pre-triaorder; raised and heard on the pleadings;

5. duly constituted court- consti law- for a court to exercise

J, it must be a validly constituted court and not a

kangaroo court ( established by NPA).

6. Judgment was rendered after lawful hearing due

process is observed

what is form and substance?

formoutside appearance of the substance

form of a valid judgment:

1. in writing

2. personally and directly prepared by the judge

3. state clearly and distinctively the facts and law it wa

based4. signed by the judge and

5. filed with clerk of court

JUDGMENT OPINION

- found in the

dispositive part of

deision; determines

the right and

obligation of the

parties

(WHEREFORE..)

in cs of conflict

JUDGMENT WILL

PREVAIL

resolution of the

court embodied in

the dispositive

portion is the

determination of

the facts and law

- it is the dispositive

portion that settles

the controversy

- findingsin the

conclusion of the cour

aka ratio decidendi.

- consti- court indicate

the FACTS AND LAW f

w/c it is based

JUDGMENT SIN PERUICIO one which contains only dipsoitove

portion and reserves the findings theroenVOID

JUDGMENT NUN PRU TUNCT judgment now for then; function torecord some act w/c are not carry into record

JUDGMENT UPON COMPROMISE- judgment rendered upon the

consent of the parties; When parties enter to compromise

agreement, court will determine if its contrary to law, public morals

etc. un lang. It is not appelabale, immediately executor because it is

the product of mutual agreement of the parties. Cnanot be annulled

unless obtained by fraud,error and mistake; it also constitutes as re

juddciata. Is the court required to make findings of fact and

conclusion of law? NOT REQUIRED. Because in contemplation o

law, the court demed to adopt the facts and law mde by the parties

and the their consent made it encesay to make prleimianry matters

uncovered. For i.e Def- I will pay you may utang in installments.


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Doe prnounmcent in oen court cosntitue judgment? NO. It must be

written personnall by judge, signed and delivered by clerk of court.

A classic case by Escolin:Re accused, counsel for plaintifffailed to

appear 3x. then 11:30 appeared contending there was vehicular

accident.Wastherevalidfinaljudgmentoforder?NO. Clerk of court

not yet signed and delivered.

INTERLOCUTORY ORDER- not yet final; theres still somethingto be

done.

Section 1. Rendition of judgments and final orders . A judgment or

final order determining the merits of the case shall be 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,

and filed with the clerk of the court.

Sec. 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 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 the judgment

or final order and shall be signed by the clerk, with a certificate that

such judgment or final order has become final and executory.

effects of finality of judgment:

1.

Right to have it executed-

prevailing party is now entitled to have an execution of

issues as a matter of right

- writ of execution becomes a ministerial duty and

compellable by mandamus except when somebody dies-

present it w/ the probate court

2.

court that rendered it loses J over the cs except clerical

- can no longer correct on substance even the judgment is

erroneous

- can correct only clerical errors, inadvertence

- except:

- a. judgment on support bec it is not based on the abilityof the obligor but the needs of the obligee

3.

res judicata rule 29;

XPN RE FINALITY OF JUDGMENT :

1.

judgment for support can be modified at any time,

obligation of support depends not only on the resources

of obligor but also the change of demands

2.

jusgment is unjust (BUSTOS vs CA 450 S )

- GR: In single courts like the regional trial courts and the

municipal trial courts, a decision may no longer be

promulgated after the ponente has vataed his office. This

rule applies on collegiate courts like the SC.

(CONSOLIDATED BANK vs CA)

RULE 39`

EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Execution- remedy provided by law to enforce judgment

- it is simply the enforcement of judgment . While,

Jurisdiction refers to the power of the court to hear and

resolve a controversy and carry its judgment into effect.

- XPN:if somebody dies and award is in a form of money-

special consideration to liquidate the debts and pay the

creditors it must be in the same proceedings w/ the

probate court

CLASSIFICATION OF EXECUTION

accdg to nature

1. compulsory

2. discretionary

mode of enforcement

1. upon motion

2. independent actionGR: execution can only be enforced upon a party and not to one

who did not have his day in court

PAJARITO vs CENERIS- EMPLOYER'S LIABILITY MAY BE ENFORCED IN

THE SAME PROCEEDINGS.The validity of the claim of an employe

that he is no longer the owner and operator of the ill-fated bus, as he

had sold it to the father of the accused, is a matter that could be

litigated and resolved in the same criminal cas e. In support of the

employer's opposition to the motion for the purpose of

enforcement of his subsidiary liability, the employer may adduce al

the evidence necessary for that purpose.Indeed, the enforcement o

the employer's subsidiary liability may be litigated within the same

proceeding because the execution of the judgment is a logical and

integral part of the case itself. This would facilitate the application o

justice to the rival claims of the contending parties.

Section 1. Execution upon judgments or final orders. Execution shal

issue as a matter of right, on motion, upon a judgment or order tha

disposes of the action or proceeding upon the expiration of the

period to appeal therefrom if no appeal has been duly perfected.

- Q: when shall execution be issued as a matter of right? A

upon the expiration of the period to appeal therefrom if

no appeal has been duly perfected.

REQS:

1. final

2. executory - upon expiration of period of appeal

- only final and executory judgment may be the subject o

execution- if only on appeal, it is only final but not executor

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, 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 adverse

party.

- where? court of origin and not appellate court Escolin

this is a new provision.

- BEFORE: you appeal the matter to CA, while the record

are still w/ appellate court, cannot be enforced unti

records are w/ the court of origin ; Problem is matagaand entry ng judgment, lalo na if umabot na sa SC

- to avoid that, when there is already an entry of judgment

(already final and executory will be put in the entry of

judgment, the entry shall be the date when it became

final and exe although entered on a later date

- NOW: final and executory- entry of judgment final the

notice of execution even records not yet with the

court of origin

- May the RTC in an appeal of a decision originating in the

TC be subject of execution? Generally, no because i

should be the court of origin, but there are exceptions


14/36



The appellate court may, on motion in the same case, when the

interest of justice so requires, direct the court of origin to issue the

writ of execution.

Sec. 2. Discretionary execution.

(a) Execution of a judgment or final order pending

appeal. On motion of the prevailing party will

notice to the adverse party filed in the trial court

while it has jurisdiction over the case and is in

possession of either the original record or the

record on appeal, as the case may be, at the time of

the filing 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. ( residual J)

reqts pending appeal

1. On motion of the prevailing party

2. with notice to the adverse party filed in the

trial court while it has :

a.

jurisdiction over the case

b.

is in possession of either the original

record or the record on appeal

3. based on good reasons and noted on the

special order of the court

- court may, in its discretion, order execution of a

judgment or final order even before the expiration of the

period to appeal.

- Residual powers of the court

Note: Under Sec9,Rule41RePerfectionofappeal;effectthereof. A

partys appeal by notice of appeal is deemed perfected as to him (

ALONE) upon the filing of the notice of appeal in due time. ( WITHIN

THE PD TO PERFECT AN APPEAL)

A partys appeal by record on appeal is deemed perfected as to him

( ONLY) with respect to the subject matter thereof upon the

approval of the record on appeal filed in due time.

- CUT OFF- NOT THE FILING ON NOTICE, NEITHER FILING

OF RECORD OF APPEAL BUT APPROVAL OF RECORD ON

APPEAL FILED IN dUE TIME

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 appeal of the other parties.

In appeals by record on appeal, the court loses jurisdiction only over

the subject matter thereof upon the approval of the records on

appeal filed in due time and the expiration of the time to appeal of

the other parties.

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 rights of the parties which do not involve any

matter litigated by the appeal, approve compromises, permit appeals

of indigent litigants, order execution pending appeal in accordance

with section 2 of Rule 39, and allow withdrawal of the appeal.

- The filing of good reason is important.- what is the effect of order pending appeal w/o reason in

justifying it? INEFFECTUAL if it does not have a good

reason in justifying it.

After the trial court has lost jurisdiction, the motion for execution

pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be

stated in a special order after due hearing.

(b) Execution of several, separate or partial judgments.A several

separate or partial judgment may be executed under the same

terms and conditions as execution of a judgment or final order

pending appeal.

Sec. 3. Stay of discretionary execution.Discretionary execution issued

under the preceding section may be stayed upon approval by the

proper court of a sufficient supersede as bond filed by the party

against whom it is directed, conditioned upon the performance of

the judgment or order allowed to be executed in case it shall be

finally sustained in whole or in part ( ON APPEAL). The bond thus

given may be proceeded against on motion with notice to the

surety.

- may exe pending appeal be granted by court

- may an order of exe pending appeal may be stayed? yes

Sec3

The bonding co will be liable- supersedeas bond- you are

superseding the grant of execution pending appeal

- even w/ bond may be superseded- if there are

circumstances outweighing the bond- eg support

mamatay si bata

Sec. 4. Judgments not stayed by appeal. Judgments in actions fo

injunction, receivership, accounting and support, and such othe

judgments as are now or may hereafter be declared to be

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. On appeal therefrom, the

appellate court in its discretion may make an order suspending

modifying, restoring or granting the injunction, receivership

accounting, or award of support.

The stay of execution shall be upon such terms as to bond o

otherwise as may be considered proper for the security o

protection of the rights of the adverse party.

gen. rule- matter of right- only judgment which are final and

executory bec res judicata sets in

exception: Sec 4

1. injunction,

- neighbor never bothered to erect a CR, made poopoo

and wee wee sa garden then naaamoy mo. exercise you

rights in such a way that you will not violate the rights o

others

- injunctioncourt- stop making poo poo- shld stop righ

away

- pollution shld stop right away

2. receivership,

- done when there is a controversy bet persons and w/

danger that if possession will remain to the other, cour

shld appoint a receiver or else baka maubos na ng isa

3. accounting

- partition- P and D 50-50

- P entitled to the proceeds fr the time D deprived the P

- mag-accouting ka na

4. and support, and

5. such other judgments as are now or may hereafte

be declared to be immediately executory

a. ejectment

- summary rules

- gen rulefr inferior court to RTC- judgment is stayed bu

ones judgment is rendered in RTC in a cs orig in MTC

covered by summary rules, the decision of MTC is

immediately executory w/o prejudice to petition fo

review in CA

b. expropriation


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- determine :

1. right/ authority to expropriate must be for public

purpose

- upon filing of expropriation cs, P can already ask for

possession bec it is immediately executory

- ones determined

2. just compensation

- shall be enforceable after their rendition and shall not

be stayed by an appeal taken therefrom, unless otherwise

ordered by the trial court; the trial court itself stop it

On appeal therefrom, the appellate court in its discretion may makean order suspending, modifying, restoring or granting the injunction,

receivership, accounting, or award of support.

- appellate court can also stop it

even immediately executory the trial court and appellate court can

stop execution

Sec. 5. Effect of reversal of executed j

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Civpro Lecture Rule 19-50

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