Rule 17-39 on Civil Procedure (Lakas Atenista)

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Rule 17

DISMISSAL OF ACTIONS

Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed

by the plaintiff by filing a notice of dismissal at any time before service of

the answer or of a motion for summary judgment. Upon such notice being filed,

the court shall issue an order confirming the dismissal. Unless otherwise

stated in the notice, the dismissal is without prejudice, except that a notice

operates as an adjudication upon the merits when filed by a plaintiff who has

once dismissed in a competent court an action based on or including the same

claim. (1a)

Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he

dismiss his own complaint? A: YES. And it is a matter of right. Q: How? A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion

for Summary Judgment. Meaning, for as long as the defendant has not yet filed his answer, the plaintiff has the right to dismiss his own complaint by simply sending the court what is known as a notice of dismissal.

This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as

there is no answer yet. Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the

dismissal. The reason is that, the withdrawal is not automatic. Withdrawal does not take effect until confirmed by the court. This is keeping with the respect due to the court.

Under the rules on civil procedure, there are two types of dismissal:

1. Dismissal with prejudice – the case can no longer be re-filed; 2. Dismissal without prejudice –the case can be re-filed.

Q: Is the dismissal under Section 1 with or without prejudice? A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case can be re-filed.

EXCEPTIONS: 1.) When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing his

own complaint with prejudice; OR 2.) When a notice operates as an adjudication upon the merits when filed by a plaintiff who has

once dismissed in a competent court an action based on or including the same claim.. This is the TWO-DISMISSAL RULE.

ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr. Castaños and I did not pay

him. So he filed a case against me to collect the unpaid loan. Upon receipt of the summons, I approach Mr. Castaños, “Huwag mo nalang ituloy ang kaso mo, babayaran kita. I will not file an Answer, hindi nalang ako kukuha ng lawyer. I-dismiss mo na lang iyan, babayaran kita next month, wala lang akong kuwarta ngayon. I will refund you for the filing fee”. Ngayon, payag siya. He will send a notice to the court dismissing his complaint. The case is dismissed, without prejudice.

After one month, I did not pay again. So nagalit si Mr. Castaños, he re-filed the same complaint, pangalawa na. I now receive another summons. So, lapit ako sa kanya, “Bakit mo fi-nile kaagad?” “Eh, sabi mo, after one month magbabayad ka.” “Wala lang akong kuwarta, next month pa dadating ang kuwarta ko. I-dismiss mo na ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko ang ginasta mo sa filing fee.” Tapos, naatik na naman siya. So he files a notice of dismissal again, doble. The same case was dismissed twice. He availed of the dismissal in Section 1 twice.

After next month, hindi na naman ako nagbayad. So nagalit na naman siya. So he filed the same case for the third time. I receive the summons. You know what I will do? I will file a motion to dismiss the case because the second dismissal is automatically with prejudice.

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This is known as the 2-dismissal rule. You cannot file it for the third time. Briefly, the two-dismissal rule simply means that when the same complaint had twice been

dismissed by the plaintiff under Section 1 by simply filing a notice of dismissal, the second dismissal shall be with prejudice. Yaann!

Q: Suppose you file a complaint against Mr. Cruz and you immediately changed your mind and

had it dismissed under Section 1. And then after having dismissed, you changed again your mind and you want to re-file the action. Now, How do you re-file it the action? Do you file another complaint again?

A: That was answered in the case of

ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO

234 SCRA 455 [1994] HELD: It DEPENDS on whether the order of dismissal has already become final. a.) If within 15 days from the time it is ordered dismissed, all that you have to do is to

ask the court to set aside the order of dismissal and re-vive the case because the order of dismissal have not yet become final.

b.) However, if the order of the court dismissing the complaint based on your own notice has become final after 15 days, then the only way you can revive it is to file an entirely new action.

Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the

preceding section, a complaint shall not be dismissed at the plaintiff's

instance save upon approval of the court and upon such terms and conditions as

the court deems proper. If a counterclaim has been pleaded by a defendant prior

to the service upon him of the plaintiff's motion for dismissal, the dismissal

shall be limited to the complaint. The dismissal shall be without prejudice to

the right of the defendant to prosecute his counterclaim in a separate action

unless within fifteen (15) days from notice of the motion he manifests his

preference to have his counterclaim resolved in the same action. Unless

otherwise specified in the order, a dismissal under this paragraph shall be

without prejudice. A class suit shall not be dismissed or compromised without

the approval of the court. (2a)

Q: If the defendant has already filed an answer or a motion for summary judgment, may the

complaint still be dismissed by the plaintiff? A: YES, but it is already upon the approval of the court and upon such terms and conditions as the

court deems proper. Meaning, the dismissal under Section 2 by the plaintiff is no longer a matter of right because the defendant has already filed an answer or a motion for summary judgment.

Q: Suppose I file a case against you and you file an answer with counterclaim, and I filed a notice

dismissing my own complaint. Can it be done? What happens to the counterclaim? A: The dismissal of the complaint DOES NOT necessarily mean the dismissal of the counterclaim.

So a compulsory counterclaim remains despite the dismissal of the complaint. The dismissal shall be limited to the complaint.

Of course, generally, if we follow the language of the law, when you dismiss the complaint, the

counterclaim is also dismissed unless within 15 days, the defendant manifest his preference to have his counterclaim resolve in the same action.

GENERAL PULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed. EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days. That is the

radical change. The cases that we cited before are now bahaw.

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Q: Now, suppose the complaint is dismissed under Section 2 upon initiative of the plaintiff, can he re-file the case?

A: The rule is the same as Section 1 – the dismissal of the complaint under Section 2 shall be without prejudice unless otherwise specified in the order of dismissal. So, the dismissal under Sections 1 and 2 is generally without prejudice.

The last sentence, “A class suit shall not be dismissed or compromised without the approval of the

court.” When you file a class suit, you are not only fighting for yourself – you are fighting for the others. So, you cannot just withdraw it on your own or else, you will cause prejudice to everybody. So, in order to prevent the person who filed it from prejudicing the right of the members of the class suit, it cannot be dismissed or compromised without the approval of the court.

Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause,

the plaintiff fails to appear on the date of the presentation of his evidence

in chief on the complaint, or to prosecute his action for an unreasonable

length of time, or to comply with these Rules or any order of the court, the

complaint may be dismissed upon motion of the defendant or upon the court's own

motion, without prejudice to the right of the defendant to prosecute his

counterclaim in the same or in a separate action. This dismissal shall have the

effect of an adjudication upon the merits, unless otherwise declared by the

court. (3a)

Q: What are the grounds for the dismissal of the case under Section 3? A: The following are the grounds for the dismissal of a case under Section 3:

1.) The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint;

2.) The plaintiff fails to prosecute his action for an unreasonable length of time; 3.) The plaintiff fails to comply with the Rules of Court or any order of the court for no

justifiable reason or cause.

First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE PRESENTATION OF HIS EVIDENCE-IN-CHIEF ON THE COMPLAINT

Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action. So if the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the

complaint, the case can be dismissed. This has been taken from the ruling of the SC in the case of:

JALOVER vs. YTORIAGA

80 SCRA 100 [1977] FACTS: Plaintiff appeared during the trial and presented his evidence and then he

rested. And then during the hearing of the presentation of the defendant’s evidence, plaintiff failed to appear. And since he failed to appear during trial, the court dismissed the case.

HELD: The dismissal is WRONG. Why dismiss the case when he has already presented

his evidence? It is tantamount to deciding the case against the plaintiff without considering the evidence that he has presented. What is the remedy then?

What the court should do is to proceed with the presentation of the defendant’s evidence without the plaintiff. Do not dismiss the case the plaintiff has already presented his evidence.

That is why the language in the old rule is ‘failure to prosecute’ or another term is ‘non-suited’. But

the rules of court now wants to avoid the word ‘non-suited’ because it carries a different meaning. If plaintiff fails to appear on the date of the presentation of his evidence-in-chief, but he arrived a

little bit late, or he failed to appear because he failed to receive the notice setting it, that is different

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because the law says, “for no justifiable cause.” If I am late but a few minutes only, that is not a good basis to dismiss the case forever. There is no intentional failure not to appear. In which case, if there is an order of dismissal, it should be set aside because the condition is “for no justifiable cause.”

If it was the defendant who failed to appear without justifiable cause, the plaintiff should move that

the trial shall proceed ex-parte. But definitely, the defendant cannot be declared in default because he already filed an answer.

Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION FOR UNREASONABLE LENGTH OF TIME.

EXAMPLE: Maybe every time his case is called to trial, he appears but he is not ready and so he

postpones. The next hearing, he postpones again. That’s one interpretation. Another interpretation of “failure to prosecute” the complaint is filed, answer if filed, the case has

not been set for pre-trial, the plaintiff did not take the initiative to have the case set for pre-trial. For more than one year, the case has not been set for pre-trial and the plaintiff is not moving. Ikaw ang plaintiff, ikaw ang kumilos!

Or, the case cannot be tried because the defendant cannot be summoned. The court keeps asking

the plaintiff for the correct address of the defendant. And for more than one year, the plaintiff cannot supply the court of the correct address of the defendant. The judge cannot have the case docketed in court forever.

Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR ANY ORDER OF THE COURT.

EXAMPLE: The court says, “Plaintiff, you are hereby directed to amend the complaint.” Plaintiff

refuse to amend. The court will dismiss the case. Remember that case I cited where the complaint was filed in the name of for example,

“PANINGKAMOT STORE vs. SO and SO.” The SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not a person. It is only the name of the business establishment. Only natural person or juridical persons may be subject of the suit.

Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to amend in order to reflect the

owner of the store. So the court directs the plaintiff to amend. Ayaw mo i-amend ha? This time i-dismiss ko for failure to comply with the court’s order.

Other Examples: Amend the pleading, submit a bill of particulars or certification of non-forum

shopping. Now, Section 3 says, “…may be dismissed upon motion of the defendant or upon the court’s own

motion (motu propio).” Q: As a general rule, can a court dismiss a complaint without any motion made by the defendant? A: GENERAL RULE: The court should not dismiss the case upon its own initiative, because the

grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the defect.

Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu propio?). A: The following

1. Section 3, Rule 17 (Plaintiff’s fault); 2. When on its face, the complaint shows that the court has no jurisdiction over the subject

matter;

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3. When there is litis pendentia; or res adjudicata; or when the action has prescribed; 4. Under the Summary Rules, the court is empowered to dismiss immediately without any

motion. Take note of what the law says, if the complaint is dismissed under Section 3, it is without prejudice

to the right of the defendant to prosecute his counterclaim in the same or separate action. Again, the dismissal of the main action or compliant does not mean the dismissal of the counterclaim. This is the same with Section 2.

Q: If the complaint is dismissed under Section 3, can it still be re-filed? A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning, res

adjudicata applies, as if the case has already been decided. Therefore the elements of res adjudicata should also be present. The dismissal is with prejudice unless otherwise declared by the court.

GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice. EXCEPTION: Unless the court provides otherwise. EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to

dismiss under Section 3. The court dismissed the case. Can the case be re-filed? NO, the dismissal is with prejudice. (General Rule)

Suppose the court will say, “For non-appearance of the plaintiff, the complaint is dismissed without

prejudice.” Can the case be re-filed? YES. (Exception) On the other hand, one of the interesting cases on this (the effect of res adjudicata – because when

we say res adjudicata, it had to be correlated with the elements of res adjudicata in Rule 39) is the case of

REPUBLIC PLANTERS BANK (RBP) vs. MOLINA 166 SCRA 39 [1988]

FACTS: The RPB filed a case against the defendant for a sum of money. Defendant

cannot be summoned because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed. After a while the court dismissed the complaint for RBP’s failure to prosecute. And the order of dismissal was silent. So, following Section 3, the dismissal is with prejudice.

Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed the compliant. Defendant moved to dismiss because when the first complaint was dismissed and the order of dismissal was silent then the dismissal has the effect of an adjudication on the merits.

HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res

adjudicata under Rule 39. One of the elements of res adjudicata is: When the case is terminated, the court has

jurisdiction over the case both as to the person and the subject matter; In the case of RPB, the court never acquired jurisdiction over the person of the defendant

because he was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata.

Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of the

case, and the parties in the previous case in order that the dismissal be with prejudice.

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, shall 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. (4a)

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It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint –

at any time before an answer is filed against a counterclaim, cross-claim or third-party complaint, plaintiff may dismiss his claim under Section 1, Rule 17.

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Rule 18 PRE-TRIAL

Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note

that no case can reach the trial stage without undergoing Pre-Trial after the issues have been joined.

Section 1. When conducted. After the last pleading has been served and

filed, it shall be the duty of the plaintiff to promptly move ex parte that the

case be set for pre-trial. (5a, R20)

In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound

to move ex parte that the case be set for pre-trial. No civil action can reach the trial stage without passing the pre-trial period.

Pre-trial in criminal cases is only optional—the accused and his lawyer have to agree. In civil cases,

the pre-trial is MANDATORY – no case can reach the trial stage without undergoing Pre-Trial. And it is the duty of the plaintiff and not of the clerk of court to move to set the pre-trial. A motion for pre-trial can be filed ex parte, an exception to the rule that no motion can be filed ex parte.

Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall

consider:

(a) The possibility of an amicable settlement or of a submission to

alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of

documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary

judgment, or of dismissing the action should a valid ground therefor be found

to exist;

(h) The advisability or necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action.

(1a, R20)

(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO ALTERNATIVE MODES OF DISPUTE RESOLUTION

Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you

get something from me and I get something from you. Then we will submit out agreement to the court. In an amicable settlement, walang panalo and wala ring talo. So everybody goes home happy.

There was an article where it says that one of the best gauge of a good lawyer is not that he has

many cases, but that he knows how to settle a case because he saves his client from a lot of trouble. While a bad lawyer is one whose cases always end up in trial – he has many cases and he does not have the time anymore to study each cases. So, he ends up inefficient.

As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents

of the United State, gave an advice to lawyers: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man there will still be business enough.” Meaning, if you are a lawyer, you have a strong influence to convince your client to settle the problem with his opponent. You do not have to worry about losing fees for there are still cases to come. Even if you will come out the winner in the case, you are still the loser in terms of waste of time, money and effort.

“…of a submission to alternative modes of dispute resolution.” – how to dispose of the case without

passing to court, ba. This is similar to voluntary arbitration in the Labor Code – mas mabilis!. Kung sa court yan, matatagalan pa yan. Example is a controversy in the construction industry. Pagawa ka ng

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building. You quarrel with your contractor whether the building is properly constructed or not. That kind of dispute has to pass through arbitration like contractors. They will be the one to judge because they are experts in construction. So it is faster. Anong malay ng judges sa engineering? So, yan ang tinatawag na alternative modes of dispute resolution.

Now, assuming that the parties cannot settle at the pre-trial stage, does it mean to say that the pre-

trial was a failure? NO, go to [b] to [i] on other ways to hasten the trial.

(b) THE SIMPLIFICATION OF THE ISSUES Based on the answers filed, issue will be simplified or lessened/reduced to the most important and

relevant ones.

(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS; Take note that there is already a complaint and answer and yet during the pre-trial, the parties can

still amend their complaint or answer. That means that amendments of pleadings are favored even at this stage. Amendment is necessary which is favored by the liberality principle, to adjudicate the case upon proper merits.

INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC

21 SCRA 887 BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a

necessity for amending the complaint. It was amended. Is there a need for a new pre-trial for the amended complaint?

ANS: Where a pre-trial has already been had, the fact that an amended complaint is filed, does not mean the need for a new pre-trial. Pre-trial is not mandatory. Exception to this is when the parties agree to conduct another pre-trial.

(d) STIPULATION OF FACTS Stipulation of facts means we can agree on some facts and there is no need of proving them in court

because we already agreed. Such will hasten the trial because matters validly agreed upon can be dispensed with (e.g., size of the land, improvements thereon, stipulations, due execution of documents, etc.)

Now, while the law encourages stipulation of facts, courts cannot compel the parties to do stipulate

facts under the threat of dismissal. In the 1988 case of:

FILOIL MARKETING CORP. vs. DY PAC & CO.

160 SCRA 333 HELD: There is no law which compulsorily requires litigants to stipulate at pre-trial on

the facts and issues that may possibly crop up in a particular case, upon pain of dismissal of such case. The process of securing admissions whether of facts or evidence is essentially voluntary, since stipulations of facts, like contracts, bind the parties thereto who are not allowed to controvert statements made therein.

(e) THE LIMITATION OF THE NUMBER OF WITNESSES; During the pre-trial if there is no settlement, the court will ask, “Mr. Plaintiff, how many witnesses

will you present?” The plaintiff will say that he will present one hundred witnesses. So the court will

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start asking, “Why so many? Will it be possible to limit the number of witnesses from 100 to 15 or 10? Anyway, what one witness will say will just be the same as what the other witness will say.”

That is allowed and that is part of the pre-trial because it will be shortened if the number of witnesses will be reduced in number.

(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO A COMMISSIONER; This refer to Rule 32 the title of which is “Trial by Commissioners.” A commissioner is a person

who may be appointed by a judge to assist the court in determining certain issues. EXAMPLE: Two people dealing with each other ended up suing each other because according to

plaintiff, “You secured these amounts from me and ito lang ang binayad mo. So, may utang ka pa.” But defendant said, “No, no, no! Based on my record, overpaid pa ako.” That can happen where there has be confusion already on the invoices and receipts. Now, if we will try this case in court it will take time because you have to present to the judge every receipt, every invoice. And these invoices may number by hundreds. And what is worse is that the judge is not an accountant so he will have a hard time reconciling these receipts and invoices.

Suppose the judge will say, “Alright, since this is a matter of accounting, I will appoint a CPA to assist me. You can choose whoever this accountant or he may be appointed by this court. Then you go to him and present all your documents. And then he will now analyze and then submit to me his findings. Based on his findings we will find out whether the defendant still owes the plaintiff or there is no more utang.”

That is what you call, reference of issues to a commissioner. That will shorten the proceedings because if the judge will go over the documents one by one it will take time.

EXAMPLE: A boundary dispute between two neighboring landowners. Plaintiff says, “Your fence

has already encroached on my property.” Defendant answers, “No, no, no. This is the boundary.” So bakbakan na naman kayo. The court will ask,” Is it true you encroached on his property?” How will the court know that? I think that is very technical. It is a geodetic engineer surveyor to resolve the issue. He will plot the measurement and then he will submit a sketch. Then we will find out if there is an encroachment or not.

As far as the judge is concerned, he does not know anything about description of the land, he is not a surveyor, not a geodetic engineer. So it will be faster if a geodetic engineer surveyor will be appointed. What do you call this surveyor? He is a commissioner.

(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY JUDGMENT, OR OF DISMISSING THE ACTION SHOULD A VALID GROUND THEREFORE BE

FOUND TO EXIST; Q: What do you mean by judgment on the pleadings? What do you mean by summary judgment? A: That was already mentioned under Rule 17, Section 1. But we will not take them up because

they will be taken up when we reach Rule 34 and 35. Judgment on the pleadings or summary judgment are remedies or procedure devised under the Rules of court for the speedy determination of a civil case. It is one way of speedily terminating a civil case. Once it is rendered, tapos na ang kaso.

The court, during a pre-trial, is authorized to render a judgment on the pleadings or a summary

judgment if there is a ground. In the same manner, the court may order the dismissal of the action should a valid ground therefor be found to exist because it is possible that based on the complaint, there is no ground to dismiss but in the course of pre-trial, the plaintiff may admit something which turns out to be a ground for dismissal.

EXAMPLE: According to the plaintiff, the defendant borrowed money from him three years ago

and did not pay. But during the pre-trial, defendant said, “Actually, judge, hindi man yan three years ago. That was thirty years ago!” Plaintiff answered, “Actually, judge, totoo yan.” So judge said, “My golly, the action has prescribed so I will order the dismissal.” These things can come out in the pre-trial.

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(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE PROCEEDINGS;

This means that the case will be suspended, nothing will happen in the meantime. Hindi naman

dismissed. The case will just be held in abeyance. EXAMPLE: Suppose the parties will say, “Judge, so far we cannot settle. But maybe if you will give

us one or two months we will be able to come up with a solution. We will meet once every three days para mag-istorya.” I think that is a good ground. In other words, pwede pa silang mag-areglo, o sige! Because the law encourages amicable settlement.

Q: Is there a provision in the Rules on the suspension of proceedings in relation to what we are

talking about now? What are the possible grounds for suspending the proceedings in a civil case? A: Rule 20, Section 8 on suspension of actions.

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

by the provisions of the Civil Code. (n)

Actually, Section 8 points to Article 2030 of the New Civil Code:

Art. 2030. Every civil action or proceeding shall be suspended:

1. If willingness to discuss a possible compromise is expressed by one or

both parties; or

2. If it appears that one of the parties, before the commencement of the

action or proceeding, offered to discuss a possible compromise but the other

party refused the offer.

The duration and terms of the suspension of the civil action or proceeding

and similar matters shall be governed by such provisions of the rules of court

as the Supreme Court shall promulgate. Said rules of court shall likewise

provide for the appointment and duties of amicable compounders. So a civil action may be suspended if at any time one of the parties offered to discuss a possible

compromise because the policy of the law is to have civil cases settled between the parties amicably. Let the parties talk among themselves to come up with the possibility of amicable settlement even if one of the parties refuse to accept such an offer.

(i) SUCH OTHER MATTERS AS ANY AID IN THE PROMPT DISPOSITION OF THE ACTION.

That is very broad – any other matter which will hasten the case. Anything under the sun can fall

under this.

PURPOSE OF A PRE-TRIAL A review of Section 2 will show that the primary purpose of a pre-trial is how to end the case

immediately because of amicable settlement. If the parties can settle, then there is no need to proceed to trial. But if for valid or serious reason they cannot settle, because the court can only encourage and not force a settlement, then they shall proceed with the pre-trial to find out if we can have the case tried speedily and decided immediately by talking about other things like amending the pleadings, stipulation of facts, admission of documents to avoid unnecessary proofs, limitation in the number of witnesses. So if we cannot settle, we can talk of other things to speedily terminate the case. Instead of trying the case for two years, we can probably finish in six months.

DEVELOPMENT BANK vs. COURT OF APPEALS 169 SCRA 409

NOTE: This case penned by Justice Narvasa, is practically all about pre-trial. It is

actually the bible on pre-trial. And this is what exactly Justice Narvasa said:

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HELD: “Everyone knows that a pre-trial in civil actions is mandatory, and has been so

since January 1, 1964 (effectivity of the Revised Rules of Court). Yet to this day its place in the scheme of things is not fully appreciated, and it receives but perfunctory treatment in many courts [Meaning, it is only complied with for the sake of compliance.] Some courts consider it a mere technicality, serving no useful purpose save perhaps, occasionally to furnish ground for non-suiting the plaintiff, or declaring a defendant in default, or, wistfully, to bring about a compromise. The pre-trial device is not thus put to full use. Hence it has failed in the main to accomplish the chief objective for it: the simplification, abbreviation and expedition of the trial, if not indeed its dispensation. This is a great pity, because the objective is attainable, and with not much difficulty, if the device were more intelligently and extensively handled.”

The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of

Rule 18.

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. (n) This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to

comply with due process. Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that the case be set for trial and you will be given a notice of pre-trial from the clerk of court. The notice of pre-trial shall be served on counsel or on the party who has no counsel.

Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party

– dalawang notice – notice to the lawyer is not notice to the party, as an exception to the Rule 13. But NOW, to simplify the job of the court processor, the rule is, notice to the counsel is now notice to the party.

ARCILLA vs. ARCILLA

138 SCRA 560 FACTS: There was a pre-trial conference on July 29, where all the parties are notified

through their lawyers pursuant to Section 3. They appeared but somehow the pre-trial was terminated on July 29. The court decided to reset the pre-trial on Oct. 2. The parties agreed. Normally, the procedure is, when that happens, there will be another written notice. There should be another written notice sent to the lawyers and parties.

In this case, no such written notice was issued. On Oct. 2, the defendant did not appear. With that, he was declared to have lost his rights to present his side. He was considered in default. He questioned the order on the ground that he did not receive any notice on the Oct. 2 pre-trial conference. Therefore, all subsequent proceedings, including the judgment rendered against the defendant were void. Is he correct?

HELD: “At first blush, petitioner’s aforesaid contention appears very tenable, for indeed

it is settled that a declaration of default, in the absence of a notice of pre-trial constitutes denial of due process. But a deeper examination of the pleadings and the record of the case would show that petitioner was present during the pre trial conference on July 29, 1975 when the lower court re-set the pre-trial to October 2, 1975. On the said date, however, although notified, both petitioner and his counsel did not appear, hence, the declaration of default.”

So when the lower court reset the pre-trial on Oct. 2, the defendant although ratified VERBALLY

earlier, he failed to appear that is why he was penalized under Section 5. When the court reset the pre-trial, he agreed. He already knew. Notification need not be too technical. Despite the lack of a written notice, the defendant was penalized in the ARCILLA case.

JBD 12

Sec. 4. Appearance of parties. It shall be the duty of the parties and their

counsel to appear at the pre-trial. The non-appearance of a party may be

excused only if a valid cause is shown therefor or 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. (n)

There must be notice of pre-trial which will be issued after you comply with Section 1. Then there

will be a schedule. The notice will be served upon the counsel or upon a party, assuming that he is not represented by a lawyer. The counsel served with such notice is charged with the duty of notifying the party represented by him.

And under Section 4, it shall be the duty of the parties and their counsel to appear at the trial.

Meaning, the lawyer alone who is there will not suffice. Kailangan dalawa kayo. Q: Suppose the lawyer will say, “Well, your honor, I am here. Anyway, appearance by counsel is

appearance by party.” Puwede ba yan? A: Ah hindi yan puwede because in a pre-trial, the law requires the presence of the party and his

counsel because the purpose of a pre-trial is to consider the possibility of an amicable settlement. Q: Can the lawyer enter into an amicable settlement with the adverse party? A: No, you cannot. The lawyer has no power or authority because amicable settlement is a matter

of bargaining. EXAMPLE: Defendant says, “Yung interest na na-due, hatiin na lang natin. You condone half of it,

and bayaran ko is fifty percent na lang. And give me 24 months to pay.” The lawyer says okay. Then pag sabi mo sa client, baka magalit yon, he might fire you! Pera gud niya yon. That is why the parties and their should both be present. And that is also the reason why a notice of pre-trial should be given to the party.

Section 3 says “a counsel served with such notice is charged with the duty of notifying the party

represented by him.” That is new provision. The OLD LAW is, based on decided cases, aside from notice to the lawyer, there must be another notice to the party. So if you notify the lawyer but you did not send a separate notice to the party and therefore the party did not appear, you cannot take it against him. Under Rule 13, notice to lawyer is notice to party, except in pre-trial, sabi ng SC. That is the old jurisprudence – OBSOLETE!

But the PRESENT RULE is: Notice to lawyer is notice to party. Q: Is it possible for a party who will not appear a pre-trial but his appearance is not necessary? A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a representative shall appear in

his behalf duly authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, etc.

EXAMPLE: You tell your client, “We will have a pre-trial next week and your presence is

necessary.” Client: “But I am leaving for America tomorrow. I cannot be there.” Lawyer: “Is there anybody whom you can authorize, take your place?” Client: “Yes, my brother or my manager.” Lawyer: “Okay, you write a written authority that you are authorizing your brother to appear in your behalf with full power to settle.” Yan and tinatawag na “Power of Attorney.” Intiendes?

Meaning, you can delegate somebody who has a written authority. Sometimes it is the lawyer who

is given the Power of Attorney authorizing him to enter into an amicable settlement. Walang Problema yan. Otherwise, you will see in the next section what is the effect if you fail to appear in a pre-trial –automatic, talo ka sa kaso.

Q: Suppose one of the parties in the case is a CORPORATION. A corporation cannot appear

because it has no physical existence. Who is authorized to appear in a pre-trial in order to enter into an

JBD 13

amicable settlement? Are the managers or vice-president, authorized to appear in a pre-trial in behalf of the bank which is a party to the case?

A: NO! Even the president or the chairman of the board has no power. Q: Who can bind a Corporation? A: Only the Board of Directors has the authority to bind a corporation. Q: If there will be a pre-trial of a case involving one of the banks in Manila but the case is in Davao,

am I saying that everytime there is a pre-trial all the members of the Board will fly to Davao to attend the pre-trial and pass a resolution inside the courtroom?

A: No. The Board can pass a resolution naming the person who will represent the corporation. So, the manager for example, can appear in the pre-trial provided he is authorized through a board resolution.

Again, the RULE is: Both the lawyer and the party should appear in the pre-trial because the first

purpose of pre-trial is the possibility of an amicable settlement and the lawyer alone has no authority to enter into an amicable settlement.

Non-appearance may be EXCUSED only if:

1. A representative shall appear in his behalf fully authorized in writing (e.g. SPA) 2. For a valid cause – example, if you are sick.

Q: If it is a corporation, what is that authority? A: It is a board resolution because only the board of directors has the authority to bind the

corporation.

EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL

Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear

when so required pursuant to the next preceding section shall be cause for

dismissal of the action. The dismissal shall be with prejudice, unless

otherwise ordered by the court. A similar failure on the part of the defendant

shall be cause to allow the plaintiff to present his evidence ex parte and the

court to render judgment on the basis thereof. (2a, R20) Q: What happens if it is the plaintiff who failed to appear in the pre-trial? If the PLAINTIFF fails to appear, his case will be dismissed for not appearing. And as a rule, the

dismissal is with prejudice. Pag dismiss, that is the end of the case. It has the same effect as Rule 17, Section 3: Failure to appear during the trial for the presentation of his evidence-in-chief. So, if the plaintiff fails to appear during the trial when it is his turn to present his evidence, under Rule 17, his case shall be dismissed and generally the dismissal is with prejudice, an adjudication upon the merits. (Res Adjudicata applies).

The old rule was that the plaintiff will be declared non-suited. NOW, it shall be a cause for

dismissal of the action. Q: Is there any difference between non-suited and dismissal of action? A: There is suppose to be a difference based on the case of

BA FINANCE CORP. vs. COURT OF APPEALS

224 SCRA 163 [OBSOLETE!] HELD: When the defendant moves to dismiss the case, then you are also killing your

counterclaim. If you are, the defendant you should not move for the dismissal. You only move to declare the as non-suited because when the plaintiff is non-suited, he is bared from proving his cause of action but the case is not dismissed. Since the case is not dismissed, it is like the plaintiff who is in default.

JBD 14

Ngayon wala na yan because now, you can have the case dismissed but your counterclaim is still alive. So, the ruling in BA FINANCE CORP. is now OBSOLETE.

Q: What happens if it is the plaintiff who failed to appear in the pre-trial? A: If it is the DEFENDANT who failed to appear, the law says, it shall be a cause to allow the

plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof. You will notice that if it is the defendant who failed to appear under the old law, he will be

considered as in default. NOW, the word ‘default’ is avoided – “it shall be a cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.” That is the same effect as the old rule.

Q: Why is the new rules avoiding the word ‘default’? A: Because, strictly you cannot really have the defendant declared in default when he has filed an

answer. Kaya nga the Rules of Court was very clear in the ‘64 Rules by saying “considered as in default” to distinguish it . But the confusion is still there eh. In other words, to avoid confusion, the plaintiff will be allowed to present evidence ex parte. Para na ring ‘in default’ without using the word ‘default.’

Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed to present his evidence ex party.

So parang in default ang defendant. Now, what is the REMEDY of the defendant? Because if you look at Rule 9 on default, the proper motion for the defendant in default is to file a motion to lift the order of default on the ground of F.A.M.E. and that he has a meritorious defense. Is that also the remendy for the defendant who failed to appear in the pre-trial?

A: NO, that is the case of

JUNGCO vs. COURT OF APPEALS

179 SCRA 213 [1989] HELD: Under Rule 9 on default, if you are declared in default, you only file a motion to

lift the order of default and you have to allege that you have a meritorious defense. But in Rule 18, when you file a motion, it is a simply a motion for reconsideration where you will state the reason why you failed to appear and ask that the order be reconsidered and that the judgment be set aside.

Under Rule 18, there is no use to say that you have a meritorious because you have already filed an answer. The defense is already there. Unlike in defaulted defendant, the court has no idea what is your answer kaya nga you must convince the court that you have a meritorious defense.

So a simple MOTION FOR RECONSIDERATION is sufficient. Q: Assuming that the plaintiff is already presenting evidence, and the defendant filed a motion for

reconsideration. The court reconsidered and recalled the plaintiff’s ex-party presentation of evidence. Do we they have to go back to pre-trial.

A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409) EXCEPTION: YOUNG vs. CA, 204 SCRA 584

General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS

169 SCRA 409 [1989] HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the

plaintiff continue and just let the defendant cross-examine the plaintiff’s witnesses. As a general rule a second pre-trial cannot be granted, the remedy instead is to go to trial.

Exception: YOUNG vs. COURT OF APPEALS

204 SCRA 584 [1991]

JBD 15

HELD: “The pre-trial stage is completed after a party had been ordered non-suited and the complaint is dismissed or after the court allows the plaintiff to present his evidence ex-party. The order lifting it does not revert the action to its pre-trial stage, or authorize, much less, a second pre-trial UNLESS the parties themselves had voluntarily agreed that the case be set anew for pre-trial. Neither the Rules nor the doctrine bars the parties from agreeing, after such lifting, to hold a pre-trial and to effectively accomplish its objectives.”

PRE-TRIAL BRIEF

Sec. 6. Pre-trial brief. 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;

(b) A summary of admitted facts and proposed stipulation of facts;

(c) The issues to be tried or resolved;

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

(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. (n)

This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is

not new because this was a requirement in SC Circular No. 1-89 which was issued on January 19, 1989. The submission of pre-trial briefs by lawyers has been required by that Circular. This circular is now incorporated.

Take note that at least three(3) days before the date of pre-trial the parties’ lawyers should file pre-

trial briefs to be furnished with each other. In that brief, you summarize everything covered by your pleadings. It contains cause of action, defenses, etc. The court, instead of reading the pleadings and answer, only the document where you condensed everything will be read. It contains: Cause of action; defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the documents or exhibits you would like the present; or who are the witnesses and what are they going to testify, etc. That’s a summary of everything that is going to happen from the beginning of the trial up to the end.

Q: What happens if a party fails to file a pre-trial brief? A: Last paragraph, “Failure to file the pre-trial brief shall have the same effect as failure to appear a

the pre-trial conference.” So, if it is the PLAINTIFF who failed to file a pre-trial brief, his complaint may be ordered dismissed. If it is the DEFENDANT who failed to file a pre-trial brief, that would be a cause for the court to allow the plaintiff to present his evidence ex-parte.

Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be

penalized by the court with a dismissal of his complaint? A: In the following instances:

1.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to prove his cause of action (Rule 17, Section 3);

2.) Failure to appear in the pre-trial conference (Rule 18, Section 5); 3.) Failure to file a pre-trial brief (Rule 18, Section 6)

Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be

allowed to present his evidence ex parte and judgment be rendered based purely on such evidence? A: In the following instances:

1.) Failure to file an answer under Rule 9 on Default; 2.) Failure to appear in a pre-trial conference (Rule 18, Section 5); 3.) Failure to file a pre-trial brief (Rule 18, Section 6)

JBD 16

Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be

recorded. Upon the termination thereof, the court shall issue an order which

shall recite in detail the matters taken up in the conference, the action taken

thereon, the amendments allowed to the pleadings, and the agreements or

admissions made by the parties as to any of the matters considered. Should the

action proceed to trial, the order shall explicitly define and limit the issues

to be tried. The contents of the order shall control the subsequent course of

the action, unless modified before trial to prevent manifest injustice. (5a,

R20)

A pre-trial conference although it is less formal than a trial, that’s why in most cases, pre-trial is not

done in open court but inside the chamber of the judge where the atmosphere is more relaxed because you are going to talk about settlement, eh. However, do not believe that that is just a decoration. That is an official proceeding. Everything there is recorded. According to section 7, after a pre-trial conference is terminated, the court will issue what is known as pre-trial order. That is now expressly required by the rules.

A pre-trial order should state or should summarize everything what was taken up in a pre-trial

conference, the issues to be resolved, the facts to be admitted, etc. what is important there is the third sentence: “Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.” It may be an ordinary sentence but the effect of that is terrible.

Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can

determine the issues based on the admissions and denials in the answer. For instance, there are five issues, they are to be stated in a pre-trial brief. During the pre-trial conference, the court may reject other issues which are not important with the agreement of the parties. Thus, there may be only one real issue like whether or not the loan has been paid. The court may then issue a pre-trial order containing such issue. The defendant may have also several defenses in his answer. After the pre-trial order is issued, such order should be followed. Forget the complaint and the answer.

In effect, the complaint and the answer has already been superseded by the pre-trial order. This

section in effect says that the pre-trial order supersedes the pleadings. That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the

importance of a pre-trial. The Court noted that if there is a pre-trial order because the judge followed Rule 18 religiously, during the trial the judge will not have a hard time in determining what is the issue to be resolved. And babasahin lang niya ay ang pre-trial order. Everything is to be based there. Without the pre-trial order, you will still have to look at the pleadings of both parties. The pre-trial order is a very important piece of document.

There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the

plaintiff is claiming damages from the defendant. His allegations naturally would point out that all fault and negligence is caused by the defendant. As usual, when the defendant files his answer, he is denying that. As a matter of fact, he will claim that the one negligent is the plaintiff. Chances are, since his vehicle was also damaged, the defendant will file a counterclaim. So, pasahan yan!

What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The

plaintiff’s lawyer asked the defendant’s lawyer to define the issues: “ (1.) Is the plaintiff liable for actual damages on defendant’s counterclaim? (2.) Is the plaintiff liable to the defendant on his counterclaim for exemplary damages? (3.) Is plaintiff liable to the defendant on his counterclaim for attorney’s fees and expenses for the litigation?”

So, those were the issues. The plaintiff’s lawyer, siguro hindi nakikinig ba. Judge asked, “O, do

you agree panyeros?” Yes, Okay. When the pre-trial order was issued, those issues were contained. Where’s the defendant’s liability to the plaintiff? Wala na! The issue is whether or not the plaintiff is liable to the defendant. During the trial, the plaintiff presented his evidence to prove the defendant’s liability. The defendant’s lawyer objected on the ground that there was no issue contained in the order

JBD 17

on the liability of the defendant. The only issue is whether plaintiff is liable to the defendant. Naisahan ang plaintiff… akala kasi niya ang pre-trial order is not important.

(Dean did not know how the case ended, but commented: “The plaintiff asked for the amendment

of the pre-trial order because this is a manifest injustice. Plaintiff is the one suing and how he is to be held liable. Now, if I were the judge, I will really modify because it’s unfair no! You are the one suing and now you end up as a defendant. But I will stress to the plaintiff na huwag kang tatanga-tanga sa pre-trial! [gago!])

Now, an example of the last sentence of Section 7 – “UNLESS modified before trial to prevent manifest

injustice – is the case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does not recite the issue, it can still be proven. Under Section 5 of Rule 10, even if an issue was not raised I n a pre-trial order and no one objected to the issue raised, it can be tried and later the pre-trial order can be amended to conform with issue/s raised.

JBD 18

Rule 19 INTERVENTION

This used to be under Rule 12. Now, they are divorced. What is left behind in Rule 12 is Bill of

particulars. And Intervention has been moved to Rule 19. What happened to the original Rule 19? The original Rule 19 on Judgment on the Pleadings was moved closer to Summary Judgment, to Rule 34.

Q: Define intervention. A: An INTERVENTION is proceeding in a suit or action in which a third person, not a party to the

case, is permitted by the court to make himself a party to the case. (33 C.J.S. 447) EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and Rayda signed a promissory note

in favor of Leo.

Q: Leo sues Rucel and Rayda. What pleading should Rucel file to protect herself? A: Rucel should file a CROSS-CLAIM against her co-party Rayda. Q: Leo sues only Rucel. What is the remedy of Rucel to protect herself? A: Rucel should file a THIRD-PARTY COMPLAINT against Rayda. Q: What if Rucel does not file a third party complaint against Rayda? What can

Rayda do to be able to join the case? A: Rayda can, with leave of court, INTERVENE under Rule 19. The initiative should

come from her. So an intervention is related to a third-party complaint. It is a process by which a stranger or a

third party is included in a case, but with the difference that in a third-party complaint, it is the party who brought you in. While in intervention, the initiative comes from the third person and he is known as the intervenor. And the process of entering is called intervention. And take note that a person cannot simply intervene for the sake of intervening. There must be a legal ground for intervention which can be found in Section 1:

Section 1. Who may intervene. A person who has a legal interest in the

matter in litigation, or in the success of either of the parties, or an

interest against both, or 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, with leave of court, be allowed to intervene in the

action. 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. (2[a], [b]a, R12)

Q: What are the grounds for intervention? A: The following are the GROUNDS for intervention:

1.) The intervenor has a legal interest on the matter under litigation; 2.) The intervenor has a legal interest in the success of either of the parties; 3.) The intervenor has a legal interest against both; or 4.) The Intervenor 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.

First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON THE MATTER UNDER LITIGATION;

EXAMPLE #1: Tarzan died survived by his children. Chita is appointed as administrator of his

estate. Chita filed a case to recover a piece of land which he believes belongs to the deceased. The children would like to intervene.

Q: Do children have the legal personality or the right to intervene involving the estate of Tarzan?

JBD 19

A: YES, because they have a legal interest in the matter in litigation. If the case will succeed they will be richer. The property will go to them. (Dais vs. CFI of Capiz, 51 Phil. 396)

EXAMPLE #2: Suppose Victor filed a case against Ping to recover a piece of land. Victor’s children

(Mary, Rose and Ador) would like to intervene contending that when their father (Victor) would die in the future, their inheritance is affected.

Q: Can the children of Victor intervene? A: NO. They cannot intervene the legal interest they are claiming is contingent, expectant – there is

no assurance that your father will die ahead of you. The interest referred to by the law is an interest that is direct immediate, actual existing interest as distinguished from expectant, inchoate or contingent interest. (Garcia vs. David, 67 Phil. 279)

How do you distinguish the second example from the first case? In the first case, the father is dead

and you inherit the property. Technically, the property belongs to you. So the right of the heirs over the property litigated by the administrator is not expectant or inchoate.

Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN THE SUCCESS OF EITHER OF THE PARTIES;

So you are interested in the plaintiff winning or the defendant winning. EXAMPLE : In an action filed by the creditor against the surety only to recover the debt of the

principal debtor without impleading the principal debtor. The principal debtor may intervene if he would like to join forces with the surety.

Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST BOTH PARTIES; I am not interested in the victory of either the plaintiff or the defendant. I am interested with my

victory against both. So it becomes a three-cornered fight. EXAMPLE: Steven Spielberg filed a case against Ridley Scott who has the right to possess the

property and then here I come – I will intervene. I am the one, not both of you, who has the right over the property. Wala kayong lahat!!! Mga ungas!! So bakbakan na iyon. I have a better right against both of you.

Fourth Ground: THE INTERVENOR 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. EXAMPLE: Sonny secures a writ of preliminary attachment against Gemma but the property

attached preliminarily happens to be my property. So I can move to intervene because I am adversely affected by the distribution.

Can you not file a third-party claim if your property is wrongfully attached? YES you can, but that

is not the only remedy. The law allows the third person to file an intervention in the main action.

INTERVENTION, NOT A RIGHT Q: Is the intervention a right or a privilege? A: NO. It is discretionary. A motion for intervention must be filed by the intervenor. And under

Section 1, the court may or may not grant the motion - the court shall consider whether or not the

JBD 20

intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not, the intervenor’s rights maybe fully protected in a separate proceeding.

For example, the case between the original parties is about to end, the trial of the case is about to

end and at that point, you will have to intervene. If you intervene, we will start all over again. So, it will be dilatory. But even if you will not be allowed to intervene, the court may say that you can file your case in the future. You can file a separate action later against the parties.

BAR QUESTION: Now, there are some instances by way of exception when intervention maybe a

matter of right. What are these exceptions? A: The following:

1.) When the intervenor turns out to be an indispensable party; and 2.) Class suit (Section 12, Rule 3)

Rule 3, Sec. 12. Class suit. - When the subject matter of the controversy is

one of common or general interest to many persons so numerous that it is

impracticable to join all as parties, a number of them which the court finds to

be sufficiently numerous and representative as to fully protect the interests

of all concerned may sue or defend for the benefit of all. Any party in

interest shall have the right to intervene to protect his individual interest.

(12a)

Did you notice that last sentence? “Any party in interest shall have the right to intervene.” So, in

other words, in a class suit and you are already included, law says, you have the right to intervene in so far as your individual interest is concerned. So, that would be another instance where intervention seems to be a matter of right rather than a matter of discretion.

WHEN AND HOW TO FILE

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.

Sec. 3. Pleadings-in-intervention. The intervenor shall file a complaint-in-

intervention if he asserts a claim against either or all of the original

parties, or an answer-in-intervention if he unites with the defending party in

resisting a claim against the latter. (2[c]a, R12)

Q: When do you move to intervene? A: Under Section 2, at any time before rendition of judgment by the trial court. So, you cannot

intervene when there is already a decision. Tapos na ang kaso. The trial is already terminated. So the earlier, the better.

And when you file a motion to intervene, the pleading-in-intervention that you want to file should

already be included. Now, under the old procedure, first, you file a motion to intervene. After filing your motion and your motion is granted, then you file your pleading in intervention. So, motion first before pleading. That was the old rule.

NOW, sabay na. The copy of the pleading and intervention shall be attached to the motion and

served on the original parties. That is also in consonance with Rule 15 Section 9 on motions in general.

Rule 15, Sec. 9. Motion for leave. - A motion for leave to file a pleading

or motion shall be accompanied by the pleading or motion sought to be admitted.

(n)

So, in other words, when you file a motion for leave, the pleading must already be included in your

motion. An example is a motion to intervene where it must already be accompanied by the pleading-in-intervention.

JBD 21

Now, what are these PLEADINGS-IN-INTERVENTION? It’s there in Section 3. It’s either a complaint-in-intervention or an answer-in-intervention. So it DEPENDS:

If you are joining forces with the plaintiff, or you are asserting a claim against both, then you file a

COMPLAINT-IN-INTERVENTION. If you are uniting with the defendant to resist the plaintiff, you file an ANSWER-IN-INTERVENTION.

So, these are among the pleadings recognized by the rules. Let’s try to go back to the basic. What

are the types of pleadings allowed by the rules of court? Rule 6, Section 2:

Sec. 2. Pleadings allowed. The claims of a party are asserted in a

complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or

complaint-in-intervention.

x x x x x

Did you notice that “complaint-in-intervention”? So, we are wondering, ano ba itong complaint-in-

intervention? Actually, that is the pleading referred to now in Rule 19.

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. (2[d]a,

R12)

In other words, just like any other complaint, it should be answered within 15 days. A complaint-

in-intervention must be answered within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. So you have 15 days.

Q: Now, suppose there is an amendment of a complaint-in-intervention. What is the period to

answer? A: Let us go back to Rule 11, Section 3:

Sec. 3. Answer to amended complaint. Where the plaintiff files an amended

complaint as a matter of right, the defendant shall answer the same within

fifteen (l5) days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the

amended complaint within ten (10) days from notice of the order admitting the

same. An answer earlier filed may serve as the answer to the amended complaint

if no new answer is filed.

This Rule shall apply to the answer to an amended counterclaim, amended

cross-claim, amended third (fourth, etc.) party complaint, and amended

complaint-in-intervention. (3a)

Q: What is the period to answer an amended complaint-in-intervention? A: It is either 10 or 15 days just like answering an ordinary amended complaint.

DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION There is a case between Pches and John. Tommy intervened while the case is going on. Suppose the

case was dismissed either by the court or the plaintiff withdrew it. Can the intervention proceed independently? Can it proceed when there is no more main action? In the case of

BIG COUNTRY RANCH CORP. vs. COURT OF APPEALS

227 SCRA 161 [1993] HELD: An intervention is merely collateral or accessory or ancillary to the principal

action and not an independent proceeding. It is an interlocutory proceeding dependent on or subsidiary to the case between the original parties. Where the main action ceases to exist,

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there is no pending proceeding wherein the intervention maybe based. If the main action dies, the intervention dies also.

BUT there is another answer given by the SC in the case of:

METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC OF MANILA 189 SCRA 820 [1990]

HELD: When the intervention is granted and the main action is withdrawn or

dismissed, it would be unfair to dismiss the intervention. So the intervention proceeds notwithstanding the withdrawal of the main action.

“The simple fact that the trial court properly dismissed plaintiffs action does not require dismissal of the action of the intervenor. An intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the plaintiff. Where a complaint in intervention was filed before plaintiff’s action had been expressly dismissed, the intervenor’s complaint was not subject to dismissal on the ground that no action was pending.”

So iba na naman ang sinabi. Even if the main action is dismissed, the intervenor can still claim the

benefit of the intervention. So how do you reconcile these conflicting decisions now? Well, I think it DEPENDS on the ground for intervention. To illustrate:

EXAMPLE #1: The creditor files a case against the surety. The debtor intervened. So, he is joining

the surety. Then creditor withdrew the complaint. What will happen to the intervention? The intervention cannot go on because the intervention is actually to assist the surety. So, if the complaint against the surety is dismissed, wala ng utang. There is no more basis to assist the surety. (BIG COUNTRY ruling)

EXAMPLE #2: But suppose Pches filed a case against John claiming that she has a superior right to

posses a piece of land. And then Tommy will intervene also claiming that he has the superior right to possess. So the three of them will fight. And then later, Pches will withdraw the case. What will happen to Tommy’s intervention? The dismissal of the main action does not mean that Tommy cannot prove his right against John. The intervention should continue. Bahala ka kung nag-withdraw ka, basta ako I will continue. I will claim that the land is mine. (METROBANK ruling)

Iyaaaan! It depends on what kind of intervention you are talking about. Now, there an instance when intervention may be confused with another procedure under Rule 3,

Section 19 on Transfer of Interest. For example: When a property under litigation is sold and there is a notice of lis pendens, the person who buys is called the TRANSFEREE PENDENTE LITE. In the case of

SANTIAGO LAND CORP. vs. COURT OF APPEALS

January 28, 1997 FACTS: Rose brought an action against a bank to enforce an alleged right to redeem

certain real properties foreclosed by the bank. With notice of the pending civil action, Leo purchased from the bank one of the properties subject of the litigation. So Leo is now called the TRANSFEREE PENDENTE LITE. And later, Leo filed a motion to intervene. Rose opposed Leo’s motion for intervention.

ISSUE: Is a transferee pendente lite of the property in litigation has a right to intervene? HELD: The SC here made a distinction between the rights of a transferee pendente lite

(Rule 3, Section 19) and an intervenor (Rule 19). “The purpose of Rule 19 on intervention is to enable a stranger to an action to become a

party to protect his interest and the court incidentally to settle all conflicting claims. On the other hand, the purpose of Rule 3, Section 19 is to provide for the substitution of the

JBD 23

transferee pendente lite precisely because he is not a stranger but a successor-in-interest of the transferor, who is a party to the action. As such, a transferee’s title to the property is subject to the incidents and results of the pending litigation and is in no better position than the vendor in whose shoes he now stands.”

“As such, he stands exactly in the shoes of his predecessor in interest, the original defendant, and is bound by the proceedings had in the case before the property was transferred to him. He is a proper, but not an indispensable, party as he would, in any event, have been bound by the judgment against his predecessor.”

“How then can it legally be possible for a transferee pendente lite to still intervene when, for all intents and purposes, the law already considers him joined or substituted in the pending action, commencing at the exact moment when the transfer of interest is perfected between the original party-transferor and the transferee pendente lite? And this even if the transferee is not formally joined as a party in the action. Because the transferee pendente lite simply takes the place of the transferor, he is barred from presenting a new or different claim.”

“On the other hand, one who intervenes has a choice not to intervene and thus not to be concluded by any judgment that may be rendered between the original parties to the action.”

Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no need for you to intervene

because you are already a (necessary) party. On the other hand, an INTERVENOR can decide whether or not he wants to join to be bound by the judgment of the main case. So that is the ruling in SANTIAGO LAND.

There is another case on the issue again of intervention. The case of

FIRST PHILIPPINE HOLDINGS CORP. vs. SANDIGANBAYAN

253 SCRA 30 [February 1, 1996] FACTS: There was a motion to intervene and the trial court denied it. ISSUE: Is a writ of MANDAMUS available to compel a trial court to grant a motion for

intervention? HELD: “As provided under Rule 19, Section 1, intervention shall be allowed in the

exercise of discretion by a court. Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue.”

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Rule 20 CALENDAR OF CASES

Section 1. Calendar of cases. The clerk of court, under the direct

supervision of the judge, shall keep a calendar of cases for pre-trial, for

trial, those whose trials were adjourned or postponed, and those with motions

to set for hearing. Preference shall be given to habeas corpus cases, election

cases, special civil actions, and those so required by law. (1[a], R22)

The clerk of court has a calendar of cases – cases for pre-trial, trial cases, which were postponed.

When will be the continuation of the trial? May scheduling yan eh. Of course, the law says, preference shall be given to certain type of cases like habeas corpus. It is very important because that involves the freedom of an individual.

Sec. 2. Assignment of cases. The assignment of cases to the different

branches of a court shall be done exclusively by raffle. The assignment shall

be done in open session of which adequate notice shall be given so as to afford

interested parties the opportunity to be present. (7a, R22)

For example, in Davao City, there are more than 10 branches. Now, when you file a case, how will

we determine whether the case will be assigned to Judge Malcampo or Judge Quitain or Judge Torres? Raffle ‘yan. Niraraffle ‘yan. I remember the ordinary raffling day in Davao City is every Tuesday. They raffle the cases. All representatives of the different branches are there and then they have a system of raffling. Which case will go to you? Para hindi ka makapili. So, that is how cases are assigned.

So, pag-raffle ng kaso, there should be adequate notice to the parties. This is one section where the

clerk of court had a hard time applying it. Do you know why? Because the present practice, pag-file mo ng kaso, they will immediately raffle it and then i-assign

na sa branch. The branch clerk of court will now issue the summons. Meaning, by the time it reaches the defendant, naka-assign na. Suppose the defendant will object, “When that raffling was done, I was not notified. I will question the raffle because it would seem that the requirement is that the plaintiff and the defendant should be notified of the raffling.” Yaan!

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Rule 21 SUBPOENA

Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed

to a person requiring him to attend and to testify at the hearing or the trial

of an action, or at any investigation conducted by competent authority, or for

the taking of his deposition. It may also require him to bring with him any

books, documents, or other things under his control, in which case it is called

a subpoena duces tecum. (1a, R23)

Rule 21 applies to both civil and criminal cases. Q: What are the types of subpoena under the law? A: The following are the types of subpoena:

1.) Subpoena Ad Testificandum; and 2.) Subpoena Duces Tecum

Now, the first one is commonly known as subpoena for short. So, when you say that refers to the

first one. Q: Define Subpoena Ad Testificandum. A: SUBPOENA AD TESTIFICANDUM is a process directed to a person requiring him to attend and

to testify at the hearing or trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. So you are required to appear there and testify in court.

Q: Define Subpoena Duces Tecum. A: SUBPOENA DUCES TECUM is a process directed to a person where it requires him to bring

with him any books, documents or other things under his control. So, in other words we are more interested in his documents, which are in his custody. Whereas in ad testificandum, we are more interested in his oral testimony.

Now, take note that a subpoena is a process which requires a witness to testify not only during the

hearing or the trial of his case but also any investigation conducted by “competent authority” like quasi-judicial bodies such as the Labor Arbiter or the Senate Blue Ribbon Committee. Now, under Section 1, you may wonder what do you mean by subpoena “for the taking of his deposition”? That because that will clearer when we reach Rule 23. So we will just reserve talking deposition when we reach Rule 23.

Sec. 2. By whom issued. The subpoena may be issued by:

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

b) the court of the place where the deposition is to be taken;

c) the officer or body authorized by law to do so in connection with

investigations conducted by said officer or body; or

d) 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.

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 for appearance or attendance in any court unless authorized

by the Supreme Court. (2a, R23)

Q: Who are authorized to issue subpoena? A: The following: 1. The court before whom the witness is required to attend – the most common is the court where

the court is pending; 2. The place where the deposition is to be taken – we will discuss that when we reach Rule 23;

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3. The officer or body authorized by law to do so in connection with investigations conducted by said officer or body – Now, even administrative bodies or quasi-judicial officers are authorized to issue subpoena like the Labor Arbiter in connection with investigation conducted by said officer or body;

4. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation

pending within the Philippines – So, practically any justice can issue a subpoena to attend a particular case although it is not before the SC. They are empowered to issue a subpoena.

Q: Can you subpoena a PRISONER to appear in court? A: YES, but the law says that the judge should be very careful to find out whether it is issued for a

valid purpose because there is a risk. If a prisoner is going to be brought out in jail because he has to testify in a case, that might be an occasion for him to escape. So, the court should be very careful about that. The court should have to find out whether it is necessary.

And take note, “No person sentenced to death, reclusion perpetua, or life imprisonment and who is

confined in a penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court.” This is something new.

I think this last paragraph is from the case of former Congressman Nicanor de Guzman of Nueva

Ecija who was convicted of gun running. He was sentenced in Muntinlupa then one day, because of subpoena to testify in his hometown, he was escorted in his hometown to attend the fiesta and then I think he just used that as an excuse to attend the fiesta. And that was attacked by the media – why was he allowed to leave the national penitentiary when he is sentenced to reclusion perpetua? So, this paragraph now appears. You cannot remove him from any National Penal institution without authority of the SC.

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. (3a, R23)

Now, actually that is simple. You are required to testify on this date or time or you are required to bring with you the following documents, which was described in the subpoena duces tecum.

Now, can a subpoena be quashed? To quash means to have it dissolved. What are the grounds to

quash a subpoena? Section 4:

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.

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. (4a, R23)

GROUNDS TO QUASH SUBPOENA DUCES TECUM Q: What are the grounds for quashing a subpoena duces tecum? A: The following are the grounds:

1.) If the subpoena duces tecum is unreasonable and oppressive; 2.) The relevancy of the books, things or documents does not appear; 3.) the person in whose behalf the subpoena is issued fails to advance the reasonable cost for

the production thereof.

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First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE AND OPPRESSIVE Well, the best example is if it violates Section 3 – it does not contain a reasonable description of the

book, documents or things demanded. EXAMPLE: I will subpoena a business man to a business company, “Mr. Manager you are required

to bring to court all your ledgers, all your receipts, and all your documents from 1990 to the present.” My golly! That would involve how many truck loads. Meaning, it would involve bringing to court thousand of documents. So, it becomes unreasonable and oppressive. The subpoena duces tecum should be more specific.

Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS DOES NOT APPEAR Meaning, there appears to be no connection between the documents which are being sought, and

the issues in the case. Example, in a collection case, you were required to bring your birth certificate, marriage contract, etc. My golly! Anong pakialam ng mga niyan sa collection case?

Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS ISSUED FAILS TO ADVANCE THE REASONABLE PRODUCTION THEREOF

This is a very common situation: A bank received his subpoena duces tecum, “Present to court the ledger of the return check of

somebody.” And this check was issued and send to you four years ago. Do you know the inconvenience when a company is asked to bring to court documents especially ‘yung matagal na? Practically, the company has to assign the employee out of his usual job. He is pulled out from his usual job to look for these in the archives. Isa-isahin niya iyan. Maybe it will take him two or three days to locate and then he will be required to go to court where you will miss your work because you will be in court and yet the person who demand the subpoena duces tecum has never been bothered to pay service fee for that. Meaning, dapat magbayad siya reasonable cost.

Of course, the law does not say how much. Sa gobyerno nga papirma ka lang diyan ng isang pirma

bayad ka na ng service fee. How much more in the private sector, where you are requiring a company to look for a document? He is the one to look and then somebody will go to court. He will not be reporting for job and yet you have not even offered anything to the company. We experienced this many times subpoena duces tecum, and then the manager of the bank will say, “do we have to comply with these?” Well, you do not want to comply. Puwede man.

When you received the subpoena duces tecum, may bayad ba? Did the person offer any amount

for the trouble in looking for these documents and in going to court? “Wala.” Okay, we will move to quash. In other words, sometimes companies and banks just waived this. Sige lang, bayaan mo na. Maliit na bagay lang iyan. But it is a ground for quashing a subpoena.

GROUND TO QUASH SUBPOENA AD TESTIFICANDUM Q: How do you quash a subpoena ad testificandum? A: The court may quash a subpoena ad testificandum on the ground that the witness is not bound

thereby. Q: When is a witness not bound by a subpoena? A: The best answer is Section 10 of this rule – if your residence is more than 100 kilometers from the

place of trial. So, you cannot subpoena someone from Cebu to come to Davao because that is more than 100 kms. But suppose you are willing to pay for his transportation? Never mind, even if he is

JBD 28

willing to pay the transportation. Pag ayaw niya, wala kang magagawa because it is more than 100 kms.

In either case, whether subpoena duces tecum or ad testificandum, the last sentence says, “You

must also tender the witness fees and kilometrage allowed by this rules.” Ano ba ‘yang witness fees? I think that’s Rule 141, ‘yun bang pamasahe. There is a computation there. How much you have to pay the witness for his transportation and witness fees. That is different from the reasonable cost and reproduction in the first paragraph. So, these are the grounds for questioning a subpoena.

Sec. 5. Subpoena for depositions. Proof of service of a notice to take a

deposition, as provided in 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. (5a, R23)

Now, let’s us skip Section 5 for the meantime because that is deposition.

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 day’s 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. (6a, R23)

The first sentence says, “Service of the subpoena shall be made in the same manner as personal or

substituted service of summons.” That is a new provision. So, the mode of service of summons, personal or substituted is also the manner of serving subpoena. So there is now a substituted service of summons. You can leave it to the wife.

Under the old rule, it says there, the subpoena shall be served personally to the witness. There is no

such thing as substituted service of subpoena because in most cases, when you subpoena somebody, you go to the house, the witness is not there but the wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo ito.” That is substituted service of subpoena. You must serve it personally to the witness. There is no such thing as substituted service of subpoena Under the prior rule.

But NOW, the rule has changed because Section 6 is very clear: “It shall be made in the same

manner as personal or substituted service of summons.” Alright. And take note that You exhibit it to the witness. Then bayaran mo ‘yong kanyang pamasahe. You

must serve the subpoena with a reasonable time to me to allow him to travel. It’s very unbecoming that the witness be serve a subpoena today and he is suppose to testify tomorrow. Suppose he has other commitments, bigyan mo siya ng time. And of course, as we discussed earlier, the reasonable cost of producing the books, documents or things demanded shall also be rendered.

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. (10, R23)

GENERAL RULE: You can be compelled to testify if you have not been serve with a subpoena. EXCEPTION: Section 7 – a person present in court before a judicial officer maybe required to testify

as if he is under subpoena. EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig eh. Audience lang siya. And

then the lawyer will say, “Our first witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot diri. I was

JBD 29

not under subpoena.” NO, You can be compelled because you are present in court. Any person present inside the courtroom can be compelled to testify as if he is under subpoena.

So, if Mr. Pogi believes he will be called and ayaw niya, huwag siyang sumipot sa court. Huwag

kang magtingin-tingin doon. It happened several times. There was an instance I wanted to call a witness several times to surprise him. If I will have him subpoena, baka makabantay. Alam din niya. And then I’ll talk to him. “O punta ka bukas ha? Sigurado ha.” In other words, I’ll have to trick him into going into courtroom and then once inside, my first witness is that guy. Wala kang magawa. Because any person present in court can be compelled to testify because if I will have him subpoena, he will be forewarn. So I do not want to forewarn him.

FAILURE TO APPEAR; CONSEQUENCES Q: How do you compel a witness to attend? Meaning, a witness was subpoena and he did not

show up. What are the consequences of defying a subpoena? A: The consequences are found in Sections 8 and 9.

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. (11, R23)

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. If the subpoena was not issued by a court, the disobedience

thereto shall be punished in accordance with the applicable law or Rule. (12a,

R23)

Q: What are the consequences if the witness refuses to appear after he was subpoenaed> A: The following:

1.) You can ask the court to issue a warrant for his arrest. (Section 8) Parang criminal ba. That’s what you call a warrant to arrest a recalcitrant witness. You move to arrest the witness para puwersahin mo ba;

2.) Declare him in contempt of court for failure to obey the subpoena (Section 9)

ENFORCEABILITY OF SUBPOENA

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. (9a, R23)

Q: When is a witness not bound by a subpoena? A: When his place of residence is more than 100 kms. to the place of trial. Actually, the old rule is

50 kms. lang. Now, the new rule is double na – more than 100kms. So pag sobra ng 100 kms, you cannot compel the witness anymore to appear. Alright, clear so far?

Although, this 100-km distance does not apply if it is a criminal case where the accused would like

to seek the compulsory process issued to secure the attendance of witnesses in his behalf because that is a superior right.

That is how the SC interpreted it in the case of PEOPLE vs. MONTEJO (21 SCRA 722 [1965]),

reiterated in GENORGA vs. QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation applies only to civil cases, but not to criminal cases, especially if the person to be subpoenaed is a defense

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witness because of the constitutional right of the accused which is a right which cannot be curtailed by the Rules of Court.

SUMMONS vs. SUBPOENA

Now, I’ve noticed among laymen that there is a confusion between a summons and a subpoena.

I’ve tried noticing that for years. The client will say, “Nakatanggap ako ng subpoena.” Pagtingin mo summon man under Rule 14. Sometimes, he will say, “Gi-summon ako ng court.” Iyon pala, subpoena. In other words among laymen, they think summon and subpoena are the same but actually we know that they are not.

Summons is in Rule 14 and one good question is, distinguish summon from subpoena. I notice that

there is no author has ever bothered to explain at least to outline an answer in his book. I’ve gone to many books in remedial law, I still have to see an author who says in his commentaries, summons and subpoena are two different things and these are the distinctions?

Now, suppose that will be asked in the bar, do not be afraid simply because you have not read it in

the book. If you know an idea, a legal concept – summons, alam naman ninyo ‘yan; subpoena – actually you can answer. You do not have to rely to any author in answering the question.

As a matter of fact, I remember when I was taking the BAR, I never bother to read the distinction of

any author. Why? Because how can I memorized all of these distinctions in all subject? Impossible ‘no? It’s impossible for me to memorize everything that the author said about distinctions and I don’t have to rely on any book. That’s the best. Now, yong mga author, they only try to make your job easier by outlining the distinctions between this and that. But suppose there will be a question where you are asked to differentiate this from that and you have not read that in any book, mag-panic ka? Huwag kang mag-panic. In other words, once you know the concept, you can easily give an answer.

Alright, there should be no confusion between a subpoena and a summons. There are 2 different

processes, although laymen would tend to equate one with the other. Q: Distinguish SUBPOENA from SUMMONS. A: The following are the distinctions:

1.) SUBPOENA is directed to a witness; whereas SUMMONS is directed to a defendant in a civil case;

2.) In SUBPOENA, the witness is directed to appear in court or to bring documents; whereas

In SUMMONS, the defendant is informed that a complaint is filed against him and he must file a responsive pleading within the period otherwise, judgment can be rendered;

3.) In SUBPOENA, the witness will be declared in contempt or his attendance can be compelled by the issuance of a warrant for his arrest; whereas

In SUMMONS, a judgment in default will be rendered against the defendant who fails to comply.

4.) SUBPOENA applicable to both criminal and civil case; whereas SUMMONS applies only to civil cases.

5.) In SUBPOENA, there is a 100-km limitation of its enforceability; whereas

In SUMMONS, there is no distance limitation.

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Rule 22 COMPUTATION OF TIME

Section 1. How to compute time. In computing any period of time prescribed

or allowed by these Rules, or by order of the court, or by any applicable

statute, the day of the act or event from which the designated period of time

begins to run is to be excluded and the date of performance included. If the

last day of the period, as thus computed, falls on a Saturday, a Sunday, or a

legal holiday in the place where the court sits, the time shall not run until

the next working day. (n)

This is what is known as “EXCLUDE THE FIRST AND INCLUDE THE LAST DAY” rule. That is

how it has always been done even before this new rule. However, it was not expressed, there is nothing in the previous rules mentioning that rule but that was really the rule followed.

So, if you received the summons today, for example and you have 15 days to answer, you start

counting 1(one) tomorrow, not today because the day of the act or event from which the designated period of time begins to run is to be excluded.

Q: Now what happens if the last day to answer falls on a Saturday, Sunday or a legal holiday? A: Then, the time shall not run until the next working day. So there will be an automatic extension

to Monday or the next working day. So at least, the new rules now embody the rule of computation of time.

Sec. 2. Effect of interruption. Should an act be done which effectively

interrupts the running of the period, the allowable period after such

interruption shall start to run on the day after notice of the cessation of the

cause thereof.

The day of the act that caused the interruption shall be excluded in the

computation of the period. (n)

EXAMPLE: The defendant received the summons and the complaint on a certain day. He has 15

days to file his answer. An example of an act in between which effectively interrupts the running of the 15-day period is when the defendant files a motion to dismiss instead of filing an answer, or a motion for a bill of particulars. In which case, the running of the 15-day period stops. And since it is stopped, you cannot declare the defendant in default.

Q: Now, when will it start to run again? A: It will start to run again when the defendant receives a court order denying his motion to

dismiss. For example: A motion to dismiss is filed on the 7th day (instead of filing an answer). Then after

several weeks, the court denied the motion to dismiss and he received the order of denial. Q: So how many days more to go? A: Meron pa siyang eight (8) days to go. But the minimum guaranteed is five(5) days under Rule 12

and 16. Now, what is the meaning of the last sentence “The day of the act that cause the interruption shall

be excluded in the computation of the period.” Let’s try to illustrate that:

FACTS: January 31 – defendant is served with summons February 8 – defendant files a motion to dismiss February 15 – defendant receives order denying motion to dismiss

Q: What is the deadline for defendant to file his answer?

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A: The 15-day period started to run on January 31. From January 31 to February 8, he consumed 8 days. From February 8 to 15, not counted because interrupted man by motion to dismiss. Then, on February 15, he received the order denying his motion to dismiss.

So the remaining balance of the 15-day period starts to run again. And 15 minus 8 is equal to 7.

Therefore, February 15 + 7 = February 22. That is how you arrive at your (WRONG) answer. Now, I’m sure if you ask majority of lawyers and judges with that kind of problem, they will give

the same answer. But the answer is WRONG. Why? Q: How many days did he consume from January 31 to February 8? A: Hindi naman 8 days eh. 7 days lang because the filing of the motion to dismiss has interrupted. So when you file the motion to dismiss on February 8, interrupted na. So February 8 is not counted.

So you consumed 7 days only. Yaaaannnn……. Therefore, if he consumed 7 days, he has 8 days pa from February 15 to file. So the deadline is

February 23. Yaaaannnn! Because the law says: “The day of the act that caused the interruption shall be excluded in the computation of the period.” The act that caused the interruption is the filing of the motion to dismiss and it was filed on February 8. So, February 8 is already excluded in the computation of the period.

Take note of that, that is a very important point because it may mean the answer is filed on time or

out of time. Kahit sa appeal, applicable din ito. That’s why that provision may sound very innocent but it is a very important provision.

JBD 33

Rule 23 DEPOSITIONS PENDING ACTION

We are now in Modes of Discovery. This is one of the hardest portions of Civil Procedure. I have to admit

even some lawyers and judges have a difficult time in comprehending Modes of Discovery.

A civil case is not a case of technicalities. The rules do not want surprises in civil cases. You lay your cards

on the table. You do not keep your opponent searching in the dark and that principle is manifested in so many

rules.

Example, when a defendant resorts to a specific denial, he is obliged not only to deny the allegations in the

complaint but also the facts that is denied. It is not fair to state that my version is false, without stating your

version. And if you do not make specific denial, there is a general denial, an implied admission.

You cannot also deliberately confuse the defendant by making ambiguous ultimate facts in the complaint to

confuse him. He has the right to clarify the allegation by motion for bill of particulars.

There is also the rule that objections or defenses not pleaded in the motion to dismiss or in an answer are

generally waived. So, if you do not invoke the defense because you want to surprise the plaintiff, you will be the

one who will be surprised because the courts will not allow you. There is no such thing as surprise defense

because under Rule 9, defenses not raised are deemed waived. These provisions of the rules indicate the principle:

LAY YOUR CARDS ON THE TABLE.

BUT there is still an element of surprise whether you like it or not because I’m obliged to state my cause of

action or defense but I’m not obliged to state the facts supporting that defense because the rules even say,

evidentiary matters should not be alleged in the pleading but is only proved in the trial.

So, if I say I am in possession of a particular property for 30 years, you know very well what I intend to prove

but you do not know how I will prove it – the kind of evidence I will present – you know the factum probandum

but you do but you do not know the factum probans. You do not know what documents I will present in court

because I am not obliged to plead document which is not actionable one. You do not know who are my witnesses,

you do not know they will testify.

A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that sense there is still an

element of surprise – you do not know my evidence until the trial or pre-trial.

Q: But if you want to avoid any surprise, is there a way of knowing then?

A: YES. The correct remedy is to apply the modes of discovery. While the modes of discovery is not so

popular among the Filipino lawyers, in America these modes of discovery are popular among lawyers because if

they see that the evidence is strong, they settle the case even before trial. Modes of discovery are not only allowed

but their use is encouraged.

BAR QUESTION: How do you distinguished Bill of Particulars from Modes of Discovery?

A: Bill of Particulars is Rule 12, when you compel the party to clarify vague statements of ultimate facts, but

it is not an instrument to compel the other party to reveal evidentiary facts. The Modes of Discovery are intended

to compel the other party to reveal his evidence and evidentiary facts.

There are actually five (5) Modes of Discovery:

1. DEPOSITIONS – (a) pending action (Rule 23) and (b) before action or pending appeal (Rule 24);

2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);

3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);

4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27); and

5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)

These are devises in the Rules of Court which are intended to compel the other party to reveal his evidences

before the trial. You cannot compel a party to reveal his evidence by a Bill of Particulars because Bill of

Particulars is only intended to clarify vague statements of ultimate facts but evidentiary facts cannot be compelled

so the remedy are Modes of Discovery.

JBD 34

This is another neglected area of the Rules of Civil Procedure where lawyers do not seem to know how to use

the Modes of Discovery, just like the pre-trial, ba. So, long before the trial, I can compel your witnesses to reveal

their testimony under oath through Modes of Discovery. So that during the trial, I would not be surprised anymore

because meron na akong copy of your testimony which is also under oath. And if you have some documents to

present which you are hiding because they are not actionable, puwede man kitang pilitin ba, by applying Rule 27.

So with this, there are no more surprises.

First Mode: Rule 23: DEPOSITION PENDING ACTION

This mode is the most popular among the five. Deposition has two (2) types – deposition pending action

(Rule 23) and depositions before action or pending appeal (Rule 24). But actually Rule 24 is not new because that

is Rule 134 (Perpetuation of Testimony).

But before we discuss Rule 23, I will give you a general idea about what Rule 23 is all about.

EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B. Now, of course, if A and B

will testify, how will they testify, that I do not know. But I want to know exactly what they will say during the

trial, including you.

Q: How do I apply Rule 23?

A: I will take your deposition. Meaning, I will take your testimony in advance by compelling you to appear

before someone whom we call a Deposition Officer – the judge, or any judge, or even a notary public - who can

administer oath. And then before him, I will be asking now questions and you have to answer under oath. Your

answers will then be recorded including that of your witnesses.

Therefore, during the trial, when you or your witnesses will testify, there is no more surprise testimony that

you can give me because I already heard you in advance. You cannot contradict your answer. This is what you

call deposition taking.

Now, if I can do that to you, you can also do that to me. The defendant can also use that against the plaintiff.

Q: How do you define deposition?

A: DEPOSITION is the written testimony of a witness given in the course of a judicial proceeding, in

advance of the trial or hearing, upon oral examination or in response to written interrogatories, and where an

opportunity is given for cross-examination. (16 Am. Jur. 699)

When I take the deposition of somebody, my opponent has the right to cross-examine the same witness. So

practically, it’s a dress rehearsal for the trial when I ask questions, my opponent can ask questions also. The

questioning of the witnesses is done the way it is done during the trial. The witness of the opponent has to

undergo the same procedure in the rules of evidence. That is Section 3:

Sec. 3. Examination and cross-examination. Examination and cross-examination

of deponents may proceed as permitted at the trial under sections 3 to 18 of

Rule 132. (3a, R24)

Q: Distinguish a deposition from an affidavit.

A: Affidavit is also a sworn statement of a witness but the statement is taken ex-parte (no cross-examination).

But in deposition there is cross-examination, there is a confrontation as if he is already testifying in court.

Section 1. Depositions pending action, when may be taken. By leave of court

after jurisdiction has been obtained over any defendant or over property which

is the subject of the action, or without such leave after an answer has been

served, the testimony of any person, whether a party or not, may be taken, at

the instance of any party, by deposition upon oral examination or written

interrogatories. The attendance of witnesses may be compelled by the use of a

subpoena as provided in Rule 21. Depositions shall be taken only in accordance

with these Rules. The deposition of a person confined in prison may be taken

only by leave of court on such terms as the court prescribes. (1a, R24)

Deposition-taking under Section 1 presupposes that there is a pending civil case kaya nga, the title is

depositions pending action. There is an existing civil case and I would like to take the deposition of certain

people.

JBD 35

Q: When there is a pending action, is it necessary that leave of court or permission should be sought for

deposition to be allowed?

A: The rule is, it DEPENDS if there is already an answer or no answer:

1.) If the defendant has already filed an answer and therefore jurisdiction over the person of the

defendant has been obtained, leave of court is not required. All you have to do is send the questions to

the other party;

2.) But if there is no answer, where the court has not yet acquired jurisdiction over the person of the

defendant, it requires a motion.

Another instance where leave of court is required under Section 1 is when what is to be taken is a deposition

of a person confined in prison.

Q: Whose deposition can you take?

A: The law says, you can take the testimony of any person whether a party or not at the instance of any party.

EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his witnesses? Yes, including Mr.

A’s deposition. I can also take the deposition of my own witnesses, even my own deposition. At least, before I

die, nakuha na yung testimony ko. So I can take the deposition of anybody in the world. That’s why the law says,

“the testimony of any person whether a party or not may be taken at the instance of any party.” And of course,

Mr. A can also do what I was allowed to do.

Q: When you take deposition of this person, what do you call him?

A: The accurate term is that, he is called ‘DEPONENT.’ Some people call him witness.

Q: What are the modes of deposition taking?

A: Under the law, there are two (2) recognized modes:

1.) Deposition upon oral examination; and

2.) Deposition upon written interrogatories

The deposition upon oral examination is more popular because it is just like how you question a witness in

court: Questions and answers, then it is recorded. And then later on, the other counsel would ask his questions

and answer. Deposition upon written interrogatories should not be confused with Rule 25 because the former is

governed by Rule 23. Although they use the same words.

Now, as we shall see, there must be a deposition officer and under the law, even a notary public is qualified to

act as deposition officer because he can administer oaths.

Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections 12,13 and 15.

Q: Suppose I would like to take the deposition of Ms. A before a notary public whose office is located

along San Pedro Street. How can I force Ms. A to go to the office of that notary public? Can I force her?

A: If Ms. A is in court, the court can force you by subpoena. But I can also compel Ms. A to attend this

questioning for the purpose of deposition. Section 1 says, “the attendance of witnesses may be compelled by the

use of a subpoena as provided in Rule 21.”

Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a process

directed to a person requiring him to attend and to testify at the hearing or

the trial of an action, or at any investigation conducted by competent

authority, or for the taking of his deposition. It may also require him to

bring with him any books, documents, or other things under his control, in

which case it is called a subpoena duces tecum. (1a, R23)

PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your witness to come here in

Davao to help you and you are even willing to shoulder her transportation, but she refuses.

Q: Can you ask the court in Davao to issue a subpoena compelling such witness to come here and testify

even if the distance is more than 100 kilometers?

A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a deposition officer and take

her deposition.

Q: How can I compel her to go to the office of the notary public in Cebu for the purpose of the deposition?

JBD 36

A: You can get a subpoena from the Cebu court and that is allowed under Rule 21, Section 2 [b] and under

Rule 21, Section 5:

Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:

x x x x x

b) the court of the place where the deposition is to be taken;

x x x x x

Sec. 5. Subpoena for depositions. Proof of service of a notice to take a

deposition, as provided in 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. (5a, R23)

In other words, I will send the notice to my opponent, “I am going to take the deposition of my witness in

Cebu.” And based on that notice, I will go to Cebu and ask the clerk of court of the RTC of Cebu to issue a

subpoena based on the notice to take deposition on the Davao case. And under the Rules, the Cebu RTC has to

issue a subpoena even if the case is not pending in that (Cebu) court because this is only deposition. Kaya nga

under Rule 21, Section 2 [b], a subpoena may be issued by the court of the place where the deposition is to be

taken.

There was an instance before, a Manila lawyer who wanted to take the deposition of somebody in Davao.

Then he applied for a subpoena to require the deponent to appear before a notary public here. At least, tama siya

doon. Ang mistake niya, he applied for a subpoena in the Manila court where the case is pending and the judge

there, maybe he did not read Rule 21, issued a subpoena addressed to the person in Davao to appear before the

notary public in Davao and the witness did not appear. So the lawyer realized na mali siya. So he had to do it all

over again in Davao, not in Manila. The subpoena has no more effect beyond 100 kilometers. It should be filed

not where the case is pending but at the court of the place where the deposition is to be taken. In other words, the

error was corrected, but can you imagine the waste of time and effort.

Generally, depositions are taken at the start of the case before the trial. But in the case of

DASMARIÑAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]

ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can

you still resort to deposition under Rule 23 when the trial is already ongoing or it is only at the

pre-trial?

HELD: “Depositions may be taken at any time after the institution of any action, whenever

necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or

before it; no prohibition against the taking of depositions after pre-trial. Indeed, the law authorizes the

taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional

Trial Court to perpetuate their testimony for use in the event of further proceedings in the said court

and EVEN during the process of execution of a final and executory judgment.”

Meaning, deposition taking is even allowed as part of the execution where the trial is already terminated. This

is called with another name in Rule 39 on execution, satisfaction or effects of judgments. (c.f. Rule 39, Sections

36, 37 and 38)

What can be the subject matter of deposition taking? Section 2:

Sec. 2. Scope of examination. Unless otherwise ordered by the court as

provided by section 16 or 18 of this Rule, the deponent may be examined

regarding any matter, not privileged, which is relevant to the subject of the

pending action, whether relating to the claim or defense of any other party,

including the existence, description, nature, custody, condition, and location

of any books, documents, or other tangible things and the identity and location

of persons having knowledge of relevant facts. (2, R24)

Q: When you take the deposition of a deponent what can you ask? What matters may be inquired into?

JBD 37

A: The law says, the deponent may be examined regarding any matter whether related to the claim or

defense of any other party.

Example: Suppose if there is a case between me and somebody and I suspect Pedro knows

something about the facts but I am not sure, so I will take his deposition. I will start asking questions to Pedro

wherein practically I’m groping in the dark. I just start asking questions left and right hoping that, I may stumble

into something about the case.

Q: Is that allowed? Pataka lang ba ang style of asking questions.

A: YES, it is allowed. Precisely, the mode of discovery is a fishing expedition in the hope that you will

discover something in the course of a questioning. If I already know a fact, there is nothing to discover. It is very

broad that I may discover something in the course of questioning. You can ask the deponent any matter related to

the claim or defense but there are limitations.

LIMITATIONS IN DEPOSITION TAKING

Q: What are the limitations or prohibitions in deposition taking?

A: The following are the limitations in Deposition Taking:

1.) The matter inquired into is not privileged either under the rules on evidence or special law;

2.) The matter inquired into is relevant to the subject of the pending action;

3.) The court may issue orders to protect the parties and its deponents under Sections 16 or 18.

FIRST LIMITATION: That the matter inquired into is not privileged.

There are things which you cannot compel a person to reveal in court. EXAMPLE: You cannot compel the

wife to reveal in court what her husband told her in confidence during their marriage. That is known as the marital

privileged communication rule (Rule 130, Section 24 [a]).

Other privileged communications: Lawyer-Client communication rule (Rule 130, Section 24 [b]); Physician-

Patient communication rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule (Rule 130, Section 24

[d]). Or, business trade secrets such as the formula of your product.

So, if you cannot ask that in a trial, you cannot also ask that in a deposition taking.

SECOND LIMITATION: The matter inquired into is relevant to the pending action.

While deposition taking authorizes a fishing expedition, you are not allowed however, to go beyond the topic.

EXAMPLE: You will ask the witness about an incident which happened and she was supposed to be there.

“Where were you on this date?” “I was there.” “Who was with you?” “I was with my boyfriend.” “When did he

become your boyfriend?” or “How often do you date each other?” or “What’s his favorite color? Malaki ba ang

tiyan niya?” My golly! Those questions are irrelevant. Anong pakialam niyan sa topic? Walang connection ba!

THIRD LIMITATION: The court may issue orders to protect the parties and

its deponents under Sections 14 or 18 of this Rule.

While it is true that leave of court is not necessary anymore, you have to remember that it is related to a

pending case and the court has control over the case. That is why, while leave of court is not necessary, any party

who is aggrieved can go to court and complain. And the court is authorized to issue orders to protect the parties

and its deponents under Sections 16 or 18 of this Rule.

Q: In what proceedings can a deposition be used?

A: It can be used later during the trial of the case, or in supporting or opposing the motion. A good example is

the remedy of summary judgment under Rule 35. Under this Rule, a party can file a motion for summary

judgment to demonstrate that the party has no cause of action. In that sense, I will support my motions with

affidavit, depositions or documents.

JBD 38

USE OF DEPOSITIONS

Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or

an interlocutory proceeding, any part or all of a deposition, so far as

admissible under the rules of evidence, may be used against any party who was

present or represented at the taking of the deposition or who had due notice

thereof, in accordance with any one of the following provisions:

x x x x x

Q: In what proceedings may a deposition be used?

A: The following:

1.) At the trial;

2.) Upon a hearing of a motion; or

3.) Upon a hearing of interlocutory proceeding (e.g. issuance of a writ of preliminary injunction or

attachment)

Q: Against whom may a deposition be used?

A: Against the following:

1.) against any party who was present; or

2.) against a party who was represented at the taking of the deposition; or

3.) against a party who did not appear or represented but was duly notified of the scheduled deposition

taking.

So, the procedure for deposition taking is first, to notify the other party of the date, place and time of the

deposition taking of a person. The other party is free to go there and participate. So if person appeared and

participated, he is bound by the deposition. If he fails to appear but sent a representative, the same effect – the

person is bound. Suppose a person received the notice and never bothered to go or participate, he is still bound

because the law says, for as long as you are notified, you are bound.

So whether you will come or not, you are bound by the deposition taking. In this case, you might as well

show up.

This is one area of procedure in which clients do not understand. Sometimes you will received a notice from

the opposing counsel that he is going to take the deposition of your client and witnesses. The client usually will

oppose because they thought that the only time you are going to tell the story is in court and not in the office of

Atty. Hong Hunk. The lawyer has a hard time explaining deposition taking to the client because the laymen

usually does not know this. They do not know that the other party could compel you under the law.

The process of deposition is so hard to explain to the laymen. He does not understand why the witnesses can

be compelled to testify long before the trial, not inside the courtroom but in somebody’s place and everything is

recorded and under oath. The tendency is, samok kaayo ang imong client. Tell him, “Do not ask questions

anymore, just believe me.”

(a) Any deposition may be used by any party for the purpose of contradicting

or impeaching the testimony of deponent as a witness;

EXAMPLE: I will take the deposition of Mr. Malaki as a possible witness. After listening to his testimony,

his testimony is in my favor. I tell the court during trial that my next witness is Mr. Malaki but since he is busy

and his deposition is taken beforehand, I will no longer present him but instead I will present as evidence his

deposition to take the place of his oral testimony in court.

Q: Is that allowed? Can a deposition substitute for his oral testimony?

A: NO, a deposition can only be used for the purpose of contradicting or impeaching the testimony of

deponent as a witness. It does not exempt the witness from testifying in court. It is only a means of knowing what

the witness will testify.

JBD 39

When you take the deposition of a witness, you are already assured that this will be his story. If I asked you

the same question in court, naturally he will have the same answer. So there are no more surprises. If I am asking

a question identical to my deposition, I expect the answer to be identical during the trial.

Q: Suppose the witness during the trial will reverse his testimony. His testimony in the deposition is favorable

to me but during the trial, pabor naman sa kalaban.

A: I can now use his deposition to destroy him. I will impeach him by showing that the witness is not

reliable. To IMPEACH the testimony of a witness is to destroy his credibility. I will offer in evidence the

deposition for impeachment purposes. This is known as PRIOR INCONSISTENT STATEMENT under the rules on

evidence. They cannot change story during the trial because I can impeach them.

Therefore, a deposition is not a substitute for the testimony of the witness in court. You still have to present

him in court. He has to testify all over again but at least you already have a guideline. So, if he deviates from the

deposition, you can impeach him using the deposition taken under oath earlier.

(b) The deposition of a party or of any one who at the time of taking the

deposition was an officer, director, or managing agent of a public or private

corporation, partnership, or association which is a party may be used by an

adverse party for any purpose;

Q: What is the difference between paragraphs [a] and [b]?

A: The following:

1.) In paragraph [a], it is the deposition of a WITNESS and not a party, while

In paragraph [b], it is the deposition of the PARTY himself.

2.) In paragraph [a], the deposition of witness can be used only for contradicting or impeaching the

testimony of deponent as a witness, while

In paragraph [b], the deposition of a party can be used for any purpose. So it is broader than the first.

ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party) and I have already a

record of his testimony. During the trial if he testifies contrary to the deposition, I could use it to impeach him.

But suppose the deposition is in my favor, I could present the deposition as an admission in my favor. I could use

it as evidence against my opponent. Therefore, I can use it as evidence or I can use it as a tool to impeach or

contradict the other party.

In other words, the deposition of a mere WITNESS is for strict purpose (for impeachment only) and the

deposition of an ADVERSE PARTY is for any purposes because I can use it to impeach or I can use it as

evidence. And if a witness say something in my favor, I cannot use it as evidence. I have to ask the witness to

repeat his statement in court. But if it is a party, I can use it as evidence already under the rule on admission of

evidence that the act or declaration of a PARTY maybe used as evidence against him (Rule 130, Section 26). So,

that is the difference between deposition of a party and a witness.

Q: Suppose the adverse party is a corporation

A: Under paragraph [b], you can take the deposition of any of its officers, directors, or managing agent of the

corporation.

(c) The deposition of a witness, whether or not a party, may be used by any

party for any purpose if the court finds: (1) that the witness is dead; or (2)

that the witness resides at a distance more than one hundred (100) kilometers

from the place of trial or hearing, or is out of the Philippines, unless it

appears that his absence was procured by the party offering the deposition; or

(3) that the witness is unable to attend or testify because of age, sickness,

infirmity, or imprisonment; or (4) that the party offering the deposition has

been unable to procure the attendance of the witness by subpoena; or (5) upon

application and notice, that such exceptional circumstances exist as to make it

desirable, in the interest of justice and with due regard to the importance of

presenting the testimony of witnesses orally in open court, to allow the

deposition to be used; and

JBD 40

Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a deposition of a witness for

contradicting or impeaching his testimony. It is only in paragraph [b] which applies the use of deposition for any

purpose but it refers to the deposition of the adverse party.

Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose.

DEATH

Q: I will take the deposition of Juan who is my witness. During the trial, my next witness is Juan. Do I have

to present Juan or only his testimony in the deposition as evidence?

A: I have to present my witness Juan because under paragraph [a], the deposition is only good for

impeachment purposes but not a replacement for his oral testimony.

Q: Suppose, when I’m about to present Juan during the trial, a day before that he died. So, I have no more

witness. Can I now present his testimony in the deposition as evidence?

A: YES. Under the law, his deposition will take the place of his oral testimony because he is dead. However,

if he is alive, apply paragraph [a] – you cannot substitute his deposition to his oral testimony.

Now, it is true that when you take the deposition of your own witness, you are supplying the other party a

means to impeach the testimony of your witness. But if you look at paragraph [c], it is also important to take the

deposition of your witnesses. The purpose is just in case your witness will die before he can testify in court. At

least, kung nakuha mo na ang deposition niya earlier, masuwerte ka.

THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE HUNDRED (100) KILOMETERS

FROM THE PLACE OF TRIAL OR HEARING, OR IS OUT OF THE PHILIPPINES

EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel him to come to Davao

and testify in a case because of the 100-kilometer rule. The remedy is to go to Cebu and take his deposition there.

When the case in Davao is called, I will tell the court that my next witness is from Cebu and the distance from

Davao is more than 100 kilometers. So I have no choice but to take his deposition there. In this case, I can offer

as evidence his deposition to take the place of his oral testimony. And that is allowed as exception to paragraph

[a].

And if your witness is leaving for abroad, you might as well take the deposition before it is too late, or you

might end up without any witness. That is the advantage of paragraph [c].

WITNESS NOT FOUND

So, if I am unable to procure the attendance of my witness by subpoena means that the witness can no longer

be found. His whereabouts is already unknown but I was able to take his deposition earlier.

(d) If only part of a deposition is offered in evidence by a party, the

adverse party may require him to introduce all of it which is relevant to the

part introduced, and any party may introduce any other parts.

ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part is in my favor but

when he was cross-examined by the other party, he clarified his answers and turned out that his original answers

were not really in my favor.

So there are two parts of the deposition: PART ONE, in the general questions, the answers seem to be in my

favor; PART TWO, when the questions are specific, it turned out that it was not in my favor. So if I am the

lawyer what I will offer is the part one as my evidence because it is in favor of my client. The other party will

present the other part.

In evidence, the party is not obliged to offer in evidence documents which are against his cause. It is now the

job of the other lawyer to offer the other part thereof (c.f. Section 17, Rule 132). So if this is so, the picture

created will only be half of the whole picture.

Q: Is this unethical as it is suppressing the truth?

JBD 41

A: No, I am not suppressing the truth. Lawyers are not allowed to lie. Nowhere in the Legal Ethics is it being

espoused that lawyers are told to lie. In fact, a lawyer must be honest and true for the administration of justice. It

is the lawyer of the other side who has the absolute right to complete the picture by offering the other half. I am

not under obligation to help the other side. A lawyer is no obligation to present everything. He is only under the

obligation to support the interest of my client. What is unethical is when you present something against the

interest of your client. Yaaann!

Q: Is it not twisting the truth?

A: NO. Twisting the truth is changing the facts. I am not changing the facts of the story. I am only

presenting one side of the story. But definitely the other party is not precluded from testifying to present the other

half of the story. If the other party fails to present the other half of the story, that is their problem. Do not blame

me. [hmp!]

Sec. 5. Effect of substitution of parties. Substitution of parties does not

affect the right to use depositions previously taken; and, when an action has

been dismissed and another action involving the same subject is afterward

brought between the same parties or their representatives or successors in

interest, all depositions lawfully taken and duly filed in the former action

may be used in the latter as if originally taken therefor. (5, R24)

Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and there was

substitution. Is there a need of taking depositions again? Will the deposition already taken be also applicable to

the same case although the parties are now different?

A: YES. The substitution of parties does not affect the right to use depositions previously taken.

Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without prejudice.

Jolina re-filed the case. Is it necessary for depositions to be taken all over again?

A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no need

of repeating the whole process.

Sec. 6. Objections to admissibility. Subject to the provisions of section 29

of this Rule, objection may be made at the trial or hearing to receiving in

evidence any deposition or part thereof for any reason which would require the

exclusion of the evidence if the witness were then present and testifying. (6,

R24)

Q: Can you object to the evidence which is being offered during the deposition taking?

A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will rule

on the objection later during the trial.

Sec. 7. Effect of taking depositions. A party shall not be deemed to make a

person his own witness for any purpose by taking his deposition. (7, R24)

We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows nothing,

then he is useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa appendix ng

tao!] You are not my witness.

If after taking your deposition, it turns out that everything you say is against me, am I bound by your

testimony? NO. In fact, it is the other party who will use you as his witness. But definitely, you are not my

witness.

Sec. 8. Effect of using depositions. The introduction in evidence of the

deposition or any part thereof for any purpose other than that of contradicting

or impeaching the deponent makes the deponent the witness of the party

introducing the deposition, but this shall not apply to the use by an adverse

party of a deposition as described in paragraph (b) of section 4 of this Rule.

(8, R24)

GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer

your deposition in court, you are now my witness, especially if your are dead or when you are residing more than

100 kilometers.

EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness.

JBD 42

1.) When I am offering your deposition to contradict or impeach you. So, when I am offering your

deposition to show the court that you are a liar, I am not making you as my witness;

2.) When you offer the deposition of your opponent (adverse party), you are not making him your

witness. That is obvious. Napaka-istupido mo naman! Take note that anything that your opponent

says in the deposition in favor of you will bind you. But if it is not in your favor, it will not bind you

precisely because he is not your witness – he is not expected to say something in your favor.

Sec. 9. Rebutting deposition. At the trial or hearing, any party may rebut

any relevant evidence contained in a deposition whether introduced by him or by

any other party. (9, R24)

It is just like a witness in court. If a witness says something in court, you can always prove that that is not

true. If it is a deposition, the same thing – you can always rebut the truth of what he said in his deposition.

BEFORE WHOM DEPOSITIONS ARE TAKEN

If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer?

Section 10:

Sec. 10. Persons before whom depositions may be taken within the

Philippines. Within the Philippines, depositions may be taken before any judge,

notary public, or the person referred to in section 14 hereof. (10a, R24)

Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are taken?

A: The following:

1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a judge in

Manila to be the deposition officer and he will not be the one to decide. He is only the deposition officer;

2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all

lawyers are notary public. To be a notary public, you have to apply for commission in the court of the

place where you are practicing. If you are a notary public for Davao City, you cannot be a notary public in

any other place. And usually, a commission for notary public is only good for 2 years. After 2 years, you

have to re-apply.

3.) PERSON REFERRED TO IN SECTION 14:

Sec. 14. Stipulations regarding taking of depositions. If the parties

so stipulate in writing, depositions may be taken before any person

authorized to administer oaths, at any time or place, in accordance with

these Rules, and when so taken may be used like other depositions. (24a,

R24)

So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary

public. It can be other person who is authorized to administer oath such as prosecutors, clerk of court who

is a lawyer, labor arbiters, etc. Anyway, they are also authorized to administer oaths.

If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11:

Sec. 11. Persons before whom depositions may be taken in foreign countries.

In a foreign state or country, depositions may be taken (a) on notice before a

secretary of embassy or legation, consul general, consul, vice-consul, or

consular agent of the Republic of the Philippines; (b) before such person or

officer as may be appointed by commission or under letters rogatory; or (c) the

person referred to in section 14 hereof. (11a, R24)

The amendment here again is the persons referred to under Section 14.

So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer, as well

as the consul general, vice-consul, although on a SC circular, if the judge will authorize the taking of deposition

abroad, because this time leave of court is required, you course it to the Department of Foreign Affairs. The

parties are not supposed to communicate directly to the Philippine Embassy.

JBD 43

Q: How about in places where we do not have embassy?

A: Those with country where we do not have diplomatic relations, you have to avail of [b]. So in this case, the

person who is authorize to take the deposition may be the one who is authorized by commission, or if not by

commission, by letters rogatory.

What do you mean by commission or a letters rogatory? Section 12:

Sec. 12. Commission or letters rogatory. A commission or letters rogatory

shall be issued only when necessary or convenient, on application and notice,

and on such terms and with such direction as are just and appropriate. Officers

may be designated in notices or commissions either by name or descriptive title

and letters rogatory may be addressed to the appropriate judicial authority in

the foreign country. (12a, R24)

By COMMISSION, somebody other than Philippine consul… like in Taiwan, we have Philippine Trade

Department in Taiwan because of our trade relations. The court will issue a commission to the head of the trade

mission there to act as deposition officer. Or any other person appointed by the judge by court order.

So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we have no

consulate but I know of a Filipino lawyer who resides there. I will request the court that this Filipino lawyer

abroad be authorized to take the deposition of a person there. If the court agrees, it will issue what is known as a

commission.

But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country.

Q: Define letters rogatory.

A: LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the

case and the name of the foreign witnesses, and is requested to cause their depositions to be taken in due course of

law, for the furtherance of justice, with an offer on the party of the court making the request, to do the like for the

other, in a similar case. (Ballentine’s Law Dict., 2nd Ed., p. 744)

EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in court for the court to

issue a letters rogatory. The judge will make a formal communication to the court in Pyongyang to please take

W’s deposition with the following request: to mail back the answer and offer to return the favor. If the request is

ignored, there is nothing that we can do. But normally, they comply.

So, letters rogatory is a request to the appropriate foreign judicial authority to take the deposition of a witness

who is in their jurisdiction and please send us a copy and we assure you in the future, if you have the same

problem, we will reciprocate.

That is international law. Deposition can be understand by the officer in other country because it is

internationally known. If the officer in the foreign country will not do it, we have no choice because it is only a

request. (kung ayaw mo, huwag mo!)

The SC defined again commission and letters rogatory and distinguished one from the other in the case of

DASMARIÑAS GARMENTS, INC. vs. REYES

225 SCRA 622 [1993]

ISSUE #1: Distinguish a commission from letters rogatory.

HELD: “A COMMISSION may be defined as an instrument issued by a court of justice, or other

competent tribunal, to authorize a person to take depositions, or do any other act by authority of such

court or tribunal.”

“LETTERS ROGATORY, on the other hand, may be defined as an instrument sent in the name

and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon

interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of

the judge or court to whom such letters are addressed.”

“A COMMISSION is addressed to officers designated either by name or descriptive title, while

LETTERS ROGATORY are addressed to some appropriate judicial authority in the foreign state.”

“Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied

for and issued only after a commission has been ‘returned unexecuted’ as is apparent from Form 21

of the Judicial Standard Forms appended to the (1964) Rules of Court.” So as a matter of practice,

JBD 44

the court should first resort to commission. You must allege that the commission has been returned

unexecuted before resorting to letters rogatory.

ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that the

deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in view of

its one-China policy. Can a deposition be taken in Taiwan where the Philippines has no diplomatic

relations because of the one-Chine policy?

HELD: YES. What matters is that the deposition is taken before a Philippine official acting by

authority of the Philippine Department of Foreign Affairs and in virtue of a commission duly issued

by the Philippine Court.

Sec. 13. Disqualification by interest. No deposition shall be taken before a

person who is a relative within the sixth degree of consanguinity or affinity,

or employee or counsel of any of the parties; or who is a relative within the

same degree, or employee of such counsel; or who is financially interested in

the action. (13a, R24)

You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You get

somebody who is not related.

Sec. 15. Deposition upon oral examination; notice; time and place. A party

desiring to take the deposition of any person upon oral examination shall give

reasonable notice in writing to every other party to the action. The notice

shall state the time and place for taking the deposition and the name and

address of each person to be examined, if known, and if the name is not known,

a general description sufficient to identify him or the particular class or

group to which he belongs. On motion of any party upon whom the notice is

served, the court may for cause shown enlarge or shorten the time. (15, R24)

There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon written

interrogatories. The latter is governed by Section 15 which is the most popular: Question-answer and everything

is recorded.

Take note that before deposition is take, there should be notice to the adverse party. The notice shall state the

time and place for taking the deposition and the name and address of each person to be examined.

The last sentence, “On motion of any party upon whom the noticed is served, the court may for cause shown

enlarge or shorten the time.” Suppose you will send me a notice that you are going to take the deposition of a

witness from February 1 to 20 morning and afternoon. Twenty days is too much. I can go to court and complain.

That should be reduced. The court may come in and enlarge or shorten the time. The court may also do this even

if leave of court is not required.

Sec. 16. Orders for the protection of parties and deponents. After notice is

served for taking a deposition by oral examination, upon motion seasonably made

by any party or by the person to be examined and for good cause shown, the

court in which the action is pending may make an order that the deposition

shall not be taken, or that it may be taken only at some designated place other

than that stated in the notice, or that it may be taken only on written

interrogatories, or that certain matters shall not be inquired into, or that

the scope of the examination shall be held with no one present except the

parties to the action and their officers or counsel, or that after being sealed

the deposition shall be opened only by order of the court, or that secret

processes, developments, or research need not be disclosed, or that the parties

shall simultaneously file specified documents or information enclosed in sealed

envelopes to be opened as directed by the court; or the court may make any

other order which justice requires to protect the party or witness from

annoyance, embarrassment, or oppression. (16a, R24)

While it is true that leave of court is not necessary anymore, you have to remember that it is related to a

pending case and the court has control over the case. That is why, while leave of court is not necessary, any party

who is aggrieved can go to court and complain. Deposition is purely your concern provided nobody would come

here and complain. That is one of the limitations of deposition taking.

JBD 45

Q: What orders may court issue for the protection of parties and deponents; when may orders be issued; what

court has power to issue the orders?

A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by any

party or by the person to be examined and for good cause shown, the court in which the action is pending may

issue the following orders:

1.) That the deposition shall not be taken;

2.) That it may be taken only at some designated place other than that stated in the notice;

3.) That it may be taken only on written interrogatories;

4.) That certain matters shall not be inquired into;

5.) That the scope of the examination shall be held with no one present except the parties to the action

and their officers or counsel;

6.) That after being sealed the deposition shall be opened only by order of the court;

7.) That secret processes, developments, or research need not be disclosed;

8.) That the parties shall simultaneously file specified documents or information enclosed in sealed

envelopes to be opened as directed by the court;

9.) The court may make any other order which justice requires to protect the party or witness from

annoyance, embarrassment, or oppression. (Section 16)

Sec. 18. Motion to terminate or limit examination. At any time during the

taking of the deposition, on motion or petition of any party or of the deponent

and upon a showing that the examination is being conducted in bad faith or in

such manner as unreasonably to annoy, embarrass, or oppress the deponent or

party, the court in which the action is pending or the Regional Trial Court of

the place where the deposition is being taken may order the officer conducting

the examination to cease forthwith from taking the deposition, or may limit the

scope and manner of the taking of the deposition, as provided in section 16 of

this Rule. If the order made terminates the examination, it shall be resumed

thereafter only upon the order of the court in which the action is pending.

Upon demand of the objecting party or deponent, the taking of the deposition

shall be suspended for the time necessary to make a notice for an order. In

granting or refusing such order, the court may impose upon either party or upon

the witness the requirement to pay such costs or expenses as the court may deem

reasonable. (18a, R24)

Section 16 and 18 are similar. They both talk about the power of the court to control the deposition taking.

Section 16 is about protective orders BEFORE deposition taking. Section 18 talks about protective orders

DURING the deposition taking where the court may stop or limit the deposition taking.

Sec. 17. Record of examination; oath; objections. The officer before whom

the deposition is to be taken shall put the witness on oath and shall

personally, or by some one acting under his direction and in his presence,

record the testimony of the witness. The testimony shall be taken

stenographically unless the parties agree otherwise. All objections made at the

time of the examination to the qualifications of the officer taking the

deposition, or to the manner of taking it, or to the evidence presented, or to

the conduct of any party, and any other objection to the proceedings, shall be

noted by the officer upon the deposition. Evidence objected to shall be taken

subject to the objections. In lieu of participating in the oral examination,

parties served with notice of taking a deposition may transmit written

interrogatories to the officers, who shall propound them to the witness and

record the answers verbatim. (17, R24)

Q: How is deposition in oral examination taken?

A: It must be under oath. The testimony will be taken by the stenographer. And objections must be recorded.

Evidence objected to shall be taken subject to the objections.

Q: Can the deposition officer make a ruling on the objection/s?

A: NO. He cannot. But the objection will be noted and the deponent must answer. Later on, if that deposition

is offered as evidence in court, the court will now rule on the objection. If the objection is overruled, the answer

as recorded remains. If the objection is sustained, the answer as recorded is erased as if it was never answered.

That is the meaning of “evidence objected to shall be taken subject to the objections.”

So, the deposition officer cannot make a ruling on the objection. It is only the judge of the court where the

case is pending who will make the ruling on it.

JBD 46

Take note that answers to depositions not objected to cannot be objected to in court during the trial, UNLESS

the objection is based on a new ground which only come up after the deposition.

Sec. 19. Submission to witness; changes; signing. When the testimony is

fully transcribed, the deposition shall be submitted to the witness for

examination and shall be read to or by him, unless such examination and reading

are waived by the witness and by the parties. Any changes in form or substance

which the witness desires to make shall be entered upon the deposition by the

officer with a statement of the reasons given by the witness for making them.

The deposition shall then be signed by the witness, unless the parties by

stipulation waive the signing or the witness is ill or cannot be found or

refuses to sign. If the deposition is not signed by the witness, the officer

shall sign it and state on the record the fact of the waiver or of the illness

or absence of the witness or the fact of the refusal to sign together with the

reason given therefor, if any, and the deposition may then be used as fully as

though signed, unless on a motion to suppress under section 29 (f) of this

Rule, the court holds that the reasons given for the refusal to sign require

rejection of the deposition in whole or in part. (19a, R24)

So after the deposition of the deponent is taken, the deposition officer shall submit the deposition to the

deponent for examination. He may change his answers but he must state the reason for the change. And he signs

it, unless the parties by stipulation waive the signing, or the witness is ill, or cannot be found or refuses to sign. In

the latter cases, the deposition will be signed by the deposition officer.

Sec. 20. Certification and filing by officer. The officer shall certify on

the deposition that the witness was duly sworn to by him and that the

deposition is a true record of the testimony given by the witness. He shall

then securely seal the deposition in an envelope indorsed with the title of the

action and marked "Deposition of (here insert the name of witness)" and shall

promptly file it with the court in which the action is pending or send it by

registered mail to the clerk thereof for filing. (20, R24)

Sec. 21. Notice of filing. The officer taking the deposition shall give

prompt notice of its filing to all the parties. (21, R24)

Sec. 22. Furnishing copies. Upon payment of reasonable charges therefor, the

officer shall furnish a copy of the deposition to any party or to the deponent.

(22, R24)

Any party can ask for a copy of the deposition upon payment of reasonable charges therefor.

Sec. 23. Failure to attend of party giving notice. If the party giving the

notice of the taking of a deposition fails to attend and proceed therewith and

another attends in person or by counsel pursuant to the notice, the court may

order the party giving the notice to pay such other party the amount of the

reasonable expenses incurred by him and his counsel in so attending, including

reasonable attorney’s fees. (23a, R24)

Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a

witness in Davao. And he came over. But the deposition did not proceed because the party sending the notice did

not show up. So he caused the other party a lot of inconvenience. The Manila lawyer can file a motion in court to

ask for reimbursement of all his expenses in this case.

Sec. 24. Failure of party giving notice to serve subpoena. If the party

giving the notice of the taking of a deposition of a witness fails to serve a

subpoena upon him and the witness because of such failure does not attend, and

if another party attends in person or by counsel because he expects the

deposition of that witness to be taken, the court may order the party giving

the notice to pay to such other party the amount of the reasonable expenses

incurred by him and his counsel in so attending, including reasonable

attorney’s fees. (24a, R24)

Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition of a

witness in Davao. And he came over. The party sending the notice is also present. But this time it is the witness

who is absent because the party sending the notice forgot to have the witness subpoenaed. Again, the Manila

lawyer can file a motion in court to ask for reimbursement of all his expenses.

Sec. 25. Deposition upon written interrogatories; service of notice and of

interrogatories. A party desiring to take the deposition of any person upon

written interrogatories shall serve them upon every other party with a notice

JBD 47

stating the name and address of the person who is to answer them and the name

or descriptive title and address of the officer before whom the deposition is

to be taken. Within ten (10) days thereafter, a party so served may serve

cross-interrogatories upon the party proposing to take the deposition. Within

five (5) days thereafter, the latter may serve re-direct interrogatories upon a

party who has served cross- interrogatories. Within three (3) days after being

served with re-direct interrogatories, a party may serve recross-

interrogatories upon the party proposing to take the deposition. (25, R24)

The difference between a deposition upon oral examination and written interrogatories is that in oral

examination, the questions and the answers are oral.

In deposition upon written interrogatories, the questions are prepared already in advance and that is direct

interrogatories. And then they furnish you a copy and after receiving it, you may also, within 10 days, prepare

your questions or cross-interrogatories and you also furnish them copies of it. And based on that, they can ask

further questions. If they are now sufficient, the deposition officer shall compound the question one by one but

every question requires an answer.

Practically, there is no personal confrontation of the witness. If your witness is abroad, it is very expensive for

you to go there and conduct an oral examination. So, the practical means is only deposition upon written

interrogatories.

Sec. 26. Officers to take responses and prepare record. A copy of the notice

and copies of all interrogatories served shall be delivered by the party taking

the deposition to the officer designated in the notice, who shall proceed

promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to

take the testimony of the witness in response to the interrogatories and to

prepare, certify, and file or mail the deposition, attaching thereto the copy

of the notice and the interrogatories received by him. (26, R24)

Sec. 27. Notice of filing and furnishing copies. When a deposition upon

interrogatories is filed, the officer taking it shall promptly give notice

thereof to all the parties, and may furnish copies to them or to the deponent

upon payment of reasonable charges therefor. (27, R24)

Sec. 28. Orders for the protection of parties and deponents. After the

service of the interrogatories and prior to the taking of the testimony of the

deponent, the court in which the action is pending, on motion promptly made by

a party or a deponent, and for good cause shown, may make any order specified

in sections 15, 16 and 18 of this Rule which is appropriate and just or an

order that the deposition shall not be taken before the officer designated in

the notice or that it shall not be taken except upon oral examination. (28,

R24)

So the protections provided under Sections 15, 16 and 18 are also applicable in oral examinations.

Are the mistakes in deposition taking fatal?

Sec. 29. Effects of errors and irregularities in depositions.

(a) As to notice.- All errors and irregularities in the notice for taking a

deposition are waived unless written objection is promptly served upon the

party giving the notice.

(b) As to disqualification of officer.- Objection to taking a deposition

because of disqualification of the officer before whom it is to be taken is

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.

(c) As to competency or relevancy of evidence.- Objections to the competency

of a witness or the competency, relevancy, or materiality of testimony are not

waived by failure to make them before or during the taking of the deposition,

unless the ground of the objection is one which might have been obviated or

removed if presented at that time.

(d) As to oral examination and other particulars.- Errors and irregularities

occurring at the oral examination in the manner of taking the deposition, in

the form of the questions or answers, in the oath or affirmation, or in the

conduct of the parties and errors of any kind which might be obviated, removed,

or cured if promptly prosecuted, are waived unless reasonable objection thereto

is made at the taking of the deposition.

(e) As to form of written interrogatories.- Objections to the form of

written interrogatories submitted under sections 25 and 26 of this Rule are

waived unless served in writing upon the party propounding them within the time

JBD 48

allowed for serving succeeding cross or other interrogatories and within three

(3) days after service of the last interrogatories authorized.

(f) As to manner of preparation.- Errors and irregularities in the 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 under sections 17, 19, 20 and 26 of this Rule are waived unless a

motion to suppress the deposition or some part thereof is made with reasonable

promptness after such defect is, or with due diligence might have been,

ascertained. (29a, R24)

So, if you will notice, majority of all the errors are waived if objection thereto is not promptly made.

published by

LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion • Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •

Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo • Rowena Panales • Regina Sison • Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora •

Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao • Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera •

Marlon Cascuejo • Mike Castaños • Karen de Leon • Cherry Frondozo • Jude Fuentes • Maila Ilao • Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili

LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin •

Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin • Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos •

Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco • Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos • Joshua Tan •

Thaddeus Tuburan • John Vera Cruz • Mortmort

JBD 49

Rule 24

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

TWO TYPES OF DEPOSITION TAKING:

1.) Deposition Pending Action (Rule 23) and

2.) Deposition Before Action or Pending Appeal (Rule 24)

In Rule 23, you take a testimony or deposition of people in relation to a pending case. There is already a

pending case in court, so everything is based on a pending action.

The next rule (Rule 24) is deposition before a case is filed. That is why it is called Depositions Before

Action. Actually, the concept of depositions before action is not really new. This is also found in the Rules prior

to 1997 but was found in another rule. It was called Perpetuation of Testimony (Rule 134 of the old Rules of

Court). What the new rules did was simply to transfer Rule 134 to Rule 24.

But how can I apply deposition taking, wala mang kaso? That is why it was known as Perpetuation of

Testimony under Rule 134.

EXAMPLE: Suppose there is a case which I would like to file against B. But for the moment I cannot file it

yet. I intend to file a case against him. So there is an expected case between us in the future only there are certain

things that I still have to do. But if I file a case against B, I have some witnesses who are all ready like A and C.

But the trouble is, I learned lately that A will die soon. He has cancer and C will have to leave for abroad, never

to come back. Definitely, if I will file the case, there are no more witnesses available.

Q: Is there a way of taking testimony or deposition in advance even before wala pang kaso?

A: YES, by applying Rule 24. I will file a petition before the court known as Petition to Perpetuate the

Testimony of A and C. Well, even if there is as yet no case, I will just file a petition under Rule 24. If I can

prove really that the testimony would be relevant or important the court will issue an order allowing me to take

deposition in advance.

Section 1. Depositions before action; petition. A person who desires to

perpetuate his own testimony or that of another person regarding any matter

that may be cognizable in any court of the Philippines, may file a verified

petition in the court of the place of the residence of any expected adverse

party. (1a, R134)

Q: Where will you file it?

A: In the court of the place of the residence of any expected adverse party because there is still no case. So

you have to file an independent petition under Rule 24

Sec. 2. Contents of petition. The petition shall be entitled in the name of

the petitioner and shall show: (a) that the petitioner expects to be a party to

an action in a court of the Philippines but is presently unable to bring it or

cause it to be brought; (b) the subject matter of the expected action and his

interest therein; (c) the facts which he desires to establish by the proposed

testimony and his reasons for desiring to perpetuate it; (d) the names or a

description of the persons he expects will be adverse parties and their

addresses so far as known; and (e) the names and addresses of the persons to be

examined and the substance of the testimony which he expects to elicit from

each, and shall ask for an order authorizing the petitioner to take the

depositions of the persons to be examined named in the petition for the purpose

of perpetuating their testimony. (2, R134)

Sec. 3. Notice and service. The petitioner shall serve a notice upon each

person named in the petition as an expected adverse party, together with a copy

of the petition, stating that the petitioner will apply to the court, at a time

and place named therein, for the order described in the petition. At least

twenty (20) days before the date of the hearing, the court shall cause notice

thereof to be served on the parties and prospective deponents in the manner

provided for service of summons. (3a, R134)

Sec. 4. Order and examination. If the court is satisfied that the

perpetuation of the testimony may prevent a failure or delay of justice, it

JBD 50

shall make an order designating or describing the persons whose deposition may

be taken and specifying the subject matter of the examination and whether the

depositions shall be taken upon oral examination or written interrogatories.

The depositions may then be taken in accordance with Rule 23 before the

hearing. (4a, R134)

If the petition is granted, the court will now allow the deposition of these people to be taken and they are

taken simply by following Rule 23.

Sec. 5. Reference to court. For the purpose of applying Rule 23 to

depositions for perpetuating testimony, each reference therein to the court in

which the action is pending shall be deemed to refer to the court in which the

petition for such deposition was filed. (5a, R134)

Rule 23 says, “the court in which the action is pending.” But there is still no pending action here. So it

automatically refers to the court in which the petition for the perpetuation was filed.

Sec. 6. Use of deposition. If a deposition to perpetuate testimony is taken

under this Rule, or if, although not so taken, it would be admissible in

evidence, it may be used in any action involving the same subject matter

subsequently brought in accordance with the provisions of sections 4 and 5 of

Rule 23. (6a, R134)

Q: How do you use the perpetuation of testimony?

A: The same uses of an ordinary deposition – for impeachment, for any other purpose like the witness is

already dead – the same under Rule 23. So the rule under Rule 23 is also applicable to Rule 24.

Sec. 7. Depositions pending appeal. If an appeal has been taken from a

judgment of a court, including the Court of Appeals in proper cases, or before

the taking of an appeal if the time therefor has not expired, the court in

which the judgment was rendered may allow the taking of depositions of

witnesses to perpetuate their testimony for use in the event of further

proceedings in the said court. In such case the party who desires to perpetuate

the testimony may make a motion in the said court for leave to take the

depositions, upon the same notice and service thereof as if the action was

pending therein. The motion shall state (a) the names and addresses of the

persons to be examined and the substance of the testimony which he expects to

elicit from each; and (b) the reason for perpetuating their testimony. If the

court finds that the perpetuation of the testimony is proper to avoid a failure

or delay of justice, it may make an order allowing the depositions to be taken,

and thereupon the depositions may be taken and used in the same manner and

under the same conditions as are prescribed in these Rules for depositions

taken in pending actions. (7a, R134)

Q: What is deposition PENDING APPEAL?

A: Obviously, there is a case already on appeal. So how do you apply Rule 24 under this kind of situation?

EXAMPLE: There is a case between K and B. K lost. After he received a copy of the decision, he discovered

a material witness whom he failed to present. So this is a newly discovered evidence (NDE). Had K known of his

existence, he would have won the case. So, K will file a motion for new trial based on NDE. If his motion is

granted, there will be new trial.

But, if his motion is denied, K will appeal. While waiting for the decision of the court, the witness tells him

that he will be leaving for Afghanistan and will come back no more. So, K will use Section 7. He will file a

motion asking to take the deposition of a witness pending appeal in the event that his motion for new trial is

granted, because the witness has to go and cannot wait for the new trial.

So in the event that if I win the appeal, the case will go back. I can present the testimony because by that time

he may already be dead. In effect, para na ring deposition before appeal. So it is also perpetuating the testimony

of a possible witness, in the event the appeal is decided in your favor. That’s why it is called deposition pending

appeal. [oo nga ano?]

JBD 51

Rule 25

INTERROGATORIES TO PARTIES Q: Going back to Rule 23, what are the modes of deposition taking? A: The following:

(1) Deposition upon oral examination; and (2) Deposition upon written interrogatories.

Rule 25 should not be confused with Rule 23, Section 25 – yung tinatawag na Deposition Upon

Written Interrogatories. In written interrogatories under Rule 23, questions are already prepared beforehand and they are

going to be submitted to a deposition officer who will propound the questions to the deponent and record the answers under oath. EXAMPLE is, if you want to take the deposition of somebody abroad through a deposition officer abroad. Of course, it would be very expensive to go there and conduct an oral examination. So, the best thing is to resort to deposition upon written interrogatories under Rule 23.

That is not the same as interrogatories to parties under this rule. We are going to distinguish one from

the other later. Interrogatories mean written questions. EXAMPLE: I file a case against Frudo. Frudo filed an

answer and of course, he has his affirmative defenses which are statements of ultimate facts. alang details, no evidentiary facts. But I am interested to find out what are these evidentiary facts I will write a letter addressed to Frudo under Rule 25 and direct him to answer the following interrogatories:

According to your answer, you already paid, please answer the

following questions:

Q1: When did you pay?

Q2: Place?

Q3: Who was present when you paid?

Or Q1: Mr. Frudo, you have been in continuous possession of this piece

of land for 30 years, would you kindly narrate the improvements that

you introduced in the property?

Q2: What year did you introduce them?

Q3: Who are your witnesses? etc…

Now, under Rule 25, you are obliged to answer me also in writing. Then you sign your answer and

you swear to the truth of it. So I will ask you directing a question – How will you prove this? Who are your witnesses? I will compel you to reveal the evidentiary facts. And that process is called written interrogatories to parties. Di para na ring deposition?

I can also ask the same questions through deposition taking under Rule 23. Why do I have to resort

to Rule 25? The trouble is under Rule 23, kukuha pa ako ng deposition officer and I will have to course everything to him. In Rule 25, walang deposition officer. Diretsahan na ito. I will ask you a question and you will answer me. So, less expensive.

But take note, under Rule 25, you can only ask questions to your opponent. You cannot ask

questions to a stranger. Unlike in Rule 23, you can take the deposition of any person whether a party or not. In Rule 25, the questioning is direct. Plaintiff questions the defendant, defendant questions the plaintiff. So, these are the differences between deposition upon written interrogatories and interrogatories to parties.

JBD 52

Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from DEPOSITION UPON WRITTEN INTERROGATORIES (Rule 23).

A: The following are the distinctions:

1.) Under Rule 23 on Depositions upon written interrogatories, the deposition is taken before a deposition officer; whereas

Under Rule 25 on Interrogatories to Parties, there is no deposition officer;

2.) Under Rule 23 on Depositions upon written interrogatories, questions are prepared beforehand. They are submitted to the deposition officer who will ask the deponent the questions and he will record the answers.; whereas

Under Rule 25 on Interrogatories to Parties, the questioning is direct. Plaintiff questions defendant, defendant questions the plaintiff. There is no third person who will intervene; and

3.) Under Rule 23 on Depositions upon written interrogatories, the deposition of any person may be taken, whether he is a party or not, may be taken; whereas

Rule 25 on Interrogatories to Parties applies to parties only. You can send interrogatories only to parties. You cannot ask question to a stranger.

SEC. 1. Interrogatories to parties; service, thereof – Under the same

conditions specified in section 1 of Rule 23, any party desiring to elicit

material and relevant facts from any adverse parties shall file and serve upon

the latter written interrogatories have been served shall file and serve a copy

of the answers on the party submitting the interrogatories within fifteen (15)

days after service thereof unless the court, on motion and for good cause

shown, extends or shortens the time. (1a)

Q: Is leave of court necessary to apply Rule 25? Do I have to apply for a court permission before I

can send interrogatories to parties? A: IT DEPENDS. The Rule says “under the same conditions specified in Section 1 of Rule 23.” So the

manner of resorting to interrogatories are done under the same conditions for taking of depositions. So if an answer has already been served, leave of court is not necessary. If no answer has been

served, although the court has already acquired jurisdiction over the defendant, leave of court is necessary. That is the same under the rule on deposition.

SEC. 2. Answer to Interrogatories - The interrogatories shall be answered

fully in writing and shall be signed and sworn to by the person making them.

The party upon whom the interrogatories have been served shall file and serve a

copy of the answers on the party submitting the interrogatories within fifteen

(15) days after service thereof, unless the courts, on motion and for good

cause shown, extends or shortens the time. (2a)

As I have mentioned, you are mandated by law to answer fully in writing my questions and signed

and sworn by you. As a general rule, you are given 15 days to answer my interrogatories.

SEC. 3. Objections to Interrogatories – Objections to any interrogatories

may be presented to the court within ten (10) days after service thereof, with

notice as in case of a motion; and answers shall be deferred until the

objections are resolved, which shall be at as early a time as is practicable.

(3a)

Q: Suppose you do not want to answer my questions because you believe my questions are

improper, you want to object to my questions, what is your remedy? A: You go to the court where the case is pending and object. Let the court decide whether you will

have to answer or not.

SEC. 4. Number of Interrogatories - No party may, without leave of court,

serve more than one set of interrogatories to be answered by the same party.

(4)

JBD 53

It means, I send to you interrogatories and I thought tapos na. Then I remembered kulang pa pala iyon, so another set – ahh hindi na pwede! Dapat once lang unless the court allows me to send to you another set.

So, as a general rule, when you send questions to your opponent, you better compile. Lahat ng

gusto mong itanong, itanong mo na because no party is given, as a rule, the privilege of securing more than one set of interrogatories.

SEC. 5. Scope and Use of Interrogatories - Interrogatories may relate to

any matters that can be inquired into under section 2 of Rule 23, and the

answers may be used for the same purposes provided in section 4 of the same

Rule (5a)

Q: What kind of questions can you ask under Rule 25 to your opponent? A: The same questions that you can ask in Rule 23 section 2:

1.) anything that is related to the claim or defense provided it is relevant; and 2.) it is not privileged.

Q: Suppose there are already answers to the interrogatories given by your opponent, how do you

use those answers? A: They have the same uses under Rule 23 Section 4 – you can use it for impeachment, or any other

purpose like to prove an admission already made by the adverse party.

SEC. 6. Effect of Failure to serve written interrogatories – Unless

thereafter allowed by the court for good cause shown and to prevent a failure

of justice, a party not served with written interrogatories may not be

compelled by the adverse party to give the testimony in open court, or to give

a deposition pending appeal (n)

This is entirely a new question. It has no counterpart in the old rules. Now, this is a very

controversial section. Actually, you will not understand this until you study Evidence where you can compel the adverse party to testify. This is actually related to Rule 132, Sec. 10 (e) of the Rules of Evidence.

[The following discussions are taken from the Remedial Law Review Transcription 1997-98]

This is related to the rule on Evidence particularly Rule 132, Section 10 [e]:

Rule 132, Sec. 10. Leading and misleading questions. – A question which

suggests to the witness the answer which the examining party desires is a

leading question. It is not allowed except:

x x x x x x

x x x x x x

(e) of a witness who is an adverse party or an officer, director, or

managing agent of a public or private corporation or of a partnership or

association which is an adverse party.

x x x x x x

Rule 132, Section 10 [e] is the provision in the Rules which authorizes a party to call the adverse

party to the witness stand. A party may call the adverse party to the witness stand and interrogate him by leading questions – as an element of surprise. I can call my opponent to the witness stand and he cannot refuse.

I can conduct direct examination on the adverse party and I am entitled under the Rules to ask

leading questions as if he in under cross-examination because he is the adverse party. He is not actually my witness. The purpose here is to actually secure admissions from him while he is in the witness stand because anything that he says against me does not bind me even if I were the one who called him to the witness stand. But anything he might say that is against himself binds him.

Under Section 6, if I intend during the trial to call him to the witness stand, I am obliged to send

him ahead written interrogatories. I have to follow Rule 25. Now, if I do not send written

JBD 54

interrogatories to him, then I have no right to call him to the witness stand. That is why Section 6 is a very radical provision.

So, if I am the lawyer of a party, then binigla mo ako dahil there is really that element of surprise as

it has happened several times before. The lawyer is caught by surprise when the opposing party says that it would present the adverse party to the witness stand. The lawyer is then caught off-guard as he has not talked to his client yet.

Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by arguing that written

interrogatories were not sent under Rule 25. Hence, you can object to the opposing counsel’s motion to call your client to the witness stand.

This practically compels the lawyers to avail of the modes of discovery because if you will not

compel him, chances are Filipino lawyers do not make much use of the modes of discovery. So now, if the opposing counsel suddenly sends interrogatories to you, the he must be planning to call you in the witness stand later.

JBD 55

Rule 26

ADMISSION BY ADVERSE PARTY Rule 26 is also known as REQUEST FOR ADMISSION. Admission by adverse party or request for

admission is similar to interrogatories. You send questions to your opponent and he’s bound to answer in writing within 15 days under oath but the framing of the questions are different.

In a request for admission, you are requiring the opposing party to admit the truth or authenticity

of certain documents. For example: “Do you admit the genuineness of the documents marked as Annex A?” We are talking here of DOCUMENTS which are NOT ACTIONABLE because if the document is actionable then it has to be pleaded properly.

In other words, if I have 20 documents, to find out whether you will admit them or not, I will send

you a copy and ask, “Do you admit the genuineness of this? Do you admit the truth?” [secreeet!] So, the main difference between Rule 26 and Rule 25 is in the framing of the question. If the

question is framed in such a way that the premise is laid down and I ask you whether or not you admit, then the question is proper under Rule 26. BUT if the question if framed in such a way that it is not answerable by yes or no, then apply Rule 25.

Example: Suppose my question is like this – “who was with you?” That is proper under Rule 25.

Pero sabi ko, “A and B were with you, admitted?” That is Rule 26. Kaya nga the way the questions were framed determines what kind of mode of discover are you going to apply.

Section 1. Request for admission. At any time after issues have been joined,

a party may file and serve upon any other party a written request for the

admission by the latter of the genuineness of any material and relevant

document described in and exhibited with the request or of the truth of any

material and relevant matter of fact set forth in the request. Copies of the

documents shall be delivered with the request unless copies have already been

furnished. (1a)

Q: So, what will you request the other party to admit? A: The genuineness of any material and relevant document described in and exhibited with the

request or of the truth in the request. Q: When do you apply this mode of discovery? A: “At anytime after issues have been joined.” Meaning, there is already an answer. Q: Is LEAVE OF COURT required under Rule 26? A: It is totally UNNECESSARY but a request for admission under Rule 26 can only be started

according to Section 1, “At any time after issues have been joined.” So it presupposes that there is already an answer. Unlike in interrogatories, you can do it even before an answer is served provided there is leave of court. This is the second difference between Rule 25 and Rule 26.

Sec. 2. Implied admission. Each of the matters of which an admission is

requested shall be deemed admitted unless, within a period designated in the

request, which shall not be less than fifteen (15) days after service thereof,

or within such further time as the court may allow on motion, the party to whom

the request is directed files and serves upon the party requesting the

admission a sworn statement either denying specifically the matters of which an

admission is requested or setting forth in detail the reasons why he cannot

truthfully either admit or deny those matters.

Objections to any request for admission shall be submitted to the court by

the party requested within the period for and prior to the filing of his sworn

statement as contemplated in the preceding paragraph and his compliance

therewith shall be deferred until such objections are resolved, which

resolution shall be made as early as practicable.(2a)

JBD 56

Q: So, if I send to you a request for admission, what is your duty? A: Within 15 days, you must answer my request under oath, whether admitting or denying my

request. Take note, ‘under oath’ also, parang interrogatories. Q: Suppose you ignore my request within 15 days. You did not do anything. You did not bother to

file any answer to my request for admission. What is the effect of failure to answer the request? A: You are deemed to have admitted. There is an implied admission of all the things that I asked

you to admit. Section 2 says, each of the matters of which an admission is requested shall be deemed unless you file your answer to the request. Meaning, if you will not answer my request, under the law, all the matters which I request you to admit are deemed impliedly admitted. That is the penalty for not bothering to file your reply under Rule 26.

BAR QUESTION : A sends a request for admission to B and B made an admission. However,

during the trial, A did not offer in evidence the answers to the request. Can the court take judicial notice of the answers?

A: Based on THE OLD RULES, it would seem NO because a request for admission is purely an extrajudicial matter between the parties. But if the same question is asked,

NOW, the answer would be YES, because under the NEW RULES, you are already required to file and serve. Therefore the court may now take judicial notice because it already forms part of the record.

BAR QUESTION: Suppose, I will file a case against you and I will attach to my complaint a

Promissory Note – actionable document. In your answer, you deny the genuineness and due execution of the Promissory Note. Meaning, as a defense you allege that your signature is forged. There was a proper denial because it was under oath.

After a week, I will now send to you a request for admission under rule 26, where I attach the same promissory note, and I will ask you, “Do you admit the genuineness and due execution of this promissory note?” Now, when you receive the request, you ignore it because you already denied the promissory note under oath in your answer. So you argue, “Why do I have to deny it again under Rule 26 when I already denied it under Rule 8? There is no need for me to deny it all over again.” I can also argue, “Even if you denied it under Rule 8, under Rule 26 you are obliged to deny it all over again. Otherwise, you are deemed to have admitted the genuineness and due execution of the document.” Who is right between the two of us?

ANSWER: There was an old decided case where the SC seemed to imply that even if the matter is already denied in your pleading, if it is reiterated under Rule 26 (request for admission) it has to be denied all over again otherwise you’re impliedly admitting it. To my mind, that is already answered in the 1988 case of:

PO vs. COURT OF APPEALS

164 SCRA 668 FACTS: There was an allegation made by the plaintiff in his complaint which allegation

was specifically denied in the answer. Plaintiff asked the same question in a request for admission. Inulit niya ang tanong and this time the defendant did not answer the request for admission.

Now, under Section 2, if the party as requested to make an admission does not make so within 15 days, the matter requested is deemed admitted - impliedly admitted - that is the penalty.

If you do not want to respond to my request, everything that I requested will be impliedly admitted. Now, you already denied the allegation in my complaint specifically in your answer, I repeated it in a request for admission and this time, you failed to respond.

Now, under Rule 26, the plaintiff can claim, “Well, since you did not respond, then it is already deemed admitted.” Suppose the other party would say, “No, I already denied that in my answer. There is no obligation for me to the deny the same all over again under Rule 26.”

ISSUE: Is there a need for another denial in the request for admission?

JBD 57

HELD: NO NEED. When a matter is already effectively denied in the pleading, then there is no need to ask it all over again. In other words, what has already been denied is denied and therefore you cannot say that for failure to deny it is already deemed admitted.

“A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact, or documents described in and exhibited with the request, whose purpose is to establish said party’s cause of action or defense. Unless it serves that purpose, it is pointless, useless, and a mere redundancy.”

If we have to answer the same question under the ruling in PO, it would seem that the defendant is

correct. Why do I have to deny, if I have already denied it? So, there is no implied admission.

Sec. 3. Effect of admission. Any admission made by a party pursuant to such

request is for the purpose of the pending action only and shall not constitute

an admission by him for any other purpose nor may the same be used against him

in any other proceeding.(3)

Section 3 is for the purpose of evidence. An admission made by a party pursuant to a request for

admission in only good for that case. It cannot be used in any other case or proceeding. It limits therefore the effectivity of an admission. It is only valid for the pending case.

Sec. 4. Withdrawal. The court may allow the party making an admission under

this Rule, whether express or implied, to withdraw or amend it upon such terms

as may be just. (4)

Admissions made, expressly or impliedly (failure or refusal to respond) are nevertheless binding. Q: Is the party admitting allowed to withdraw, change or amend his previous admissions? A: YES, but with leave of court.

Sec. 5. Effect of failure to file and serve request for admission. Unless

otherwise allowed by the court for good cause shown and to prevent a failure of

justice, a party who fails to file and serve a request for admission on the

adverse party of material and relevant facts at issue which are, or ought to

be, within the personal knowledge of the latter, shall not be permitted to

present evidence on such facts. (n)

This is one of the more controversial sections in the new Rules. This is a mandatory mode of

discovery. “A party who FAILS to FILE and SERVE a request for admission on the adverse party of material and relevant facts in issue which are or ought to be within the personal knowledge of the latter shall not be permitted to present evidence on such facts.” This is A VERY HARSH RULE – a new rule which again shows the intention of the law to compel the lawyers to avail of the modes of discovery.

An example of the section: Let’s assume that there is a fact which I want to prove and I know that

you know but I do not know whether you’ll admit it or not. Under the rules, I have to send you a request for admission to confirm it.

Suppose I do not send you a request because anyway there are very few lawyers who do that. So, I

did not send a request and then during the trial, I will just try to prove it. Then the adverse party says, “Teka muna, what are you trying to prove? You should have sent me a request for admission.” And then you say that you forgot to send one.

So, the adverse party here objects because he argues that I cannot present evidence to prove

something which he could have admitted in a request for admission. This is something which the party could have admitted had I resorted to a request for admission under Rule 26, and since I did not, then he can now prevent me from proving it.

Hence, this is a very dangerous provision. Though, we still have to see a judge applying this rule

because it is practically placing the other party in estoppel. Basically the argument will go like this:

JBD 58

NASTY MACK: “Why did you not send me a request for admission? Had you sent me, I would have easily admitted that but since you did not, then I will bar you form proving it.” (practically every fact aimed to be proved can be objected to

BEN-DEATHA: “How could I have known what facts you will admit and not admit?” NASTY MACK: “Precisely, that is why you should have sent me a copy, STUPID!”

See how dangerous this provision is? I can bar you from proving anything simply because you

failed to avail of the modes of discovery. This was not found in the Old Rules. Generally, matters which are objectionable should be pushed by the party concerned or affected.

That is because it is for his benefit. I do not think it involves public policy that’s why even if you invoke it, the court may still refuse to apply it. Look at the opening of the first paragraph: “Unless otherwise allowed by the court for good cause and to prevent a failure of justice.” So that’s an exception.

So, even if you are correct, the judge may say that it’s too much. Even if you invoke it, the judge

may still say that there will be failure of justice if he will apply it. With more reason, no judge will use it if you will not invoke it. It is practically barring the party from proving his case. That is why even if you invoke this, judges are very careful not to apply this. So, you have to invoke this at least, to call the attention of the judge though the judge may still refuse because there might be a failure of justice.

The only purpose I see for these is to compel the parties and lawyers to avail of the Modes of

Discovery. Let’s go to some interesting cases on request for admission.

REBONERIA vs. COURT OF APPEALS 216 SCRA 627 [1992]

FACTS: A request for admission was sent by a party (Plaintiff) to the lawyer of the

defendant (because anyway, under Rule 13, the general rule is that everything should be coursed through the lawyer) So, the request was sent to the lawyer. Since there was no response, can there be an implied admission?

HELD: NONE. In a request for admission, since we are questioning the party, we should

address it to him, and not to the lawyer. A request for admission should be served upon the party, not his counsel. The general rule under Rule 13 cannot apply where the law expressly provides that notice must be served upon a definite person.

In such cases, service must be made directly upon the person mentioned in the law and upon no other in order for the notice to be valid.

But the case of REBONIA should not be confused with the case of

PSCFC FINANCING CORP. vs. COURT OF APPEALS 216 SCRA 838 [1992]

FACTS : A request for admission was sent to a party. The party told his lawyer to

answer the request. So, it was the lawyer who answered the request for admission under oath.

ISSUE: Was there an effective answer or reply to the request for admission as it was the

lawyer who made the reply ? HELD : YES, because under the Rules, a client can always act through the lawyer and he

is bound by the actuations of his lawyer. This is practically the rule on Agency. If we will

JBD 59

say that the lawyer has no authority even if ordered by the client , then we are altering the Rules on Agency and also the rule that the lawyer can always act in behalf of his client.

And assuming that a lawyer is not authorized to make the complaint, then why is the adverse party the one complaining? It is the client who has the authority to impugn the acts of his lawyer and not the adverse party. Timang!!

Principles to remember in the case of REBONERIA and PSCFC: 1. A request must be directed to the party whose admission is sought. Service of request to any

other person is not a valid request at all.

2. A request must always be directed to the party whose admission is sought, but the latter may delegate to his lawyer the right to answer the request. Such is valid so long as there is a valid authorization.

JBD 60

Rule 27

PRODUCTION OR INSPECTION OF

DOCUMENTS OR THINGS

SEC. 1. Motion for Production or inspection; order – Upon motion of any

party showing good cause therefore, the court in which an action is pending may

(a) Order any party to produce and permit the inspection and copying or

photographing by or on behalf of the moving party, of any designated documents,

papers, books, accounts, letters, photographs, objects or intangible things,

not privileged which constitute or contain evidence material to any matter

involved in the action and which are in his possession, custody or control; or

(b) Order any party to permit entry upon designated land or other property in

his possession for control for the purpose of inspecting, measuring, surveying

or photographing the property of any designated relevant object or operation

thereon. The order shall specify the time, place and manner of making the

inspection and taking copies and photographs, and may prescribe such terms and

conditions as are just (1a)

EXAMPLE: Harry Potter sued Voldemortz. The case involves accounting. Voldemortz is in

possession of several invoices and receipts which he would present in trial. Harry wants to get hold of and inspect all these documents. Since these are not actionable documents, Voldemortz is not required to show or include them in the pleadings. No need to plead. So, Harry want to see these books, photographs, accounts, objects which Harry know Voldemortz will present during the trial. If Harry will ask Voldemortz to show these things, I don't think Voldemortz will accommodate Harry.

Q: In the above example, what is the remedy of Harry? A: Harry will apply Rule 27 by filing a motion in court stating that Voldemortz is in the possession

of such documents and Harry would like to see, inspect or have them copied, provided they are relevant and not privileged. And the court will issue an order directing Voldemortz on a specified time on place to bring them for purposes of inspection, survey, copying, photocopying, etc. Voldemortz have no choice but to show Harry all these objects.

EXAMPLE: Harry sued Voldemortz for recovery of ownership of land. Voldemortz in possession

and such is in a position to enable to properly describe the land and all its improvements. Harry would like to see the property to inspect and survey the same.

Q: What is Harry’s remedy? A: File a motion in court to permit him (Harry) to enter the land for purposes of inspecting,

measuring, surveying or photographing the property. And the court will issue an order specifying the time, place and the manner of inspection. Now, Harry will have an access to the documents, things, land, etc. which are under Voldemortz’s control or possession.

Q: Give the requisites of production or inspection of documents or things (Rule 27)? A: The following are the requisites:

1.) A motion (leave of court) must be filed by a party showing good cause therefor; 2.) Notice of the motion must be given to all other parties; 3.) The motion must sufficiently describe the document or thing sought to be produced or

inspected; 4.) The document or thing sought to be produced or inspected must constitute or contain

evidence material to the pending action; 5.) The document or thing sought to be produced or inspected must not be privileged; and 6.) The document or thing sought to be produced or inspected must be in the possession of the

adverse party or, at least, under his control. (Section 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175; Alvero vs. Dizon, 76 Phil. 637)

JBD 61

NOTE: Rule 27 is not the same as Rule 21 on subpoena duces tecum. Therefore, the next question is: Q: Distinguish Production or Inspection of Documents or Things under Rule 27 from Subpoena

duces tecum under Rule 21. A: The following are the distinctions:

1.) Rule 27 is essentially a mode of discovery (simply to discover), whereas Rule 21 on subpoena duces tecum is a means of compelling production of evidence which

must be brought to court; 2.) Rule 27 is limited to parties in the action, whereas

Rule 21 on subpoena duces tecum may be directed to any person, whether a party or not;

3.) The order under Rule 27 is issued only upon motion with notice to the adverse party, whereas

A subpoena duces tecum under Rule 21 may be issued upon an ex-parte application.

JBD 62

Rule 28

PHYSICAL AND MENTAL EXAMINATION OF PERSONS This is the fifth and last mode of discovery. So in order to even things, I will have to request you to submit to a neutral doctor or psychiatrist for

a physical or mental examination. So the court will issue an order. Konti man lang ang kasong ganito. For example, damage suit in damage cases, the plaintiff may be exaggerating his injuries.

The only way to confirm it is to have another doctor examine him to find out whether his injury is

really genuine or sinadya may be for the purpose of securing a bigger mount of damages. Remember the joke which we mentioned in Evidence about the plaintiff who met an accident na na-dislocate yung shoulder, so permanent ang injury. So when he testified in court, he was asked to raise his arm – higher, higher please! No more – the injury is permanent.

Sabi ng court, “So that was after the accident. What about before the injury? How high can you

raise you arm?” A, ganito o! So there is no more need for a physical examination because he has already demonstrated it (he was just exaggerating his injury).

SEC. 1. When Examination may be ordered – In an action in which the mental

or physical condition of a party is in controversy, the court in which the

action is pending may in its discretion order him to submit a physical or

mental examination by a physician (1)

SEC. 2. Order for examination – The order for examination may be made only

upon motion for good cause shown and upon notice to the party to be examined

and to all other parties, and shall specify the time, place, manner,

conditions, and scope of the examination and the person or persons by whom it

is to be made. (2)

Rule 28 applies in all actions where the mental or physical condition of a party is in question or

controversy. EXAMPLES:

a.) annulment of marriage on the ground psychological incapacity. Under the Family Code, however, the state of psychological incapacity must not have been existing only now for the first time. It must have existed at the time of the marriage;

b.) annulment of marriage on the ground of impotency. The court can issue an order to subject the party to undergo physical or medical examination by a doctor to test whether the allegation is true or not;

c.) annulment of contract on the ground of insanity at the time of execution (lack of consent); d.) Physical disability due to quasi-delicts (e.g. vehicular accident). If I am the defendant and I

believe that you are merely exaggerating the extent of your injury so that your claim for damages will be higher, and diskumpiyado ako sa doctor mo, I will ask the court to issue an order for you to undergo physical examination by another doctor, so that we will know whether your claim is really valid or not.

Q: Give the requisites of physical and mental examination of persons under Rule 28: A: The following are the requisites:

1.) The physical or mental condition must be a subject of controversy of the action; 2.) A motion showing good cause must be filed; and 3.) Notice of the motion must be given to the party to be examined and to all other parties.

Sec. 3. Report of findings. - If requested by the party examined, the party

causing the examination to be made shall deliver to him a copy of a detailed

written report of the examining physician setting out his findings and

conclusions. After such request and delivery, the party causing the examination

to be made shall be entitled upon request to receive from the party examined a

like report of any examination, previously or thereafter made, of the same

mental or physical condition. If the party examined refuses to deliver such

report, the court on motion and notice may make an order requiring delivery on

such terms as are just, and if a physician fails or refuses to make such a

report the court may exclude his testimony if offered at the trial. (3a)

JBD 63

Sec. 4. Waiver of privilege. - By requesting and obtaining a report of the

examination so ordered or by taking the deposition of the examiner, the party

examined waives any privilege he may have in that action or any other involving

the same controversy, regarding the testimony of every other person who has

examined or may thereafter examine him in respect of the same mental or

physical examination. (4)

Example: Maya is subjected to examination by a doctor upon motion by Dino under Rule 28. So

Maya asks for a copy of the finding after examination. When Maya asks for the finding, Dino can also ask for Maya’s examination by the personal doctor of Maya, previously made or thereafter.

The doctor cannot be compelled to relay what the patient told her. So if the doctor refuses to deliver

such report, then under Section 3, he cannot testify. He cannot give evidence. Also, once a party asks for a report of the examination, he automatically waives the privilege of

physician-patient relationship. So if Dino does not want to waive the privilege, he should not ask a copy of the report of the physician.

Q: Going back to the different modes of discovery, when is leave of court required? Not required? A: In the following cases:

1.) Depositions – pending action, no answer filed yet – pending action, answer filed already – before action or pending appeal

REQUIRED NOT REQUIRED REQUIRED

2.) Interrogatories – no answer filed yet – answer filed already

REQUIRED NOT REQUIRED

3.) Request for admission NOT REQUIRED

4.) Production or Inspection of Documents or Things REQUIRED

5.) Physical and Mental Examination of Persons REQUIRED

published by

LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion • Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo • Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo •

Rowena Panales • Regina Sison • Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora •


SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao • Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera • Marlon Cascuejo • Mike Castaños • Karen de Leon •

Cherry Frondozo • Jude Fuentes • Maila Ilao • Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili

LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin • Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin • Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos • Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul

Ongkingco • Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos • Joshua Tan • Thaddeus Tuburan • John Vera Cruz • Mortmort

JBD 64

Rule 29

REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Rule 29 forms part of the study of the modes of discovery. The policy on modes of discovery is that it is allowed and encouraged to determine, at earlier time, essential issues and to promote settlement or expeditious trial. Lawyers should avail of the modes of discovery because they are very helpful in determining the issues and will even provoke a settlement if you believe na wala kang laban.

And there were circulars issued by the SC on this matter. Example Circular No. 13-87 (July 13, 1987)

where the SC said that lawyers and parties should encourage to avail the modes of discovery procedures provided for in the rules. This is a neglected area in judicial process. Its use will expedite the determination of cases.

Mode of discovery are popular in the US. 99 percent of lawyers in the US avail of these procedures.

Practically, all parties avail the same even before the trial. At pre-trial stage, all evidence are already prepared for the case. In the Philippines, it is the exact opposite. Filipino lawyers rarely resort to modes of discovery despite the admonition by the SC. Siguro, it is our culture. As much as possible we want to keep things to ourselves. [pinapalabas na lang sa pwet! he! he!]

Remember DBP vs. CA on the issue of pre-trial where Justice Narvasa complained of the courts and

the parties to avail 100% of the process of pre-trial? There is another case naman involving the modes of discovery where the same Justice lamented the inability of lawyers and even judges to effectively apply the modes of discovery. I’m referring to the case of

REPUBLIC vs. SANDIGANBAYAN

204 SCRA 212 HELD: “It appears to the Court that among far too many lawyers (and not a few judges),

there is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and operation of the modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them— which is a great pity for the intelligent and adequate use of the deposition-discovery mechanism, coupled with pre-trial procedure, could, as the experience of other jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up adjudication.”

“Evidentiary matters may be inquired into and learned by the parties before the trial. The desideratum is that civil trials should not be carried on in the dark. The Rules of Court make this ideal possible through the deposition-discovery mechanism set forth. The experience in other jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one of the most necessary ends of modern procedure: it not only eliminates unessential issues from trials thereby shortening them considerably, but also requires parties to play the game with the cards on the table so that the possibility of fair settlement before trial is measurably increased.”

“The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing under Rule 18, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts relative to those issues.”

“Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has ill his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility, of surprise.”

SEC. 1. Refusal to answer. - If a party or other deponent refuses to

answer any question upon oral examination, the examination may be completed on

other matters or adjourned as the proponent of the question may prefer. The

JBD 65

proponent may thereafter apply to the proper court of the place where the

deposition is being taken, for an order to compel an answer. The same

procedure may be availed of when a party or a witness refuses to answer any

interrogatory submitted under Rules 23 or 25.

If the application is granted, the court shall require the refusing party or

deponent to answer the question or interrogatory and if it also finds that the

refusal to answer was without substantial justification, it may require the

refusing party or deponent or the counsel advising the refusal, or both of

them, to pay the proponent the amount of the reasonable expenses incurred in

obtaining the order, including attorney's fees.

If the application is denied and the court finds that it was filed without

substantial justification, the court may require the proponent or the counsel

advising the filing of the application, or both of them, to pay to the refusing

party or deponent the amount of the reasonable expenses incurred in opposing

the application, including attorney's fees. (1a) Q: If a party or deponent refuses to answer a question on oral examination or written

interrogatories under Rule 25, what is your remedy? A: You go to court and get an order to compel him to answer. And he can be held liable for the

reasonable expenses incurred in obtaining the order including attorney’s fees.

SEC. 2. Contempt of court. - If a party or other witness refuses to be sworn

or refuses to answer any question after being directed to do so by the court of

the place in which the deposition is being taken, the refusal may be considered

a contempt of that court. (2a)

SEC. 3. Other consequences. - If any party or an officer or managing agent

of a party refuses to obey an order made under section 1 of this Rule requiring

him to answer designated questions, or an order under Rule 27 to produce any

document or other thing for inspection, copying, or photographing or to permit

it to be done, or to permit entry upon land or other property, or an order made

under Rule 28 requiring him to submit to a physical or mental examination, the

court may make such orders in regard to the refusal as are just, and among

others the following:

(a) An order that the matters regarding which the questions were asked, or

the character or description of the thing or land, or the contents of the

paper, or the physical or mental condition of the party, or any other

designated facts shall be taken to be established for the purposes of the

action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose

designated claims or defenses or prohibiting him from introducing in evidence

designated documents or things or items of testimony, or from introducing

evidence of physical or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further

proceedings until the order is obeyed, or dismissing the action or proceeding

or any part thereof, or rendering a judgment by default against the disobedient

party; and

(d) In lieu of any of the foregoing orders or in addition thereto, an order

directing the arrest of any party or agent of a party for disobeying any of

such orders except an order to submit to a physical or mental examination. (3a) These are other consequences in addition to Section 1. These refer to the refusal to obey an order

under Rule 27 and Rule 28 which can even cost your case. The court will make an order that would make the disobedient party suffer. If he is the plaintiff, his complaint will be stricken out.

Or if he is the defendant, judgment of default can be rendered against him although the judgment

of default can only be done if he failed to file an answer. But his refusal to comply with a mode of discovery is the exception to the case. This is one instance when a judgment by default can be rendered against a defendant who filed an answer. And that is the worst penalty for refusing to cooperate.

SEC. 4. Expenses on refusal to admit. - If a party after being served with a

request under Rule 26 to admit the genuineness of any document or the truth of

any matter of fact, serves as sworn denial thereof and if the party requesting

the admissions thereafter proves the genuineness of such document or the truth

of any such matter of fact, he may apply to the court for an order requiring

the other party to pay him the reasonable expenses incurred in making such

proof, including attorney's fees. Unless the court finds that there were good

reasons for the denial or that admissions sought were of no substantial

importance, such order shall be issued. (4a)

JBD 66

Section 4 pertains to Rule 26 on request for admission. If X was able to prove something that Y refused to admit, Y can be held liable for expenses and attorney's fees for refusing to admit something which turned out to be true. If it is something true, you might as well admit it. Do not put the other party into trouble for you might be held liable for the expenses later on.

SEC. 5. Failure of party to attend or serve answers. - If a party or an

officer or managing agent of a party willfully fails to appear before the

officer who is to take his deposition, after being served with a proper notice,

or fails to serve answers to interrogatories submitted under Rule 25 after

proper service of such interrogatories, the court on motion and notice, may

strike out all or any part of any pleading of that party, or dismiss the action

or proceeding or any part thereof, or enter a judgment by default against that

party, and in its discretion, order him to pay reasonable expenses incurred by

the other, including attorney's fees. (5)

Section 5 is identical to previous consequences. If a party is served with interrogatories and he

refuses to answer under Rule 25, he can be penalized with the ultimate penalty of dismissal of the case or judgment by default. Thus, the ultimate effect is that, a party who refuses to cooperate may lose the case ultimately.

Normally, default judgment applies only to a defendant who failed to file an answer. But Rule 29

allows a default judgment even if you filed an answer for failure to comply with the modes of discovery. So, this is one instance when a judgment by default can be rendered against a defendant who filed an answer.

INSULAR LIFE ASSURANCE CO., LTD. vs. COURT OF APPEALS

238 SCRA 88 [1994] FACTS: There was a refusal here of one party to answer an interrogatory. So the other

party asked the court to issue an order. The court then ordered the other party to answer, but he still refused.

So, the plaintiff filed a motion for judgment of default against the defendant (or dismissal of the case) citing Section 5 – where if one refuses to cooperate, the case will be dismissed or a judgment of default can be rendered against the party.

But the judge ruled that the case shall continue. The party now went to the SC contending that the judge committed a grave abuse of his discretion in refusing to apply the sanctions allowed by law.

HELD: While it is true that there are sanctions allowed by law in cases of refusal to

comply with the modes of discovery, the same is DISCRETIONARY. Meaning, let the court decide whether justice will be served by going to trial or not. So there was no grave abuse of discretion on the part of the judge.

“The matter of how, and when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice. For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice. It behooves trial courts to examine well the circumstances of each case and to make their considered determination thereafter. It is only in clear cases of grave abuse of that discretion when appellate courts will interfere in their judgment.”

In other words, courts are still given the leeway of whether or not to apply the ultimate sanctions.

NOTE: The ruling in this case was reiterated in the 1996 case of SANTIAGO LAND

DEVELOPMENT CO. vs. CA, July 9, 1996 (258 SCRA 535) and the 1998 case of DELA TORRE vs. PEPSI-COLA PRODUCTS, October 30, 1998 (298 SCRA 363)

FORTUNE CORPORATION vs. COURT OF APPEALS

JBD 67

229 SCRA 355 ISSUE: Are the 5 modes of discovery cumulative or exclusive? Can a party resort to any

modes of discovery or are they intended to be an exclusion of the other? HELD: “The various methods of discovery as provided for in the Rules are clearly

INTENDED TO BE CUMULATIVE, as opposed to alternative or mutually exclusive.” “Under the present Rules the fact that a party has resorted to a particular method of

discovery will not bar subsequent use of other discovery devices, as long as the party is not attempting to circumvent a ruling of the court, or to harass or oppress the other party.”

There was a time when I did this. I used a variety or combination of the different modes. I was

interested in knowing some evidence from the other party. So, interrogatories, then sagot. I asked them on how they were going to prove it and whether they going to present witnesses and documents. Yes daw. So, I used production and inspection na naman. So may order na naman. If they have witnesses to be presented, then deposition na naman. In other words, we can avail all of this.

There was this veteran practitioner who was one of my idols. He’s already retired but his style was

that he handled only about four cases a year para total effort and attention ang maibigay niya. But he charges big. In the millions for his fees, aaraw-arawin ka niyan ng modes of discovery. So the other counsel will have no time. That’s why pag-sinabi ng cliente na si Atty. so and so ang kalaban, dino-double nila ang charge because they know na maraming trabaho kapag siya ang kalaban. After a while, the lone case will become 10 cases already para sa iyo sa dami ng trabaho if he is the counsel of your opponent.

So the modes of discovery can be used to really squeeze everything out of your opponent. Q: To summarize, what are the instances when a defendant shall be considered in default even if

such defendant has already filed an answer? A: The following are the instances:

1.) Failure to appear at the pre-trial conference (Rule 18); and 2.) Failure to cooperate in the mode of discovery (Section 5, Rule 29).

JBD 68

Rule 30

TRIAL

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 such manner as shall

ensure his receipt of that notice at least five (5) days before such date. (2a,

R22)

Of course, after the Pre-trial, the next step now is trial. And it is the duty of the clerk of court to

send notices to the parties about the date of the trial in such manner as shall insure his receipt of that notice at least five (5) days before such date. But actually in real practice, it will even take more than a month to give you ample time to prepare for it.

Now, it is mandatory that the notice should reach the party or its lawyer at least five (5) days before

such date. So, you should mail it earlier. Do not mail it on the day of or one day before the trial because he may already have other engagement. Well, that is only a very minor provision but it is now emphasized by the Rules.

Q: Define trial. A: TRIAL is an examination before a competent tribunal of the facts or law put in issue in a case, for

the purpose of determining such issue. (Ballentine’s Law Dict., 2nd Ed., p. 1299) In a trial, there is always an issue where we cannot agree. Therefore, the purpose of a trial is for the court to resolve that issue.

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

longer period than one month for each adjournment, nor more than three months

in all, except when authorized in writing by the Court Administrator, Supreme

Court. (3a, R22)

“A court may adjourn a trial from day to day” means that if the trial is not finished on the scheduled

date, that will be postponed on another day. That is how trials are being conducted. It is by staggered basis. That is what you call adjournment. But everything is recorded anyway. If you look at the transcript stenographic notes, it would seem that the trial is continuous because everything unfolds there. But actually, these occurred on different dates.

Now, Section 2 also provides that no party shall be allowed a postponement of more than one (1)

month per postponement and not more than three (3) postponements in all. As a GENERAL RULE: Not more than one (1) month for its adjournment BUT a maximum of three (3) postponements. In effect, it will be exactly 90 days.

And that jives with the SC Circular 3-90 which contains a mandatory continuous trial for 90 days. In

other words, the case must terminate in 90 days. The ONLY EXCEPTION is when authorized in writing by the court administrator. Meaning, the

judge can go to the court administrator to allow the court to go beyond the period allowed by law. And I do not know if this provision is being followed strictly. There are cases which have been here for more than a year. But you can do it provided you are authorized in writing by the court administrator. Yan!

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

only upon affidavit showing the materiality or relevancy of such evidence, and

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. (4a, R22; Cir. No. 39-

98)

JBD 69

Generally, there are two main reasons why parties ask for postponement. One is, (1) absence of evidence like when the witness is not available or the document is not available, or (2) somebody is sick – either the party or counsel is sick.

Now, of course the requirements of the Rules are really strict although courts and lawyers are very

liberal on this. First of all, if you want to postpone a trial on the ground of absence of evidence, there must be a verified affidavit. The affidavit must show the materiality or relevancy of the evidence which is not available and that due diligence was used to procure it. In other words, you tried your best to secure it earlier.

Now, what is the meaning of the second sentence: “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”? EXAMPLE:

LAWYER: “We are asking for postponement because our witness is not present. He is not available and his testimony will be very material.”

ADVERSE PARTY: “Alright, what is going to be his testimony? What will he testify about in court?

LAWYER: “Well, this is his testimony …. he will prove this or he will prove that….” ADVERSE PARTY: “OK. Admitted. I admit that if he is here, this is what he will say.

Although I may object to the admissibility of such testimony.” Meaning, the other party may admit the evidence but object to its admissibility. That is two

different things – admitting the evidence but objecting to its admissibility in court. Meaning, objecting to the admissibility of the witness in court. Just like under the Constitution, if a confession is made by a suspect without being afforded with the Miranda warnings, such confession is not admissible. But such confession is evidence. Only, it is inadmissible.

So, I admit that, although I reserve my right to its admissibility. Then in such case, you have no

more reason for postponement because in the first place, there is no need to present your witness because the other party already admitted what will be the substance of his testimony. Yaannn!

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 affidavit or sworn certification that

the presence of such party or counsel at the trial is indispensable and that

the character of his illness is such as to render his non-attendance excusable.

(5a, R22)

The same thing for illness (2nd ground). Kung may sakit, there must be affidavit or sworn

statement. So you must have a sworn medical certificate and that the presence of such party or counsel is indispensable and the character of his witness is such as to render his non-attendance excusable.

Now, of course the SC has already stated in some cases that when the sickness is sudden and

unexpected such as accident, you cannot require on the spot a medical certificate. Meaning, how can I produce something if he got sick only an hour ago? So, the court should take that into consideration. They cannot object to the requirement of medical certificate.

So, a motion for postponement which is not verified upon the ground of illness of a party or

counsel without a medical certificate should be granted if it appears that the claim of the movant is meritorious.

Normally, we just say that if the other party insists on a medical certificate, we will submit it this

afternoon or tomorrow because there are things in which we cannot get a medical certification on time unless he has been sick for so long.

JBD 70

In the ultimate analysis, what is the policy of the SC on postponements? Motions for postponements is always addressed to the sound discretion of the court (Casilan vs. Gancayco, 56 O.G. 2799, March 28, 1960; People vs. Martinez, 57 O.G. 7923, Oct. 30, 1961).

So if the motion for postponement is denied or granted or either way, it is so hard to have it

overturn because the SC will always give way to the discretion and rarely will it happen in court where it will interfere without discretion unless there is grave abuse of discretion.

ORDER OF THE TRIAL The order of trial in civil cases is a little bit more complicated compared to criminal cases.

Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31,

and unless the court for special reasons otherwise directs, the trial shall be

limited to the issues stated in the pre-trial order and shall proceed as

follows:

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

(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 support 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

adduce evidence upon their original case; and

(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.

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

separate defenses appear by different counsel, the court shall determine the

relative order of presentation of their evidence. (1a, R30)

Take note that the law says “the trial shall be limited to the issues stated in the pre-trial order.” That is

now emphasized under the Rule 30. That jives with Rule 18, Section 7 on what is the importance of a pre-trial order:

Sec. 7. Record of pre-trial. - The proceedings in the pre-trial shall be

recorded. Upon the termination thereof, the court shall issue an order which

shall recite in detail the matters taken up in the conference, the action taken

thereon, the amendments allowed to the pleadings, and the agreements or

admissions made by the parties as to any of the matters considered. Should the

action proceed to trial, the order shall explicitly define and limit the issues

to be tried. The contents of the order shall control the subsequent course of

the action, unless modified before trial to prevent manifest injustice. (5a,

R20)

The pre-trial order shall limit the issues and shall control the subsequent course of the action. We

already emphasized that the pre-trial order prevails over the pleadings. The pre-trial order has the effect of superseding the complaint and the answer. Whatever issues are stated in the pre-trial order shall be the issues to be tried during the hearing on the case.

Now going back to Rule 30, that is now emphasized. The trial shall be limited to the issues stated in

the pre-trial order. So, the pre-trial order will be a very important document to determine what are the issues to be tried.

Q: How will the trial proceed? In what order? A: Section 5, paragraphs [a] to [g], including the last paragraph of Section 5. Q: What is the reason for the rule prescribing an order of trial?

JBD 71

A: The reason is for orderly procedure, which must be followed if injurious surprises and annoying delays in the administration of justice are to be avoided. Evidence cannot be given piece-meal. (Dir. of Lands vs. Archbishop of Manila, 41 Phil. 120)

You will notice the order of trial in civil cases follows more or less the same pattern with the trial in

criminal case. The pattern is the same although there may be cross-claims, third (fourth, etc.) party complaints, especially when there are more than one defendant.

BASIC PATTERN (No cross-claim, counterclaim or 3rd-party complaint, etc.):

1.) Plaintiff presents evidence to prove his claim or cause of action. That is what you call EVIDENCE IN CHIEF, also called as the MAIN EVIDENCE; (paragraph [a])

2.) Defendant presents evidence in chief or main evidence to prove his defense – negative or affirmative defense; (paragraph [b])

3.) Plaintiff will present what we call REBUTTAL EVIDENCE to rebut defendant’s main evidence. (paragraph [f])

4.) Defendant is given the chance to present rebuttal evidence to rebut the rebuttal of evidence of the plaintiff. In legal parlance, we call that SUR-REBUTTAL evidence; (paragraph [f])

5.) ARGUMENTS. Normally, it is what we call the filing of MEMORANDUM (written arguments) – the parties will submit their respective memoranda, unless the case will be submitted for decision without arguments or memorandum. (paragraph [g])

So, normally, that is the basic pattern of the order of trial. Now, plaintiff presents evidence ahead,

after him defendant presents evidence to prove his defense. Now, in the case of

YU vs. MAPAYO 44 SCRA 163

FACTS: The plaintiff filed a complaint against the defendant to collect a loan which,

according to the plaintiff, the defendant has not paid. The defendant filed an answer admitting the loan but ang kanyang affirmative defense is, the obligation is paid.

During the trial, the plaintiff said that he is no longer going to present any evidence to prove his cause of action because anyway, the defendant has admitted the obligation; and since the defendant is the one invoking payment, it is, therefore, his burden to prove payment.

The trial court agreed with the plaintiff, “Yes. Alright defendant, you present evidence that the obligation is paid. Anyway, you are admitting that you borrowed money.”

Now, according to the defendant, the procedure is improper the order of the trial being altered, “Why will the defendant prove his defenses ahead. The plaintiff is supposed to present evidence bago ako. Bakit uunahin ako?” That is the objection of the defendant.

ISSUE: Can the defendant present his evidence first? HELD: AH YES! Anyway, by admitting the obligation, you are invoking the affirmative

defense of payment. So, it is incumbent upon you to prove that it is paid. Under Rule 16, the defendant is not obliged to file a motion to dismiss. That is optional.

In fact, the defendant is allowed, instead of filing a motion to dismiss, to file an answer invoking the ground for a motion to dismiss as an affirmative defense. And then the defendant could even ask for a preliminary hearing for his affirmative defenses as if a motion to dismiss has been filed.

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Therefore, in the hearing for a motion to dismiss, the defendant is now converting his defense into a ground for a motion to dismiss. In which case, the affirmative defense will be heard ahead of the main action. So, that is allowed under Rule 16.

So, there is nothing basically wrong with an affirmative defense being heard ahead of the plaintiff, especially when the plaintiff has nothing to prove anymore.

Well, of course that is more apparent in criminal procedure. In the order of trial in criminal

procedure, the court may even direct the accused to present evidence ahead of the prosecution when the accused is already admitting the facts constituting the crime but only invokes a defense such as self-defense – when you are accused of homicide and your defense is that you acted in self-defense. So, wala ng i-prove ang prosecution. Automatically, you are admitting that you killed the victim. The burden now is shifted to you to justify the killing. That’s what they call “TRIAL IN REVERSE.”

So, in criminal cases where the law authorizes a reversed trial where the accused is directed to

present evidence ahead of the prosecution, there is no reason why the same procedure cannot also apply in civil cases. That is the essence of the MAPAYO ruling. So, more or less, that is the deviation from the normal order of trial.

Section 5 [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 adduce evidence upon their original case;

Paragraph is actually presentation of rebuttal evidence. Q: What is the difference between the evidence mentioned in paragraph [f] and the evidence

mentioned in paragraphs [a] and [b]? A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN CHIEF to prove your main cause of

action or your defense. In paragraph [f], the evidence is not evidence in chief but REBUTTAL EVIDENCE to dispute the side of the other party.

Q: Is a party allowed to present evidence in chief in the rebuttal stage? A: GENERAL RULE: NO, because paragraph [f] provides that the parties may then respectively

adduce rebutting evidence only. In other words, you do not go back to paragraphs [a] and [b]. If you have evidence to prove your cause of action or defense, you should have done it earlier.

So generally, evidence in chief is not allowed during the rebuttal stage. But there is an exception:

EXCEPTION: “Unless the court, for good reasons and in the furtherance of justice permits them to adduce evidence upon their original case.” Meaning, it permits them to adduce evidence in chief. But you need the permission of the court because normally, you should have done that under paragraphs [a] and [b] and not in paragraph [f].

Q: Give instances when the court may allow the party to present additional evidence in chief

during rebuttal to prove his cause of action. A: In the following instances:

1.) When it is newly discovered; 2.) When the evidence was omitted through inadvertence or mistake; 3.) When the purpose is to correct evidence previously offered; (Lopez v s. Liboro, 81 Phil. 429) 4.) When the additional evidence offered is material and not merely cumulative or impeaching

(64 C.J. 160-163) Those are the possible instances when the court in the interest of justice may allow the parties to

present evidence in chief during the rebuttal stage which is normally not allowed. And that is what I saw exactly years ago how this paragraph [f] operates. There was case here we

were watching before. There was a veteran trial lawyer from Manila who tried a case here. I think it was a damage suit against KLM Royal Airlines for breach of contract of carriage because some of the

JBD 73

passengers were from Davao City. Alright when they are already in the rebuttal stage, the lawyer for the Airlines was presenting evidence and the counsel for the plaintiff argued, “Objection Your Honor, it is not rebuttal evidence. It is evidence in chief which he is presenting. So it is not proper during this stage.”

And the trial court agreed, “Yes, it is improper. The evidence in chief should have been presented earlier.

Therefore, objection is sustained.” Lawyer for the Airlines, “So, you honor, may we move for a reconsideration because we believe it is rebuttal evidence and it is very important.” So, balik na naman sila sa argument. And then the court said, “The motion for reconsideration is denied, you are not allowed.”

So, patay siya. And it’s really true that what was presented was evidence in chief and not rebuttal

evidence. So, hindi siya ba makalusot or hindi siya makapasok. So, for a while, he closed his eyes and said, “Your Honor, in the interest of justice may we be allowed to present evidence in chief for the rebuttal stage.” And the court said granted, “Sure pare basta ikaw! [Mas OK pa sa ALRIGHT]!” So pasok na naman!

In other words, saan niya kinuha ito? When I looked at the Rules, iyon pala! He knows how to

invoke it. In other words, you can see the skill of a veteran lawyer. The rules are at his fingertips. So, that is how I saw this provision operates.

Section 5 [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.

Now, of course, pag tapos na kayo, main evidence and rebuttal, tapos na ang kaso. Meaning, the

case is ready for decision. But normally, the lawyer of the parties would say, “We would like to argue.” And the argument is normally not oral but in writing where you will be asked to file what you call MEMORANDUM.

A MEMORANDUM is practically a thesis where you will summarize your position and you argue

why you should win. That is where you cite evidence. You convince the court that you have proven your cause of action or defense. Then you cite the testimonies, the exhibits, the transcripts and of course, the argument, the jurisprudence, the law. That is where you argue. You do not argue in your pleading. Pleadings, complaint, answer is not the time to argue. There, you only state the facts. You argue after the trial where you interpret now the evidence and convince the court.

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 of evidence.

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

held as to the disputed facts in such order as the court shall prescribe. (2a,

R30)

Alright, why do the parties present evidence 1, 2, 3, 4. What is the purpose there? To prove facts.

Normally, we cannot agree on the facts. I say something and you will say that is not true and this is what happened. So, normally, cases arise because of the issue of what happened.

Q: Now, is there a possibility that the court will decide whether there is trial or no more evidence? A: YES! If the parties agree in writing upon the facts involved in the litigation and they will submit

the agreed facts or the case for decision. That is what we call JUDGEMENT ON AGREED STATEMENT OF FACTS or the more popular term: JUDGEMENT BASED ON STIPULATION OF FACTS.

EXAMPLE: The plaintiff and the defendant agree on all the facts. “These are the facts,” sabi ng

plaintiff. Then sabi ng defendant, “Yes, I agree those are the facts.” Now if we agree on the facts, there is nothing more to prove. And what we are now quarreling is who should win based on the facts agreed upon. So, ano ngayon ang kaso? That is purely a legal question. There is nothing to prove because everything is admitted. They disagree only on the conclusion.

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So, with that, par. 1, 2, 3, 4 all these steps are useless. There is nothing to prove. In which case, we will go immediately to step no. 5. So, if the parties agree in writing upon the facts involved in the litigation and they will submit the agreed facts for decision, that is JUDGEMENT BASED ON STIPULATION OF FACTS which is encouraged by the law. This is one of the purposes of Pre-Trial (Rule 18, Section 2 [d]) where the parties are encouraged to stipulate on facts, because really, it would save a lot of time.

The best example of agreed facts would be examination problems. The facts are already given –

this is what happened. You cannot change that anymore. And you will be asked, “DECIDE: Is A correct or is B correct.” So in other words, you simply apply the law. You do not apply anymore the issue of what happened because it is already agreed. Your answer would be similar to a JUDGMENT BASED ON STIPULATION OF FACTS.

Q: Why is an agreed statement of facts sufficient basis for a judgment? A: The reason is that an agreed statement of facts is conclusive on the parties, as well as on the

court. Neither of the parties may withdraw from the agreement, nor may the court ignore the same. (McGuire vs. Manufactures Life Ins. Co., 87 Phil. 370)

Q: Now suppose they can agree on some facts but they cannot agree on others. A: There is no problem. You can have a partial stipulation of facts and then we can try the rest with

respect to the other disputed facts. That is why the second paragraph says, “If the parties agree only on some of the facts in issue, the trial

shall be held as to the disputed facts in such order as the court shall prescribe.” At least, it would still be faster because the disputed facts are now limited. Rather than proving ten (10) issues of facts, it will be reduced to 3 or 4. So, the trial would still be faster.

The court is not bound to find out what happened when the parties already agreed on what

happened. EXAMPLE: The parties will stipulate, “This case involves a piece of land with an area of 50 hectares, planted with coconut trees of about 5,000.” So, parties agreed and then the court says, “No, I do not believe you. It might be more than 59 hectares.” NO. When the parties agree, sundin mo yan because they themselves agree on the facts. You only determine the facts if they cannot agree. That is why the court is bound by the stipulations made by the parties.

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. (3a, R30)

Take note that the trial is a formal court proceeding. Everything is recorded there – the statement

of parties, their lawyers, including the statement of the judge. 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. (n)

This is mentioned in Rule 18, Section 2 [h] which discusses the possibility of suspension of the

proceedings. Meaning, huwag munang gumalaw ang kaso – in suspended animation baah! Q: And what is the possible good legal ground for the parties to ask for suspension of the hearing?

Meaning, held in abeyance ba. What would be the best possible ground? A: The best possible ground is the one mentioned in Article 2030 of the New Civil Code:

Art. 2030. Every civil action or proceeding shall be suspended:

1. If willingness to discuss a possible compromise is expressed by one or

both parties; or

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2. If it appears that one of the parties, before the commencement of the

action or proceeding, offered to discuss a possible compromise but the other

party refused the offer.

The duration and terms of the suspension of the civil action or proceeding

and similar matters shall be governed by such provisions of the rules of court

as the Supreme Court shall promulgate. Said rules of court shall likewise

provide for the appointment and duties of amicable compounders. (n)

According to Article 2030 of the civil code, if at anytime while the case is going on, one of the

parties would like to discuss a POSSIBLE AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the suspension of proceedings. Why? The court of the law favors compromises or amicable settlements in civil cases.

So at anytime that one party expresses its desire to settle, even in the middle of the case, the court is

authorized to suspend the action to give the parties opportunity to settle because of the policy of the law to encourage the parties to settle amicably.

That is why even former U.S. President Lincoln, who is more remembered as president rather than

as a lawyer, was quoted, “Discourage litigation. Persuade your neighbor to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses and waste of time. As a peace-maker [Long Live the PeaceMakers!], the lawyer has the superior opportunity of being a good man. There would still be business enough.”

Meaning, aregluhin ba hanggang maari, you better settle. When you settle, nobody is loser and

nobody is winner. Both of you win. Walang masakit ang loob ba. And marami pang negosyo, marami pang kaso. Do not make such money out of one case. If you can settle, i-settle muna. Huwag mong sabihing “sayang iyong income” dahil marami pang kaso na darating. That was what he said.

Now, of course, what happens if the party cannot agree to settle? Well, the procedure is, let the trial

go on. That is why in the 1992 case of

GOLDLOOP PROPERTIES, INC. vs. COURT OF APPEALS 212 SCRA 498 [1992]

FACTS: The parties in a civil action manifested the possibility of submitting amicable

settlement. The court gave them 15 days to submit their compromise agreement. 15 days passed, no amicable settlement was submitted by the parties. With that, the court dismissed the case.

ISSUE: Was the court correct in dismissing the case when the parties cannot settle? HELD: The dismissal is WRONG. “Since there is nothing in the Rules that imposes the

sanction of dismissal for failing to submit a compromise agreement, then it is obvious that the dismissal of the complaint on the basis thereof amounts no less to a gross procedural infirmity. While a compromise is encouraged, very strongly in fact, failure to consummate one does not warrant any procedural sanction, much less an authority to jettison a civil complaint. What the court should have done was to continue the action.”

In other words, why should you dismiss the complaint when the parties cannot settle? By that,

technically, natalo ang plaintiff. Kung hindi magkaareglo, then go on with the trial. You have no authority to dismiss the case simply because the parties cannot settle.

However, there are certain matters which cannot be the subject of compromise. Practically,

compromise is allowed on anything under the sun, except certain matters such as those mentioned in Article 2035.

Q: What are the matters that cannot be the subject of compromise? A: Under the Article 2035, New Civil Code, the following:

(1) The civil status of persons; (whether legitimate or illegitimate)

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(2) The validity of a marriage or a legal separation; (w/n a marriage settlement exists) (3) Any ground for legal separation; (4) Future support; (always depends on the means of the party giving support) (5) The jurisdiction of courts; (6) Future legitime.

So you cannot agree on these. You cannot compromise as a legitimate when in fact you are

illegitimate. Where is the basis of that? You cannot compromise that the marriage is valid when in fact it is not, or it is null and void. These things cannot be the subject of agreement.

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 or ex parte hearings, 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 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 ten (10) days from

termination of the hearing. (n)

The Rules now expressly allows the court to delegate the reception of evidence to the clerk of court

who must be a member of the bar. Thereby confirming the doctrine in GOTINGCO vs. CFI OF NEGROS OCCIDENTAL and junking forever the ruling in LIM TANHU vs. REMOLETE because in the case of REMOLETE, it was ruled that the judge cannot delegate the reception of evidence to the clerk of court. Now, puwede na.

A good example is DEFAULT. But actually, it could also be a case where the parties agreed in

writing or other cases where it can be heard ex-parte other than default. Because there are many cases na to my mind that the judge does not really need to be there listening.

Like for example, a petition for the issuance of lost or transfer of certificate – yung titulo mo nawala

– your title is lost or you misplaced it and you will prove na nawala. That should be heard in court but to my mind that is not a controversy, eh because there is only one party there. So it is possible for the court to delegate that to the clerk of court in order that they (judges) can attend to other controversial cases.

Now, please connect this provision with Section 3 of Rule 9 on Default:

Sec. 3. Default; declaration of. - If the defending party fails to answer

within the time allowed therefor, the court shall, upon motion of the claiming

party with notice to the defending party, and proof of such failure, declare

the defending party in default. Thereupon, the court shall proceed to render

judgment granting the claimant such relief as his pleading may warrant, unless

the court, in its discretion requires the claimant to submit evidence. Such

reception of evidence may be delegated to the clerk of court. (1a, R18)

So in default hearing, it is now the discretion of the court either to conduct an ex-parte reception of

evidence which can be delegated to the clerk of court, or the court may render judgment based on the pleadings. So, it is optional.

Now, to my mind, kung ang case is a collection case or any other cases which are simple, pag na-

default ang defendant, puwede na decision dayon. Pero kung controversial cases, do not render judgment based on the pleadings. You better conduct an ex-parte reception of evidence and you may delegate the reception of evidence to the clerk of court.

Yun iyong mga out of ordinary cases which are really controversial where the court should require

the presentation of evidence. Pero yong mga kaso na not so complicated, no need of reception of evidence in order to expedite the process of adjudication.

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LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin • Judee Uy • Janice

Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin • Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos • Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo •

Paul Ongkingco • Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos • Joshua Tan • Thaddeus Tuburan • John Vera Cruz • Mortmort

JBD 78

Rule 31

CONSOLIDATION OR SEVERANCE

SECTION 1. Consolidation. - When actions involving a common question of law

or fact are pending before the court, it may order a joint hearing or trial of

any or all the matters in issue in the actions; it may order all the actions

consolidated; and it may make such orders concerning proceedings therein as may

tend to avoid unnecessary costs or delay. (1)

To consolidate cases is to join 2 or more cases together as distinguished from separate trial where

the different claims are tried separately. So, separate trials – pag-hiwa-hiwalayin. Consolidation – pagsasama-samahin.

Q: When is consolidation of actions proper? A: Consolidation is proper:

1.) when two or more actions involve the same or a common question of law or fact; and 2.) the said actions are pending before the same court. (Section 1, Rule 31; PAL vs. Teodoro, 97

Phil. 461)

First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME OR A

COMMON QUESTION OF LAW OR FACT Did you notice that phrase – “two or more actions involve the same or a common question of law or fact”?

That phrase seemed to be familiar. ”Common question of law or fact,” where did we meet that requirement before? That is in joinder of causes of action – two or more causes of action can be joined in one pleading if they involve a common question of fact or law. Rule 3, Section 6:

SEC. 6 Permissive joinder of parties – All persons in whom or against whom any

right to relief in respect to or arising out of the same transaction or series of

transactions is alleged to exist, whether jointly, severally, or in the

alternative, may, except as otherwise provided in these rules, join as plaintiffs

or be joined as defendants in one complaint, where any question of law or fact

common to all such plaintiffs or to all such defendants may arise in the action;

but the court may make such orders as may be just to prevent any plaintiff or

defendant from being embarrassed or put to expense in connection with any

proceedings in which he may have no interest.

The phrase answers the questions: Q: When may 2 or more parties be joined together in one complaint, either as co-plaintiffs or co-

defendants? A: There must be a common question of fact or law involved in their causes of action. Q: When may actions be consolidated? A: One of the requisites is: when the actions involve a common question of law or fact. In other words, there must be a connection somewhere between the rule on Consolidation of

actions in Rule 31, with the rule on Permissive Joinder of Parties in Rule 3. When we were in Rule 3, an EXAMPLE was given: Suppose 30 people were riding on a bus which

met an accident and all the plaintiffs were injured. After the incident, the 30 of them decided to file claims for damages against the bus company. They hired the same lawyer.

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Q: Can the lawyer file 30 complaints for each plaintiffs? A: YES. Q: Can the lawyer file only one complaint naming as co-plaintiffs the 30 injured passengers? A: YES, that is permissive joinder of parties which is encouraged to expedite litigation, to avoid

multiplicity of suits, to economize the procedure or avoid repetition of evidence. There are the justification for permissive joinder of parties in Rule 3 Section 6 but they can only join one complaint if they have the same lawyer.

Q: But suppose the 30 passengers were injured and after their discharge from the hospital the 30 of

them hired separate lawyers.? A: There can be no joinder of parties. You cannot join the parties in one complaint because each

plaintiff is represented by a different lawyer. In this case, there should be 30 complaints filed let’s say, in the RTC of Davao City, and they are

raffled to different branches or judges. The defendant might feel that he would rather have the 30 cases tried together. Defendant says, “This is difficult. Imagine 30 cases sa 30 salas? Iba-ibang courts. My witnesses would have to testify 30 times because there are 30 separate complaints.”

Q: Can the 30 cases be joined together para isang judge na lang? A: YES. The lawyer for the bus company can file a motion under Rule 31, Section 1 to consolidate

the actions. Meaning, the 30 cases should be raffled and assigned to only one judge, there being a common question of law or fact. This is to economize the procedure if the evidence will be presented only once. Thus, every time when the case is called, the 30 cases would be tried together. Para ka na ring nag-permissive joinder of parties.

The purpose of consolidation is to achieve the same effect of permissive joinder of parties under

Rule 3, Section 6. You end in having only one case, kaya lang 30 complaints are to be tried together. That is why there is a connection between consolidation and permissive joinder of parties.

Second Requisite: THE SAID ACTIONS ARE PENDING BEFORE THE SAME COURT

Q: In the example above, suppose one passenger filed his case in Davao City, another passenger

filed his case in Tagum because he resides there, and another files his case in Mati, can there be consolidation of their cases?

A: NONE. You cannot consolidate because they are pending in different courts in different provinces. The law says it must be in the same court.

Take note that cases are consolidated because it will expedite their termination, thereby

economizing on the procedure. Cases are consolidated not only when the cases are before the trial court. There are many times when cases are consolidated or joined together even when they are already on appeal, provided, there is a common question of law or fact.

If we look at the SCRA, sometimes the decision involves 2 or 3 cases. The caption sometimes has 3

or more cases, but there’s only 1 decision. And these cases are coming from different parts of the country. Why are these cases joined before the SC? Because there is a common question of fact or law or legal issue. So, even in the SC, cases are consolidated and decided together for the first time. Ang tawag dyan is COMPANION CASES because the same issues are being raised in the petitions.

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CONSOLIDATION under RULE 31 vs. CONSOLIDATION OF

CRIMINAL ACTIONS under RULE 119 Now, there is also a provision in the rules on Criminal Procedure on consolidation of criminal

actions under Rule 119, Section 14:

SEC. 14. Consolidation of trials of related offenses. - Charges for

offenses founded on the same facts, or forming part of a series of offenses of

similar character may be tried jointly at the court's discretion. (Rule 119)

Q: Distinguish Consolidation of civil actions from Consolidation of criminal actions. A: The following are the distinctions:

1.) In civil cases, one or more causes of action may be embodied in one complaint because when there is permissive joinder, there is automatic consolidation also; whereas

In criminal cases, only one offense can be the subject of one complaint or information. consolidation of criminal actions is exclusively for joint trial;

Q: Can you file one complaint or information embodying two or more crimes? A: NO. You cannot. That is what you call duplicitous complaint or information.

There is no such thing as joinder of crimes. Therefore, the so-called consolidation of criminal actions is not actually filing one information but it is only for the purpose of joint trial.

2.) In civil cases, the opposite of consolidation is severance under Section 2; whereas

In criminal cases, the opposite of consolidation is separate trial. In reality, there is actually no consolidation of criminal cases. There is only joint trial of criminal cases.

Under the rules on Criminal Procedure the accused may reserve the right to file the civil action

separately when the criminal action is filed, the civil action is deemed instituted unless the offended party will make a reservation to file it separately. Or, when the civil action was instituted ahead, the subsequent filing of the criminal case will mean there is no more civil action there. And Section 2 of Rule 111, suppose the offended party made a reservation to institute a civil action and a criminal case is filed, he cannot file the civil action – that’s the rule. He must wait for the outcome of the criminal case. The criminal case enjoys priority.

Q: What happens if na-una na-file yung civil action? A: According to Section 2, Rule 111 from the moment the criminal case is filed, the trial of the civil

case is suspended to wait for the outcome of the criminal case. Q: Is this prejudicial to the offended party? What is the remedy of the offended party? A: There is a way out according to Section 2, Rule 111. The first thing for him to do is to file a

petition to consolidate the trial of the criminal and civil case for them to be tried together and the evidence already presented in the civil case is deemed automatically reproduced in the criminal case. This is what you call the consolidation of the civil and criminal action under Section 2, Rule 111:

“…Nevertheless, before judgment on the merits rendered in the civil action,

the same may, upon motion of the offended party, be consolidated with the

criminal action in the court trying the criminal action…” (Section 2, Rule 111) Q: Is this consolidation mandatory? A: NO. It is permissive. Actually, the offended party is the one to initiate this because if not, then he

has to wait for the criminal case to be terminated before he can file the civil case. Q: Can you move to consolidate in one court the criminal and the civil case when actually the

degree of proof required in one case is different from the degree of proof required in another case? A: That was answered in the affirmative in the case of

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CAÑOS vs. PERALTA 115 SCRA 843

FACTS: This case originated in Digos, Davao del Sur, involving the late Dr. Rodolfo

Caños, who owned the Caños Hospital there. The respondent here was former CFI Judge Elvino Peralta. There was an incident which led to the filing of a criminal case by A against B. A reserved the right to file a separate civil action under the rules on criminal procedure. A filed a separate civil case, but arising out of the same incident. Both of the cases were assigned to Judge Peralta.

When Judge Peralta noticed that the 2 actions arose out of the same incident – and the accused in the criminal case is also the defendant in the civil case, and the offended party in the criminal case is the plaintiff in the civil case, he ordered the consolidation of the 2 cases under Rule 31, Section 1, to be tried together.

Dr. Caños objected to the consolidation because according to his lawyer, consolidation of cases under Rule 31, Section 1 applies only when there are 2 or more civil cases to be considered.

ISSUE #1: Was the consolidation proper? HELD: The order of consolidation is correct. Rule 31, Section 1 allows the consolidation

of a criminal and civil case because of the fact that there is a common question of fact or law between them and that they are pending before the same court. As a matter of fact, before the same judge.

ISSUE #2: How do you reconcile these cases because the degree of proof in the criminal

case is not the same in the civil case? HELD: The consolidation was proper under Rule 31 because there is a common question

of fact and law. They can be consolidated but for purposes of decision, the court will now apply two (2) different criteria: Proof beyond reasonable doubt in the criminal case and preponderance of evidence in the civil case. So there is no incompatibility.

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 or of any

number of claims, cross-claims, counterclaims, third-party complaints or

issues. (2a)

Section 2 is the exact opposite of Section 1. In Section 1, there are 2 or more cases which shall be

joined together for joint trial. In section 2, there is one case with several claims, i.e. counterclaims, cross-claims and third-party complaints. The rule states that they should be tried together, one after the other, and then one decision.

So for example, you ask the judge for a separate schedule for your 3rd-party claim. Then there will

be a separate schedule for the 3rd–party complaint rather than following the order of trial under Rule 30. Under the order of trial, I have to wait for my turn to prove my 3rd-party claim. If we follow Rule 30 (order of trial) before it reaches the 3rd-party complaint, matagal masyado.

But under Section 2, the court may grant a separate trial for your 3rd-party claim or permissive

counterclaim especially when there is no connection between my permissive counterclaim with the main action.

JBD 82

Rule 32

TRIAL BY COMMISSIONER Trial by commissioner applies when there is something to be tried which requires some technical

expertise, like accounting ba, which the court feels it does not possess, and it will be a waste of time if everything will be tried in court. So, the court will refer it to a commissioner, “You hear that and then you submit a report. Submit you report, you finding and your recommendation.” And that person is known as a commissioner.

SEC. 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 referred to 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.

This was mentioned when we were talking about pre-trial. This is one of the purpose of a pre-

trial. That is Rule 18, Section 2 [f]: “(f) The advisability of a preliminary reference of issues to a commissioner; ” This provision is actually referring to Rule 32.

Example #1:

Prof. X and Magneto had continuous transactions. After a long while, their records do not anymore reconcile. Prof. X filed a case against Magneto on the ground that Magneto has not yet paid an obligation which is already due. Based on Magneto’s records, bayad na lahat. Wala na syang utang. This is a question of accounting.

The court will have to determine whose records are correct and accurate – invoices, receipts, etc… must be presented, which might be hundreds or thousands in volume. This will consume a lot of time of the court.

The fact that the case involves accounting and the judge is not an accountant (it is different if the judge is a CPA/lawyer, hindi mahirap), the judge then should appoint an accountant to assist him. That accountant is known as the commissioner. That will certainly shorten the time and expedite the resolution of the case.

The judge can then attend to other cases while the parties are presenting all their invoices and receipts before the accountant/commissioner.

Example #2:

Prof. X and Magneto are owners of adjoining properties. Magneto put up a fence. Prof. X sued Magneto for forcible entry on the ground that Magneto encroached on Prof. X’s ground, and praying for the recovery of, say, 200 meters. Magneto contends that he built the fence on the boundary line.

The judge will look at the title of the land: “point degree 9, etc..” – only surveyor or a geodetic engineer understands that! In this case, the court may appoint a geodetic engineer, order the submission of the titles of the lands to him, he will go to the area, sukat-sukatin niya, and he will draw a sketch and then based on the sketch, he will determine whether or not there is an encroachment. The appointed surveyor or geodetic engineer is called a commissioner.

This is what you call trial by commissioner. And take note that under Section 1, trial by

commissioner is possible by mutual agreement of the parties. The parties must agree. Either you can agree on who is the CPA, who is the engineer, or you can ask the court to appoint somebody

Q: Suppose the parties cannot agree, or one party files a motion asking for the appointment of a

commissioner. Is the court still empowered to apply Rule 32? A. YES, under section 2:

SEC. 2. – Reference ordered on motion – When the parties do not consent, the

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

JBD 83

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;

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.

Section 1 is reference by consent and Section 2 is reference ordered on motion. Paragraphs (a), (b)

and (c) are the good grounds for a motion to appoint a commissioner. In (a), it requires an examination of a long account. The best example here is example #1 –

accounting. In (b) and (c), notice that a commissioner may be appointed for carrying a judgment or order into

effect. Thus, a commissioner, can be appointed not only to help the court render a decision, but also help the court enforce a decision – even if tapos na ang case. Because sometimes, problems arise on how to implement a decision of the court. Example:

There was a case of boundary dispute. Prof. X built his house near the boundary of his property.

According to his neighbor, Magneto, a portion of the house of Prof. X encroached on his land. About 25 sq. m. lang. Prof. X lost. The court says to Prof. X: “You are directed to return the 25 sq. m. which you occupied.” The sheriff will go there to return the 25 sq. m. Which part of the house will the sheriff demolish? The sheriff returns to the court because he cannot understand and he does not know how to implement the decision. So, the court solves that by appointing a surveyor as a commissioner to find out where that 25 sq. m. will be taken from the portion of the house.

Q: Give other examples of trial by commissioner. A: The following:

1.) Special Civil Action of Expropriation under Rule 67 – when the court has to determine just compensation. Under Rule 67, it is mandatory for the court to appoint a commissioner in order to determine as to how much the value of the property;

2.) Special Civil Action of Partition under Rule 69. When the heirs cannot agree on how to partition a property under co-ownership, the court may appoint a commissioner to study and submit its report.

So take note that trial by commissioner is allowed not only for the purpose of the court rendering

the judgment but also for the purpose of carrying a judgement 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 may direct him to report only upon particular issues, or to

do or perform particular acts, or 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 shall exercise the power to regulate the proceedings in

every hearing before him and to do all acts and take all measures necessary or

proper for the efficient performance of his duties under the order. He may

issue subpoenas and subpoenas duces tecum, swear witnesses, and unless

otherwise provided in the order of reference, he may rule upon the

admissibility of evidence. The trial or hearing before him shall proceed in all

respects as it would if held before the court. (3a, R33)

So a commissioner is parang judge rin. In effect he is an assistant judge. Biro mo, he can issue

subpoenas, swear witnesses, and unless otherwise provided in the order of reference, may rule upon the admissibility of evidence, of course, subject to the final approval of the court.

Compare that with Rule 30 when there is an ex-parte reception of evidence where the clerk of court

is delegated to receive evidence. But the clerk of court cannot rule on the admissibility of evidence. To my mind, for example, in cases involving accounting, the best commissioner would be a CPA-

lawyer because he knows about the law on evidence and accounting. Kung boundary conflicts naman,

JBD 84

the best commissioner would be a geodetic engineer-lawyer. However, you rarely find that combination.

SEC. 4. Oath of commissioner. - Before entering upon his duties the

commissioner shall be sworn to a faithful and honest performance thereof.

(14, R33)

SEC. 5. Proceedings before commissioner. - Upon receipt of the order

of reference and unless otherwise provided therein, the commissioner

shall forthwith set a time and place for the first meeting of the parties

or their counsel to be held within ten (10) days after the date of the

order of reference and shall notify the parties or their counsel. (5a,

R33)

SEC. 6. Failure of parties to appear before commissioner. - If a

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

may proceed ex parte or, in his discretion, adjourn the proceedings to a

future day, giving notice to the absent party or his counsel of the

adjournment. (6a, R33)

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. (7a,

R33)

EXAMPLE: I, as a commissioner, subpoenaed you and you will not show up. I will report you to

the court which appointed me and the court which appointed me will declare you in contempt of court. Remember, the commissioner is acting by authority of the judge. That’s why he has powers under the law.

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. (8a, R33)

The commissioner shall expedite the proceedings. He should hurry up the report.

Sec. 9. Report of commissioner. - 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 matters 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. (9a, R33)

SEC. 10. Notice to parties of the filing of report. - Upon the filing of the

report, the parties shall be notified by the clerk, and they shall be allowed

ten (10) days within which to signify grounds of 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. (10, R33)

Of course, the parties are given a copy of the report. And if it is against you, you can question the

findings of that commissioner. Sometimes, it is very difficult because there is already a court

appointed commissioner but you have to get another CPA to check on his report.

SEC. 11. Hearing upon report. - Upon the expiration of the period of ten

(10) 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, or recommitting it with instructions,

or requiring the parties to present further evidence before the commissioner or

the court. (11a, R33)

JBD 85

When the commissioner files his report with the court, the court will now schedule it for hearing. The parties will be furnished copies and during the hearing, if you do not agree with the report, you can present objections thereto or criticize the report. You can defend or attack it. The court will then determine whether to accept the report or not.

That’s why under Section 11, the court shall issue an order adopting, modifying, rejecting the

report, in whole or in part, or recommitting (ibalik) it to the commissioner with instruction, or requiring the parties to present further evidence. The court is not bound 100% to swallow everything in the report. But the court rarely rejects the report of the commissioner, unless talagang there is no basis for it. Chances are, when the report has support, talo ka na. Although it is not conclusive.

Now take note that when the court approves a report, the findings of the commissioner becomes

the findings of the court. Q: So, can the findings of the commissioner on question of fact be questioned by the parties? A: YES, under Section 11. Q: Is there an exception that the finding of the commissioner on factual issues become final and no

longer be questioned? A: YES, under Section 12:

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

commissioner's findings of fact shall be final, only questions of law shall

thereafter be considered. (12a, R33)

This is the only instance where you cannot question the commissioner’s report – when there is

already an agreement beforehand that the findings of fact by the commissioner are final, we accept. So the principle of estoppel applies in this case and only questions of law will then be considered. Meaning, factual issues are binding upon the parties.

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. (13, R33)

Q: Is the commissioner entitled to compensation? A: YES, of course. Mahirap na trabaho ito. Imagine you will hire a reputable CPA tapos walang

bayad? Sinong papayag niyan? Q: How is the commissioner paid? A: To be taxed as costs against the defeated party, or apportioned. In most cases it is apportioned –

50-50 [isa gatos tanan!]

JBD 86

Rule 33

DEMURRER TO EVIDENCE Q: Define demurrer to evidence. A: Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested

his case, on the ground of insufficiency of evidence. (Ballentine’s Law Dict., 2nd Ed., p. 358)

SEC. 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. (1a, R35)

Now, there is a similar rule in criminal procedure under Rule 119, Section 23 – demurrer to

evidence in criminal cases. Rule 33 is demurrer to evidence in civil cases.

DEMURRER TO EVIDENCE IN CRIMINAL CASES (Review) Q: By way of review what is the rule on demurrer to evidence in criminal cases all about? What is

the procedure on demurrer in criminal cases? A: In the rules on criminal procedure: Trial. The prosecution presents evidence to prove the crime

and that the accused committed the crime. After that, tapos na – the prosecution has rested. It is now the turn of the accused to present evidence to prove his defense. Alright, that’s the procedure.

But under the rules on demurrer to evidence in criminal cases, the accused, instead of presenting

evidence, may opt to file instead a demurrer. It is a motion by the accused to dismiss the criminal case on the ground that the prosecution failed to prove his guilt. Remember that under the Constitution, the accused is presumed innocent until his guilt is proven. It is the burden of the prosecution to prove his guilt, to destroy the presumption of innocence.

Now, suppose the prosecution fails to prove the crime or the guilt of the accused. There is no

evidence. The evidence is insufficient to prove that the accused is guilty. So, the prosecution failed to meet its burden. It failed to rebut the presumption of innocence. The accused may ask, “why will I present evidence? Why will I prove my innocence when I’m still presumed innocent? Because my guilt has not been established.” Therefore, the accused will file a demurrer. Actually, it is a motion to dismiss challenging the sufficiency of the evidence for the prosecution.

SEC. 23. Demurrer to evidence. – After the prosecution rests its case, the

court may dismiss the action on the ground of insufficiency of evidence (1) on

its own initiative after giving the prosecution the opportunity to be heard or

(2) upon demurrer to evidence filed by the accused with or without leave of

court.

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. (15a)

The motion for leave of court to file demurrer to evidence shall

specifically state its grounds and shall be filed within a non-extendible

period of five (5) days after the prosecution rests its case. The prosecution

may oppose the motion within a non-extendible period of five (5) days from its

receipt.

If leave of court is granted, the accused shall file the demurrer to

evidence within a non-extendible period of ten (10) days from notice. The

prosecution may oppose the demurrer to evidence within a similar period from

its receipt.

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. (n)

JBD 87

It is now emphasized in Section 23, Rule 119 that a demurrer may be filed with or without leave of court. If you file demurrer with or without leave and it is granted, then you have no problem because the accused will be acquitted.

The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence

to prove at least the guilt of the accused. If the demurrer was filed with prior leave of court and it is subsequently denied, the accused is allowed to present evidence to prove his defense.

But if he filed the demurrer without prior leave of court and the demurrer is denied, then you are

already convicted because the accused has forfeited his right to present evidence. It is practically equivalent to a waiver of his right to present evidence. So conviction automatically follows.

NOTE: Under the new rules on Criminal Procedure, when the accused will file a leave of court to

file a demurrer, he must specifically state the grounds. (c.f. Rule 119, Section 23, third paragraph) Alright, that is in criminal cases. There is a similar rule in civil cases, Rule 33.

DEMURRER TO EVIDENCE IN CIVIL CASES Q: Under the Rule on Trial, who presents evidence first? A: It is the plaintiff. The plaintiff presents evidence to prove his cause of action. He must prove his

case or his claim by preponderance of evidence. Q: Suppose after the plaintiff has rested, the plaintiff has not proven his cause of action? A: I’m the defendant, why will I prove my defense when you have not proven your claim? So,

instead of presenting evidence, the defendant may move to dismiss the complaint on the ground of insufficiency of evidence and that is known as the demurrer.

To borrow the language of the law, after the plaintiff has completed the presentation of his claim,

the defendant may move for dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief. Meaning, you have not proven your cause of action by preponderance of evidence.

Q: Now, suppose the defendant filed that motion to dismiss (demurrer) but the court disagrees

with the defendant. In the opinion of the court, plaintiff had presented sufficient evidence to prove his cause of action. Meaning, the motion is denied. What will happen now?

A: Defendant will now present evidence to prove his defense. That is why under Section 1, “If his motion is denied, he shall have the right to present evidence.”

So, no harm done ‘no? Because if I will file my motion to dismiss and it is denied, I will be given

my right to present my side. So, there is no prejudice on the part of the defendant by filing a motion to dismiss and his motion to dismiss is denied. What is risky is when your motion is granted.

“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.” Q: Suppose the court agrees with the defendant and his motion is granted. In other words, the

defendant has succeeded in dismissing the complaint without even presenting his own side – I won a boxing bout without even throwing a single punch. What will happen now?

A: The court will dismiss the case. BUT if plaintiff appeals to the CA and insists that his evidence is sufficient to prove his cause of action, therefore the order of the dismissal by the RTC is wrong, and CA agrees with the plaintiff – that the plaintiff’s evidence is sufficient to prove his claim – the CA will reverse the order of dismissal. The CA will immediately now decide the case in favor of the plaintiff and the plaintiff will automatically win.

JBD 88

Q: The defendant may argue: “Well, the order was reversed. Eh di ibalik ang kaso. Let’s go back to the RTC and let me present my side.” Is the defendant correct?

A: NO. Under Section 1, if your demurrer is granted by the trial court and is reversed on appeal, the defendant loses forever his right to present his evidence. Therefore defendant has no more right to present his side. That is tantamount to saying the defendant automatically loses the case.

So, that is what a demurrer in civil cases is all about. Very risky no? If you file a demurrer and

your motion is denied, Okay lang – no prejudice – I will present my evidence. You do not waive your right to present evidence. BUT if the court agrees with you and grants your motion, that is the start of your headache. In other words, if the plaintiff appeals, you better pray that the appellate court will sustain or affirm the order of dismissal. Otherwise if it is reversed, talo ka na automatically and you cannot say, “Alright, ibalik natin ang kaso. Let’s return the case to the RTC because I will now present my side.” No, you have already waived it.

Favorite BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases

with the rule of demurrer in criminal cases? A: The following are the distinctions:

1. In CIVIL cases when the demurrer is denied, the defendant will now present his evidence to prove his defense because the defendant does not waive his right to present in the event the demurrer is denied; whereas

In CRIMINAL cases, if the demurrer of the accused is denied the accused is no longer allowed to present evidence if he had no prior leave of court;

2. In CIVIL cases, if the defendant’s demurrer is granted and the case is dismissed and the plaintiff appeals to the appellate court and on appeal the court reverses the order of dismissal, the appellate court renders judgment immediately in favor of the plaintiff. Goodbye! – talo na ang defendant. There is no more remanding. The defendant loses his right to present evidence; whereas

In CRIMINAL cases, if the demurrer is granted, there is no more appeal by the prosecution because the accused has already been acquitted. Otherwise, there will be a case of double jeopardy;

3. In CIVIL cases, the court cannot on its own initiative, dismiss the case after the plaintiff rests without any demurrer by the defendant. There is no such thing as motu propio demurrer; whereas

In CRIMINAL cases, the court may dismiss the action on its own initiative after giving the prosecution the chance to present its evidence.

In both cases, the motion is raised only after the prosecution or the plaintiff has presented his case

and the ground is based on insufficiency of evidence. Take note that under Rule 9 of the Old Rules of Court, defenses and objections not pleaded either in

a motion to dismiss or in the answer are deemed waived. Among the exceptions (lack of jurisdiction, res adjudicata, etc.) is “when there is no cause of action.” Meaning, the ground of no cause of action cannot be waived. The same can be raised at any stage during the trial or even on appeal.

Now, such ground is not anymore found under the New Rules. What does it mean? Do you mean

to tell me that such ground is waivable now? NO. The ground of no cause of action is now incorporated under Rule 33, such that during the trial when there is really no cause of action, your remedy is to file a demurrer to evidence under Rule 33. So there is no need to refer to Rule 9 anymore.

Q: One thing, what is the difference between the “no cause of action” under Rule 16 and the “no

cause of action” under Rule 33? A: Under Rule 16, the ground of no cause of action is based on the complaint, while under Rule 33,

the ground of no cause of action is based on the plaintiff’s evidence.

JBD 89

NOTE: If the complaint states cause of action, the defendant cannot file a motion to dismiss under Section 1[g],

Rule 16 because he hypothetically admits the allegations in the complaint. So they have to go to trial. Now, if during the trial, the plaintiff failed to prove his cause of action (meaning, there is really no cause of action), it is now proper for the defendant to file a motion to dismiss on the ground of insufficiency of evidence under Rule 33, and not under Rule 16 because in the first place, the plaintiff’s complaint states cause of action.

ENOJAS vs. COMELEC

283 SCRA 229 [1997]

HELD: “The motion to dismiss on the ground of jurisdiction can be easily be differentiated from a motion to dismiss on demurrer to evidence in that, in the latter case, the movant admits the truth or factual allegations in the complaint and moves for the dismissal of the case on the ground of insufficiency of evidence. The legal effect and consequence of a demurrer to evidence is that in the event that the motion to dismiss on demurrer to evidence is granted and the order of dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf.”

“However, in a motion to dismiss on the ground of lack of jurisdiction, the movant does not lose his right to present evidence.”

“It likewise bears stressing that a demurrer to evidence under Rule 33 is in the nature of a motion to dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests its case. It thus differs from a motion to dismiss under Rule 16 which is grounded on preliminary objections and is presented at the outset of the case, that is before a responsive pleading is filed by the movant and within the period for the filing thereof.”

JBD 90

Rule 34

JUDGMENT ON THE PLEADINGS

SEC. 1. Judgment on the pleadings.- Where an answer fails to tender an

issue, or otherwise admits the material allegations of the adverse party's

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

pleading. However, in actions for declaration of nullity or annulment of

marriage or for legal separation, the material facts alleged in the complaint

shall always be proved. (1a, R19)

Judgment on the pleadings is an expeditious way of terminating a civil action. There is no more

trial and judgment will be rendered based on what the plaintiff says in his pleadings. Illustration:

PROBLEM: Plaintiff files a complaint. Defendant files an answer. The answer contains what you call defenses – negative, affirmative defenses. Now, after the defendant files the answer, his issues are joined. Next step is pre-trial. If the case is not terminated in pre-trial, next step is trial. That’s the procedure.

But suppose I will file a complaint against you and you file your answer where you admitted everything that I said in my complaint. All the allegations in the complaint are admitted and no defense was interposed by the defendant. So, meaning, the defendant filed an answer which contains no defense at all. Everything is admitted. Should the case go to trial? Should the plaintiff prove his cause of action? What is there to prove when you admitted everything? So, there is no more trial because everything is admitted by the defendant.

Q: In the above case, what should the plaintiff do? A: The plaintiff will now apply Rule 34. He will file a motion in court which is known as

Judgment on the Pleadings. He will ask the court to render judgment based on what the complaint says and what the answer says. No more evidence. Eto ang sabi ng complaint, “Oh! You borrowed money, and you did not pay.” Sabi ng answer, “admit! admit! admit!” Oh, ano pa? What is there to be tried? You admitted everything, so the court will now decide! You can render a decision based on what the complaint says and what the answer says and the court will immediately render judgment for the plaintiff. So wala ng trial. Rule 34 is one of the procedures or remedies under the Rules of Court for the prompt expeditious

resolutions of civil actions – one of the fastest ways of resolving a civil dispute because plaintiff files the complaint, defendant files his answer, plaintiff asks for judgment and the case is decided. No more pre-trial, no more trial. Why? There is nothing to try kasi wala ka mang depensa. Everything that I say in my complaint you admit.

Q: Under Rule 34, what are the grounds for Judgment on the Pleadings? A: The following are the grounds:

1.) When an answer fails to tender an issue; or 2.) When an answer otherwise admits all the material allegations of the adverse party’s

pleading. Q: When does an answer fails to tender an issue? A: An answer fails to tender an issue:

1.) when it neither admits nor denies the allegations in the complaint; It neither admits nor denies. So, you cannot do that. Either you admit or you deny

the allegations in the complaint. You cannot say, “Defendant does not admit, he does not also deny the allegation.” Meaning you are trying to be evasive. That is not allowed.

2.) when all the denials in the answer are general denials and not specific.

JBD 91

A denial is general if the pleader does not state the facts relied upon in support of his denial – “Defendant denies the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.” That is an answer which does not tender an issue because all the denials are general, or no knowledge or information sufficient to form a belief. Just like what happened in the case of CAPITOL MOTORS vs. YABUT.

So if an answer contains evasive allegations, denials which are general, it does not also tender any

issue aside from the fact that it also admits the law. Consider it as an admission of the material allegations of the complaint. Therefore plaintiff will now move for an immediate judgment in his favor. That is why it is called judgment on the pleadings.

Now, judgment on the pleadings has already been mentioned in the previous rule that we took up.

Let’s go back to pre-trial in Rule 18 because there is a mention there on judgment on the pleadings. Section 2, Rule 18:

SEC. 2. Nature and purpose. - The pre-trial is mandatory. The court shall

consider:

xxx

g) The propriety of rendering judgment on the pleadings, or summary


to exist.

xxx

In other words, during the pre-trial, the defendant there and based on his pleadings, meron siyang

defense. But during the pre-trial, he makes now an admission, “Actually, your honor, wala akong depensa ba. I have no defense.” Court: “Ah, wala ka ba? Okay. Judgment on the pleadings!” – tapos!

Or, another example: Collection case. According to the defendant in his answer the obligation is

paid. And then during the trial, the court asks the defendant, “Are you serious that the obligation is paid?” Defendant: “Actually your honor, wala pa. Hindi pa bayad.” Court: “Ganoon ba? O plaintiff, what do you say?” Plaintiff: “I move for judgment on the pleadings.” Tapos! The case is finished because the admission is made in the course of the pre-trial that he has no valid defense.

EXCEPTIONS TO THE RULE ON JUDGMENT ON THE PLEADINGS

Q: Give the exceptions to the rule on judgment on the pleadings. A: Judgment on the pleadings does not apply:

1.) in actions for declaration of nullity or annulment of marriage; or 2.) in actions for legal separation; 3.) when the issue is the amount of unliquidated damages because there must always be

evidence to prove such amount (Rule 8, Section 11); 4.) when only conclusions of law are being alleged.

So, judgment on the pleading is not allowed on actions for nullity of marriage or for legal

separation. It cannot be resolved based only on what the complaint and what the answer says. Otherwise, if we will allow Rule 34 in that kind of action, then it is very easy for husbands and wives to have their marriages annulled or in obtaining a legal separation. So, the husband and the wife, they quarrel and they decide: “O, sige. I-admit mo lahat para judgment on the pleadings na! Eh, di tapos!”

My golly! The court will never allow that to succeed simply because the other party admitted

everything. That would be a license for collusion. It’s not as easy as that. Walang judgment on the pleading sa marriage. In other words, no allegation is deemed admitted even if the other party admits. You still have to prove or disprove.

So, the premise is similar to Rule 9 on Defaults. There is no default judgment in actions for legal

separation based on the same principle eh! It is a one-sided story and collusion or connivance between the parties is possible.

-oOo-

JBD 92

Rule 35

SUMMARY JUDGMENTS Rule 35 is another important rule – Summary judgments. The rule on summary judgments and

judgment on the pleadings are similar no? They are related to each other. I would say they are brothers. Rule 34 and Rule 35, magkapatid ‘yan silang dalawa because they have a common denominator. Rule 35 is also a speedy procedure for the early resolution or decision in a civil case. The same concept but with a difference. In Rule 34 on judgment on the pleadings, the answer filed by defendant has put up no defense at all. No defense has been raised or the answer admits all the material allegations in adverse party’s pleadings. In Rule 35, the answer filed by defendant puts up a defense but the defense is not a genuine defense. Meaning, it is invoked only for the purpose of delay and the defense is not actually seriously being interposed.

Q: Define summary judgment procedure. A: Summary judgment procedure is a method for promptly disposing of actions in which there is

no genuine issue as to any material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960) How do we apply summary judgment? EXAMPLE: I will file a complaint and your answer invokes defenses, many defenses. But the

trouble is these defenses are not genuine. They are dilatory. They are invoked only for the sake of invoking and they are not seriously raised. They are just to delay the case.

So, if we go to trial, I will prove my complaint. And when it is your turn, you still lose because you

have no genuine defenses, still you have succeeded in delaying the case. So I would like to get a judgment immediately in my favor and curb your dilatory tactics by showing that your defenses are fake and dilatory.

Q: How am I going to do that? A: I will file a motion for summary judgment under Rule 35 on the ground that there is no genuine

issue to be tried. And under Section 1 and 2, I will attach to my motion for summary judgment affidavits, admissions, and depositions.

Sec. 1. Summary judgment for claimant. - A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a declamatory relief may, at

any time after the pleading in answer thereto has been served, move with

supporting affidavits, depositions or admissions for a summary judgment in his

favor upon all or any part thereof. (1a, R34)

For EXAMPLE: I will file a collection case against you and then you claim that you have paid already. But in reality, it is not paid. So I know that you are lying. Ikaw naman na defendant, you know also that you are lying, what you are after is to prolong the case.

Q: As the plaintiff, what should I do? A: I should execute affidavit stating under oath and under pain of perjury that you have not paid

me. I will attach that to my motion. Well, of course, you know very well that if I file an affidavit by stating that what you are saying is false, and if I tell a lie, you can file a case of perjury against me. But since I know that I am correct, I will dare to execute an affidavit under oath. Therefore, since his defense is false, I’m asking for an immediate decision.

Now, if you are the defendant and you received a copy of my motion, you can oppose my motion

for summary judgment where you will say, “No! I paid and my defense is genuine!” The defendant must also execute an affidavit to support his position. So you will say under oath that you paid me.

So it will become a battle of affidavits versus affidavits under oath. It is possible that one of us will

go to jail for telling a lie. So tingnan natin kung sinong matapang dito. Kung baga, if your defense is not very serious and not genuine, chances are, you will not dare to execute an affidavit claiming that

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you have paid the obligation. Takot ka man diyan ba. So if you will not execute an affidavit but you still claim that you have paid me, it is now very obvious that the defense of payment is false … and the court will say, “Tama na ang pagsisinungaling! Taob ka na!”

That is summary judgment where the court will say, “No more trial. The affidavit will take the place of

evidence in court.” That is what the rule is all about. Rule 35 is similar to judgment on pleadings under Rule 34 but the main difference is: In judgment

on the pleadings, the answer does not put up a defense while in summary judgment, here it puts up a defense but the defense is not genuine – it is a false defense which should easily be exposed by way of affidavits for summary judgment.

Now take note, there is no genuine issue because if you look at the complaint and the answer there

is an issue because the answer alleges payment. That is an issue. But in reality that is a false issue. That is why it is not a genuine issue.

Some text writers call the law on summary judgment another name – it is known as the law on

Accelerated Judgment. Meaning, the process will accelerate, you can easily go to trial. Instead of going to trial, there is no more trial. The motion for summary judgment will determine who is telling the truth and who is not telling the truth…immediately. So at least, the delay has been avoided.

What is the example I gave you, no? “A party seeking to recover a claim…” Ako, I will file against

you a case of recovery of an unpaid debt. “or cross-claim etc. at any time after the pleading if answer thereto has been served…” meaning , after your answer has been served, I will move with supporting affidavits, depositions or admissions for a summary judgment in my favor.

So my motion for summary judgment must be supported with affidavits, or depositions, or

admissions. These will be the basis unlike in the previous rule (Rule 34), there are no affidavits to support a judgment on the pleadings. All you have to do is ask the court , “Look at the complaints and look at the answer…” But here, you will prove that the defense is false and you demolish it by way of affidavits.

Q: Is summary judgment applicable to all kinds of civil actions? A: YES, because in most cases, defendants will file an answer with defenses but they are all false.

In other words, these defenses are only interposed to delay the case. So, summary judgment is applicable to accelerate the decision. That’s why it is similar to Judgment on the Pleadings.

Just like in the previous rule (Judgment on the Pleadings) in certain types of cases like declaration

of nullity of marriage, annulment of marriage, legal separation, based on the same principle that there must always be a trial in these cases, where a ground was established based on the same principle of analogy.

Q: Is Summary Judgment available only to the plaintiff? Can a defendant move for Summary

Judgment against the plaintiff? A: YES, that is also allowed under Section 2:

Sec. 2. Summary judgment for defending party. - 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.

(2a, R34)

Normally, the party who avails of summary judgment is the plaintiff. But this remedy is not limited

to the plaintiff. The defendant can also file a motion for Summary Judgment against the plaintiff because the cause of action is sham. SO, if the remedy of Summary Judgment is available to the plaintiff, it can also be availed by the defendant. How?

EXAMPLE: You file a complaint against me. Of course, your complaint puts up a cause of action,

but I know very well that your cause of action is false, although it’s very rare, usually it is the

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defendant who is delaying the case. Well, I could always file an answer and there would be pre-trial but sabi ko, “Matagal pa iyon!” So under Section 2, instead of filing an answer, I can file a motion for Summary Judgment and I will attach to my motion affidavits to show that the cause of action is not genuine. And if the plaintiff believes that his cause of action is genuine, he might as well oppose my motion with counter-affidavits. Now, if you will not, then the court will rule in my favor, dismissing your complaint.

So you notice, Summary Judgment may be availed of by either party – either the defense is not

genuine or the cause of action is not genuine.

SEC. 3. Motion and proceedings thereon. - The motion shall be served at

least ten (10) days before the time specified for the hearing. 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 the pleadings, supporting affidavits, depositions, and

admissions on file, show that, except as to the amount of damages, there is no

genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law. (3a, R34)

If I will file a motion for Summary Judgment, I must set it for a hearing just like any other motion.

Now, generally, if I will file a motion for Summary Judgment, you must be served a copy at least 10 days before the hearing. That’s an exception to the general rule in Rule 15 (general rule: you are only required to give the other party 3 days).

The reason is the other party should also be given time to oppose it with affidavits. That’s why you

have to give him a longer period to oppose and if he decides to oppose, he must also file his opposition together with affidavits but he must furnish me with his copy of opposition at least 3 days before the hearing.

Under the rule on deposition, I can take the deposition of my own opponent and based on your

deposition, I can prove that your defense is false. So depositions can be used not only during the trial but to support or oppose a motion for Summary Judgment.

Rule 23, SEC. 4. Use of depositions – At the trial or upon the hearing of a

motion or an interlocutory proceeding, any part or all of a deposition, so far

as admissible under the rules of evidence, may be used against any party who

was present or represented at the taking of the deposition, or who had due

notice thereof, in accordance with any one of the following provisions:

xxx

So, depositions can be used at the trial or upon the hearing of a motion. Q: Give examples of a motion where you can use a deposition to support your motion. A: The following:

1.) a motion for Summary Judgment. Under Rule 35, the motion should be supported by affidavits, depositions, etc… based on what the other party will admit. And based on Rule 23 Section 4, the deposition of the adverse party may be used for any purpose. So I can use it to prove that your cause of action or defense is false, or another way of supporting a motion for Summary Judgment under Rule 35, affidavits, depositions and admissions.

2.) Rule 26 – Request for Admission – I can avail of the Mode of the Request for Admission based on your admissions.

According to Section 3, all the issues which are not genuine can be resolved immediately EXCEPT

as to amount of damages. Meaning the amount of damages to be recovered by the plaintiff cannot be adjudicated through a motion for Summary Judgment because you still have to present evidence as to how much really is the damages.

Practically every issue can be resolved summarily except the exact amount of damages. Some

people find this hard to imagine, “Paano ba yon? I will file a motion for Summary Judgment and then there will be a judgment except as to the amount of damages? Ano ba ‘yan?”

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EXAMPLE: An action for damages based on quasi-delict where I will accuse you of negligence and

then you deny that you are negligent. Now, the issue is: who is negligent and who is not. Suppose I will file motion for Summary Judgment and the court will decide in my favor. Therefore the I am telling the truth, the defendant is telling a lie. And then the court will say, “Let the case be heard to determine exactly how much damages the plaintiff is supposed to recover.” So there will be a trial but during the trial, I will just prove how much I am entitled. But the issue of negligence, tapos na, talo ka na, terminated na ‘yung issue. Damages generally cannot be granted without evidence. You have to support really the exact amount you are entitled to receive.

If you will notice, the issue as to the fact that damages, especially unliquidated damages,which is

also subject to proof, is also mentioned in Rule 8, Section 11:

Rule 8, SEC. 11. Allegations not specifically denied deemed admitted –

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

unliquidated damages, shall be deemed admitted when not specifically denied.

Meaning, how much are you entitled cannot be just given to you even if your opponent will not

deny an allegation. You must still prove it and that is very clear even in Rule 35 – summary judgment can be granted except as to the amount of damages.

SEC. 4. Case not 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. It shall thereupon make an

order specifying the 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 proceeding 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. (4a, R34)

Q: Is there such a thing as a motion for partial Summary Judgment? A: YES. Well, if you say Motion for Partial Summary Judgment, some issues are genuine, some are

not. So the court can decide immediately on the issues which are not genuine but with respect to issues which are genuine, the law says, trial shall be conducted on the controverted facts summarily under Rule 35 on the issues which are not genuine.

SEC. 5. Form of affidavits and supporting papers. - Supporting and opposing

affidavits shall be made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively that the affiant

is competent to testify to the matters stated therein. Certified true copies of

all papers of parts thereof referred to in the affidavit shall be attached

thereto or served therewith. (5a, R34)

Q: What are the forms of affidavits under Rule 35? A: The following:

1.) Supporting affidavits – to support the motion for Summary Judgment; 2.) Opposing (counter-) affidavits – to oppose the motion for Summary Judgment.

Q: Give the requisites of supporting or opposing affidavits to a motion for Summary Judgment. A: The following:

1.) The affidavit shall be made based on personal knowledge; 2.) It shall set forth such facts as would be admissible in evidence; 3.) The affiant is competent to testify to the matters stated therein; and 4.) Certified true copies of all papers of parts thereof referred to in the affidavit shall be

attached thereto or served therewith. “The affidavits of your witnesses, or your affidavit must be made on personal knowledge and shall set forth

such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent and the matters stated therein.”

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What does that mean? Suppose the case will go to trial, so the witness will take the witness stand. He will testify. When a witness testifies under the Rules on Evidence, there must be a showing that what he is talking about is known by him. Otherwise, it will be hearsay. And based on the law of evidence, the testimony is inadmissible. What I will say should be admissible under the law on evidence otherwise my testimony will not be allowed and I must show that I’m in a position to know what I’m talking about.

That’s what the witness will have to demonstrate in court. Since in a motion for Summary

Judgment, there is no more trial, there is no more witnesses who will testify in court, what will take the place of a witness is his affidavit which must also show that the witness has personal knowledge, etc. Meaning, what you should show during the trial, if you are, they must also be shown in your affidavit.

If your testimony in court is not admissible, because you are telling only what you heard from other

people, then an affidavit which contains the same thing would also be inadmissible. So, in other words, the affidavit merely takes the place of oral testimony in court.

Q: What procedure is similar where the one who will decide, who will only read the affidavits of

both sides and render a decision? A: Criminal Procedure: Rule 112 on Preliminary Investigation – the fiscal conducts a preliminary

investigation on the affidavits lang. The complainant will submit his affidavit. The respondent will file his counter-affidavit. Then the fiscal will go over the affidavits and will resolve the issues and determine whether there is probable cause to file the information or none. So, the resolution is practically based on affidavits. So walang hearing.

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 attorney's fees. It may, after hearing, further adjudge the

offending party or counsel guilty of contempt. (6a, R34)

Well, of course, the affidavits required by law must be filed in good faith. EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for Summary Judgment against you

alleging that your defense is false and I will support it with affidavit. Ang defendant, malakas ang loob, he opposed my motion claiming that his defense is true and genuine and he also supported it with affidavits. Once the opposing party does that, the court will automatically deny my motion. The court is not in the position now to know who is telling the truth. Both maintaining under oath that he is telling the truth. So if you oppose my motion with supporting affidavits, the court will deny my motion for Summary Judgment and the courts says let’s go to trial and during the trial, mabisto na naman and it turned out really that you have no defense, talo ka pa rin.

Q: What is the penalty for you for filing earlier an opposition to my motion supported by affidavits

in bad faith? A: The court may order you or counsel to pay to me (plaintiff) the amount of reasonable expense

which the filing of affidavits caused me to incur, including attorney’s fees. The court may also, after hearing, adjudge you or your lawyer guilty and I will add what is not found in the law, I will file a case of perjury against you for executing a false statement.

That is a criminal sanction under the RPC. I can also file a case of disbarment against the lawyer for

assisting in the filing of an affidavit in bad faith. So in other words, if you execute an affidavit in bad faith, you must be ready to face all these later –

damages, contempt, perjury under the RPC and the lawyer to face disciplinary proceedings.

SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE PLEADINGS (Rule 34)

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Their similarity is that, both of them are methods for promptly disposing civil actions, wherein a civil case can be adjudicated without undergoing any trial.

Q: Distinguish Summary Judgment (Rule 35) from Judgment on the Pleadings (Rule 34). A: The following are the distinctions:

1.) as to the ground Summary Judgment is proper if there is no genuine issue of fact to be tried; whereas Judgment on the Pleadings is proper where there is no issue of fact at all to be tried; Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)

2.) as to how the judgment rendered

Summary Judgment is rendered on the basis of facts appearing in the pleadings, affidavits, depositions and admissions on file, whereas

Judgment on the Pleadings is rendered on the basis only of the pleadings; (Nagrampa vs. Mulwaney, Etc., 97 Phil. 724)

3.) as to who can ask for the judgment

Summary Judgment is a remedy available for both claimant and defendant; whereas Judgment of Pleadings is available only on the claimant because the answer fails to

tender an issue.

VERGARA, SR. vs. SUELTO, ET AL 156 SCRA 753

ISSUE: When does an answer fail to tender an issue? When is there no genuine issue? HELD: “Section 1, Rule 19 (now Rule 34) of the Rules of Court provides that where an

answer fails to tender an issue, or otherwise admits the material allegation of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. The answer would fail to tender an issue, of course, 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.”

“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, 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. The determination may be made by the court on the basis of the pleadings, and the depositions, admissions and affidavits that the movant may submit, as well as those which the defendant may present in his turn.”

Now, Summary Judgment is related to Rule 17 Section 1 in which summary judgment is first

mentioned:

Rule 17, Section 1. Dismissal upon notice by plaintiff. - A complaint may be

dismissed by a plaintiff by filing a notice of dismissal at any time before

service of the answer or of a motion for summary judgment. xxx

Q: Can the plaintiff dismiss his complaint as a matter of right? A: YES, at any time before the defendant has filed his answer or of a motion for summary

judgment. (Rule 17, Section 1)

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The second time that it was mentioned was in Rule 18 Section 2:

Rule 18, Sec. 2. Nature and purpose. - The pre-trial is mandatory. The

court shall consider:

xxx

(g) The propriety of rendering judgment on the pleadings, or summary


to exist;

xxx

During the pre-trial conference, it is possible for the court to render a judgment on the pleadings

under Rule 34 or a summary judgment under Rule 35. Judgment can be rendered summarily during the pre-trial.

DIMAN vs. ALUMBRES

299 SCRA 459 [Nov. 27, 1998] FACTS: The plaintiff files a motion for summary judgment where he said under oath

that the defense is false. The trial court denied it, “A summary judgment is not proper where the defendant presented defenses tendering factual issues which call for the presentation of evidence.” Is the trial court correct.

HELD: “Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by the

judge are proper for the denial of a motion for judgment on the pleadings – as to which the essential question, as already remarked, is: are these issues arising from or generated by the pleadings? – but not as regards a motion for summary judgment – as to which the crucial question is: issues having been raised by the pleadings, are those issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions accompanying the application therefor?” So those are the questions to be answer in a summary judgment, not whether or not there is an answer.

“Errors on principles so clear and fundamental as those herein involved cannot but be deemed so egregious as to constitute grave abuse of discretion, being tantamount to whimsical or capricious exercise of judicial prerogative.”

Last point to remember: as a General Rule, you cannot secure judgment by motion alone. This is

because a MOTION is defined as any petition for relief other than the relief prayed for in the pleadings. (Rule 15, Section 1)

A motion prays for relief other than through a pleading. The other way of stating it is, a motion prays for relief other than through a judgment because a judgment is prayed in a pleading and not in a motion. So a motion as a rule, cannot pray for immediate judgment.

But there are three (3) known exceptions where a motion can already pray for immediate relief. They

are: 1.) Rule 33 – Demurrer to evidence; 2.) Rule 34 – Judgment on the Pleadings; and 3.) Rule 35 – Summary Judgment.

In those exceptions, the movant is already asking for a judgment which normally is not stated in a

motion. –oOo-

JBD 99

Rule 36

JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF There are three (3) important stages in a civil action. Q: What are these three (3) stages? A: The following:

1.) First stage: Issue Formulation Stage It is the stage in which we are trying to find out what are the issues we are quarreling

about. This is done by filing a complaint, answer to know the defenses, counterclaim, answer to counterclaim, third party complaint. This is the stage of formulation of issues.

After the last pleading is filed, we go to pre-trial where we will discuss the simplification of issues, advisability of amending the pleadings, etc. Therefore, during pre-trial we are still formulating issues to be tackled. When the pre-trial is terminated and there is no settlement, we proceed to stage 2:

2.) Second stage: Stage of Proof (Rule 30 on Trial)

We are now on trial where the parties will now offer their evidence. It is called the stage of proof. Plaintiff presents evidence to prove his claim. Defendant presents evidence to prove his defense. Parties present rebutting evidence. So this is the stage where the parties will prove their respective contentions.

After the case has been tried and everything has been argued under Rule 30, the last stage is…. [sound plis… tadadadan!tadan!]

3.) Third stage: Judgment Stage (Rule 36)

This is the stage where the court will now decide and render judgment. Q: Define Judgment. A: Judgment is the final consideration and determination by a court of the rights of the parties as

those rights presently exists, upon matters submitted to it in an action or proceeding. (Gotamco vs. Chan Seng, 46 Phil. 542)

Q: What are the requisites of a valid judgment? A: There are five (5) requisites for a valid judgment:

1.) the court rendering judgment must have jurisdiction over the subject matter; 2.) the court rendering judgment must have jurisdiction over the person of the defendant, and in case the

defendant is a non-resident, the court rendering judgment must have jurisdiction over the res; 3.) the court rendering judgment must have jurisdiction over the issues, that is, the judgment shall

decide only the issues raised by the parties in their pleadings;

4.) the court rendering judgment must be validly constituted court and the judge thereof, a judge de jure or de facto; Thus, the court has not been abolished; the judge has been appointed and has not retired nor separated from service. That is why there is a rule even in criminal cases that if the judgment is promulgated after the judge has already retired, the judgment is void. There must be another promulgation.

EXAMPLE: Judge tries a case, prepares the decision and signs it. Before the decision

is promulgated, the judge died or retired. In this case, any promulgation to be made cannot be valid. The next judge must be the one to promulgate it – write the decision again and sign it. What is important is the judge who rendered.

ABC DAVAO AUTO SUPPLY vs. COURT OF APPEALS

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284 SCRA 218 [January 16, 1998] FACTS: The case was tried by a judge (Agton) who was temporarily assigned to

Mati. He wrote the decision and had it released but by that time, he was already back in Mati. The losing party contended that the judgment was not valid.

HELD: The judgment is VALID because when the new judge denied the motion

for reconsideration, he effectively adopted in toto the decision of the Mati judge. And besides, the Mati judge was still a judge when he rendered his decision.

“The subsequent motion for reconsideration of Judge Agton's decision was acted upon by Judge Marasigan himself and his denial of the said motion indicates that he subscribed with and adopted in toto Judge Agton's decision. Any incipient defect was cured. Branches of the trial court are not distinct and separate tribunals from each other. Jurisdiction does not attach to the judge but to the court.”

5.) the judgment must be rendered after lawful hearing, meaning that due process must be observed.

(Busacay vs. Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs. Juan, L-13764, Jan. 30, 1960; Rojas vs. Villanueva, 57 O.G. 7339, Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-18176, Oct. 26, 1966)

There must be a trial where both sides are given the chance to be heard. In case of a defaulted defendant, due process was observed because he was given the opportunity to defend himself. But he did not file an answer. The essence of due process is the fact that you are given the opportunity to be heard.

Sec. 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. (1a)

Q: What are the FORMAL requisites of a valid judgment? A: There are four (4) formal requisites:

1.) The judgment shall be in writing; 2.) It shall be personally and directly prepared by the judge; 3.) It shall state clearly and distinctly the facts and the law on which it is based; and 4.) It shall be signed by the judge and filed with the clerk of court.

First formal requisite: THE JUDGMENT SHALL BE IN WRITING There is no such thing as an oral judgment. BAR QUESTION: After the parties presented their evidence, the judge asked the lawyers, “Are you

going to argue?” The parties said, “No more, Your honor. We are waiving our right to argue.” So the judge dictated the decision to the clerk of court. The judgment was against the defendant. The defendant appealed next day. Do you count the period of appeal from that date when he heard the decision?

ANSWER: NO. You still have to wait for the written decision. Presumably, what is dictated by the judge will be transcribed. From the time you receive it is the reckoning period for appeal, notwithstanding the hearing of such decision in open court. That is not yet the formal decision because under the law, there is no such thing as oral decision. The judgment must be in writing.

Officially the decision is known to you on the date you received the written judgment. Not the date

when he dictated it in your presence. There are judges before who could do that. Even now those judges in Manila who became justices today do practice such type of judgment. At present, judges no longer possess such skill. They are given 90 days to decide the issue and yet at times, they could not do so within the period mandated by law. How much more on the spot decision?

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Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY PREPARED

BY THE JUDGE It is presumed that the judgment will be made by the judge himself. Although sometimes it

happens otherwise. The judge should not delegate the writing to other people. There must be no ghost writer.

Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY THE FACTS AND THE LAW

ON WHICH IT IS BASED The most important – the decision should state clearly and distinctly, the facts and the law on which it is

based. Meaning, there must be a justification for the dispositive portion. The judge must argue why the party won or lost.

Normally in the facts, either the facts presented by plaintiff are right and the facts presented by the

defendant are wrong or vice-versa. If you think the facts as presented by the plaintiff are correct or not, you have to state why do you believe that it is correct or not, and also with the evidence of the defendant. The same thing with legal questions because the plaintiff or the defendant relies on the provisions of the laws or decided cases.

You have to state why the position of the defendant is wrong, why is the law that he cited not

applicable. You have to state your facts and conclusions of law. In the SCRA, the Supreme Court will discuss both sides, “According to the plaintiff like

this…According to the defendant like this…..and so forth.” Then the decision will start by saying, “While the petitioner is correct…” or, “While the defendant is correct…”

It is called the discussion of the facts and the law on which the decision is based. It is a requirement

in the Constitution, Article VIII, Section 14:

Sec. 14. No decision shall be rendered by any court without expressing

therein clearly and distinctly the facts and the law on which it is based. xxx

(Article. VIII, 1987 Constitution)

If a judge will render a decision like this: “This is a civil action to collect an unpaid loan. According to

the plaintiff: He borrowed money for the sum of P80,000.00 payable on this date and despite demands, he did not pay. According to the defendant in his answer: the obligation is fully paid. ISSUE: Whether the loan has been paid or not yet paid. Plaintiff, to prove his cause of action presented the following witnesses and evidence. On the other hand, the defendant, to prove his defense presented the following evidence. WHEREFORE, the court renders judgment dismissing the complaint.”

Such decision has no discussion on the findings of facts and the law. There is no basis of the

dismissal of the complaint. MY GOLLY! What kind of decision is that? There is no discussion on why is the evidence of the plaintiff believable and why is the position of the defendant is like that. So there is no discussion of the facts and the law on which it is based. That is a decision which violates the Constitution and Rule 36.

Another Illustration: In an action for sum of money, plaintiff is unpaid. Defendant claims the loan has been paid. The

following is the evidence of the plaintiff and the following is the evidence of the defendant. Then the court now says: “After the meticulous study and analysis of the evidence offered by both sides, the court is of the opinion that plaintiff’s evidence is more logical, acceptable, probable and worthy of credit. THEREFORE, judgment is hereby rendered ordering the defendant to pay the loan.”

Q: Is this decision correct? A: NO. It still violates the law. There are no findings of facts or conclusions of the law. Therefore,

when the court said, “plaintiff’s evidence is more logical, acceptable, probable and worthy of credit” those are

JBD 102

conclusions. They are not findings of facts. Meaning you have to argue – why is it logical, why is it acceptable, why is it probable, why is it worthy of credit. You must state it and rebut the other side.

If that is how decisions are prepared, you just recite what the plaintiff said or what the defendant

said, and you will conclude, “Therefore, find the plaintiff is logical…”, then every nincompoop person is qualified to be a judge – everybody can write a decision.

It is just like asking questions in the examinations. You will not answer that “A is correct because

his argument is correct (period!).” You have to state why he is correct. That is also the case in the decision. You must support your answer with details.

Now, every decision of every court must state the facts and the law on which it is based. It must be

in every court, no exceptions, whether SC or an MTC. The Constitutional provision on this requirement applies to all courts from the highest to the lowest.

However, the Judiciary Law allows the appellate court to make a Memorandum Decision. If you

are the appellate court (CA), you either affirm or reverse the decision of the lower court. If the CA will reverse the findings of the RTC, definitely the CA has to justify why the findings of the RTC is wrong.

But suppose the CA will affirm, so there is nothing wrong with the judgment of the RTC. Now, in

order to shorten the period for waiting for the decision and in order to hasten it, Section 40 of BP 129 allows the appellate court to simply quote verbatim the findings and conclusion of the trial court and adopt it as its own.

This is what is called the Memorandum Decision. The concept of memorandum decision which is

found in Section 40, BP 129 is now in Rule 51, Section 5 of the 1997 Rules, to wit:

Sec. 5. Form of decision.- Every decision or final resolution of the court

in appealed cases shall clearly and distinctly state the findings of fact and

the conclusions of law on which it is based, which may be contained in the

decision or final resolution itself, or adopted from those set forth in the

decision, order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n)

So the appellate court is now authorized to simply copy or refer the true findings of fact and

conclusions at the trial court if it is affirming the latter’s decision. This is what we call memorandum decision. The SC said that it is only allowed in simple cases, not in complicated ones. Otherwise the CA will be very lazy – they will just affirm and affirm. Affirm para walang trabaho. Reverse, madami. To reverse means to argue for the opposite, rebut everything that the trial court said, it takes time to study, etc. Hence the limitation, which we will discuss later.

Q: Does the law require a particular style of writing a decision? A: NO, style is based on every individual, so long as the facts and the law are distinctively stated.

That is the minimum requirement. The law does not care how you do it because the manner of presenting the facts and the law and the discussion is a matter of style. Every person has his own style, and whether it is good or bad does not matter as long as you comply with the law.

As a matter of fact, there are many instances where the SC commented on the writing styles of

judges. The most vehement critics on sloppy style of decision writing is retired Justice Isagani Cruz, because he is a very effective writer. He is intolerant of poorly written decisions. Kaya from time to time although not necessary, he will criticize poorly written decisions. He makes sub-comments. Like in the cases of

NICOS INDUSTRIAL CORP. vs. COURT OF APPEALS 206 SCRA 127 [1992]

HELD: “Kilometric decisions without much substance must be avoided, to be sure, but

the other extreme, where substance is also lost in the wish to be brief, is no less unacceptable either.” Too long is bad, too short is bad either. “The ideal decision is that which, with

JBD 103

welcome economy of words, arrives at the factual findings, reaches the legal conclusions, renders its ruling and, having done so, ends.” This means, brief but comprehensive.

PEOPLE vs. GONZALES 215 SCRA 592

HELD: “Every judge has his own writing style, some tedious, some terse, some

pedestrian, some elegant, depending upon his training and outlook. Each is acceptable as long as the factual and legal bases are clearly and distinctly stated therein.”

PEOPLE vs. AMONDINA

220 SCRA 6

HELD: “The decision of the trial court is exceedingly long, without any effort to trim the

fat and keep it lean. Judges are not stenographers transcribing the testimony of the witnesses word for word. Judges must know how to synthesize, to summarize, to simplify. Their failure to do so is one of the main reasons for the delay in the administration of justice. It also explains the despair of the public over the foot-dragging of many courts and their inability to get to the point and to get there fast.”

There is one MTC judge here, who is very fond of quoting the allegations of the parties: “An action

for collection of money. Plaintiff filed a complaint quoted as follows….” Every paragraph is quoted. “Defendant filed an answer quoted as follows… Evidence of plaintiff, quoted as follows…” Then his decision is only one paragraph. My golly! How long will it take your stenographer to type it. Can it not be reduced to 3 pages? This is what we call writing with style.

One of the best writers in the SC right now is Justice Panganiban. As a matter of fact, in one of the

latest volumes of the Lawyers Review, he has an article entitled, “My Style of Decision Writing.” Very nice. Every judge must read that. He is giving tips on how to write elegant decisions.

But of course what applies to decision writing also applies to answering questions in the Bar. Some

elegant, some tedious. The same answer but different styles of presentation. Other get high scores, low scores because of style. So you must also know how to answer. Especially in the Bar exams where the corrector is correcting more than 4,000 notebooks and he has a deadline, your notebook must project itself as if your notebook is telling the corrector: Read me! Read me!!

Q: How do you distinguish a judgment from a decision? A: Actually, the decision is the entire written effort from the first sentence, “This is an action for a

sum of money” until the end. It contains everything from the findings of facts, discussion of evidence. The judgment is usually the last paragraph – ‘yung “WHEREFORE” – the dispositive portion or the

decretal portion. Sometimes it is called the fallo of the case. The fallo is yung “WHEREFORE…” Iyung discussions, findings of facts, conclusion of law to justify

the fallo is called the ratio decidendi – the reasoning. (Contreras vs. Felix, 78 Phil. 570) Q: In case of conflict between judgment and decision, which shall prevail? A: The judgment shall prevail in case of such conflict, for it is an elementary rule of procedure that

the resolution of the court in a given issue, as embodied in the dispositive part of the decision, is the controlling factor that determines and settles the rights of the parties and the issues presented therein. (Manalang vs. Rickards, 55 O.G. 5780, July 27, 1959)

ASIAN CENTER vs. NLRC

JBD 104

297 SCRA 727 [October 12, 1998] FACTS: A vs. B. In the ratio decidendi, A is correct. Pero pagdating sa WHEREFOR

(judgment), A’s action is dismissed! And there was no statement in favor of B. A appeals. B contended that the judgment prevails. Is B correct?

HELD: “The general rule is that where there is a conflict between the dispositive portion

or the fallo and the body of the decision, the fallo controls. This rule rests on the theory that the fallo is the final order while the opinion in the body is merely a statement ordering nothing. However, where the inevitable conclusion from the body of the decision is so clear as to show that there was a mistake in the dispositive portion, the body of the decision will prevail.”

TYPES OF JUDGMENTS:

A.) Sin Perjuicio judgment B.) Conditional judgment C.) Incomplete judgement D.) Nunc pro tunc judgment E.) Judgment upon a compromise or Judgment upon an amicable settlement F.) Judgment upon a confession

A.) SIN PERJUICIO JUDGMENT

Q: What is an SIN PERJUICIO judgment? A: A sin perjuicio is one which contains only the dispositive portion of the decision and reserves the

making of findings of fact and conclusions of law in a subsequent judgment. (Dir. of Lands vs. Sanz, 45 Phil. 117) So, there is a “WHEREFORE” without a ratio decidendi. It does not state how the court arrived at a certain decision.

Q: Is a SIN PERJUICIO judgment valid? A: A sin perjuicio judgment is a VOID judgment for it violates the constitutional provision that “no

decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based” (Sec. 14, Art. VIIII), and the provision of the Rules of Court that the judgment shall state “clearly and distinctly the facts and the law on which it is based. (Rule 36, Section 1)

B.) CONDITIONAL JUDGMENT

Q: What is a CONDITIONAL judgment? A: A conditional judgment is one which is subject to the performance of a condition precedent and

is not final until the condition is performed. (Jaucian vs. Querol, 38 Phil. 707)

EXAMPLE: A sued B. Then the court said: “The A is correct because so and so…. However, there is another case now pending before the SC where the same issue is being raised. In the meantime, A is correct. But in the event that SC decision comes out and is not favorable to A, then this decision should also be automatically changed in favor of B.” So, this is a conditional judgment. Is it a valid judgment? Q: Is a conditional judgment valid? A: It is NOT valid. In truth, such judgment contains no disposition at all and is a mere anticipated

statement of what the court shall do in the future when a particular event should happen. For this reason, as a general rule, judgments of such kind, conditioned upon a contingency, are held to be NULL and VOID. (Cu Unjieng y Hijos vs. Mabalacat Sugar Co., 70 Phil. 380)

C.) INCOMPLETE JUDGMENT

JBD 105

Q: What is an INCOMPLETE judgment? What is its effect? A: An incomplete judgment is one which leaves certain matters to be settled in a subsequent

proceeding. (Ignacio vs. Hilario, 76 Phil. 605) There is a decision but there is still other matters to be incorporated later in such decision. Parang interlocutory judgment.

EXAMPLE: There is judgment against B for a damage suit, “Wherefore, judgment is hereby

rendered ordering defendant to indemnify the plaintiff, moral and exemplary damages (period!).” It does not state how much. Mamaya na natin malaman kung magkano. So kulang pa ang decision. My golly! What is there to execute? You do not even know how much is the award. It does not

settle any question that may be the subject of execution. (Araneta, Inc. vs. Tuason, 49 O.G. 45) The judgment can never become final, it having left certain matters to be settled for its completion in a subsequent proceeding. (Ignacio vs. Hilario, 76 Phil. 605) So, the judgment is again defective.

D.) NUNC PRO TUNC JUDGMENT Q: (Bar Question) What is a judgment NUNC PRO TUNC and what is its function? A: A judgment nunc pro tunc literally means a ’judgment now for then.’ Its function is to record some

act of the court done at a former time which was then carried into the record. And the power to make such entries is restricted to placing upon the record evidence of judicial action which has actually been taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. (Lichauco vs. Tan Pho, 51 Phil. 862)

Example: When a judge renders a decision, he must base his findings on what happened on the trial

or on the evidence presented. Normally, the judge cites facts as bases for his findings. Suppose, the judge, in his hurry, made some findings but forgot to incorporate all those other important matters which can support his findings. Na-overlook ba! He rendered his decision which was lacking in something – inadvertently omitted. The judge may now amend his judgment by including the matters missed – such matters that have been admitted on record. Then, the judge now has an improved decision – the judgment now is NUNC PRO TUNC. What are to be added are things which really happened. The judge has no power to include something which did not actually happen. That would be irregular. How could you quote something which never transpired during the trial.

So it is an amended judgment where certain matters which are contained in the records and

transpired in court were not incorporated. So when you made the decision, parang kulang. So in order to make it clearer, we will incorporate those matters which should have been incorporated in the amended decision. That is known as judgment nunc pro tunc. But you can only place there matters which transpired, not matters which did not transpire.

Q: In what cases is a judgment nunc pro tunc NOT proper? A: A judgment nunc pro tunc is not proper in the following instances:

1. It cannot remedy errors or omission in an imperfect or improper judgment. (Lichauco vs. Tan Pho, 51 Phil. 862)

2. It cannot change the judgment in any material respect. (Henderson vs. Tan, 87 Phil. 466) and 3. It cannot correct judicial errors, however flagrant and glaring they may be. (Henderson vs.

Tan, 87 Phil. 466)

E.) JUDGMENT UPON A COMPROMISE or

JUDGMENT UPON AN AMICABLE SETTLEMENT Q: What is a JUDGMENT UPON A COMPROMISE? A: A judgment upon a compromise is a judgment rendered with the consent of the parties for the

purpose of effecting a compromise or settlement of an action. (31 Am. Jur. 105-108)

JBD 106

This is the type of judgment which the law encourages because it is a judgment with the consent of

the parties for the purpose of effecting a compromise or settlement. Usually mga collection cases ito – tawaran – like i-condone ang interests, or half of the amount na lang, etc. The court will render judgment copying word for word what the parties say. So the compromise agreement becomes the judgment and for a as long as the agreement is not contrary to law, the court will approve it.

Q: In a compromise judgment, is the court required to make findings of fact and conclusions of

law? Why? A: In a compromise judgment, the court is not required to make findings of fact and conclusions of

law. In contemplation of law, the court is deemed to have adopted the statement of facts and conclusions of law made and resolved by the parties themselves in their compromise agreement; and their consent has made it both unnecessary and improper for the court to make a preliminary adjudication of the matters thereunder covered. (Palarca vs. Anzon, L-14780, Nov. 29, 1960)

Q: How do you define a compromise? A: Under Article 2028 of the New Civil Code:

Art. 2028. A compromise is a contract whereby the parties, by making

reciprocal concessions, avoid a litigation or put an end to one already

commenced. (Civil Code)

So the essence of compromise is reciprocal concessions – give and take. It is a mutual concession to

avoid litigation or, if there is already, that which will put an end. There are other definitions given by the SC although the essence or substance is the same. In the case of

SMITH BELL AND CO. vs. COURT OF APPEALS

197 SCRA 201 HELD: “A compromise is an agreement between two (2) or more persons who, in order

to forestall or put an end to a law suit, adjust their differences by mutual consent, an adjustment which every one of them prefers to the hope of gaining more, balanced by the danger of losing more.”

If we go to trial, well, winner take all – either the plaintiff wins or the defendant wins. If you are

not sure of your position, then you might as well get something out of it rather than risk losing everything.

EXAMPLE: You sue me for P1 million. Then I say, “I would like to offer a settlement”. You would

say, “How much do you offer? Well, my complaint is 1 million, so you pay me P1 million.” That is not compromise, that is surrender. Kaya nga umaareglo ako para makatawad. And if you will not receive anything less than a million, you are not asking for a compromise, you are demanding total surrender. If that is so then, let us go to court and find out if you will get your P1 million and let us find out how many years from now you can get your money.

Kaya in a compromise agreement, there are no winners and there are no losers.

REPUBLIC OF THE PHILIPPINES vs. SANDIGANBAYAN 226 SCRA 314

FACTS: This is a case involving a compromise between the government and Benedicto,

a crony of President Marcos. He entered into a compromise with the PCGG and the Supreme Court approved it.

HELD: “Any compromise has its very essence reciprocal concessions, one must give and one must take. If only one takes all, then one must first win. But in a compromise, all win by taking some and giving some.”

JBD 107

Let’s go back to the law on Obligations and Contracts. There are four (4) types of defective

contracts: (a) void; (b) voidable; (3) rescissible; and (4) unenforceable. Under the Civil Code, if one party enters into a contract where he lacks the requisite authority, the contract is unenforceable but it is a valid agreement.

Q: What is the effect of a compromise agreement entered into by a lawyer, without any special

authority from his client? Is it a null and void agreement? A: A lawyer cannot, without special authority, compromise his client’s litigation. A judgment upon

a compromise entered by the court, not subscribed by the party sought to be bound by the compromise agreement, and in the absence of a special authority to the lawyer to bind his client in the said agreement, is UNENFORCEABLE. (Dungo vs. Lopena, L-18377, Dec. 29, 1962)

Q: Suppose in the above case, the client learned about what his lawyer did and he did not reject the

agreement, as a matter of fact he complied with it, what is now the effect on such agreement? A: The agreement is now perfectly VALID and ENFORCEABLE because the party himself did not

question his lawyer’s authority. When it appears that the client, on becoming aware of the compromise and the judgment, failed to repudiate promptly the action of his lawyer, he will not afterwards be heard to contest it. (Banco Español-Filipino vs. Palanca, 37 Phil. 921)

Q: What are the legal effects of a judgment based upon a compromise agreement? A: A judgment upon a compromise agreement produces the following legal effects:

1.) The compromise judgment is not appealable and it is immediately executory. (Reyes vs. Ugarte, 75 Phil. 505; Serrano vs. Miave, L-14687, March 31, 1965)

2.) It cannot be annulled unless it is vitiated with error, deceit, violence or forgery of

documents. (Morales vs. Fontanos, 64 Phil. 19; Article 2038, Civil Code) 3.) It constitutes res adjudicata. (Art. 2037, Civil Code; Sabino vs. Cuba, L-18328, Dec. 17, 1966)

Meaning, the same subject matter or cause of action can no longer be reopened in the future in another litigation.

Q: Suppose you enter into a compromise agreement and there is a judgment. You want to escape

from the compromise judgment on the ground that your consent was vitiated by mistake, error, deceit, violence. How do you question it? What is your remedy?

A: There are so many conflicting answers here. Some say you file a motion to set aside the

compromise judgment because your consent was vitiated. And if the motion is denied, you appeal from the order denying your motion to set aside. But definitely, you cannot appeal from the compromise judgment because it is not appealable. You appeal from the order denying your motion to set aside the compromise judgment. However, under the new rules, you cannot anymore appeal an order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake, or duress or any other ground vitiating consent (Section 1, Rule 41)

So an order denying a motion to set aside a judgment by compromise on the ground of fraud,

mistake, or duress or any other ground vitiating consent is not appealable. Therefore, whatever the answers before are not anymore true now. So what is the REMEDY now?

It would seem that the correct remedy based on the new rules in relation to some new cases, among

which was the case of:

DOMINGO vs. COURT OF APPEALS 255 SCRA 189 [1996]

JBD 108

HELD: The correct remedy is for the party to file an action for annulment of judgment before the Court of Appeals pursuant to Section 9, par. 2, of the Judiciary Law. (now incorporated in Rule 47) “A compromise may however be disturbed and set aside for vices of consent or forgery.

Hence, where an aggrieved party alleges mistake, fraud, violence, intimidation, undue

influence, or falsity in the execution of the compromise embodied in a judgment, an action

to annul it should be brought before the Court of Appeals, in accordance with Section 9(2) of

Batas Pambansa Bilang 129, which gives that court (CA) exclusive original jurisdiction over

actions for annulment of judgments of regional trial courts.”

F.) JUDGMENT UPON A CONFESSION (COGNOVIT JUDGMENT) Q: What is a judgment upon a confession? A: A judgment upon a confession is a one entered against a person upon his admission or

confession of liability without the formality, time and expense involved in an ordinary proceeding. (Natividad vs. Natividad, 51 Phil. 613)

A judgment upon a confession is also known as “cognovit” judgment. (Pronounced as konyuvit) EXAMPLE: You file a case against me. Without filing an answer, I simply appeared in court and

tell the court that I am not contesting the claim. I am admitting the complaint to be true and I am willing to have judgment rendered against me. Or, I can also file my answer kunwari lang ba, and then in court I will admit my liability. That would be the basis of the judgment upon a confession.

As distinguished from judgment on the pleadings (Rule 34), in judgment on the pleadings you have

to go through the process of filing an answer but actually your answer puts up no defense. In judgment upon a confession, I may not even file an answer. Hindi talaga ako maglaban. Upon receiving the complaint, I just say that I am admitting liability. So there is no need of a default order. In American Law, they call it no lo contendere, meaning no contest. Sa criminal case pa, I am pleading “guilty.”

Judgment upon a confession, Judgment upon the pleadings, Default judgment – Magkahawig sila. Only

they vary a little bit. In default judgment, the defendant failed to file an answer. So, he is declared in default. In judgment upon the pleadings, defendant filed an answer but the answer contains no defense. In judgment upon a confession, he will not file an answer but will tell the court that he is admitting liability. So, lahat will end up on the same thing: There will be a judgment rendered against the defendant.

Now, during the commonwealth era, there were many American lawyers who practiced law in the

Philippines. Many judges were Americans, even Justices of the Supreme Court – many of them were Americans. American lawyers brought to the Philippines types of agreements in American contracts. There was one particular agreement known as “Warrant of Attorney to Confess Judgment.” That is a standard clause in American contracts.

EXAMPLE: I am a bank. You borrow money from me and you sign a promissory note which

contains stipulations normally to the advantage and in favor of the bank. They usually insert the American clause “Warrant of Attorney to Confess Judgment” that in the event that the bank will sue you on this promissory note, you are entering into a confession judgment immediately. Meaning, I am not going to defend myself and I am immediately confessing judgment to the court. And who will confess judgment to the court? The debtor will say “I hereby appoint the bank as my representative to confess

JBD 109

judgment to the court in my behalf.” Parang Special Power of Attorney ba. The bank will go to the court and say, “Under this paragraph, I represent the defendant-debtor because he appointed me as his attorney-in-fact. And in behalf of the defendant, I am confessing.”

The Supreme Court ruled that such stipulation is null and void in the old case of:

NATIONAL BANK vs. MANILA OIL 43 Phil 444

HELD: Such type of clause is null and void for being contrary to public policy because

the defendant waives his right in advance to defend himself. That is unfair because even before you are sued, you have already waived your right to defend yourself.

But the judgment of confession is still allowed but one has to do it himself, and must not be done in advance. Meaning, it must not be done like the above acts of American lawyers as such is against public policy. One must be first be given a chance for defense which right be later on waived through voluntary confession.

Q: Distinguish a judgment upon a COMPROMISE from a judgment upon a CONFESSION. A: The following are the distinctions:

1.) In a judgment upon a COMPROMISE, the liability of the defendant is to be determined in accordance with the terms of the agreement of the parties; whereas

In a judgment upon a CONFESSION, the defendant confesses the action and consents to the judgment that the court may render in accordance with the compromise and the prayer therein (31 Am. Jur. 108); and

2.) In a judgment upon a COMPROMISE, there is give and take; the parties haggle, bargain and agree on the terms of the judgment; there is mutual or reciprocal concessions; whereas

A judgment upon a CONFESSION is unilateral. It comes from the defendant who admits his liability and accepts that judgment be rendered against him.

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. (2a, 10, R51)

If you lose a case, what are your options? I can either appeal within the time provided by the Rules.

Or, within the same period, I will file a motion for a new trial or a motion for reconsideration. In any case, the finality of the judgment will be stopped.

Q: Suppose the prescribed period has lapsed, there is no appeal, no motion for new trial or

reconsideration, what happens to the judgment? A: The judgment now becomes final and executory. According to Section 2, once the judgment has become final, it shall be entered by the clerk of court

in the Book of Entries of Judgments. If you go to the office of the RTC, you will find an official book which contains a chronological arrangement of cases, based on the date of filing. Malaking libro yan.

Now, the second sentence is new and its effects are also significant, “…the date of the finality of

judgment or final order shall be deemed to be the date of its entry.” The rule is, when does a judgment become final? After the lapse of the period to appeal and no appeal is filed.

JBD 110

EXAMPLE: Today, March 4, the lawyer for the defendant received a copy of the judgment. The last day to appeal is March 19. Suppose there is no appeal, then March 20 is the date of finality. On March 20 or immediately thereafter, the clerk of court should know the judgment became final on March 20. Suppose the clerk of court placed it in the book on March 30. So, the date of finality is March 20 but the date of entry is March 30.

Sometimes the clerk of court forgets to make the date of entry. That is why under the old rules, the

date of finality of judgment does not coincide with the date of entry of judgment because the clerk of court may do that thing months later. This creates a lot of trouble. So to cure the discrepancy, the second sentence is now inserted by the new law: “the date of finality of judgment shall be deemed to be the date of its entry.”

Meaning, the judgment became final on March 20 although the clerk of court noted it on March 30.

Under the new rules, the date of entry (March 30) retroacts to March 20. That is the significance of the second sentence, they will automatically coincide. Kahit i-enter pa yan next month, everything will retroact to the date of finality. It is simplier now.

Q: When the judgment becomes final and executory, what are the effects? A: The finality of a judgment produces three (3) effects, to wit: 1.) The prevailing party is entitled to have the judgment executed as a matter of right and the

issuance of the corresponding writ of execution becomes a ministerial duty of the court (Rule 39);

2.) The court rendering the judgment loses jurisdiction over the case so that it can no longer correct

the judgment in substance, except to make corrections of clerical errors and omissions plainly due to inadvertence or negligence. (Locsin vs. Paredes, 63 Phil. 87; Manaois vs. Natividad, L-13927, Feb. 28, 1960; Maramba vs. Lozano, L-21533, June 29, 1967)

If after the judgment is rendered, you file a motion for reconsideration or new trial, there

is a possibility for the court to change its mind and its judgment. But once the judgment has become final, the court has no more power to change its judgment substantially. The error will also become final, you can no longer change anything substantial.

EXCEPTION: There is one type of judgment which can be changed substantially even

long after it became final as an exception to this rule. In the study of Persons, Judgment for Support. The judgment for support, which can be modified at any time because the obligation to give support depends not only on the resources of the obligor, but also on the ever-changing needs of the obligee. (Malabana vs. Abeto, 74 Phil. 13)

EXAMPLE: The father refuses to support his minor child. After trial, the court orders

the father to support the child at P1,000 per month. Four years later, the father is already well-off and the child is already in nursery or kindergarten. So the child tells his lawyer that the amount for support must be increased from P1,000 to P5,000. The father says, “the court said P1,000 and if you change that to P5,000, that would be substantial.” The father is wrong. The amount for support can be changed anytime. In the same manner. The amount can also be lowered, as when the father loses his job.

3.) Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May 15, 1962)

The same cause of action between the same parties can never be the subject matter of another litigation in the future. Any subsequent case is barred by prior judgment.

Sec. 3. Judgment for or against one or more of several parties. - Judgment

may be given for or against one or more of several plaintiffs, and for or

against one or more of several defendants. When justice so demands, the court

may require the parties on each side to file adversary pleadings as between

themselves and determine their ultimate rights and obligations. (3)

JBD 111

Q: Suppose there are 2 plaintiffs A and B, can the court render judgment in favor of plaintiff A and

against plaintiff B? Or, is it possible that in one case, one defendant will win and the other defendant will lose?

A: YES, especially when the causes of action or defenses are not the same. One may invoke a defense that is only applicable to him but not applicable to others.

Sec. 4. Several judgments. - In an action against several defendants, the

court may, when a several judgment is proper, render judgment against one or

more of them, leaving the action to proceed against the others. (4)

Same concept. When there are 2 or more defendants, normally the court renders judgment sabay-

sabay. That is possible. Q. Is it possible that more than one judgment will arise in a civil action? A. YES. There’s a judgment in favor of the plaintiff against the defendant and the trial still

continues with respect to other defendants. That would involve more than one decision. Judgment in favor of one defendant is rendered already but the trial will continue with respect to other defendants is possible under Section 4.

EXAMPLE: There was a case where the government filed a case for expropriation against several

landowners. The lands are adjoining each other and the government would like to expropriate all these properties. The government had to file on complaint against several landowners. One landowner asked that his case be tried ahead of the others. He was allowed under Rule 31 on Separate Trial. His case was tried ahead. After trial, the court rendered judgment against him. His land was ordered expropriated. Now, what happened to the other defendants? The Supreme Court said let the case continue against the other landowners. But there would be a judgment in so far as one defendant is concerned. (Municipality of Biñan vs. Garcia, 108 SCRA 576)

Sec. 5. Separate judgments. - When more than one claim for relief is

presented in an action, the court, at any stage, upon a determination of the

issues material to a particular claim and all counterclaims arising out of the

transaction or occurrence which is the subject matter of the claim, may render

a separate judgment disposing of such claim. The judgment shall terminate the

action with respect to the claim so disposed of and the action shall proceed as

to the remaining claims. In case a separate judgment is rendered, the court by

order may stay its enforcement until the rendition of a subsequent judgment or

judgments and may prescribe such conditions as may be necessary to secure the

benefit thereof to the party in whose favor the judgment is rendered. (5a)

Section 5 is also similar to Section 4. Q: Can there be judgments at periods or stages of proceedings? A: YES. There can be judgment insofar as one cause of action and the proceedings will continue as

to other causes of action. Let us go back to Rule 30 on Order of Trial. You will notice that there is order of trial when there

are several claims in one action. EXAMPLE: Plaintiff files a complaint against several defendants. One defendant files a cross-claim

against another defendant. Two defendants file permissive counterclaims against the plaintiff. One defendant will file a third-party complaint against a third-party defendant. The court renders judgment. It may render judgment as far as complaint is concerned, then the decision for the cross-claim, then for the counterclaim.

The normal procedure is you try the case, tapusin mo lahat, then you render one judgment

disposing of the complaint, counterclaim, cross-claim and third-party complaint. Yet, separate judgments is also permissive under Section 5. If there are separate trials for all these (counterclaim, cross-claim, etc), it is also possible that there would be separate trials.

JBD 112

Distinctions: Section 3 – refers to an action by several parties Section 4 – refers to an action against several defendants Section 5 – refers to several claims for relief in an action

Sec. 6. Judgment against entity without juridical personality. - When

judgment is rendered against two or more persons sued as an entity without

juridical personality, the judgment shall set out their individual or proper

names, if known. (6a)

Does that sound familiar? Two or more persons sued as an entity without juridical personality.

Let’s go back to Rule 3 Section 15 and Rule 14 Section 8. PROBLEM: Three people are members of an entity without juridical personality. They transact

business with Mr. Alama. Mr. Alama has no idea who are really the members of the said entity. He wanted to sue the members of an entity.

Q1: How will he do it? A: Rule 3, Section 15 – Mr. Alama will file a case against the defendants by using the name of the

entity they are using. Q2: How should summons served to these defendants? A: Rule 14, Section 8 – Summons may be served on anyone of them or to the person in charge of

the place of business. Q3: How should judgment be rendered against them? A: Rule 36, Section 6 – when judgment is rendered, the judgment shall set out their individual and

proper names.

published by

LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion • Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo • Yogie Martirizar •

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SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao • Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera • Marlon Cascuejo • Mike Castaños •

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LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin •

Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin • Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos • Maying Dadula •

Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco • Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos • Joshua Tan • Thaddeus Tuburan • John Vera Cruz •

Mortmort

JBD 113

Rule 37

NEW TRIAL OR RECONSIDERATION The counterpart of Rule 37 in criminal procedure is Rule 121. In criminal procedure, there is also

the remedy of new trial and reconsideration.

Section 1. Grounds of and period for filing motion for new trial or

reconsideration. Within the period for taking an appeal, the aggrieved party

may move the trial court to set aside the judgment or final order and grant a

new trial for one or more of the following causes materially affecting the

substantial rights of said party:

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence

could not have guarded against and by reason of which such aggrieved party has

probably been impaired in his rights; or

(b) Newly discovered evidence, which he could not, with reasonable

diligence, have discovered and produced at the trial, and which if presented

would probably alter the result.

Within the same period, the aggrieved party may also move for

reconsideration upon the grounds that the damages awarded are excessive, that

the evidence is insufficient to justify the decision or final order, or that

the decision or final order is contrary to law.(1a)

Q: When may an aggrieved party file a motion for new trial or a motion for reconsideration? A: Within the period for taking an appeal. Meaning, before the judgment becomes final and

executory. We have not yet discussed the law on appeal but the general rule is just like in criminal cases. If

you lose, you have 15 days to file an appeal. If there is no appeal within 15 days, the judgment will become final and executory.

Q: If I lose in a civil case, is there other remedy aside from appeal? A: YES. You can file a motion for new trial but such motion must also be filed within 15 days.

After 15 days, you can no longer file a motion for new trial because the judgment becomes final and executory.

Q: What is the effect when judgment becomes final and executory? A: Under Rule 36, the court loses jurisdiction over the case. The decision cannot be changed

anymore. But as long as judgment is not yet final, the court can change the decision. Q: What is the effect of filing a motion for new trial or reconsideration on the period to appeal? A: The period to appeal is suspended. When your motion is denied, you still have the remaining

balance of the period to appeal. Period to appeal is suspended except if your motion for new trial or reconsideration is pro-forma under Sections 2 and 5.

NEW TRIAL Q: What are the grounds for a motion for new trial in civil cases? A: Under Section 1, there are two (2) GROUNDS:

1.) Fraud, Accident, Mistake, Excusable negligence (FAME); 2.) Newly Discovered Evidence (NDE)

FIRST GROUND: Fraud, Accident, Mistake, Excusable negligence (FAME) Let us relate this to Rule 9, Section 3 [b] on Default. The ground to lift or set aside the order of

default is also FAME – that he failed to answer because of FAME. So, there is a connection between Rule 9 and the first ground of a motion for new trial.

JBD 114

Q: How do you determine when to use Rule 9 or Rule 37 when one is declared in default? A: Use Rule 9, Section 3 [b] after notice of the order of default but before judgment;

Use Rule 37 if there is already a judgment but not yet final and executory. Rule 37 is the remedy in case the defendant who is declared in default failed to avail of Rule 9, Section 3 [b].

But Rule 37 on motion for new trial on the ground of FAME is broader. It applies to plaintiff or

defendant whether in default or not because a defendant can still lose the case through FAME although he is not in default. Or, for example: The plaintiff, because of his failure to appear in the case, the court dismissed the case. But the reason why the plaintiff failed to appear is because of FAME. So the remedy for plaintiff is to move to set aside the dismissal and have the case continued by filing a motion for new trial on the ground of FAME.

But definitely, Rule 37 also applies to a defendant declared in default and that is the connection

between Rule 37 and Rule 9.

FRAUD (Extrinsic) What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo: na-utis) Under the law, there are

two (2) TYPES of Fraud: EXTRINSIC FRAUD and INTRINSIC FRAUD

GARCIA vs. COURT OF APPEALS 202 SCRA 228 [1991]

HELD: EXTRINSIC FRAUD is that type of fraud which has prevented a party from

having a trial or from presenting his case in court. INTRINSIC FRAUD is based on the acts of a party in a litigation during the trial, such as the use of forged instruments or perjured testimony, which did not affect the presentation of the case, but did prevent the fair and just determination of the case.

Q: When is fraud a sufficient ground for new trial? A: FRAUD, to be a ground for new trial, must be EXTRINSIC – where the aggrieved party was

misled by the adverse party, and by reason thereof, he was prevented from presenting his case properly. (Gisburne Supply Co. vs. Quiogue, 34 Phil. 913; Almeda vs. Cruz, 84 Phil. 636; Sterling Investment Corp. vs. Ruiz, L-30694, Oct. 31, 1969)

So, intrinsic fraud is not a ground for a new trial. EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the lawyer of the defendant. The

case will be tried tomorrow. I called you up and asked you to postpone the trial, “I will tell the court that I talked to you and you agreed that the trial will be postponed.” The following day, I appeared in court. When the case is called, I said that I’m ready. Court: “Saan ang defendant?” I said, “Wala! Awan!” I then moved to continue the trial.

So, naisahan kita. I maneuvered a scheme in such a way that you will not appear in court. You lost

your opportunity to present your side. That is EXTRINSIC FRAUD. Your remedy now is to file a motion for new trial on the ground that you have been a victim of EXTRINSIC FRAUD by the plaintiff’s lawyer.

EXAMPLE: There is a case between you and me. During the trial, I presented witnesses to prove

my cause of action. All my witnesses were lying – they testified falsely. I presented falsified documents to prove my case. And I won the case because of those perjured testimonies and falsified documents. You file a motion for new trial alleging FRAUD – that the testimonies and documents were falsified.

Q: Should your motion for new trial be granted?

JBD 115

A: NO. Your motion will be denied because the FRAUD is INTRINSIC because you were not prevented you from going to court. So, your remedy is to expose my perjured and falsified evidence. You can present rebuttal evidence. It is your obligation to prove that my witnesses are lying and my documents are false. Definitely, you cannot ask a motion for a new trial.

ACCIDENT What is ACCIDENT? It is something unforeseen, something unexpected or unanticipated. When is

accident a sufficient ground for new trial? EXAMPLE: A party failed to appear in court because he got sick at the last minute. Or, in the

middle of the trial, the lawyer of the party becomes sick. With that, the complaint was dismissed or there was a judgment against you. You can move for new trial on the ground of accident. (Phil. Engineering Co. vs. Argosino, 49 Phil. 983)

EXAMPLE: The defendant was declared in default because he did not file an answer but actually he

filed an answer through mail, but somehow the post office did not deliver it to the court (baka may anthrax). That is an accident. With that, I can move for new trial or lift the order of default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667)

EXAMPLE: The trial was this morning. But I received only the notice of trial on March 9, 1998

stating that the trial is on March 5. So the notice of hearing was received days after the scheduled date. That is an accident which is a ground for new trial. (Soloria vs. Dela Cruz, L-20738, Jan. 31, 1966)

MISTAKE What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa bisaya pa, ‘nasayop.’ EXAMPLE: Defendant received summons and complaint. The defendant, instead of seeking

assistance of a lawyer, went to the plaintiff and asked for settlement. They kept on talking with the settlement but in the meantime, the period to file answer is also running. Fifteen days had passed by they did not settle yet. Plaintiff moved to declare defendant in default. The court issued judgment on default. Defendant said, “Layman man ako. Anong malay ko diyan sa ‘default-default’ na yan.” The lawyer said, “Sana answer muna before you settle with the plaintiff.” So the lawyer filed a motion for new trial on the ground of MISTAKE. The court granted it. (Salazar vs. Salazar, 8 Phil. 183)

GENERAL RULE: A client is bound by the mistakes of his lawyer and he cannot file a motion for

new trial on the ground of mistake of his lawyer. In the case of

BELLO vs. LABONG

L-10788, April 30, 1959 HELD: “The mistake of an attorney is not generally a ground for new trial. The mistake

or lack of foresight or preparation on the part of the attorney cannot be admitted as reason for new trial in civil cases, otherwise there would never be an end to a suit so long as a new counsel could be employed who could allege and show that the prior counsel had not been sufficiently diligent, or experienced, or learned.”

What the SC is trying to say is this: Suppose we will grant a new trial for the party on the ground

of mistake of his first lawyer, and after the new trial, the party still lost. So such party will now hire a third lawyer who will say, “Do you know why you lost? That is because of the mistake of your second lawyer so we will file a motion for new trial.” So the third lawyer will allege mistake of the second lawyer and then we will grant again a new trial and then he loses again. Then he gets a fourth lawyer and the fourth lawyer will allege the ground of mistake of the third lawyer.

JBD 116

So, there will never be an end to a case. So the general rule to remember is, a client is bound by the mistakes of his lawyer and he cannot file a motion for new trial on the ground of mistake of his lawyer. So that is not the type of mistake contemplated by Rule 37.

The only EXCEPTION is based on equity decision like the case of

PEOPLE vs. MANZANILLA 43 Phil. 167

HELD: “A new trial is sometimes granted where the INCOMPETENCY or

NEGLIGENCE of the party’s counsel in the conduct of the case IS SO GREAT that party’s rights are prejudiced and he is prevented from presenting his cause of action or defense.”

EXCUSABLE NEGLIGENCE EXCUSABLE NEGLIGENCE. Obviously, inexcusable negligence is not a ground for new trial. But

sometimes, it is difficult to determine whether the negligence is excusable or inexcusable. That is also very difficult because there is negligence whether you like it or not.

When is negligence excusable and when is it inexcusable? Our only guide here is decided cases

because there are many cases where the SC said that, it is excusable so we will grant a new trial. Or sometimes naman, wala, that is not excusable so no new trial. So, we can go on the pattern and find out what type of negligence warranted a new trial and what type does not warrant a new trial.

INEXCUSABLE NEGLIGENCE; Examples:

EXAMPLE #1: If a defendant lost a case because his lawyer failed to file an answer. And the excuse

of the lawyer was, “I forgot about the deadline. Nalimutan ko. I did not keep tract of the deadline to file an answer.” And the SC said, “No dice. That is not excusable on the part of the lawyer.”

EXAMPLE #2: Your case was dismissed because you failed to appear in court. Here comes now

your lawyer asking for new trial on the ground of excusable negligence, “I failed to appear in court because I again forgot about that schedule” or “because I failed to wake-up because the night before, I and my friends went to a (Wigmore) party and I went home drunk.” Do you think the SC will honor that? Is that excusable? Of course not!

EXAMPLE #3: In many cases, the reason is, “I failed to appear in court because my secretary in my law

office failed to inform me about that notice. Hindi niya nalagay ‘yung notice that I have to appear in court today.” SC said, “You are bound by the mistake of your secretary and the client is also bound by that mistake of the lawyer. In the first place, why did you hire that kind of secretary?”

EXAMPLE #4: In some cases, “Well, you see your honor, I failed to appear in court because my secretary

did not calendar it.” O, bakit niya hindi inilagay? “Well, she’s just a newly hired secretary, she does not know yet the importance of these things. First time niya.” The SC said, “Hung hang! Pasensiya ka! Why did you not orient her before hiring her.”

So all these things hindi lumusot. All these things failed to convince the SC that the negligence of

the party of the lawyer if excusable.

EXCUSABLE NEGLIGENCE; Examples: EXAMPLE #1: The answer has to be filed the following day. The lawyer told the secretary, “I’m

leaving tonight. I’ll come back one week later. You better file tomorrow the answer because tomorrow is the deadline.” Then he left but the secretary failed to file it because she also got sick. Ayan. Nagkapatong-patong na ang malas. Excusable iyan.

JBD 117

EXAMPLE #2: “I failed to appear in court because I had to come from Manila and the plane was delayed or the flight was cancelled. But if the flight proceeded on time I would have been in Davao City by 7:00 A.M. and I would have been in court at 8:30 A.M.” Sometimes that happens eh where the flight is cancelled or delayed. Ano ngayon yan? Sabihin, you should have taken the flight the night before para sigurado. “Eh, the night before fully booked na! Anong magagawa ko?” Ayan.

So in other words, these things, you could also consider it as what? Parang accident din no?

Magkahawig eh! In other words you should use your common sense. Whether the negligence is forgivable or not.

And to borrow the language of the SC, “The standard of care required of a party is that which an

ordinarily prudent man bestows on his important business.” (Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)

So, for EXAMPLE: You are a businessman and you have an appointment with somebody who will

give you a deal of P50 million. And you are scheduled to see him on this date and on this time. Can you afford to forget that transaction? I think there is something wrong with you if you forgot it. You do not know what is important and what is not important. (Ang importante is yung mahalaga! Di ba?)

There are things which you forget and somehow in forgetting it you cannot be blamed because it’s

not really important. But there are things which you cannot afford to forget. EXAMPLE: Your classmate tells you, “This coming Saturday you go to the house.” “Why? Is there a

(Wigmore) party there?” “Wala man. I’m just inviting you to come ha?” And by Monday, “I was waiting for you, you did not show up!” “Tama ‘no? Sorry nalimutan ko.” Now, is forgetting your appointment with your classmate two days before forgivable or not? I think forgivable iyan. Anyway, istorya-istorya man lang. Para bang, “O, sige, di sa susunod na Sabado na lang.” Meaning, madaling ma-erase sa mind mo yang mga ganyang klaseng appointment ba!

EXAMPLE: But suppose on Saturday morning you are supposed to go to church for your wedding,

hindi ka nakasipot. And then you tell your bride or the groom, “Pasensiya ka na ha? Kasal pala natin, nakalimutan ko eh. (Sana t-in-ext mo ako. Wala kang load ‘no? hahaha!)” I think he or she will kill you for that kind of reasoning.

EXAMPLE: If a lawyer says, “I forgot that this is the day I should file an answer for my client.” Or, “I

forgot to appear in court on the day of his trial.” Is the court’s schedule or the schedule of a lawyer something important for him or not? I think you know the answer ‘no?

Ayan! Kaya iyan ang guide. That is the meaning of excusable negligence.

NEWLY DISCOVERED EVIDENCE

Section 1(b). Newly discovered evidence, which he could not, with reasonable

diligence, have discovered and produced at the trial, and which if presented

would probably alter the result.

Q: What is Newly Discovered Evidence (NDE)? A: NDE is evidence which was discovered after trial, or cannot be discovered during trial given the

exercise of reasonable diligence, and if admitted, such evidence would probably alter the result of the case. There is a fighting chance ba! So, you could not have discovered the evidence even with exercise of due diligence.

This is also one of the grounds for new trial in criminal cases. You lost a case maybe because you do

not have enough evidence to prove your cause of action. Kulang ba! Kulang ka ng ebidensiya kaya natalo ka. Then after you lost the case, you came across an important evidence, maybe a witness or a document and you learned about it for the first time. Ang sayang ‘no? If I was able to present this evidence baka panalo ako.

JBD 118

EXAMPLE: You are a defendant being sued because of non-payment of an account. Ang depensa

mo, bayad na. Pero saan ang resibo? “Basta binayaran ko siya, ok naman. Sabi nga niya wala na raw akong utang.” Now, so it’s your word against his word and the court did not believe you. Then eto naman ang sabi ni X, “Natalo ka? Bayad naman yan ba.” Kung ganun, bakit alam mo? X: “Nandoon man ako ba. I was there watching when you paid him.” Meaning, kung nagtestify ka (X) noon, baka daug ako because my defense would have been corroborated by you. Yaaann!

Q: What are the REQUISITES for NDE? A: The following:

1.) That the evidence was discovered after trial; 2.) That it could not have been discovered during trial even with exercise of reasonable

diligence; and 3.) That if admitted, such evidence would probably alter the result.

THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL; Q: What happens if evidence is there all along and you failed to present it? A: That is not NDE. That is forgotten evidence and not a ground for new trial. EXAMPLE: There was a case where a party, through his lawyer filed a motion for new trial based

on this document. Bakit hindi mo pre-ni-sent sa trial? “I misplaced it in my drawer. Nalimutan ko na meron pala akong resibo. So, let’s have a new trial because I will now introduce a ground for new trial.” Obviously, it was discovered after trial. It was in your possession for so long. And according to the SC, that is not a newly discovered evidence. (That is katangahan!) That is forgotten evidence which is not a ground for new trial.

THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL EVEN WITH EXERCISE OF REASONABLE DILIGENCE

Meaning, even if you try your best to look for it, you would not have found it. Now na natalo ka,

you suddenly found it. Now, because there are clients who are lazy eh. So, meron ka bang dokumento? “Wala eh. You see,

marami akong file diyan pero tingin ko wala eh.” “Wala gyud?” “Wala.” So, talo. Walang ebidensiya eh! After a while pag-halungkat, “Atty., naa man diay.” “My golly! Nganong karon man lang. I gave you several months to look for that. You’re so lazy. Now, that you lost, you only find it for an hour.” In this case, you did not comply with the second requisites – that it could not have been discovered before trial even with the exercise of reasonable diligence.

THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER THE RESULT

Meaning, if there is a new trial and the newly discovered evidence will be admitted, it would

probably alter the result. Probably lang. May fighting chance, pero ‘chance’ lang. You are not saying that if the new evidence will be admitted, you will automatically win. There is a probability that you will win. And the court will say, “I think probable. Ok, new trial granted. Then defendant, PASOK!” (cguro, d jdge hir is myk enriquez?) Then, the evidence will be presented and we will find out if you can win.

NEW TRIAL vs. REOPENING OF TRIAL

JBD 119

The SC has already made pronouncements on what the reopening of trial meant. Reopening of trial

is not found in the law. There is no express rule, but it is admittedly allowed. Now give an example of reopening of trial.

EXAMPLE: Tapos na ang trial. What will come next is decision and then the party said, “Your honor,

could we reopen the trial? Meron kaming nakalimutan eh. I forgot an important piece of evidence.” Now, that cannot be new trial because wala pa man ang judgment. Rule 37 applies only when there is already a judgment. In the example, is that a motion for new trial? No. It should be called a motion for reopening of trial.

So if the motion is filed after the judgment is rendered, it is called motion for new trial. When the

motion is filed before a judgement is rendered, it should be called a motion for reopening of trial. EXAMPLE: A judge after trying the case, “Alright, I will not decide yet. I want to go to the area and look

at the property.” Meaning, the court, on its own, would like to conduct an ocular inspection. That is a reopening of the trial. Now, was there any motion by anybody? Wala man ba. The court itself initiated it. And that is allowed said by the SC. Reopening of trial is bound by no rules. The judge with or without a motion can do it. The only ground for reopening of trial is interest of justice. And that is very broad. So there are no rules.

The SC said: New trial should be distinguished from the exercise of the discretionary power of the

court to REOPEN a trial for the introduction of additional evidence, to clarify its doubts on material points. This discretionary power is subject to no rule other than the paramount interest of justice and will not be reviewed on appeal unless the exercise thereof is abused. (Arce vs. Arce, L-13035, Nov. 28, 1959) So it is one of the inherent powers of the court.

MOTION FOR RECONSIDERATION Q: What is the ground for a motion for reconsideration? A: Third paragraph of Section 1:

Within the same period, the aggrieved party may also move for

reconsideration upon the grounds that the damages awarded are excessive, that

the evidence is insufficient to justify the decision or final order, or that

the decision or final order is contrary to law.(1a)

Q: When do you file a motion for reconsideration? A: Within the same period for filing a motion for new trial. Meaning, within the period for taking

an appeal. Q: What are the grounds for a motion for reconsideration? A: The following are the GROUNDS for a motion for reconsideration:

1.) The damages awarded are excessive; 2.) The evidence is insufficient to justify the decision or final order; 3.) The decision or order is contrary to law. (in effect, the decision is wrong)

Motion for reconsideration is more common. Motions for new trial are very rare. In a motion for reconsideration, you convince the court that the decision is wrong, “Dapat panalo

ako, hindi siya.” You convince the court, that its decision is wrong, that the decision is contrary to law. If you can convince the court, the court will issue another decision reversing itself where from a loser [loooosseer!], you are now the winner and the original winner is now the loser [loooosseer!]. Ganyan man yan ba, very common.

MOTION FOR NEW TRIAL; FORMAL REQUIREMENTS

JBD 120

Sec. 2. Contents of motion for new trial or reconsideration and notice

thereof. The motion shall be made in writing stating the ground or grounds

therefor, a written notice of which shall be served by the movant on the

adverse party.

A motion for new trial shall be proved in the manner provided for proof of

motions. A motion for the cause mentioned in paragraph (a) of the preceding

section shall be supported by affidavits of merits which may be rebutted by

affidavits. A motion for the cause mentioned in paragraph (b) shall be

supported by affidavits of the witnesses by whom such evidence is expected to

be given, or by duly authenticated documents which are proposed to be

introduced in evidence.

A motion for reconsideration shall point out specifically the findings or

conclusions of the judgment or final order which are not supported by the

evidence or which are contrary to law, making express reference to the

testimonial or documentary evidence or to the provisions of law alleged to be

contrary to such findings or conclusions.

A pro forma motion for new trial or reconsideration shall not toll the

reglementary period of appeal. (2a)

Q: What should be the form of a motion for new trial? A: It must be in writing. You must state the ground or grounds for the motion, whether it is FAME

or newly discovered evidence. Then, of course, you must serve a copy of the motion to the adverse party. Meaning, you comply with all the requisites of a valid motion.

PEOPLE vs. COURT OF APPEALS

296 SCRA 418 [Sept. 25, 1998] FACTS: Inday filed a motion for new trial without a notice of hearing (this is a violation

of paragraph of Section 2). But she filed the motion within 15 days. Inday filed a supplemental motion with notice of hearing but filed beyond the 15-day period. Should the court deny the motion?

HELD: The motion should be denied. “A supplemental pleading subsequently filed to

remedy the previous absence of notice will not cure the defect nor interrupt the tolling of the prescribed period within which to appeal.”

“We are not impressed by the argument that the supplement filed by the appellants on May 30 should be deemed retroactive as of the date the motion for reconsideration was filed and, therefore, cured the defect therein. To so consider it would be to put a premium on negligence and subject the finality of judgments to the forgetfulness or whims of parties-litigants and their lawyers. This of course would be intolerable in a well-ordered judicial system.”

The second paragraph says, “A motion for new trial shall be proved in the manner provided for proof of

motions…” What does that mean? What is the proof of motions? The manner or proving motions is also found in Rule 15, Section 3:

Rule 15, Sec. 3. Contents. - A motion shall state the relief sought to be

obtained and the grounds upon which it is based, and if required by these Rules

or necessary to prove facts alleged therein, shall be accompanied by supporting

affidavits and other papers. (3a)

Q: Everytime you file a motion, is it necessary that the ground for your motion is supported by

affidavits or other papers? A: If it is necessary –YES. If it is not necessary – NO NEED. If necessary, you must attach

documents or supporting affidavits like a medical certificate for a motion to postpone due to illness. Q: Is it necessary that when you file motion for new trial, you must attach affidavits?

REQUIREMENTS WHEN THE GROUND IS F.A.M.E.

JBD 121

Section 2, second paragraph says, “A motion for the cause mentioned in paragraph [a] of the preceding section shall be supported by affidavits of merits…” Paragraph [a] is FAME. So, a motion for new trial on the ground of FAME must be accompanied by affidavits of merits.

Q: What is an affidavit of merits? A: An AFFIDAVIT OF MERITS is one which recites the nature and character of FAME on which the

motion is based and stating the movant’s good and substantial cause of action or defense and the evidence he intends to present if the motion is granted, which evidence should be such as to warrant reasonable belief that the result of the case would probably be otherwise. (Paz vs. Inandan, 75 Phil. 608; Manila Surety vs. Del Rosario, 101 Phil. 412)

Meaning, you must state the facts surrounding FAME and your meritorious cause of action or

defense whether you are the plaintiff or the defendant. You explain why you are a victim of fraud, etc. and that you have a good cause of action or defense which if there will be a new trial, you might win. It is not enough that you are a victim of FAME, you must also have a meritorious cause of action or defense.

Q: What happens if you file a motion without affidavit of merits? A: Then, your motion for new trial will be immediately denied. It is a fatal mistake. Your motion for

new trial is classified as a PRO-FORMA motion for new trial. Q: Briefly, how do you classify a pro-forma motion for new trial? A: It is a motion for new trial which does not comply in substance or in form with Sections 1 and 2

of Rule 37. Q: What is the EFFECT of a pro-forma motion for new trial? A: The period to appeal is NOT interrupted by the filing of such motion for new trial. Even the

right to appeal may be forfeited because of this defect. The effect is now stated in the last paragraph of Section 2:

A pro forma motion for new trial or reconsideration shall not toll the

reglementary period of appeal. (2a)

When you lose a case you have exactly 15 days to appeal. Let’s say on the tenth day, I file a motion

for new trial under Rule 37. And the motion was acted after one month. Shempre lampas na yung 15 days. Meaning, pag-tanggap ko ng decision, ten days na ang nakaraan, and then another one month so 40 days na. But no problem because when you filed your motion on the 10th day, the running of the period to appeal is interrupted. If denied, meron ka pang limang araw to appeal.

But, if the court says, “Your motion is denied because it is pro forma, there is no affidavit of merits.” Then,

you cannot appeal anymore because when you filed your motion, the period to appeal keeps on running. So by the time your motion is denied, even the right to appeal is also lost. Iyan ang epekto ng pro-forma motion for new trial. It never interrupts the period to appeal. [Trivia: PRO-FORMA means, PuRO pORMA lang, wala namang sinabi]

Q: Suppose a movant will file a motion for new trial in the ground of FAME with the affidavits of

merits and says “I am a victim of fraud and if such motion is granted, I have a good and meritorious cause of action or good and meritorious defense.” Is the affidavit sufficient?

A: SC –No, those are generalities, you must recite the facts constituting the FAME. You must describe exactly what happened to you. To say that you have good cause of action or defense is INSUFFICIENT.

You must state what is the nature of that cause of action or defense and evidence you intend to

present. So, there is an affidavit of merit but it is fatally defective. Again what will happen to the motion. It will be treated as pro-forma. The affidavit of merit is defective.

JBD 122

MANIPOL vs. LIM TAN 55 SCRA 202

FACTS : A defendant in an action for damages based on quasi-delict filed a motion for

new trial citing FAME. He says, “I have a good and meritorious cause of action or defense. I intend to prove that I exercised due diligence in the selection or supervision of my drivers and which if proven relieves the employer from liability.”

HELD: Affidavit of merits is defective. It is pro-forma motion. It does not state the

meritorious defense. There is only a general statement or conclusion of the defendant. The defendant should state the details of how he supervised his employees. You go to specifics.

The law is very strict about affidavits of merits. It is not enough that you state your defense. You

must demonstrate that you have a meritorious claim of defense so that the motion for new trial will be granted. What is the used of granting a new trial if after the new trial you will still end up losing the case? It would be a waste of time. According to SC, “ It would be pointless to reopen a case if a party does not have a meritorious cause of action of defense for like a mirage it would merely raise false hopes and at the end avail the movant nothing.” (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985) It would raise false hope if you will grant a new trial when in fact the movant has no meritorious cause of action. It’s like a mirage or illusion – seeing things which are not there. [malayo ang tingin, hindi naman duling…]

It seems that there are really two affidavits. Normally when a lawyer files motion for new trial,

there is one affidavit reciting FAME and reciting the meritorious cause of action or defense. If you follow the SC there are two (2) affidavits: FIRST – affidavit regarding the FAME; and SECOND – affidavit regarding the meritorious cause of action of defense.

But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied that the real Affidavit Of Merits

should be the second one – that I have a good and meritorious defense. In reality, there should be two (2) affidavits – one reciting the FAME and one reciting the substantial cause of action. That is why a motion for new trial on FAME should ordinarily be accompanied by two affidavits. One setting forth the facts and circumstances alleged to constitute FAME and the other an Affidavit of Merits setting forth the particular claims to constitute the movant’s meritorious defense or cause of action. The real Affidavit of Merits is the second one.

REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED EVIDENCE Q: Suppose your ground for new trial is newly discovered evidence (NDE). What is the

requirement? A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion for the cause mentioned in (Section

1) paragraph [b] (NDE) shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated documents which are proposed to be introduced in evidence.”

Meaning, when the ground is newly discovered evidence, the motion shall be supported by

affidavits also – affidavits of the newly discovered witness – or a copy of the newly discovered document. You have to state what is the newly discovered evidence, what the witness will say.

Q: What happen when such requirement is not complied with? A: The motion for new trial on the ground of NDE is treated as PRO-FORMA and it never tolled the

reglementary period to appeal.

MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS

JBD 123

Q: Again, what are the grounds for a motion for reconsideration? A: The following are the GROUNDS for a motion for reconsideration:

1.) The damages awarded are excessive; 2.) The evidence is insufficient to justify the decision or final order; 3.) The decision or order is contrary to law. (in effect, the decision is wrong)

Q: Can you file a motion for reconsideration by just simply stating that “the decision is wrong or

contrary to law,” or “the findings of the judge are not supported by evidence”? A: NO. Under Section 2, 3rd paragraph, you must point out specifically the findings or conclusions

of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.

So, you must point out what findings is not supported by evidence – what conclusion is contrary to

law. Do not let the judge look for it. The judge will never bother to look for it. You tell him what portion of the decision is wrong. You have to cite the evidence too and the law which is violated or what provisions – ituro mo yan! Point it out clearly.

Q: What happen when you file a motion for reconsideration without making any reference, exhibit

etc? Meaning, you did not comply with the 3rd paragraph. A: You motion will be denied because it is PRO-FORMA. Thus, it will never interrupt the reckoning

of the prescriptive period. The SC once defined a pro forma motion as one filed for the sake of form. (Dapin vs. Dionaldo, G.R.

No. 55488, May 15, 1992) Another POINT: when you file an motion for reconsideration on the ground that the judgment is

contrary to law, it is not enough for you to say that. You must always point out clearly why it is contrary to law, otherwise your motion will be denied or treated as pro-forma.

Q: When you file an motion for reconsideration and it is denied, does it mean to say that your

motion is pro-forma? A: NO, because maybe the judge was not convinced but you tried your best. The denial of motion

for reconsideration on the ground that the decision or judgment is wrong does not automatically make the motion a pro-forma. What makes it pro-forma is, if your motion for reconsideration does not specifically point out why judgment is wrong. But if you comply with Section 2, that is already sufficient.

In the case of

MARIKINA VALLEY DEV’T. CORP. vs. FLOJO 251 SCRA 87 [1995]

HELD: “A motion for reconsideration merely reiterates or repleads the same arguments

which had been previously considered and resolved in the decision sought to be reconsidered, the motion is a pro forma one.”

“The circumstance that a motion for reconsideration deals with the same issues and arguments posed and resolved by the trial court in its decisions does not necessarily mean that the motion must be characterized as merely pro forma. A pleader preparing a motion for reconsideration must of necessity address the arguments made or accepted by the trial court in its decision. The movant is very often confined to the amplification or further discussion of the same issues already passed upon by the trial court.” Precisely, when I filed a motion for reconsideration, we will go over the same points which the court has already discussed.

“Where the circumstances of a case do not show an intent on the part of the movant merely to delay the proceedings, our Court has refused to characterize the motion as simply pro forma. The doctrine relating to pro forma motions for reconsideration impacts upon the

JBD 124

reality and substance of the statutory right of appeal, that doctrine should be applied reasonably, rather than literally. The right to appeal, where it exists, is an important and valuable right.”

“A motion for reconsideration which is not as starkly bare but which, as it were, has some flesh on its bones, may nevertheless be rendered pro forma where the movant fails to make reference to the testimonial and documentary evidence on record or the provisions of law said to be contrary to the trial court’s conclusions. In other words, the movant is also required to point out succinctly why reconsideration is warranted.”

“It is not enough that a motion for reconsideration should state what part of the decision is contrary to law or the evidence; it should also point out why it is so. Failure to explain why will render the motion for reconsideration pro forma.” Meaning, when I point out part of the decision that is contrary to the law, it is not pro forma. But still it is pro forma if I will not state that it is contrary to law.

“Where a substantial bonafide effort is made to explain where and why the trial court should be regarded as having erred in its main decision, the fact that the trial court thereafter found such argument unmeritorious or as inadequate to warrant modification or reversal of the main decision, does not, of course, mean that the motion for reconsideration should have been regarded, or was properly regarded, as merely pro forma.”

So, I point the decision but the court does not agree with me. That does not mean that my motion is

automatically pro forma because there was attempt to convince the court why it is wrong.

EFFECTS WHEN MOTION IS GRANTED

Sec. 3. Action upon motion for new trial or reconsideration. The trial court

may set aside the judgment or final order and grant a new trial, upon such

terms as may be just, or may deny the motion. If the court finds that excessive

damages have been awarded or that the judgment or final order is contrary to

the evidence or law, it may amend such judgment or final order accordingly.

(3a, R37)

Sec. 6. Effect of granting of motion for new trial. If a new trial is

granted in accordance with the provisions of this Rule, the original judgment

or final order shall be vacated, and the action shall stand for trial de novo;

but the recorded evidence taken upon the former trial, in so far as the same is

material and competent to establish the issues, shall be used at the new trial

without retaking the same. (5a)

Q: In Section 3, how will the court resolved your motion for new trial? A: The court may either deny or may set aside the judgment or final order and grant a new trial.

Literally, if the judgment is set aside, there will be a trial de novo, a Latin word for new trial. BAR QUESTION: If Cholo files a Motion For New Trial and it is granted, will there always be a trial

de novo? A: It DEPENDS on the ground for the motion:

a.) If the ground is FAME, there will be a trial de novo because the proceeding will be set aside; b.) If the ground is NDE, there is no trial de novo. The evidence admitted which is based on the

same decision will remain. The case will be opened only for the purpose of admitting the new evidence.

Q: If Cholo files a Motion For Reconsideration and it is granted, will there be a trial de novo? A: There is NO trial de novo. The court will simply amend its judgment. It is only a re-study of

provision. The court will study its decision and go over the evidence and find out whether it made a mistake or not.

Sec. 4. Resolution of motion. A motion for new trial or reconsideration

shall be resolved within thirty (30) days from the time it is submitted for

resolution. (n)

JBD 125

There is now a deadline for the court to act on the motion – within 30 days from the time it is submitted for resolution.

SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION

Sec. 5. Second motion for new trial. A motion for new trial shall include

all grounds then available and those not so included shall be deemed waived. A

second motion for new trial, based on a ground not existing nor available when

the first motion was made, may be filed within the time herein provided

excluding the time during which the first motion had been pending.

No party shall be allowed a second motion for reconsideration of a judgment

or final order. (4a, R37; 4, IRG)

As a rule, the motion for new trial shall include all grounds then available and those not included

are deemed waived. So, if the motion for new trial is based on two (2) grounds – FAME and NDE – either or both grounds should be included in the motion.

Q: Suppose a motion for new trial, which is based only on FAME, was denied, can there be a

second motion for new trial on the ground of NDE? A: It DEPENDS:

a.) If the NDE is already existing when the first motion was filed, then the second motion for new trial will be denied because of failure to raise it earlier – the second ground is deemed waived for failure to raise the same;

b.) However, if the ground for the second motion for new trial is something not known or not existing or not available when the party filed the first motion, then the second motion is allowed. The second motion is not a pro forma motion.

So, what the law prohibits is you file a motion for new trial and you do not include all the grounds

then available. If the ground surfaced only later, then it is allowed. Therefore, the motion for new trial is an example of omnibus motion as defined in Rule 15, Section 8:

Sec. 8. Omnibus motion. - Subject to the provisions of section 1 of Rule 9,

a motion attacking a pleading, order, judgment, or proceeding shall include all

objections then available, and all objections not so included shall be deemed

waived. (8a)

Q: What happens if you file a second motion for new trial on a ground which is then available

when the first motion was filed? A: The second motion is a pro forma motion and will not interrupt the remaining balance of the

period to appeal after the first motion was denied. There was a clear violation of omnibus motion rule. Q: So, there are two (2) types of pro forma motion for new trial under Rule 37. What are they? A: The following:

1.) A motion for new trial which is not supported by affidavits of merits – one which does not comply in substance or in form with Section 2; and

2.) A second motion for new trial on a ground available to the party when the first motion was filed (Section 5).

Take note that the 2nd paragraph of Section 5 provides that “No party shall be allowed a second

motion for reconsideration of a judgment or final order.” Therefore, a second motion for reconsideration is always treated as a pro forma motion because it is totally prohibited by Section 5.

NEW TRIAL vs. MOTION FOR RECONSIDERATION Take note that in New Trial, there could possibly be trial de novo. If granted, everything is set aside

and the party will now present their evidence. But in trial de novo, we will not erase everything.

JBD 126

Proceedings or evidence admitted will remain. Only, we will open it for the purpose of introducing the new evidence and then the court will study it all over again.

In Motion for Reconsideration, there is no reopening of the case because all the court has to do is to

go over the evidence again and go over the decision to find out whether its decision is wrong and should change it. So, there is actually no trial de novo in a motion for reconsideration.

Q: Distinguish a Motion for New Trial from a Motion for Reconsideration. A: The following are the distinctions:

1.) As to grounds: In a MOTION FOR NEW TRIAL, the grounds are FAME and NDE, whereas In a MOTION FOR RECONSIDERATION, the grounds are excessive damages, decision is

not supported with evidence, or decision is contrary to law;

2.) As to trial: If a MOTION FOR NEW TRIAL is granted, there could be a trial de novo; whereas If as MOTION FOR RECONSIDERATION is granted, there is no trial de novo. The court

will only amend its decision

3.) As to a second motion: A second MOTION FOR NEW TRIAL is allowed if the ground was not existing when the

first motion for new trial was filed; whereas A second MOTION FOR RECONSIDERATION is always prohibited under the rules.

Sec. 7. Partial new trial or reconsideration. If the grounds for a motion

under this Rule appear to the court to affect the issues as to only a part, or

less than all of the matter in controversy, or only one, or less than all, of

the parties to it, the court may order a new trial or grant reconsideration as

to such issues if severable without interfering with the judgment or final

order upon the rest. (6a)

Q: Is there such a thing as motion for partial new trial or a motion for partial reconsideration? A: YES, if the party is questioning only one aspect or portion of the case. Therefore, the rest can

become final while the disputed portion does not become final. So, there could be a new trial or reconsideration only on such issues and there will be a final

judgment with respect to the other issues of the case. How could this happen? The best example is Rule 31, Section 2:

Rule 31, 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 or of any

number of claims, cross-claims, counterclaims, third-party complaints or

issues. (2a)

If the cross-claim or third-party complaint are tried separately, there will be different judgments.

And in effect, you can file a partial motion for new trial or reconsideration to the facts contemplated by the case.

Sec. 8. Effect of order for partial new trial. When less than all of the

issues are ordered retried, the court may either enter a judgment or final

order as to the rest, or stay the enforcement of such judgment or final order

until after the new trial. (7a)

This is a continuation of Section 7. Q: When there is a partial new trial, what will happen to the judgment on the undisputed facts? A: Either:

JBD 127

a.) the court will enter judgment on it; or b.) the court may stay the enforcement until after the new trial.

The following rules will describe the situation in Section 8:

Rule 36, Sec. 5. Separate judgments. When more than one claim for relief is

presented in an action, the court, at any stage, upon a determination of the









Finality of judgment with respect to one portion of the case and the trial continues with the other

portion. There are several judgments involving one action and technically, if one is finished, it can be enforced unless the court provided otherwise. Another provision is Rule 39, Section 2 [b]:

Rule 39, Sec. 2. Discretionary execution.

x x x x x

(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. (2a)

Discretionary execution or execution pending appeal. In case of an appeal, Section 1, Rule 41 [g]:

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a

particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

x x x x x

(g) A judgment or final order for or against one or more of several parties

or in separate claims, counterclaims, cross-claims and third-party complaints,

while the main case is pending, unless the court allows an appeal therefrom;

and

x x x x x Let’s go back to Rule 37.

Sec. 9. Remedy against order denying a motion for new trial or

reconsideration. An order denying a motion for new trial or reconsideration is

not appealable, the remedy being an appeal from the judgment or final order.

(n)

An order denying a motion for new trial or reconsideration is not appealable (c.f. Rule 41, Section 1

[a]. The remedy being an appeal from the judgment or final order. ILLUSTRATION: The judgment is against you. So you filed a motion for new trial or

reconsideration. The court denied your motion. So there is an order denying your motion for new trial or reconsideration. Now, you want to appeal.

Q: Appeal from what? From the main judgment or from the order denying your motion? A: You appeal from the judgment. You cannot appeal from the order denying your new motion for

new trial. That is related to Rule 41, Section 1 [a]:

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a

particular matter therein when declared by these Rules to be appealable.

NO APPEAL may be taken from:

(a) An order denying a motion for new trial or reconsideration;

x x x x x x

JBD 128

Well, of course, the filing of this motion will stop the running of the 15-day period, unless your motion for new trial is pro-forma. Generally, the law does not allow an appeal from the order denying your motion for new trial. You appeal from the decision, not from the order denying your motion. This provision will come out again when we reach the rule on appeal.

-oOo-

OUTLINE of the process: (after trial) 1.) Decision/Judgment; 2.) Motion for New Trial or Reconsideration (Rule 37); 3.) If denied, court makes a order denying your motion for new trial or reconsideration;

4.) Appeal based on the decision/judgment and not based on the order denying your motion.

JBD 129

Rule 38

RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

Section 1. Petition for relief from judgment, order, or other proceedings.

When a judgment or final order is entered, or any other proceeding is

thereafter taken against a party in any court through fraud, accident, mistake,

or excusable negligence, he may file a petition in such court and in the same

case praying that the judgment, order or proceeding be set aside. (2a)

Rule 38 is known as the remedy of petition for relief from judgment or final order. The grounds

cited here are actually the same as the grounds for new trial – FAME. We are meeting FAME for the third time. It seems to be a ground that keeps on going back. First in Default, then New Trial, and now a ground for petition for Relief from Judgment.

Q: What are the different remedies available to a defaulted defendant granted by the rules? A: The following:

Upon service of the order of default but before judgment upon default is rendered under Rule 9 you can file a motion to set aside the order of default on the ground that his failure to file answer was because of FAME;

If there is already a default judgment, the correct procedure is to file a motion for new trial under Rule 37 on the ground of FAME within the period to appeal, meaning, before judgment becomes final and executory;

If the judgment is already final and executory, the remedy is to file a petition for relief from judgment under Rule 38 on the ground of FAME.

So if you are a passenger and you want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip,

Rule 38 is last trip. Are those the only remedy? For bar purposes pwede na! But if gusto mo ng mas maganda, marami

pa. [abangan! See discussions under Rule 47] Q: Distinguish between relief from judgment under Rule 38 and new trial under Rule 37. A: Rule 37 is substantially similar to Rule 38, the only difference being that the remedy is called

Motion for New Trial if filed before the judgment or final order has become final and executory, and Petition for Relief if filed thereafter but within the period prescribed in Section 3, Rule 38.

And take note that only FAME could be the ground for Rule 38. There is no newly discovered

evidence under Rule 38. Newly discovered evidence is not a ground for petition for relief from judgment. Newly discovered evidence is available in Rule 37 but not in Rule 38.

Q: In what court can you file a petition for relief from judgment? A: “In such court and in the same case.” Meaning, in the very court where you lost and in the same

case number. So, para ka na ring nag-file ng motion for new trial because motion for new trial is filed before the same court and in the same case.

Under the OLD RULES, when you want to file a petition for relief from the judgment of the RTC,

you file your petition for relief in the same RTC and in the same case. And if you want to file a petition for relief from judgement of the MTC, you file it in the RTC like an appeal. The RTC will be the one to grant the relief from the judgment of the MTC. The MTC has no power to set aside its own judgment. It can only be done by the RTC. But the RTC has the power to set aside its own judgment just like a motion for new trial.

JBD 130

But NOW, under Section 1, you can file a petition for relief from judgment in ANY COURT on the ground of FAME, IN SUCH COURT and in the same case. So, if you want to file a petition for relief from judgment of the MTC, you should file it in the same MTC court. Now, MTC has authority to entertain petition for relief from judgment unlike the previous rule. That is a major change.

Q: Can a petition for relief from judgment be filed in the CA? A: YES because of “in any court.” Can you file a petition for relief not from a judgment but from an order? Section 2:

Sec. 2. Petition for relief from denial of appeal. When a judgment or final

order is rendered by any court in a case, and a party thereto, by fraud,

accident, mistake, or excusable negligence, has been prevented from taking an

appeal, he may file a petition in such court and in the same case praying that

the appeal be given due course. (1a)

In most cases, or 95% of petition for relief, a party files a petition for relief from the judgment

rendered against him. Actually that is not true. The remedy of petition for relief is not only limited to judgments but the law says “orders, or other proceedings.” That is very broad.

EXAMPLE: I lost the case and I filed an appeal and the appeal was beyond 15 days. So, there will

be an order denying my appeal because my appeal should be within 15 days. Q: And suppose such order prevented me from taking an appeal because of FAME, can I file a

petition for relief? A: Yes, not from the judgment but from the order denying my appeal on the ground of FAME. And

the court will grant me relief by allowing me to appeal. So there, I am not questioning the judgment but I am only questioning the order not allowing me to appeal.

But as I said, in most cases, petition for relief are based on Section 1 rather than Section 2. Bihira

yung petition for relief from the order denying the appeal. Is there a deadline in filing a petition for relief from judgment? YES. Section 3:

Sec. 3. Time for filing petition; contents and verification. A petition

provided for in either of the preceding sections of this Rule must be verified,

filed within sixty (60) days after the petitioner learns of the judgment, final

order, or other proceeding to be set aside, and not more than six (6) months

after such judgment or final order was entered, or such proceeding was taken;

and must be accompanied with affidavits showing the fraud, accident, mistake,

or excusable negligence relied upon, and the facts constituting the

petitioner's good and substantial cause of action or defense, as the case may

be. (3)

Q: When you file a petition for relief from judgment, or final order, what are the formal

requirements? A: The formal requirements are:

The petition must be verified; The petition for relief must be accompanied with affidavits showing the FAME relied upon and the facts constituting the petitioner’s good and substantial case of action or defense as the case may be.

Q: Now, does that requirement sound familiar again, that there must be an affidavit showing the

fame and the petitioner’s substantial cause of action or defense? A: Yes, that is the requirement under the motion for new trial, affidavit of merits. Therefore,

AFFIDAVIT OF MERITS which is a requirement in Rule 37 is also a requirement in Rule 38. That is the identical feature of new trial of fame and petition for relief.

Q: What will happen if a party files a petition for relief without any affidavit of merits, or with a

defective affidavit?

JBD 131

A: The defect is FATAL and the petition will be denied outright because of lack of affidavit merits. It is the affidavit of merits which serves as the jurisdictional basis for the court to entertain a petition for relief. (Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)

Q: When do you file a petition for relief? A: Once the judgment complained of has become final and executory because the remedy of new

trial is lost. But it does not mean that you can file your petition for relief anytime. There is also a deadline.

Q: What is the DEADLINE? A: Under Section 3, the petition must be filed within:

SIXTY (60) DAYS from the time the petitioner learns of the judgment, order, or other proceedings to be set aside, AND Not more than SIX (6) MONTHS after such judgment or final order was entered, or such proceeding was taken.

Q: What is the date of entry of judgment or final order? A: It is the date of finality of judgment or final order (Rule 36, Section 2). So, the date of entry is

deemed to be the date of finality. So there are two (2) periods: 60 days and 6 months; and BOTH periods must be complied with

(Dirige vs. Biranya, L-22033, July 30, 1966). Otherwise, if you fail to comply with the two periods the petition for relief will be denied for being filed out of time.

PROBLEM: There was a judgment rendered against me in June 1997 and it became final and there

was entry of final judgment in June 1997, meaning talo na ako last year pa. But I learned about it only last week or seven days ago. Today is February 1998. So I asked my lawyer to file a petition for relief this week.

Q: Is the petition filed on time? A: NO. It is filed out of time. It is true that I only learned about it a week ago. But definitely, the

filing is beyond 6 months from the date of its entry which is June 1997. You complied with the first period but you did not comply with second period. Both periods must be complied.

PROBLEM: The judgment was entered against me last December 1997, and there was entry of final

judgment in December 1997. I learned about it last December also; and now March, 1998, I will file a petition for relief from judgment.

Q: Can I still file the petition for relief? A: No more. Although it is within 6 months (December to March is only 3 months) from date of

entry BUT definitely, between December to March is more than 60 days. So the petition can no longer be filed. That is how you apply the two periods. Both periods must be complied.

Q: Is the period for filing a petition for relief extendible? A: The remedy allowed by Rule 38 is merely an act of grace or benevolence intended to afford a

litigant a penultimate opportunity to protect his interest. Considering the nature of such relief and of the purpose behind it, the periods fixed by said rule are NON-EXTENDIBLE and is never interrupted; nor can it be subject to any condition or contingency because it is itself devised to meet a condition or contingency. (Smith, Bell & Co. vs. Phil. Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs. Tameta, L-16473, April 20, 1961)

Well, of course, petition for relief according to SC, is penultimate remedy given by the law to a

victim of FAME. Because, if you are a victim of FAME, you lose the case because of that reason. Somehow the law would like to help you lalo na pagna-default ka. O.K., you have Rule 9, file ka nang motion to lift order of default. “Hindi ako nakahabol eh, may-judgment na.” O sige, Rule 38 – petition for relief. But paglumampas ka dyan, sorry na lang.

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Meaning, the law cannot help you forever. The law can only help you up to a certain period. If you still do not do anything about it, pasensiya ka na.

Sec. 4. Order to file an answer. If the petition is sufficient in form and

substance to justify relief, the court in which it is filed, shall issue an

order requiring the adverse parties to answer the same within fifteen (15) days

from the receipt thereof. The order shall be served in such manner as the court

may direct, together with copies of the petition and the accompanying

affidavits. (4a)

You file a petition for relief, the court will issue an order requiring the other party to answer. It is

like a complaint all over again where you are given 15 days to answer. Meaning sagutin mo “Would you agree that your opponent is a victim of FAME?” In other words, do you agree or disagree? – yan ang sagutin mo. “Do you agree that he has meritorious cause of action (or defense)?” Meaning, you are given the right to oppose the petition for relief.

Sec. 5. Preliminary injunction pending proceedings. The court in which the

petition is filed, may grant such preliminary injunction as may be necessary

for the preservation of the rights of the parties, upon the filing by the

petitioner of a bond in favor of the adverse party all damages and costs that

may be awarded to him by reason of issuance of such injunction or the other

proceedings following the petition; but such injunction shall not operate to

discharge or extinguish any lien which the adverse party may have acquired upon

the property of the petitioner. (5a)

Preliminary injunction actually is a type of provisional remedy which is governed by Rule 58.

Injunction is to stop ba, to enjoin somebody or stop the court from doing an act. That is the essence of injunction.

EXAMPLE: I lost in a case. The judgment became final and executory because I did not make an

appeal. However, I filed a petition for relief. In the meantime, my opponent is asking the court to execute the decision which is his right because the judgment is already final and executory. In other words, I am questioning the judgment of the court while siya naman, he is asking the court to enforce the judgment.

Q: Now, what is my remedy to stop the enforcement of the judgment? A: Under Section 5, I can ask the court to issue a writ of preliminary injunction to stop the

enforcement of the judgment. But I have to put up a BOND conditioned that in the event that my petition for relief is not meritorious, I will pay for all the damages that the other party will incur because of the delay in the execution.

Sec. 6. Proceedings after answer is filed. After the filing of the answer or

the expiration of the period therefor, the court shall hear the petition and if

after such hearing, it finds that the allegations thereof are not true, the

petition shall be dismissed; but if it finds said allegations to be true, it

shall set aside the judgment or final order or other proceedings complained of

upon such terms as may be just. Thereafter the case shall stand as if such

judgment, final order or other proceeding had never been rendered, issued or

taken. The court shall then proceed to hear and determine the case as if a

timely motion for a new trial or reconsideration had been granted by it. (6a)

BAR QUESTION: When a petition for relief from judgment is filed, what are the hearings that will

be conducted by the court? A: In proceedings for relief from judgment, there may be two (2) hearings, to wit:

a hearing to determine whether the judgment or order complained of should be set aside, and if the decision thereon is in the affirmative, a hearing on the merits of the principal case.

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So, the FIRST HEARING is to determine whether the petition should be granted or not – is the petition meritorious or not? Was there FAME? Is there affidavit of merit? Is the affidavit proper? Is the petition filed within the period allowed by the law or not? Now, if the petition is denied that is the end of the story. Wala na.

Now, if the petition for relief is granted, the judgment will be set aside as if it never existed. Then

we will now try the case all over again as if a motion for new trial has been filed. That is the second hearing. The SECOND HEARING is the trial on the merits or a trial de novo.

Now, somebody was commenting, “Ito bang petition for relief parang appeal din? Is this similar to

appeal?” The answer is NO. In the first place, there is no appeal here. Kaya nga the judgment has become final and executory because there was no appeal. Now, in an appeal, for example: Natalo ka sa kaso. When you appeal and you win, the decision will be overturned. From losing, you become the winner. That is the effect of appeal.

But in petition for relief, you are not asking the court to change its decision. When a petition for

relief from judgment is granted, the decision against you will be set aside as if it was never rendered and we will try the case all over again. In a petition for relief, the court has no power to change its decision because it has already become final and executory. But its power under Rule 38 is to set it aside as if it was never rendered and conduct a new trial as if a motion for new trial has been filed. So please do not confuse Rule 38 with the remedy of appeal.

Sec. 7. Procedure where the denial of an appeal is set aside. Where the

denial of an appeal is set aside, the lower court shall be required to give due

course to the appeal and to elevate the record of the appealed case as if a

timely and proper appeal had been made. (7a)

This is a continuation of Section 2 – what can be questioned in Rule 38 is not only a judgment but

also an order, such as an order denying an appeal. Q: Can I file a petition for relief from the denial of an appeal? A: YES. Q: And if my petition for relief from the order denying the appeal is granted, what will happen? A: According to Section 7, the court will now grant the appeal and allow the appeal to proceed as if

it was filed on time. Meaning, the judgment will not be set aside but I will be given the right to appeal if the failure to file an appeal as due to FAME.

-oOo-

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Rule 39

EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Rule 39 is on the subject of Execution, Satisfaction and Effect of Judgments. This is the longest rule

in the study of Civil Procedure. Take note that there are 48 Sections. Let us first review the fundamentals.

Q: Define execution. A: EXECUTION is the remedy provided by law for the enforcement of a judgment. (21 Am. Jur. 18)

It is the fruit and the end of the suit and is very aptly called the life of the law (PAL vs. Court of Appeals, 181 SCRA 557).

It would be useless if there is judgment but you cannot enforce the same. When you receive the

decision of court in your favor, what will you do with that? If there is no way to enforce that decision, i-laminate mo na lang yan. Useless eh!

Q: Who will enforce the judgment? A: The very same court which rendered the judgment. Q: How is execution generally done? A: It is generally done by filing a motion for execution by the prevailing party and the court will

then issue an order of execution, which will be followed with a writ of execution, and the sheriff will enforce the judgment.

So, we file a motion in court after the judgment has become final and executory. Q: How can the court issue the order when it has already lost jurisdiction over the case? because

from what we have learned here is that, one of the effects of the finality of judgment is that the court loses jurisdiction over the case. And when the court loses jurisdiction, it can no longer act on the case. So, how can it still issue orders in that case when actually, once the judgment becomes final and executory, the trial court loses jurisdiction over the case and it can no longer act in that case?

A: What is meant by that statement is that, the court can no longer change the judgment. That is why new trial and reconsideration is not anymore available in this stage. The judgment is beyond the power of the court to change or alter.

BUT definitely the court can act on that case for the purpose of enforcing its judgment because it is absurd to claim that a trial court has the power to try and hear a case but once the judgment has already become final, it has no more power to enforce it. If you will really describe jurisdiction in its complete aspect, we can say jurisdiction is “the power of the court to act on the case, to try, to decide and to enforce its judgment.” That would be more complete. Because enforcement is part of the court's jurisdiction.

Q: Against whom shall the execution issue? A: Generally, execution can issue only against a (losing) party to the case and not against one who

is a complete stranger because majority of judgments are in personam. They are only enforceable against the parties themselves or their successors-in-interest – people who derive their rights from him. And a judgement can never be enforced against a complete stranger who never had his day in court. (Cruzcosa vs. Concepcion, 101 Phil. 146; Castañeda vs. De Leon, 55 O.G. 625, Jan. 26, 1959; Bacolod vs. Enriquez, 55 O.G. 10545, Dec. 21, 1959)

Q: What portion in the decision is normally the subject of execution ? A: It is the dispositive portion – the “WHEREFORE…” – that is going to be enforced. (Robles vs.

Timario, 58 O.G. 1507, Feb. 19, 1962) CLASSES OF EXECUTION

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Q: What are the classes of execution under the law? A: The following:

I. As to their nature: 1.) COMPULSORY execution – known as Execution as a Matter of Right (Section 1) 2.) DISCRETIONARY execution – known as Execution Pending Appeal (Section 2)

II. As to how it is enforced (Section 6): 1.) EXECUTION BY MOTION 2.) EXECUTION BY INDEPENDENT ACTION

COMPULSORY EXECUTION (Execution as a matter of right)

EXECUTION AS A MATTER OF RIGHT;

FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL

Section 1. Execution upon judgments or final orders. – Execution shall issue

as a matter of right, on motion, 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.

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.

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

examination.

Q: What are the conditions for compulsory execution? A: The following are the conditions:

1.) FIRST CONDITION: If a judgment has disposed already of the action or proceeding then it can be executed ;

2.) SECOND CONDITION: The period to appeal has expired and no appeal has been filed/taken from the judgment.

Under the first condition, if a judgment has disposed already of the action or proceeding then it can

be executed because if the judgment or order has not yet disposed of the action or proceeding, that is called an interlocutory judgment or order.

One of the effects of finality of a judgment under Rule 36 is that the prevailing party is entitled to

have the judgment executed as a matter of right. And it is the ministerial duty of the court to execute its own judgment. So once the judgment has become final, all that the winner or prevailing party has to do is to file an action in court for execution, the court has to issue.

When the law says it is a matter of right upon a judgment or order that disposes the action or

proceeding, it means that after the judgment was rendered, there is nothing more for the court to do because its job is over. Therefore, if there is something more that the court can do, as a rule, you cannot execute. That is why conditional judgments, incomplete judgments cannot be executed.

Under the second condition, we must wait for the period to appeal to expire before we can move

for execution. So, if the period to appeal has not yet expired, then we cannot execute the judgment. As corollary to that rule we have this question:

JBD 136

Q: May the court refuse to execute a judgment on the ground that the judgement was wrong or

erroneous? A: NO, because it is a matter of and the issuance of the corresponding writ of execution upon a final

and executory judgment is a ministerial duty of the court to execute which is compellable by mandamus. (Ebero vs. Cañizares, 79 Phil. 152) The principle is: No matter how erroneous a judgment may be, so long as the lower court had jurisdiction over the parties and the subject matter in litigation, (in short the judgment is valid), the said judgment is enforceable by execution once it becomes final and executory. The error also becomes final. If it is erroneous, the remedy is to appeal, otherwise the error becomes final as well.

In execution, if you are not careful, there are lawyers who are very good in thwarting an execution

where a series of maneuvers are utilized - we can still be delayed by questioning this and that and sometimes courts are unwitting accomplices. That is why in the 1994 of

PELAYO vs. COURT OF APPEALS

230 SCRA 606 HELD: “We have time and again ruled that courts should never allow themselves to be

a party to maneuvers intended to delay the execution of final decisions. They must nip in the bud any dilatory maneuver calculated to defeat or frustrate the ends of justice, fair play and prompt implementation of final and executory judgment. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them.”

GENERAL RULE: Judgment is enforceable by execution once it becomes final and executory. EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41)

1. When there has been a change in the situation of the parties, which makes the execution inequitable;

2. When it appears that the controversy has never been submitted to the judgment of the court; 3. When the judgment was novated by subsequent agreement of the parties; 4. When it appears that the writ of execution has been improvidently issued; 5. When the writ of execution is defective in substance; 6. When the writ of execution is issued against the wrong party; and 7. When the judgment debt has been paid or otherwise satisfied.

[1] WHEN THERE HAS BEEN A CHANGE IN THE SITUATION OF THE PARTIES

WHICH MAKE THE EXECUTION INEQUITABLE. (Supervening Fact Doctrine) One of the most important exceptions is the first one: When there has been a change in the situation of

the parties which make the execution inequitable. Meaning, from the time na nagkaroon ng final judgment up to the present, there has been a change in the situation of the parties so that if we will execute, the judgment becomes inequitable already. So, this is just another way of saying that there has been a SUPERVENING EVENT that happened which makes execution inequitable.

EXAMPLE: There was a case where A filed a case to eject B from his property and B lost the case

and there was a judgment ordering him to vacate the property of A. But while the case was going on, A mortgaged his property to the bank. In the meantime, he failed to pay his loan and the bank foreclosed the mortgage. So the property was sold at public auction. And at the auction sale, B, the one occupying

JBD 137

it, bought the property. The owner now is B. But there is a final judgment ejecting him. Now, shall we insist on the judgment ejecting B? No because B is now the owner. The fact that B became the owner is a supervening event.

PHIL. VETERANS BANK (PVB) vs. IAC

178 SCRA 645 NOTE: There was a time before that the PVB was closed for 5 to 6 years because I think

they have some problems. So the Central Bank has to take over. The Central Bank has ordered to stop the operation – placed under receivership, the Central Bank will control. Now under the Central Bank Law, once the Central Bank takes over the control of a private bank, all its assets has to be preserved. No assets will be sold or disposed of.

FACTS: There was somebody who sued PVB, and PVB lost. So there was a judgment which became final. And the winner asked the court to execute. Practically, you have to levy on the property of the bank. In the meantime, the PVB was placed under receivership, where under the law, it cannot be disposed of because it is under the control of the Central Bank.

ISSUE: Can the prevailing party insist on the enforcement of the judgment and get and

levy the property of the PVB? HELD: NO. The placement of the bank under receivership is a SUPERVENING EVENT.

“Once a decision has become final and executory, it is the ministerial duty of the court to order its execution, admits certain exceptions. The fact that petitioner is placed under receivership is a supervening event that renders a judgment notwithstanding its finality unenforceable by attachment or execution.”

SAMPAGUITA GARMENTS CORP. vs. NLRC 233 SCRA 260

FACT: An employee was terminated by his employer on the ground of theft. He stole

company property. The management filed also a case of theft against the employee. But in the meantime the employee also filed a labor case against the employer for illegal dismissal and prayed for reinstatement with back wages. After hearing, the NLRC ruled that there was illegal termination and ordered the reinstatement of the employee and payment of backwages. The NLRC decision became final. In the meantime, the accused was convicted in the criminal case for theft and ordered to go to prison.

ISSUE: What happens now to the final judgment of the NLRC reinstating the employee? HELD: “An employee’s conviction for theft, which was affirmed by the RTC and the

CA, is a SUPERVENING CAUSE that renders unjust and inequitable the NLRC decision mandating the employee’s reinstatement with backwages.”

Take note however that for the supervening event to apply, the supervening event must happen

after the judgment has become final and executory. Not that the supervening event happened while the case was going on. If the case is going on and something happened which you believe would make the decision against you unfair, your duty is to bring it to the attention of the court so that the court deciding the case would take that into consideration. In the case of

VALENSONA vs. COURT OF APPEALS

226 SCRA 36 HELD: “While the rule is that a stay of execution of a final judgment may be authorized

if necessary to accomplish the ends of justice, as for instance, where there has been a change in the situation of the parties which makes such execution inequitable, nevertheless the said rule cannot be invoked when the supposed change in the circumstances of the parties took

JBD 138

place while the case was pending, for the reason that there was then no excuse for not bringing to the attention of the court the fact or circumstance that affects the outcome of the case.”

The ruling in VALENZOLA was reiterated in

ABOITIZ vs. TRAJANO 278 SCRA 387 [1997]

HELD: “We are of course well aware of the rule authorizing the court to modify or alter

a judgment even after the same has become executory, whenever circumstances transpire rendering its execution unjust and inequitable. However, this rule, we must emphasize, applies only to cases where the facts or circumstances authorizing such modification or alteration transpired after the judgment has become final executory.”

[3] WHEN THE JUDGMENT WAS NOVATED BY SUBSEQUENT AGREEMENT. QUESTION: Can the parties enter into a compromise agreement when there is already a decision? ANSWER: YES. Compromise agreement is welcome anytime – before the case is filed, while the

case is going on, while the case is on appeal. Q: Now suppose there is a decision in my favor against you and then you approach me and say,

“Pwede ba pag-usapan na lang natin ito?” “Sige okay.” Then we arrive at another agreement which we signed, where the agreement is different from the decision in my favor. Can it be done?

A: Yes, I can waive my rights under the judgment. There is now a new agreement between us. Q: Can I execute on the original judgment? A: No more, because the new agreement novated the judgment. Take note that in case of novation,

the new obligation must be totally incompatible with the first obligation. A related question: Q: Can one court by injunction or restraining order stop the execution of a judgment of another

court? A: GENERAL RULE: NO, because that will amount to interference. EXCEPTIONS:(when the enforcement of a final judgment may be stopped by way of injunction) 1.) Rule 38, Section 5:

Rule 38, Section 5: Preliminary injunction pending proceedings. – The court

in which the petition is filed, may grant such preliminary injunction as may be

necessary for the preservation of the rights of the parties, upon the filing by

the petitioner of a bond in favor of the adverse party, conditioned that if the

petition is dismissed or the petitioner fails on the trial of the case upon the

merits, he will pay the adverse party all damages and costs that may be awarded

to him by reason of the issuance of such injunction or the other proceedings

following the petition; but such injunction shall not operate to discharge or

extinguish any lien which the adverse party may have acquired upon the property

of the petitioner.

In effect, there is a final and executory judgment but the court will issue an injunction to

stop this enforcement because of the pendency of a petition for relief from judgment.

2.) When there is an action for annulment of judgment of the RTC filed in the CA.

The CA may issue a writ of preliminary injunction – annulment of judgment, certiorari, or prohibition cases where the CA will issue a preliminary injunction to stop the RTC from enforcing its judgment pending the resolution of whether its judgment was rendered in excess or without jurisdiction- annulment of judgement, certiorari, or prohibition cases where the CA

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will issue a preliminary injunction to stop the RTC from enforcing its judgement pending the resolution of whether its judgement was rendered in excess or without jurisdiction.

So, those are the exceptions.


SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT Q: Is there any other instances where a judgement maybe executed as a matter of right? A: YES, when the losing party appealed the RTC decision to the CA and the CA affirmed the

decision of the RTC. Kung may appeal, the judgment is not final, you cannot execute. The case is now in the CA, the CA decided in your favor, the RTC judgment was affirmed and the CA decision has also become final and executory. So you can now execute.

Q: How do you execute in that situation? A: That is now covered by the second and third paragraphs of Section 1:

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.

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.

Now the usual procedure no, when you win in the RTC and the losing party appeals, the records of

the case will be brought to the CA. Later, there will be a CA decision: The judgment of the RTC of Davao City is affirmed in toto. Now you have to wait for the CA judgment to become final because that may be appealed further to the SC. If the judgment becomes final, the clerk of court will make an entry of final judgment of the CA decision. Normally after that, the records from the CA will be returned to Davao. It will be sent back to the court of origin. Once the record is back, the RTC is supposed to tell you, the records are here. That is the time you file a motion for execution. You will file it in the RTC.

But sometimes, it takes months for the CA to return the records. That is the trouble with the CA. It takes them several months, when the case is appealed, before they tell you that the record is here.

In the PRESENT rules, this is taken from the SC Circular 24-94 which took effect in 1994, hindi na

kailangan hintayin ang records na bumalik dito. Just get a certified copy of the CA decision, get a copy of the entry of final judgment of the CA. You just attach a copy of the CA judgment and a certificate from the CA clerk of court that it is already final and executory - meaning, that there is already entry of final judgment. This is much faster than waiting for the records to be returned.

The first paragraph in Section 1 normally deals with judgment usually becoming final and executory in the RTC. The rest of the paragraph deals with appeal which affirmed the decision of the RTC. So that is the procedure for execution – both cases, execution is a matter of right because judgment is final and executory.

The alternative which is the last paragraph, in the interest of justice, you can file also your motion

for execution in the CA and the CA will direct the RTC to issue the writ of execution.

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THIRD INSTANCE: CASES UNDER SECTION 4 Q: Is there another instance when execution becomes a matter of right? A: This is the third instance found in Section 4:

Sec. 4. Judgments not stayed by appeal. - Judgments in action for

injunction, receivership, accounting and support, and such other 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 or otherwise as

may be considered proper for the security or protection of the rights of the

adverse party. (4a)

GENERAL RULE: If there is an appeal, the judgment will be stayed. EXCEPTIONS (Under Section 4): Judgments in actions for injunction, receivership, accounting,

support, judgment declared to be immediately executory. So, actions for injunction, receivership, accounting, support. So for example: there’s an injunction

from the court: “The defendant is enjoined from trespassing on plaintiff’s land.” Then you appealed. So, the decision is not final. Now, if the judgment is not yet final, what will you do in the meantime. So, you’ll say; “I’ll just continue to trespass because anyway the judgment is not yet final.” Ah hindi yan pwede. Even if the judgment is not yet final, even if it is on appeal, you have to honor the injunction. So, in effect, it is a matter of right.

Another Example: An order directing you to render an accounting. Take the case of recovery of

possession of land with accounting of the income that you received. After trial, “Okey, Defendant, you turn over the possession of the property to the plaintiff and you render an accounting.” Appeal ka. Pag appeal mo, there must be an accounting in the meantime.

So, if there is a judgment for an action for support, you must comply with the judgment even before

it becomes final. So, the amendment now includes support and this phrase, “such other judgments as are now or may hereafter be declared to be immediately executory.” Any judgment which is declared by law to be immediately executory has to be enforced even before it becomes final and executory even if there is an appeal.

Q: Give an example of a law which declares a judgement to be immediately executory? A: The best example would be the Summary Procedure – where a decision of the MTC in a civil

case is appealed to the RTC, the decision of the RTC is immediately executory even if we go to the CA. It has to be executed unless the appellate court will stop the execution in the meantime.

EXECUTION AS A MATTER OF RIGHT; FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL DETAINER CASES

Q: Is there another instance when execution becomes a matter of right? A: YES, under Rule 70 – a judgment of the MTC in a forcible entry or unlawful detainer case is

immediately executory (i.e. subject to immediate execution) even if it is not yet final and executory. TO SUMMARIZE: Q: When is execution a matter of right? A: In the following:

1.) Section 1, paragraph 1 – no appeal; judgment becomes final;

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2.) Section 1, paragraph 2 – there is an appeal; once the CA judgment becomes final; 3.) Section 4 – Judgment in an action for injunction, receivership, accounting, support,

judgment declared to be immediately executory; and 4.) Rule 70 – Judgments in Forcible Entry and Unlawful Detainer cases.

DISCRETIONARY EXECUTION (Execution pending appeal)

Section 2. Discretionary execution. –

(a) Execution of a judgment or final order pending appeal. – On motion of

the prevailing party with notice to the adverse party filed in the trial court

while it has jurisdiction over the case and is in the 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 the execution

of a judgment or final order even before the expiration of the period to

appeal.

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. We’ll now go to the second type of execution - discretionary or execution pending appeal.

Discretionary, meaning, the court may or may not order the execution. Here, the prevailing party files a motion for execution within the 15 days period. So in other words,

the judgment is not yet final and executory, normally, within the period to appeal.

Q: Normally, can you file a motion for execution within the period to appeal?

A: As a rule, you cannot because it is not yet final. But by EXCEPTION, Section 2 allows you,

provided, according to the last paragraph, discretionary execution may only issue upon ‘good

reason’ to be stated in the special order after due hearing.

Q: Therefore, what are the requisites for discretionary execution? A: The following are the requisites for discretionary execution:

1.) There must be a motion filed by the prevailing party; 2.) There must be a notice of the motion given to the adverse party; and 3.) There must be good reasons to execute to be stated in a special order after due hearing.

Why discretionary? Because the court may or may not grant the execution depending on whether

there is a good reason or no good reason. Unlike in Section 1, when the judgment has become final and executory, you do not have to cite any good reason. The only reason for the execution is that the judgment becomes final and executory. But in the case of execution pending appeal, you must justify it – the party must convince the court to grant the execution. And remember according to the SC, execution under Section 2 is not the general rule, that is the exception.

“The requirement of good reason is important and must not be overlooked, because if the judgment

is executed and, on appeal, the same is reversed, although there are provisions for restitution, oftentimes damages may arise which cannot be fully compensated. Accordingly, execution should be granted only when these considerations are clearly outweighed by superior circumstances demanding

JBD 142

urgency, and the above provision requires a statement of those circumstances as a security for their existence.” (City of Bacolod vs. Enriquez, 101 Phil. 644)

It is even a misnomer – execution pending appeal. For all you know, the losing party may or may

not appeal. It is actually called execution pending appeal because you are filing the motion within the period to appeal.

Q: What will happen if there are no good reasons? A: The writ of execution is void because it does not state why you are executing a judgment.

(AFWU vs. Estipona, L-17934, Dec. 28, 1961) And remember that execution pending appeal is the exception rather than the rule. And there is a possibility that the judgment in your favor will be reversed on appeal.

Q: Suppose we will execute the judgment pending appeal and the appeal will proceed then it will

be reversed, what will happen then? A: If that happens, then there is Section 5 – eh di, magsaulian tayo if it is reversed totally, partially,

or annulled on appeal or otherwise. There will be MUTUAL RESTITUTION. That is the remedy under Section 5. But the trouble is ang hirap man ng saulian, eh. There could not be a 100% perfect restitution. That is the same asking the question, how can you unscramble an unscrambled egg? This is one reason why execution pending appeal is not favored.

Section 5. Effect of reversal of executed judgment. - Where the executed

judgment is reversed totally or partially, or annulled, on appeal or otherwise,

the trial court, may, on motion, issue such orders and justice may warrant

under the circumstances (5a)

Q: Give examples of GOOD REASONS which would justify execution pending appeal. A: Following are example of good reasons: 1.) When there is danger of the judgment becoming INEFFECTUAL. (Scottish Union vs. Macadaeg,

91 Phil. 891);

In this case of MACADAEG, the plaintiff sued a foreign corporation doing business in the Philippines. So it has assets no? The plaintiff sued the foreign company and he won, there was award, but hindi pa final. In the meantime, plaintiff learned the foreign company is going to stop completely its business in the Philippines and they are going to send back all their assets abroad. Sabi ng na plaintiff: “Aba delikado ako. Suppose after the appeal, I still win and I will start running after the defendant na wala naman dito. It has no more office, no operations, no assets; but in the meantime meron pa”? So the plaintiff filed a motion for execution pending appeal. If we will wait for the judgment to become final, by that time the judgment will become ineffectual.

2.) OLD AGE; There was a case an old woman files a case against somebody to recover her land

from the defendant which the latter has deprived her of the property for years. The defendant enjoyed the property and the fruits. After years of litigation she won, she was about 80. And then mag-aappeal pa yong kalaban. The old woman filed a motion in court asking for immediate execution even if the judgment is not yet final on the argument that “I have been deprived for years of the possession and of the property; and there is a probable appeal which may take another couple of years. By the time I win the case on appeal, I may already be dead. I have not enjoyed the property and the fruits.” The SC said, all right that is a good reason.

3.) Where the appeal is for the purpose of DELAY;

Q: How about the argument that the intended appeal is dilatory? It is only intended to

prolong the supposed execution and therefore the losing party has a chance to win the appeal. Is that a good ground for execution pending appeal ?

JBD 143

A: In the old case of PRESBITERO vs. RODAS (73 Phil. 300) and JAVELLANA vs. QUERUBIN (July 30, 1966) the SC said that, that is a good reason – when the appeal is interposed for delay.

However, in the case of AQUINO vs. SANTIAGO (161 SCRA 570) the SC said that it is not a

ground because it is as if the trial court is already acting like the CA. It is only the CA which has the power to claim that the appeal is without merit. That’s another reasoning.

But in the case of HOME INSURANCE CO. vs. CA (184 SCRA 318), the SC ruled that, that

would be a good reason again specially that there are many factors to show the inequity of not executing the judgment immediately (if coupled with other reason). That’s why in the case of

HOME INSURANCE CO. vs. COURT OF APPEALS

184 SCRA 318

HELD: “A good and sufficient reason upon which to issue execution of the judgment pending appeal is when the appeal is being taken for the purpose of delay. While it is true that it is not for the trial court to say that the appeal may not prosper or that it is frivolous [so, the SC is aware of these pronouncements], there are circumstances which may serve as cogent bases for arriving at such a conclusion.” Dean I: An example where the trial court maybe justified in saying that the appeal is dilatory is in default judgements where there is no evidence for the defendant. And then the defendant appeals. Now what is the chance of reversal when all the evidence is for the plaintiff? The possibility that the judgment will be reversed is almost zero (0). Therefore the court can rule that the appeal is dilatory and then order the execution of the judgment pending appeal upon motion of the plaintiff.

The SC continues: “Another vital factor which led trial court to allow execution pending appeal was the pendency of the case for more than 17 years so that the purchasing power of the peso has undeniably declined. Petitioner should be given relief before it is too late.”

PB COM. vs. COURT OF APPEALS 279 SCRA 364 [Sept. 23, 1997]

HELD: “It is significant to stress that private respondent Falcon is a juridical entity

and not a natural person. Even assuming that it was indeed in financial distress and on the verge of facing civil or even criminal suits, the immediate execution of a judgment in its favor pending appeal cannot be justified as Falcon's situation may not be likened to a case of a natural person who may be ill or may be of advanced age.”

“Even the danger of extinction of the corporation will not per se justify a discretionary execution unless there are showings of other good reasons, such as for instance, impending insolvency of the adverse party or the appeal being patently dilatory. Hence, it is not within competence of the trial court, in resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as its basis for finding good reason to grant the motion. Only an appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal which may have been issued by the trial court for other good reasons, or in cases where the motion for execution pending appeal is filed with the appellate court in accordance with Section 2, paragraph (a), Rule 39 of the 1997 Rules of Court.”

4.) When the successful party files a BOND;

JBD 144

Q: Here is a controversial question: How about an instance when the winning party offers to put up a bond. He says; “Alright, I am asking for an order pending appeal. I will put up a bond to answer for any damages that the defendant may suffer in the event that he wins the appeal.”

A: In the old case of HACIENDA NAVARRA vs. LABRADOR (65 Phil 635), the SC simply implied that there is a good ground. HOWEVER, the SC denied that implication in later cases. Among which were the cases of ROXAS vs. CA (157 SCRA 370) and PNB vs. PUNO, (170 SCRA 229) and PHOTOQUICK INC. vs. LAPENA, JR. (195 SCRA 66).

PHILIPPINE NATIONAL BANK vs. PUNO

170 SCRA 229 HELD: “The mere filing of a bond would not entitle the prevailing party to an

execution pending appeal. Whatever doubts may have been generated by early decisions involving this matter, starting with Hacienda Navarra, Inc. vs. Labrador, et al., have been clarified in Roxas vs. Court of Appeals, et al.”

“To consider the mere posting of a bond a ‘good reason’ would precisely make immediate execution of a judgment pending appeal ROUTINARY, the rule rather than the exception. Judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed to do was to post a bond to answer for the damages that might result therefrom. This is a situation, to repeat, neither contemplated nor intended by law.” So, we might say that the posting of a bond would be an ADDITIONAL GOOD REASON

but it is NOT BY ITSELF a good reason. So, the case of HACIENDA NAVARRA VS. LABRADOR has been misinterpreted.

The second paragraph of Section 2 [a]:

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

pending appeal may be filed in the appellate court.

Q: Where can you file your motion for execution pending appeal? A: It DEPENDS:

1.) TRIAL COURT - while it has jurisdiction over the case and the court is still in possession of the records of the case. Meaning: (1.) the judgment has not yet become final - it is still within the 15 day period, and (2.) the court still is in possession of the records of the case.

2.) APPELLATE COURT – after the trial court has already lost jurisdiction, the motion for execution pending appeal may already be filed in the appellate court.

So, if the RTC has no more jurisdiction, then doon ka na mag-file ng motion sa CA. Q: When will the court lose jurisdiction over the case ? A: With regard to execution pending appeal, you can correlate this with RULE 41, SECTION 9 , to

wit:

Rule 41, Section 9. Perfection of appeal; effect thereof. - A party’s appeal

by notice of appeal is deemed perfected as to him upon the filing of the notice

of appeal in due time.

A party’s appeal by record on appeal is deemed perfected as to his with

respect to the subject matter thereof upon approval of the record of 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 of 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

JBD 145

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. (9a)

The phrase “order execution pending appeal in accordance with Section 2 of Rule 39” was not there in the

Old Rules. Now, that has been added and it jives with Section 2 paragraph (a). Now, for as long as the motion is filed, before the court loses jurisdiction and provided that the records are still with the trial court , even if the appeal is subsequently perfected, it can still act on the motion for execution pending appeal.

Now, let us go back to Section 2, Rule 39 on execution of several, separate or partial judgments –

meaning, there are several judgments arising from the same case: Rule 39, Section 2 [b]:

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. (2a)

Let us correlate this provision with Rule 36, Sections 4 and 5 AND Rule 37, section 8:

RULE 36, Sec. 4. Several judgments. - In an action against several

defendants, the court may, when a several judgment is proper, render judgment

against one or more of them, leaving the action to proceed against the others.

(4)

RULE 36, Sec. 5. Separate judgments. - When more than one claim for relief

is presented in an action, the court, at any stage, upon a determination of the









RULE 37, Sec. 8. Effect of order for partial new trial. - When less than all

of the issues are ordered retried, the court may either enter a judgment or

final order as to the rest, or stay the enforcement of such judgment or final

order until after the new trial. (7a)

Q: Can there be two or more judgments arising out of one case? A: YES. (Rule 36, Sections 4 and 5) Q: Can the first judgment be immediately executed while waiting for rendition of the second

judgment? A: Generally, the court will decide. If the court agrees, there has to be a good reason. There is one interesting case on execution pending appeal – the case of

RCPI vs. LANTIN 134 SCRA 395

FACTS: The case of Lantin was an action for damages. The court awarded the plaintiff

said damages. So, the plaintiff moved for discretionary execution. ISSUE: Whether or not execution pending appeal is proper in a judgment for damages. HELD: The execution pending appeal may be proper for enforcing the collection of

ACTUAL DAMAGES, but it is not proper to enforce the payment of moral or exemplary damages. So, this is where the SC distinguished.

JBD 146

Why is it that execution pending appeal is proper for the collection of actual damages? In actual or compensatory damages, the amount is certain. Normally, there are receipts. The amount is based on evidence.

But the award for moral or exemplary damages is uncertain and indefinite. It is based on abstract factors like sleepless nights, besmirched reputation. It is hard to quantify it based on evidence.

The SC said, in many cases the trial court awards a huge amount for exemplary damages but on appeal, the CA refused to award or totally eliminate the award. So, if the award of moral or exemplary damages is not certain or fixed, the execution pending appeal may not be proper to enforce its execution.

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 supersedeas 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. The bond

thus given may be proceeded against on motion with notice to the surety. (3a)

Q: Now, assuming that there is an execution pending appeal in favor of the plaintiff under Section 2

and I am the defendant, is there a way for me to stop the execution pending appeal? A: Your remedy is to apply Section 3. The defendant will now ask the court to fix a supersedeas

bond to stop the execution pending appeal. The bond will answer for any damages that the plaintiff may suffer if the defendant’s appeal is not meritorious.

And once the supersedeas bond is filed, the court has to withdraw the execution pending appeal.

Supersedeas bond under Section 3 is 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.

GENERAL RULE: When a defendant puts up a supersedeas bond, the court shall recall the

execution pending appeal because discretionary execution is the exception rather than the general rule. EXCEPTION: Notwithstanding the filing of the supersedeas bond by the appellant, execution

pending appeal may still be granted by the court IF THERE ARE SPECIAL AND COMPELLING REASONS justifying the same outweighing the security offered by the supersedeas bond. (De Leon vs. Soriano, 95 Phil. 806)

EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same may be executed pending appeal

even notwithstanding the filing of a supersedeas bond by the appellant. (De Leon vs. Soriano, 95 Phil. 806) Support is something which should not be delayed. What is the use of the supersedeas bond when the need of the plaintiff is today and not 5 or 6 weeks from now? [aber?]

Alright, let us go to the next important classification of execution. The other classification as to the

manner of enforcement could be by MOTION or by INDEPENDENT ACTION.

EXECUTION BY MOTION EXECUTION BY INDEPENDENT ACTION

Sec. 6. Execution by motion or by independent action. - A final and

executory judgment or order may be executed on motion within five (5) years

from the date of its entry. After the lapse of such time, and before it is

barred by the statute of limitations, a judgment may be enforced by action. The

revived judgment may also be enforced by motion within five (5) years from the

date of its entry and thereafter by action before it is barred by the statute

of limitations. (6a)

Q: How do you execute a judgment? A: You file a motion for execution before the same court which rendered the judgment. Q: How is the execution enforced? A: There are two 2 modes under Section 6:

JBD 147

1.) Execution by motion – within five (5) years from the date of its entry; and 2.) Execution by independent action – within five (5) to ten (10) years.

Execution BY MOTION means that the prevailing party shall ask the court to issue a writ of

execution by simply filing a motion in the same case. EXAMPLE: I am the plaintiff and I have a judgment here against the defendant. I do not know of

any assets of the defendant because the defendant for the meantime is as poor as a rat. But after a certain period of time he becomes a wealthy man. All I have to do is to file a motion and the court will order the execution, provided the motion is filed within 5 years from the date of the entry of judgment. The date of the entry of judgment and the date of finality are the same (Rule 36, Section 2).

Q: Suppose the defendant becomes rich after 5 years, can I still file a motion to execute? A: No more, because execution by motion must be filed within 5 years only from the date of its

entry. If the judgment was not executed within the 5-year period, the judgment has become dormant. Q: What is a dormant judgment? A: A DORMANT judgment is one that was not executed within 5 years. Q: So, how can that (dormant) judgment be awaken? A: The procedure is to file another civil action. A civil action for revival of judgment. That is what

you call EXECUTION BY INDEPENDENT ACTION which must be filed before it is barred by the statute of limitations. The second sentence states, “after the lapse of such time (which is 5 years) and before it is barred by the statute of limitations, a judgment may be enforced by action.”

Q: When will it be barred by the statute of limitations ? A: According to Article 1144 of the New Civil Code, the judgment may be enforced only within ten

(10) years. Therefore, since the judgment will be enforced by motion for five (5) years, then after the fifth year,

it will be enforced by independent action. So, I will start the civil action for revival of judgment between or after the 5th year but before the 10th year. So, that is what we have to remember.

Q: Do you mean to tell me that I have to file the case all over again, practically repeating what

happened 5 years ago? A: NO, because the judgment in the independent action is a judgment reviving the first judgment. For example, more than 5 years ago I sued you to collect on a promissory note and you alleged

payment, and you lost and the court said that you are liable to me. On the seventh year when I revived that judgment, my rights are no longer based or derived on the promissory note but on such judgment. But you can still invoke other defenses such as lack of jurisdiction, fraud. But you cannot question the correctness of the original judgment because that is already res adjudicata. You are entitled to put up any defense that you have against me provided that you cannot question the correctness of the original judgment. That is the rule.

Q: Discuss briefly the nature of the action for enforcement of a dormant judgment. A: The action for enforcement of a dormant judgment is an ordinary civil action the object of which

is two-fold, namely, (a) to revive the dormant judgment, and (b) to execute the judgment reviving it, if it grants the plaintiff any relief. Hence, the rights of the judgment-creditor depend upon the second judgment. Being an ordinary civil action, it is subject to all defenses, objections and counterclaims which the judgment-debtor may have except that no inquiry can be made as to the merits of the first judgment. Therefore, defenses that do not go to the merits of the first judgment, such as lack of jurisdiction, collusion, fraud, or prescription, may be set sup by the judgment-debtor. (Cia. Gral. De Tabacos vs. Martinez, 17 Phil. 160; Salvante vs. Ubi Cruz, 88 Phil. 236) [Taken from Remedial Law Reviewer by Nuevas]

Q: Give the exception to the rule on dormant judgment.

JBD 148

A: The only exception is the judgment for support which does not become dormant, nor does it prescribe. You can execute it anytime even beyond the 5-year period and any unpaid installment may be executed by motion. (Florendo vs. Organo, 90 Phil. 483) So, even if the judgment is more than 5 years old, the defendant defaulted on the seventh year, you just file a motion to collect that judgment.

Q: Suppose the judgment was executed and the property of the defendant was levied on the 4th

year, and the next stage is the auction sale. A: The SC said the auction sale must also be WITHIN 10 years. So, even if the property was levied,

the auction sale must be within 10 years. Not only the levy of the property must be done within 10 years but also the including the auction sale, otherwise, any auction sale done beyond 10 years in null and void.

Now, look at the last sentence in Section 6: “The revived judgment may also be enforced by motion within

five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.” For example, I have here a judgment nine (9) years ago. I want to enforce it by action to revive

judgment. You mean to tell me that the revived judgment is good for another ten (10) years? Another 5 years for motion to a right of action and then I can still revive it within 10 years?

Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), the SC said that the period applies

all over again from the finality of the revived judgment. So, you have another ten (10) years. However, this principle is abandoned in the later case of PNB vs. VELOSO (32 SCRA 266), the SC said that the original period is only computed from the date of the original judgment.

And of course, because of those 2 conflicting cases, the court resolved those issues in the case of

LUZON SURETY CO. vs. IAC (151 SCRA 652) where the SC said, the later doctrine of VELOSO prevails. So, with that ruling, the 10-year period applies only from the date of the original judgment, but you cannot say that once it is revived, you have another 10 years.

But now, you look at the new law: “The revived judgment may also be enforced by motion within five (5)

years from the date of its entry and thereafter by action before it is barred by the statute of limitations.” Ano yan? That is a revival of the BONDOC ruling! Binalik yung original ruling which is, the revived judgment is good for another 10 years.

So, I repeat, the last sentence has resurrected the ruling in the case of PNB vs. BONDOC and

superseded again LUZON vs. IAC. You are entitled to another 10 years from the date of the revived judgment.

ILLUSTRATION: Example: First judgment became final in 1990. You can enforce that until 2000 by motion (1990-

1995) or by independent action (1995 – 2000). Suppose in 2000, you were able to secure a second judgment reviving the first judgment, under the new rules, there is another ten years. The first judgment by motion. The next 5 years is by independent action. So, to illustrate:

5 years by motion

5 years by independent action

5 years by motion

5 years by independent action

10 years Article 1144, Civil Code

10 years last sentence of Section 6

1990 2000 1995 2010 2005

JBD 149

ARCENAS vs. COURT OF APPEALS 299 SCRA 733 (December 4, 1998)

HELD: “The purpose of the action for revival of a judgment is not to modify the original

judgment subject of the action but is merely to give a creditor a new right of enforcement from the date of revival.”

“The rule seeks to protect judgment creditors from wily and unscrupulous debtors who, in order to evade attachment or execution, cunningly conceal their assets and wait until the statute of limitation sets in.”

Sec. 7. Execution in case of death of party. - In case of the death of a

party, execution may issue or be enforced in the following manner:

(a) In case of the death of the judgment obligee, upon the application of his

executor or administrator, or successor in interest;

(b) In case of the death of the judgment obligor, against his executor or

administrator or successor in interest, if the judgment be for the recovery of

real or personal property, or the enforcement of a lien thereon;

(c) In case of the death of the judgment obligor, after execution is actually

levied upon any of his property, the same may be sold for the satisfaction of

the judgment obligation, and the officer making the sale shall account to the

corresponding executor or administrator for any surplus in his hands. (7a)

This is related to Rule 3, Section 20. Q: What is the effect of a death of a party on the execution of a judgment? A: The following:

1.) If it is the obligee (the creditor) will die after he wins the case, his executor or administrator, his legal representative or his heirs and successors in interest can enforce the judgment. They will be the one to collect. (paragraph [a])

2.) If it is the defendant (obligor) who dies and there is final judgment which is recovery of real or personal property, the judgment is executed against the administrator or executor because this is an action which survives. (paragraph [b]);

3.) Under par. (c), it is the death of the obligor in a money claim. This is related to Rule 3, Section 20. However, the timing of the death is different. Let us connect these with Rule 3, Sec. 20:

Sec. 20. Action on contractual money claims. - When the action is for

recovery of money arising from contract, express or implied, and the defendant

dies before entry of final judgment in the court in which the action was

pending at the time of such death, it shall not be dismissed but shall instead

be allowed to continue until entry of final judgment. A favorable judgment

obtained by the plaintiff therein shall be enforced in the manner especially

provided in these Rules for prosecuting claims against the estate of a deceased

person. (21a)

So, for EXAMPLE: A filed a case against B to collect an unpaid loan. What is the effect to the case if

B dies? It will depend on what stage of the case he dies. If he died before final judgment could be rendered by the court (before entry of final judgment), there will be a substitution of party and the case will continue until entry of final judgment.

Suppose, there is already entry of final judgment and he dies, it will depend whether there was already a levy on execution. Meaning, there was already entry of final judgment but before the property is levied. This should not apply in Rule 39 because Section 7 [c] states that “after execution is levied.”

But my question is no levy. The procedure there is found in the Special Proceedings. The judgment

shall be enforced in the manner provided for by the Rules on claims against the estate of the deceased under Rule 86. And that is also mentioned in Rule 3, Section 20. It shall be enforced in the manner provided for against the estate.

Q: Suppose the defendant dies when there is already a levy. What will happen?

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A: The auction sale will proceed as scheduled in connection with Section 7 [c] because the law says “the same may be sold for the satisfaction of the judgment obligation.” Meaning, the auction sale or the execution sale shall proceed as scheduled. No more substitution here.

So that question, “What is the effect of the death of a party on a pending civil case” is a question with so

many angles – anong klaseng kaso?; is it one which is personal in nature or not?; if it is not, is it one which survives or one which does not?; if it does not survive, who died?; the plaintiff or the defendant? – if it is the defendant, did he die before entry of final judgment?; did he die after entry of final judgment but before there could be levy or execution?; or did he die after levy or execution? – This last question is answered by Section 7 [c].

Sec. 8. Issuance, form and contents of a writ of execution. - The writ of

execution shall:

(1) issue in the name of the Republic of the Philippines from the court which

granted the motion;

(2) state the name of the court, the case number and title, the dispositive

part of the subject judgment or order; and (3) require the sheriff or other

proper officer to whom it is directed to enforce the writ according to its

terms, in the manner hereinafter provided:

(a) If the execution be against the property of the judgment obligor, to

satisfy the judgment, with interest, out of the real or personal property of

such judgment obligor;

(b) If it be against real or personal property in the hands of personal

representatives, heirs, devisees, legatees, tenants, or trustees of the

judgment obligor, to satisfy the judgment, with interest, out of such property;

(c) If it be for the sale of real or personal property, to sell such

property, describing it, and apply the proceeds in conformity with the

judgment, the material parts of which shall be recited in the writ of

execution.

(d) If it be for the delivery of the possession of real or personal property,

to deliver the possession of the same, describing it, to the party entitled

thereto, 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 if sufficient personal property cannot be found, then out of the

real property; and

(e) In all cases, the writ of execution shall specifically state the amount

of the interest, costs, damages, rents, or profits due as of the date of the

issuance of the writ, aside from the principal obligation under the judgment.

For this purpose, the motion for execution shall specify the amounts of the

foregoing reliefs sought by the movant. (8a)

WRIT OF EXECUTION is actually the document which is issued by the court addressed to the

sheriff. The writ is actually the instruction to the sheriff on what he should do. It would depend on what kind of decision – is it an action for sum of money or is it for recovery of real property? Mimeographed iyan, addressed to the sheriff. These are standard forms in court.

Now, with respect to Section 8, the changes can be found in paragraph [e] which mandates now

that the writ of execution must state the exact amount to be collected. That is why according to the last sentence of paragraph [e], “for this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant.”

Normally, when lawyers file a motion to execute they will just quote the principal, but they do not

state the costs or interests. Now, under the new rule, when you file the motion for execution, you must also state how much is the costs or interests.

EXECUTION OF MONEY JUDGMENT

How do you execute judgment for money? Contractual debts or damages. Example, the defendant

is ordered to pay defendant P1 million with interest, how does the sheriff enforce that? Section 9

JBD 151

provides a detailed explanation on how judgment for money is enforced. Let us go over the first

paragraph:

Sec. 9. Execution of judgments for money, how enforced. -

(a) Immediate payment on demand. - The officer shall enforce an execution of

a judgment for money by demanding from the judgment obligor the immediate

payment of the full amount stated in the writ of execution and all lawful fees.

The judgment obligor shall pay in cash, certified bank check payable to the

judgment obligee, or any other form of payment acceptable to the latter, the

amount of the judgment debt under proper receipt directly to the judgment

obligee or his authorized representative if present at the time of payment. The

lawful fees shall be handed under proper receipt to the executing sheriff who

shall turn over the said amount within the same day to the clerk of court of

the court that issued the writ.

STEPS: (under paragraph [a]) 1.) The sheriff must demand payment from the obligor; 2.) The obligor can pay in cash, certified bank check payable to the judgment obligee (creditor)

or any other form of payment acceptable to the latter. Kung sabihin ng obligor: “Yung kotse ko na lang.” That will be alright so long as it is also alright with the obligee;

3.) The payment shall go to the obligee; 4.) The lawful fees shall be paid to the executing sheriff who shall turn over the said amount

within the same day to the clerk of court of the court that issued the writ. This assumes that the obligee is present with sheriff. Suppose the creditor is not around? Let us go

to the second paragraph:

Section 9 [a], 2nd par. – If the judgment obligee or his authorized

representative is not present to receive payment, the judgment obligor shall

deliver the aforesaid payment to the executing sheriff. The latter shall turn

over all the amounts coming into his possession within the same day to the

clerk of court of the court that issued the writ, or if the same is not

practicable, deposit said amounts to a fiduciary account in the nearest

government depository bank of the Regional Trial Court of the locality.

If the plaintiff is not there, the payment is made to the sheriff and he is supposed to endorse it to the

clerk of court. The clerk of court will look for the obligee to remit the money. In the second sentence, this usually happens if the execution is to be done outside of the locality.

For example, the decision in Davao will be enforced in Cotabato. So, the sheriff in Cotabato will be the one to enforce and he will give the payment to the clerk of court there who in turn will transmit the money to the clerk of court in Davao. This is because the decision to be executed is one in Davao.

Let us go to the third paragraph:

The clerk of said court shall thereafter arrange for the remittance of the

deposit to the account of the court that issued the writ whose clerk of court

shall then deliver said payment to the judgment obligee in satisfaction of the

judgment. The excess, if any, shall be delivered to the judgment obligor while

the lawful fees shall be retained by the clerk of court for disposition as

provided by law. In no case shall the executing sheriff demand that any payment

by check be made payable to him.

This assumes that the property of the defendant which was levied in Cotabato but judgment is one

which originated in Davao – clerk to clerk. The last sentence says “In no case shall the executing sheriff demand that any payment by check be made

payable to him.” It shall be payable to the obligee. I think what the SC would like to avoid here is that which happened in the case of PAL – a labor case where PAL paid check payable to the sheriff. The sheriff ran away with the check. PAL was made to pay all over again.

JBD 152

(b) Satisfaction by levy. - If the judgment obligor cannot pay all or part of

the obligation in cash, certified bank check or other mode of payment

acceptable to the judgment obligee, the officer shall levy upon the properties

of the judgment obligor of every kind and nature whatsoever which may be

disposed of for value and not otherwise exempt from execution giving the latter

the option to immediately choose which property or part thereof may be levied

upon, sufficient to satisfy the judgment. If the judgment obligor does not

exercise the option, the officer shall first levy on the personal properties,

if any, and then on the real properties if the personal properties are

sufficient to answer for the judgment.

So, under paragraph [a], the first step is when the judgment debtor has enough money, bayaran niya in cash or check.

Q: Suppose walang pera, or the cash is not sufficient. What will the sheriff do? A: He shall levy upon the properties of the judgment obligor not otherwise exempt from execution.

In the vernacular term, sasabihing ‘na-sheriff’ ka. Q: Define levy. A: Levy is the act whereby a sheriff sets apart or appropriates, for the purpose of satisfying the

command of the writ, a part or the whole of the judgment-debtor’s property. (Valenzuela vs. De Aguilar, L-18083-84, May 31, 1963) Normally, this is done on personal property. Kung lupa naman, they will annotate on the title. Parang mortgage ba.

Q: What is the importance of levy with respect to execution of a money judgment? A: Levy is a pre-requisite to the auction sale. In order that an execution sale may be valid, there

must be a previous valid levy. A sale not preceded by a valid levy is void and the purchaser acquires no title. (Valenzuela vs. De Aguilar, L-18083-84, May 31, 1963)

Q: What kind of property can be levied? A: Any – real, personal, tangible, intangible – except those properties exempt from execution. Q: Does the debtor has the right to tell the sheriff what property he should levy? A: YES. The law gives the debtor or defendant the option to immediately choose which property or

part thereof may be levied upon sufficient to satisfy the judgment. Example: I am the debtor and I have many properties. And the sheriff would like to levy on my house and lot, or ‘yung Toyota Altis ko. Under the law, I have the right to choose among them.

The phrase “giving the latter the option to immediately choose which property or part thereof may be levied

upon, sufficient to satisfy the judgment.” This did not appear under the old law. This is taken from the case of PHILIPPINE MILLS vs. DAYRIT (192 SCRA 177), where the SC said the debtor is given the option of which property shall be levied.

And the sequence of levying is to levy the personal properties first. Then real properties if personal

properties are not sufficient. Under the second paragraph of [b], when the sheriff levies on the property of the judgment debtor

and the judgment debtor has more than sufficient property to cover the judgment debt, the sheriff cannot levy all the properties. Or else, he will be made liable. For example, the debt is only P 30,000, tapos ang i-levy mo kotse (Toyota Altis) at bahay, which worth millions? My golly! That’s too much! You sell only up to the point that the judgment will be satisfied.

Q: But if it is real property or intangible personal property like shares of stock, debts, credits

(collectibles), can you levy on these? A: YES. And under the last paragraph of [b] They may be levied upon in like manner and with like

effect as under a writ of attachment under Rule 57 on attachment.

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GARNISHMENT – HOW TO LEVY

Paragraph [c] of Section 9 is on how to levy intangibles. When you want to levy or you want to execute on intangible property, the legal term there is garnishment.

(c) Garnishment of debts and credits. - The officer may levy on debts due the

judgment obligor and other credits, including bank deposits, financial

interests, royalties, commissions and other personal property not capable of

manual delivery in the possession or control of third parties. Levy shall be

made by serving notice upon the person owing such debts or having in his

possession or control such credits to which the judgment obligor is entitled.

The garnishment shall cover only such amount as will satisfy the judgment and

all lawful fees.

The garnishee shall make a written report to the court within five (5) days

from service of the notice of garnishment stating whether or not the judgment

obligor has sufficient funds or credits to satisfy the amount of the judgment.

If not, the report shall state how much funds or credits the garnishee holds

for the judgment obligor. The garnished amount in cash, or certified bank check

issued in the name of the judgment obligee, shall be delivered directly to the

judgment obligee within ten (10) working days from service of notice on said

garnishee requiring such delivery, except the lawful fees which shall be paid

directly to the court.

In the event there are two or more garnishees holding deposits or credits

sufficient to satisfy the judgment, the judgment obligor, if available, shall

have the right to indicate the garnishee or garnishees who shall be required to

deliver the amount due; otherwise, the choice shall be made by the judgment

obligee.

The executing sheriff shall observe the same procedure under paragraph (a)

with respect to delivery of payment to the judgment obligee. (8a, 15a)

Q: So, what are these properties which may be the subject of garnishment? A: Credits which include bank deposits, financial interests, royalties, commissions and other

personal property not capable of manual delivery – intangibles bah! You send a notice upon the person owing such debts or having in his possession or control such credits. And it shall cover only such amount as will satisfy the judgment.

Example of garnishment: bank account. I will file a case against you, talo ka. I learned that you

have a deposit with Sanikoh Bank. Puwede kong habulin yan ba, because that is credit. In obligations and contracts, the relationship of the depositor and the bank is that of a creditor and debtor. It is not a contract of deposit because actually, the bank is borrowing money from you. Kaya nga, it pays you interest eh.

So, under garnishment, the bank is being commanded not to pay you but instead pay the sheriff.

Yaan!! Yan ang concept ng garnishment. Garnishee refers to the debtor, like the bank. When the bank deposit is garnished, the second paragraph tell us what the bank will do. And if there are 2 or more banks na ma-garnish, under the next paragraph, the debtor obligor will determine. If he does not exercise his option, then the judgment creditor will determine.

EXECUTION OF JUDGMENT OTHER THAN MONEY

Section 10 is the procedure for executing a judgment other than to collect money. Sometimes,

money is only incidental. There are court decisions could be something else like specific performance, or accion publiciana. You are more interested in recovering your property. Another is Unlawful Detainer where unpaid rentals may be paid but the plaintiff is more interested in the ejectment – the unpaid rentals can be collected in the same manner as Section 9.

Sec. 10. Execution of judgments of specific act. -

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs a party to execute a conveyance of land or personal

property, or to deliver deeds or other documents, or to perform any other

specific act in connection therewith, and the party fails to comply within the

time specified, the court may direct the act to be done at the cost of the

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disobedient party by some other person appointed by the court and the act when

so done shall have like effect as if done by the party. If real or personal

property is situated within the Philippines, the court in lieu of directing a

conveyance thereof may by an order divest the title of any party and vest it in

others, which shall have the force and effect of a conveyance executed in due

form of law. (10a)

x x x x x

EXAMPLES of the first sentence:

1.) An action for reconveyance of property where you are asking the defendant, a title owner, to convey to you his property. The property will be held in trust or that the title be in your name instead of his;

2.) Pacto de retro. I sold to you my land and I am repurchasing it, pero ayaw mo. You refuse to execute a deed of sale returning the property to me;

3.) Public Land Law. I am the owner of a property under homestead or free patent and sold it after the prohibition period. Under the public land law, I have the right to repurchase it within 5 years. Ayaw mong ibalik, so idemanda kita. Of course, if I win, you will be directed to return to me the property and execute a deed of sale.

4.) An action for specific performance to compel you to return to me said property. And the court will order: “Alright, execute a deed of sale.” You refuse. The court may order the clerk of court to sign the deed of sale or the Register of Deeds will be ordered to register the same as if done by the obligor. The obligor’s signature is not needed.

(b) Sale of real or personal property. - If the judgment be for the sale of

real or personal property, to sell such property, describing it, and apply the

proceeds in conformity with the judgment. (8 [c] a)

The best example for [b] is an action for termination of co-ownership where there are 50 co-owners

of one (1) hectare – the property will be ordered sold and the proceeds will be distributed among the co-owners.

(c) Delivery or restitution of real property. - The officer shall demand of

the person against whom the judgment for the delivery or restitution of real

property is rendered and all persons claiming rights under him to peaceably

vacate the property within three (3) working days, and restore possession

thereof to the judgment obligee; otherwise, the officer shall oust all such

persons therefrom with the assistance, if necessary, or appropriate peace

officers, and employing such means as may be reasonably necessary to retake

possession, and place the judgment obligee in possession of such property. Any

costs, damages, rents or profits awarded by the judgment shall be satisfied in

the same manner as a judgment for money. (13a)

Now, with respect to Section 10, particularly paragraph [c] – delivery or restitution of real property.

– this is applicable to actions for forcible entry, unlawful detainer, accion publiciana. Q: So, what is the procedure? A: The sheriff will give the defendant the chance to vacate the property, “I am giving you the chance

to vacate within three (3) working days and restore possession thereof.” And then ayaw mo pa rin, I will use force to oust you with the assistance of the appropriate peace officers and place the judgment obligee in possession of such property.

And if there are damages or unpaid rentals, I will also levy the property under Section 9. Because

sometimes, aside from ousting the defendant, meron pang money judgment like unpaid rentals. So, the property of the defendant may be levied. That is the procedure.

In the 1995 case of

SAN MANUEL vs. TUPAS 249 SCRA 466

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HELD: “The immediate enforcement of a writ of ejectment execution is carried out by giving the defendant a notice of such writ and making a demand that defendant comply therewith within a reasonable period, normally from three (3) to five (5) days, and it is only after such period that the sheriff enforces the writ by the bodily removal of the defendant and his personal belongings.”

(d) Removal of improvements on property subject of execution. - When the

property subject of the execution contains improvements constructed or planted

by the judgment obligor or his agent, the officer shall not destroy, demolish

or remove said improvements except upon special order of the court, issued upon

motion of the judgment obligee after due hearing and after the former has

failed to remove the same within a reasonable time fixed by the court. (14a)

Q: When you oust the defendant in regard of a possession case, is a writ of execution a sufficient

basis for the removal of improvements of the property? A: NO. Under paragraph [d], the plaintiff or judgment obligee still have to get a special order from

the court by filing a petition to authorize the destruction or removal of the improvements of the property after the defendant is given a reasonable time to remove his shanty or house voluntarily.

In other words, there must be a special order. The writ of execution only authorizes you to oust the

defendant physically, but not to destroy any property. Just like in squatters, you need a special order for demolition.

(e) Delivery of personal property. - In judgments for the delivery of

personal property, the officer shall take possession of the same and forthwith

deliver it to the party entitled thereto and satisfy any judgment for money as

therein provided. (8a)

Paragraph [e] is related to REPLEVIN – action to recover personal property – where the plaintiff is

trying to repossess a personal property from the defendant. For example, bili ka ng appliance tapos hindi mo nabayaran, babawiin yan ng appliance center. Or, the finance company or the car dealer will resort to replevin to recover the unit by filing an action for replevin against the buyer.

Take note that the procedure for enforcing a money judgment is different from enforcing a

judgment for ejectment, or recovery of possession. Enforcement of money judgment is in Section 9 – you get the money. Kung walang money, you levy on the property of the defendant. If it is ejectment or recovery of possession of property, you follow Section 10, paragraph [c].

Now, here is an interesting case involving these two sections (Sections 9 & 10) –the 1995 case of

ABINUJAR vs. COURT OF APPEALS 243 SCRA 531

FACTS: The case of Abinujar started when the plaintiff filed a case for unlawful detainer

against the Abinujar spouses for the latter to vacate their house in Manila. When the case was going on, the parties executed a compromise agreement which became the basis of the judgment by the court, so a compromise judgment.

The agreement stated that the Abinujar spouses shall pay the plaintiffs the amount specifically agreed upon: P50,000 on January 31; P10,000 on Febrauary 28; P10,000 on March 31, etc. until September 30. It further states that failure on the part of the Abinujar spouses to pay three (3) consecutive payments, the plaintiffs shall be entitled to a writ of execution.

After three (3) months, the plaintiffs filed a motion for execution on the ground that the Abinujars failed to pay the three installments. The trial court granted the motion and the notice to the defendant to voluntarily vacate the premises was served on the Abinujars.

The Abinujars attacked the validity of the sheriff’s notice to vacate by way of enforcing the compromise judgment. They maintained that their obligation is monetary and therefore you should apply Section 9 – you collect but do not eject us. The plaintiffs argued that what is applicable is Section 10 on ejectment because this is an unlawful detainer case.

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ISSUE: Which section shall be applied – Section 9? or Section 10? HELD: The contention of the Abinujars is meritorious – meaning, you cannot eject the

Abinujars. “When the parties entered into a compromise agreement, the original action for

ejectment was set aside and the action was changed to a monetary obligation. “A perusal of the compromise agreement signed by the parties and approved by the

inferior court merely provided that in case the Abinujars failed to pay three monthly installments, the plaintiffs would be entitled to a writ of execution, without specifying what the subject of execution would be. Said agreement did not state that Abinujars would be evicted from the premises subject of the suit in case of any default in complying with their obligation thereunder. This was the result of the careless drafting thereof for which only plaintiffs were to be blamed.

“As Abinujar’s obligation under the compromise agreement as approved by the court was monetary in nature, plaintiffs can avail only of the writ of execution provided in Section 9, and not that provided in Section 10.”

ORDINARY AND SPECIAL JUDGMENT

Sec. 11. Execution of special judgments. - When a judgment requires the

performance of any act other than those mentioned in the two preceding

sections, a certified copy of the judgment shall be attached to the writ of

execution and shall be served by the officer upon the party against whom the

same is rendered, or upon any other person required thereby, or by law, to obey

the same, and such party or person may be punished for contempt if he disobeys

such judgment. (9a)

There are two (2) types of judgment under the law: (1) SPECIAL and (2) ORDINARY. ORDINARY JUDGMENT - if the judgment orders the defendant to pay money, like a collection

case (Section 9) or to deliver real or personal property (Section 10). SPECIAL JUDGMENT – is a judgment which requires the defendant to perform an act other than

payment of money or delivery of property. It refers to a specific act which a party or person must personally do because his personal qualifications and circumstances have been taken into consideration.

EXAMPLE of a special judgment: Usurpation of government office. You are the city treasurer and

somebody else is appointed city treasurer and you refuse to vacate. So there will be a quo warranto proceeding. Then the judgment will order you to vacate your position, such judgment is a special judgment because you are not ordered to pay anything nor deliver property.

Q: What is the difference between the Ordinary and Special judgments? A: A special judgment may be enforced by contempt if the defendant refuses to comply with the

judgment. But if it is an ordinary judgment and the defendant refuses to comply, it is not a ground for contempt.

Under Section 9, if the judgment-debtor refuses to pay his debt, you cannot cite him in contempt

because under the Constitution, no person shall be imprisoned for debt. The correct procedure under Section 9 is you look for properties of the defendant and then ipa-levy mo. You do not send the debtor to jail.

Under Section 10 if the squatter refuses to vacate, you cannot cite him in contempt and send him to

jail. Kung ayaw, you get police for back up. That is the procedure. But under Section 11, if defendant is ordered to vacate his office because he is no longer the city

treasurer, the plaintiff can have him arrested and brought to jail because that is a special judgment which can be enforced by contempt.

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Q: Give an specific rule on special judgment. A: Section 9 of Rule 65 – Special Civil Action for Certiorari, Prohibition and Mandamus, to wit:

Rule 65, Sec 9. Service and enforcement of order or judgment.- A certified

copy of the judgment rendered in accordance with the last preceding section

shall be served upon the court, quasi-judicial agency, tribunal, corporation,

board, officer or person concerned in such manner as the court may direct, and

disobedience thereto shall be punished as contempt. An execution may issue for

any damages or costs awarded in accordance with section 1 of Rule 39. (9a)

Therefore, a judgement in a certiorari, prohibition or mandamus case, if not complied with, is

punishable by contempt.

Sec. 12. Effect of levy on execution as to third persons. - The levy on

execution shall create a lien in favor of the judgment obligee over the right,

title and interest of the judgment obligor in such property at the time of the

levy, subject to liens and encumbrances then existing. (16a)

This is related to Property Registration Decree. EXAMPLE: I own a piece of land which I mortgaged with the bank. The bank annotated the

mortgage on my title. My land is now subject to a lien or an encumbrance. I also owe money to A. He sued me. He won and my land is levied.

Q: What happens to the mortgage lien of the bank? Will it be affected by the levy of A? A: NO. Even if the property is sold at public auction and we will assume that it will go to A, that

property is still under mortgage. A has to respect the lien – nauna yung sa bank eh! Wherever the property goes, it is subject to the mortgage lien of the bank because the bank’s lien is superior.

Therefore, an execution is always subject to the liens and encumbrances of the property then

existing.

PROPERTIES EXEMPT FROM EXECUTION We already discussed the rule that to satisfy a money judgment, the sheriff can levy on the

properties of the judgment obligor. All properties are subject, except those exempt from execution. What are the properties of a defendant-debtor which cannot be subject to a levy or execution?

Sec. 13. Property exempt from execution. - Except as otherwise expressly

provided by law, the following property, and no other, shall be exempt from

execution:

(a) The judgment obligor's family home as provided by law, or the homestead

in which he resides, and land necessarily used in connection therewith;

You have a house where your family resides. You call it “FAMILY HOME” – it is the house where

the members of the family reside, including the lot. Q: For instance, you lost in a case where you are liable for P200T. You have no other property left

except that house where you live. Can the sheriff levy the house to answer such obligations? A: NO. The judgment obligor’s family home and the land necessarily used in connection therewith

is exempt. That is a guarantee that no matter how many obligations you have, there is no way for you to be thrown to the street – to be a homeless person. Your house cannot be levied; but in the Family Code, there’s a limit, if your house is a mansion worth millions, that is not exempt. Please review your Family Code on this matter.

(b) Ordinary tools and implements personally used by him in his trade,

employment, or livelihood;

This is self-explanatory. If you are a carpenter, you earn your living by being a carpenter. What are

the ordinary tools that you must have? Saw, hammer, etc. By public policy and by legal provision, the

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tools and implements used by a carpenter in his trade, employment, or livelihood cannot be levied by the sheriff.

Under the prior law, there was no word “ordinary” and “personally”. The old law says, “tools and implements used by him”. In the new rules, the words “ordinary” and “personally” are added. What is the reason behind this? This provision is in accordance with what the SC ruled in the 1990 case of

PENTAGON SECURITY vs. JIMENEZ

192 SCRA 492 FACTS: The Pentagon Security and Investigation Agency (PSIA) is a security agency

owned by somebody who is engaged in security services. Because of a money judgment against the agency in a labor case, the sheriff levied all the firearms of the agency. PSIA claimed that the firearms are exempt from execution under paragraph [b] since they are tools and implements used by the agency in its trade, employment or livelihood because how can a security agency operate without firearms.

ISSUE: Is the argument of PSIA correct? HELD: NO. The firearms owned by PSIA are not covered by the exemption. “The term ‘tools and implements’ refers to instruments of husbandry or manual labor

needed by an artisan craftsman or laborer to obtain his living. Here, PSIA is a business enterprise. It does not use the firearms personally, but they are used by its employees. Not being a natural person, petitioner cannot claim that the firearms are necessary for its livelihood.”

“It would appear that the exemption contemplated by the provision involved is personal, available only to a natural person, such as a dentist’s dental chair and electric fan. If properties used in business are exempt from execution, there can hardly be an instance when a judgment claim can be enforced against the business entity.”

Meaning, if the exemption is extended to a juridical person like a corporation, then practically all

the properties needed by the business could be considered as tools and implements. For EXAMPLE, you will sue a carrier like Bachelor Bus and you won. Then you will levy on the bus. Bachelor will claims exemption because that is a tool or implement.

Or, you file a case against PAL. They lost. You levy on the airbus. PAL alleged exemption because it

is a tool or implement. My golly! Lahat ng properties, “tools or implements!”? Di pwede yan! That is not what the law contemplates.

Now, what is interesting in the PENTAGON case is that the SC says that firearms can be levied,

they can be sold at public auction. SC: “However, for security reasons, and to prevent the possibility that the firearms to be sold at the execution sale may fall into the hands of lawless and subversive elements, the sale at public auction should be with the prior clearance and under supervision of the PNP.” Otherwise, the persons who might bid are kidnappers, NPA, Abu Sayyaff, (Kuratong Baleleng, MILF, MNLF, Lost Command, Kulto Pinish, Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there must be a prior clearance on the sale of the firearms during the auction sale.

(c) Three horses, or three cows, or three carabaos, or other beasts of

burden, such as the judgment obligor may select necessarily used by him in his

ordinary occupation;

For example, you are a farmer. You plow your land by a carabao. You cannot levy the carabao. OR,

if you are a cochero, you have a horse for your caretela. You cannot levy the horse. [ang horse shit, pwede! Pero yung horse mismo, di pwede!] And under the prior rules, only 2 horses, 2 cows or carabaos are exempt. The new rules make it three (3).

(d) His necessary clothing and articles for ordinary personal use, excluding

jewelry;

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You cannot levy on the debtor’s wardrobe. These are articles for ordinary personal use. This article excludes jewelry. Alahas, pwede i-levy. All other things for basic needs are exempt, like personal comb, toothbrush, etc.

(e) Household furniture and utensils necessary for housekeeping, and used

for that purpose by the judgment obligor and his family, such as the judgment

obligor may select, of a value not exceeding one hundred thousand pesos;

Household furniture like dining table, dining chair, sala set, utensils necessary for housekeeping

and used for the purpose by the obligor and his family like plates, forks, spoons. How can you eat without those utensils. BUT there’s a limit that the value does not exceed P100,000. If the value exceeds, it can be levied.

There was a sheriff who asked me (Dean I). According to him, he was enforcing a money

judgment. The sheriff went to the house of the debtor. He took the stereo, TV set, refrigerator. Defendant said, “Hindi pwede dahil hindi pa umabot ng P100,000.” Sabi ko, you look at the law: You cannot levy those furnitures if not exceeding P100,000. In my (Dean’s) view, covered yan. But utensils not necessarily for living are not covered by the exemption. They are luxury, not necessary. These TV, sala set, refrigerator can be levied because they are not necessary for living as contrasted to kutsara, plato, etc. (Dean however refused to answer the sheriff whether the properties in question can be levied. Tanungin mo ang abogado mo!)

(f) Provisions for individual or family use sufficient for four months;

For example, one sack of rice for daily consumption, canned goods – provisions for consumption

good for 4 months are exempt. If you have one bodega of rice, ibang storya yan.

(g) The professional libraries and equipment of judges, lawyers, physicians,

pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other

professional, not exceeding three hundred thousand (P300,000.00) pesos in

value;

Your books, books of judges and professionals and equipment – maybe the computer, typewriter,

dentist’s chair, equipment of engineers are exempt provided the value does not exceed P300,000.

(h) One fishing boat and accessories not exceeding the total value of one

hundred thousand (P100,000.00) pesos owned by a fisherman and by the lawful use

of which he earns his livelihood;

Example: Fishing boat of a fisherman, the accessories – net, provided these do not exceed

P100,000.

(i) So much of the salaries, wages, or earnings of the judgment obligor for

his personal services within the four months preceding the levy as are

necessary for the support of his family;

The salary of a person within 4 months is exempt. For example, you have backwages of 6 months.

Only 2 months salary can be levied. Exempt ang 4 months. Technically, wages and salaries are exempt as long as they are necessary for support of living. If

you earn a minimum wage, everything may be exempted. But if you earn P50,000 a month and you support only two people, the court may levy on the excess.

(j) Lettered gravestones;

Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on lettered gravestones? My golly!

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(k) Monies, benefits, privileges, or annuities accruing or in any manner

growing out of any life insurance;

The proceeds of life insurance. The amount received by the beneficiaries cannot be levied, not a

single centavo.

(l) The right to receive legal support, or money or property obtained as such

support, or any pension or gratuity from the Government;

The right to receive legal support. The right ba! For instance, ako na lang ang mag receive ng

support mo. Hindi pwede yan. Also the money given monthly to you if you are receiving support cannot be levied. Any pension or gratuity from the government – GSIS pension, for example.

(m) Properties specially exempted by law.

This is very broad – any other property exempt by special law. Q: Give an example where a property is exempt from execution under the special law? A: The following:

1.) Property obtained pursuant to a free patent application, HOMESTEAD. That is not subject to any claim within 5 years. You cannot even sell that within 5 years, how much more kung embargohin sa iyo? That is under CA 141 – Public Land Law;

2.) Under Social Legislation, SSS benefits are also exempt from execution, just like GSIS benefits;

3.) Under CARP law, the property acquired by a tenant under that law cannot be levied also. Section 13, last paragraph:

But no article or species of property mentioned in this section shall be

exempt from execution issued upon a judgment recovered for its price or upon a

judgment of foreclosure of a mortgage thereon. (12a)

The last paragraph of Section 13 says that if for example, you ordered books and you failed to pay,

you cannot claim the exemption because the obligation arose from the same item. For example: BAR PROBLEM: A lawyer went to Alemars professional books supply. He bought books worth half

a million. That was utang – P500,000. The store decided to sue the lawyer for such amount not paid. The bookstore got a judgment. There was a levy on the lawyer’s property. The sheriff levied on the same books which became the source of the case. The lawyer claimed exemption under Section 13 up to P300,000 because it forms part of his professional library. Is the lawyer correct??

A: the lawyer is WRONG because of the last paragraph of Section 13 that no article or species of properties mentioned in this section shall be exempt from execution issued upon a judgment recovered for the price or upon a judgment of foreclosure of a mortgage thereon.

What the law says, is the properties mentioned here (in Section 13) are exempt, EXCEPT when that

debt arose out of that property. For example, here, why are you indebted to Alemars? Because of unpaid books. So the very books which gave rise to an obligation are not exempt from execution.

But if another creditor will file a case against the lawyer, and that other creditor will win, that

creditor cannot levy on the books because they are exempt. But the creditor from whom the books were bought can levy on the same books which gave rise to an obligation.

The same thing with FAMILY HOME. For example, you will build a family home and then, hindi

mo binayaran ang materials, labor and there was judgment against you. The creditor and the owner can levy on the house. He cannot claim exemption because the debt arose out of that same family home.

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Another example: You borrowed money from the bank. You mortgaged your house. Later on, you cannot pay the loan. The bank foreclosed the mortgage. You cannot argue that your house cannot be levied. Kaya nga may utang ka because of your house. Since you mortgaged it, that is not covered by the exemption.

Q: What is the REASON behind this exemption? A: The reason for this exemption is PUBLIC POLICY. And common sense no? – the debtor should

pay but this should not deprive him of a means to earn his living. You can levy on his property but not to the extent of depriving him of his provisions for support, means of livelihood by throwing him on to the street, homeless, penniless, despondent, dejected, mournful, melancholy, forlorn…

LIFETIME OF WRIT OF EXECUTION – FIVE (5) YEARS

Sec. 14. Return of writ of execution. - The writ of execution shall be

returnable to the court issuing it immediately after the judgment has been

satisfied in part or in full. If the judgment cannot be satisfied in full

within thirty (30) days after his receipt of the writ, the officer shall report

to the court and state the reason therefor. Such writ shall continue in effect

during the period within which the judgment may be enforced by motion. The

officer shall make a report to the court every thirty (30) days on the

proceedings taken thereon until the judgment is satisfied in full, or its

effectivity expires. The returns or periodic reports shall set forth the whole

of the proceedings taken, and shall be filed with the court and copies thereof

promptly furnished the parties. (11a)

Under the OLD RULE, the lifetime of a writ of execution is only 60 days. After that, expired na

yung writ. The sheriff has to use the writ to levy on the property of the defendant within 60 days. If the defendant has no property at present, and the writ has already expired, and assuming that there will be some properties found in the future, the procedure under the old rules is, the plaintiff has to file a motion for an ALIAS WRIT of execution, because once it is issued, it is again good for another 60 days.

Under the PRESENT RULE, the 60-day period is already obsolete. The effectivity now of a writ of

execution is, for as long as the judgment may be enforced by motion. And under Section 6, a judgment may be enforced by motion within five (5) years. So in effect, the writ of execution is valid for FIVE (5) years. The lifetime now has been extended from 60 days to 5 years.

Of course, as much as possible, the writ must be enforced within 30 days and after that, the sheriff

will tell the court about what happened after 30 days. So, the sheriff says based on the RETURN, “Wala pang property ang defendant.” Now, he just keeps

on holding the writ. And maybe after one or two years, meron na’ng property ang defendant, he can now enforce the writ. But definitely, there is no need for the defendant to go back to the court to ask for another alias writ of execution because the writ can still be enforced – for as long as the judgment may be enforced by motion.

Although every 30 days, the sheriff has to make a periodic report with the court. I do not know if

the sheriffs here follow this procedure. But definitely, a writ is good for 5 years and in every 30 days, the sheriff has to make a report.

NOTICE OF SALE

Sec. 15. Notice of sale of property on execution. - Before the sale of

property on execution, notice thereof must be given as follows:

(a) In case of perishable property, by posting written notice of the time and

place of the sale in three (3) public places, preferably in conspicuous areas

of the municipal or city hall, post office and public market in the

municipality or city where the sale is to take place, for such time as may be

reasonable, considering the character and condition of the property;

(b) In case of other personal property, by posting a similar notice in the

three (3) public places above-mentioned for not less that five (5) days;

(c) In case of real property, by posting for twenty (20) days in the three

(3) public places above-mentioned a similar notice particularly describing the

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property and stating where the property is to be sold, and if the assessed

value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing

a copy of the notice once a week for two (2) consecutive weeks in one newspaper

selected by raffle, whether in English, Filipino, or any major regional

language published, edited and circulated or, in the absence thereof, having

general circulation in the province or city;

(d) In all case, written notice of the sale shall be given to the judgment

obligor, at least three (3) days before the sale, except as provided in

paragraph (a) hereof where notice shall be given at any time before the sale,

in the same manner as personal service of pleadings and other papers as

provided by section 6 of Rule 13.

The notice shall specify the place, date and exact time of the sale which

should not be earlier than nine o'clock in the morning and not later than two

o'clock in the afternoon. The place of the sale may be agreed upon by the

parties. In the absence of such agreement, the sale of real property or

personal property not capable of manual delivery shall be held in the office of

the clerk of court of the Regional Trial Court or the Municipal Trial Court

which issued the writ or which was designated by the appellate court. In the

case of personal property capable of manual delivery, the sale shall be held in

the place where the property is located. (18a)

Auction sale follows levy. There must be notices because auction sale is open to the public. Notices

must be posted in 3 public places preferably in the municipal hall, post office and public market. In paragraph [c], if the property to be sold is REAL property, the notices must describe the property, its location, assessed value if exceeding P50,000. Aside from notices, the law requires PUBLICATION in a newspaper so that many people can read it.

You try to go there in the Hall of Justice, may bulletin board diyan sa labas. Notices are posted

there. If you are interested in buying something, para mura, tingnan mo diyan. The law is very detailed now. The notice must specify the date of the sale, time, place etc. And the

SC ruled that these requirements are to be strictly complied with. For example: You do not comply with the posting in 3 conspicuous places. Dalawa lang sa iyo, that

is VOID. The SC said the requirements of the law for the holding of the public auction should be strictly followed. Why? Because in a public auction, you are depriving somebody of his property – the judgment debtor. So, all the requirements of the law intended to deprive the owner of his ownership over his property should be followed.

Even lawyers sometimes do not pay much attention to this Rule 39. It is perhaps because of the

length of the rule or the length of the provisions. Lawyers usually have a general idea, not really the details. Oftentimes, they rely on the sheriff eh. They presume that the sheriff knows more about the details because the latter is responsible for enforcing it. Actually, the sheriff knows less than the lawyers because many of them are not lawyers naman eh.

Illustration based on Dean’s experience: There is a property located in Panacan which is owned by Corporation X. Corporation X sold the

property to Corporation Y. (xx end of tape xx) Dean does not know who was at fault. Definitely, the custodian, instead of registering the transaction in the Register of Deeds so that a title may be issued in the name of the buyer, tinago! Nalimutan ang pag-register ng Deed of Sale. Yun pala, the seller, Corporation X, has a creditor also in Davao. The creditor sued Corporation X for a sum of money. Corporation X lost the case and the creditor looked for property to levy. He found that piece of land in Panacan. Corporation X said, naibenta na iyan.

The buyer, Corporation Y did not know there was an auction sale of that property. The buyer entered into a deal with a corporation in Japan. One of the requirements of the Japanese buyer is: please list down all your assets, all your properties. Of course, Corporation Y included that land in Panacan in the list. Saan man ang titulo? Walaaa. Nalimutan i-register.

Who should bear the loss?? The BUYER CORPORATION because he did not register the sale. He was given the option to pay the loan plus P200,000 damages and interest. But if Rule 39 is to be followed strictly, Dean says the sheriff cannot make it. Meron talagang malimutan because sheriffs

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usually are not lawyers. Rule 39 is so detailed that you cannot easily follow the requirements. Isa-isahin mo iyan, pag may nakita kang mali, you file a motion to annul the execution.

I (Dean) said: I will recommend to the plaintiff company na bayaran ka rin pero hindi naman P200,000. Masyadong malaki yan. Nakabayad na ang buyer sa owner tapos babayaran pa rin ang utang sa creditor? I talked to the corporation and made a compromise. We settled for P80,000. Kung ayaw niya ituloy ang kaso. Hindi nga na-register and Deed of Sale pero mali-mali naman ang levy. What if ma-annul ang levy, the plaintiff will get nothing. Chances are, hahabulin niya ang seller ng property. So, this is an example of a dead case being resurrected to life because of the principle: nagkamali ang sheriff sa execution. Dean also stressed that if the trial for annulment of the execution proceeds, the court might dismiss it because the sheriff’s mistakes ay maliit lang. It’s not really substantial. But Dean is proud that he had succeeded to scare the plaintiff! [ehem!]

TERCERIA (THIRD-PARTY CLAIM)

SECTION 16. Proceedings where property claimed by third person. – If the

property levied on is claimed by any person other than the judgment obligor or

his agent, and such person makes an affidavit of his title thereto or right to

the possession thereof, stating the grounds of such right or title, and serves

the same upon the officer making the levy and a copy thereof upon the judgment

obligee, the officer shall not be bound to keep the property, unless such

judgment obligee, on demand of the officer, files a bond approved by the court

to indemnify the third-party claimant in a sum not less than the value of the

property levied on. In case of disagreement as to such value, the same shall

be determined by the court issuing the writ of execution. No claim for damages

for the taking or keeping of the property may be enforced against the bond

unless the action therefor is filed within one hundred twenty days from the

date of the filing of the bond.

The officer shall not be liable for damages for the taking or keeping of the

property, to any third-party claimant if such bond is filed. Nothing herein

contained shall prevent such claimant or any third person from vindicating his

claim to the property in a separate action, or prevent the judgment obligee

from claiming damages in the same or a separate action against a third-party

claimant who filed a frivolous or plainly spurious claim.

When the writ of execution is issued in favor of the Republic of the

Philippines, or any officer duly representing it, the filing of such bond shall

not be required, and in case the sheriff or levying officer is sued for damages

as a result of the levy, he shall be represented by the Solicitor General and

if held liable therefore, the actual damages adjudged by the court shall be

paid by the National Treasurer out of such funds as may be appropriated for the

purpose. (17a)

Section 16 is a third-party claim procedure in execution. In Spanish, it is called the remedy of

TERCERIA. ILLUSTRATION: Lolo decided to go on a prolong vacation and he entrusted to Karen (ang paborito

ni Lolo) all his personal property like appliances – TV, refrigerator, car, etc. Karen used the property owned by Lolo while he was not around. Unknown to Lolo, Karen has a pending civil case filed by Gina. Gina obtained a judgment against Karen. There was levy on execution. The sheriff went to the premises of Karen, he found all these properties and he enforced the levy.

Lolo came home and went to get the property from Karen. Karen said, they were all levied by the sheriff. Lolo is a person who is not the defendant but his properties were erroneously levied because the sheriff thought they belong to Karen who was in possession of them.

Q: What is the remedy of Lolo who is not a defendant? A: The remedy is to apply Section 16, Rule 39 – You file with the sheriff, copy furnish Gina, what is

known as the third-party claim or TERCERIA. Terceria is an affidavit asserting that he is the owner of the property levied. So with that the sheriff is now placed on guard because the sheriff may be held liable if he continues to sell the property of the defendant. So, he is not bound to the proceedings regarding the sale unless the judgment obligee, on demand of the sheriff, files a bond approved by the court to indemnify a third party claimant in the sum not less than the value of the property levied on.

Suppose sabi ni Gina: “Huwag kang maniwala diyan. Kalokohan iyan. Drama lang yan ni Karen at Lolo.

Proceed with the auction sale!” Gina has to file a bond if he insists that the auction sale must proceed. Gina must put up a bond approved by the court to indemnify the third-party claimant, a sum not less

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than the value of the property. If the property is worth half a million, the bond must also be half a million. Then auction sale may proceed because there’s already a bond to answer for the damages. The sale may go on despite the third party claim.

THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT

Now, do not confuse a third-party claim under Rule 39 with a third-party complaint under Rule 6. Q: What is a third-party complaint under Rule 6? A: A third-party complaint under Rule 6 is a PLEADING filed by a defendant against the third

person not a party to the action for contribution, indemnity, subrogation, or any other relief in respect of the plaintiff’s complaint.

Q: What is a third-party claim under Rule 39? A: A third-party claim (terceria) under RULE 39 is an AFFIDAVIT made by a third person who

claims to be entitled to the property in the custody of a sheriff by virtue of a writ of execution. The one who files a third party claim is technically called third-party CLAIMANT. The one who

files a third party complaint is called third-party PLAINTIFF. I notice that even in SC decisions, the SC commits that lapse: “The defendant filed a third party complaint” or sometimes “third party claimant.” But actually, the correct term is third-party plaintiff.

Q: Now, under the law, where will you file your third-party claim? A: You file it with the sheriff although legally, it is considered as it is filed in the court because the

sheriff is only an agent of the court. The sheriff does not have the power to rule on the legal issues. Only the judge can. And it is the court which decides on the validity of a third party claim.

Q: If I am the third person and I want to vindicate my claim to that property, is a third party claim

procedure the only remedy I have under the law? Even if there’s a third party claim, auction sale may proceed as long as there’s a bond. But I want the auction sale not to proceed and I want the property to be returned in my favor, do I have any other remedy?

A: YES. Second paragraph: “Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a SEPARATE ACTION.” So, the remedy of third-party claim is NOT exclusive. There is nothing in Section 16 which says that a third person is deprived of a right to file a separate action.

As the lawyer of Lolo, I have another option: instead of filing a third party claim, I would file a case

in court – the separate case would name Gina as the defendant. The cause of action is that the sheriff mistakenly or erroneously levied the properties not owned by Karen because I am the real owner. Since there was a mistaken levy, I am also asking the court to declare the levy as null and void, the auction sale should not proceed.

The court might rule in my favor, so a separate action is allowed. Thus, a third-party claim is not

the only remedy available under the law for the third party claimant. The second part also contains a new provision, “…or prevent the judgment obligee from claiming

damages in the same or a separate action against a third party claimant who files a frivolous or plainly spurious claim.”

Remember that it is possible for a third-party claimant to be a dummy when it is a frivolous claim,

without basis or spurious, para tulungan lang niya ang defendant. There are people like that. Now, under the new law, the prevailing party has the right to claim damages against the third-party claimant for filing frivolous claims. He can claim the damages in the same action or in a separate action.

Now, many people do not really understand what is a third-party claim, even some lawyers:

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Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file ng another case? Can I not just complain to the court which rendered the decision? Can I not just file a motion asking the judge to order the release of the property? Is a separate action not a violation of the rule against multiplicity of suits?

A: NO! You cannot bring out the issue to determine the ownership of the property. INTERVENTION here is not proper. [Is this not a ground for intervention? GROUNDS FOR INTERVENTION: (1) the intervenor has legal interest in the subject matter; (2) the intervenor has an interest in the success of either parties; (3) the intervenor has an interest against both parties; and (4) The intervenor is adversely affected by a distribution of a property in the custody of a court or an officer thereof.]

The SC said YOU CANNOT INTERVENE because under Rule 19, an intervention can only be done at any time before judgment. But here in Rule 39, we are now on the stage of execution – meron ng judgment! Tapos na ang kaso…. [Gago!!] Intervention comes to late. The judge has already decided the case. Now, bakit bigyan mo naman siya ng bagong trabaho? That’s another issue different from a case already tried. So, a separate action is the proper remedy.

On the other hand, such doctrine should be reconciled with what the SC said in the case of

SY vs. DISCAYA 181 SCRA 378

HELD: If your property was erroneously levied under Rule 39, you can seek relief from

the very same court which rendered the judgment by simply filing a motion to question the actuation of the sheriff, because execution is part of the process in that case and the sheriff is an officer of the court and the court has the complete control over the actuation of the sheriff. Therefore, why require the 3rd-party to file another action when he can seek relief in the same case? Meaning, the third party can seek relief in the same case but only to determine whether the sheriff acted rightly or wrongly, BUT not for the purpose of determining the issue of ownership. Questions of ownership cannot be decided here. There must be a separate action for the issue of ownership.

“A third person whose property was seized by a sheriff to answer for the obligation of the judgment debtor may invoke the supervisory power of the court which authorized such execution. Upon due application by the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful owner or possessor. What said court can do in these instances, however, is limited to a determination of whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment, more specifically, if he has indeed taken hold of property not belonging to the judgment debtor. The court does not and cannot pass upon the question of title to the property, with any character of finality. It can treat of the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not.”

So, the court that renders the judgment cannot decide on the issue of ownership to a third person.

So your remedy is to file another case. But in the case of DISCAYA, the court which renders the judgment can determine whether the sheriff has acted wrongly or correctly. And if it is wrong it can order the property erroneously levied to be released without need of filing a separate action.

Q: So how do you reconcile the two doctrines? A: If it is obvious that the sheriff committed a mistake – 100% mistake, i.e. he levied property

belonging to a third person who is not a defendant – to require a third person to go to court and file another case will be tedious. Why can he not seek relief from the same court? Anyway if it is very obvious that the sheriff acted wrongly, that is only incidental.

But when the issue is whether the property is owned by the defendant or the third person, and the issue is controversial – who is the rightful owner – that cannot be decided summarily by the court which rendered decision. It should be threshed out in an independent separate civil action. So that will be the consideration.

The SC summarized all these remedies in the 1995 case of:

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EVANGELISTA vs. PENSERGA 242 SCRA 702

HELD: The remedies of a third person whose property was seized by the sheriff to

answer for the obligation of a judgment obligor are the following:

1. Invoke the supervisory power of the court which authorized such execution (Sy vs. Discaya);

2. Terceria - third party claim (Rule 39, Section 16); and 3. Any proper action to vindicate his claim to the property, meaning a separate civil

action. (second paragraph, Section 16, Rule 39) So these are the three remedies of a third person whose property was seized by a sheriff to answer

for the obligation of another person.

Sec. 17. Penalty for selling without notice, or removing or defacing

notice. - An officer selling without the notice prescribed by section 15 of

this Rule shall be liable to pay punitive damages in the amount of five

thousand (P5,000.00) pesos to any person injured thereby, in addition to his

actual damages, both to be recovered by motion in the same action; and a person

willfully removing or defacing the notice posted, if done before the sale, or

before the satisfaction of the judgment if it be satisfied before the sale,

shall be liable to pay five thousand (P5,000.00) pesos to any person injured by

reason thereof, in addition to his actual damages, to be recovered by motion in

the same action. (19a)

Notices in the auction sale should be posted in three public places. For example, you go to the hall

of justice. You can see there a bulletin board, maraming nakalagay, half man niyan mga notice of public aution ba. Now, do not go there and kunin ang mga papel doon. Baka multahan ka. You are not supposed to remove or deface them.

Sec. 18. No sale if judgment and costs paid. - At any time before the sale

of property on execution, the judgment obligor may prevent the sale by paying

the amount required by the execution and the costs that have been incurred

therein. (20a)

Q: Can the debtor stop the auction sale? Is there a way for the debtor to prevent the sale of his

property? A: YES, if the obligor pay the amount required by the execution and the costs – bayaran mo lahat

ang utang mo, ‘di wala na. That’s what the law says. For example, the bank is foreclosing your mortgage and sell the property at public auction. To stop the bank from proceeding with the sale, you go to the bank and pay all your obligations. So, wala ng auction sale. But you have to pay all. “Kalahati lang ang bayaran ko.” Ah, hindi puydi yan.

Sec. 19. How property sold on execution; who may direct manner and order of

sale. All sales of property under execution must be made at public auction, to

the highest bidder, to start at the exact time fixed in the notice. After

sufficient property has been sold to satisfy the execution, no more shall be

sold and any excess property or proceeds of the sale shall be promptly

delivered to the judgment obligor or his authorized representative, unless

otherwise directed by the judgment or order of the court. When the sale is of

real property, consisting of several known lots, they must be sold separately;

or, when a portion of such real property is claimed by a third person, he may

require it to be sold separately. When the sale is of personal property capable

of manual delivery, it must be sold within view of those attending the same and

in such parcels as are likely to bring the highest price. The judgment obligor,

if present at the sale, may direct the order in which property, real or

personal, shall be sold, when such property consists of several known lots or

parcels which can be sold to advantage separately. Neither the officer

conducting the execution sale, nor his deputies, can become a purchaser, nor be

interested directly or indirectly in any purchase at such sale. (21a)

Execution sale shall be done at public auction. The public is invited to bid kaya may public notice.

There are even publication for real property “TO THE HIGHEST BIDDER.” How does it happen?

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Normally, ang unang magbi-bid diyan is iyong creditor. And normally, his bid will be equal to the judgment in his favor. For example, the judgment against B is P1 million which includes principal and interest. Ang bid ko P1 million din. Okay lang, bahala ka kung sinong mas mataas diyan. That is how it normally happens.

Q: Now, suppose there are many properties levied. What is the process? A: You sell them one by one. Hindi pwede sabay-sabay. [Maysa-maysa laeng balong!] After sufficient

property has been sold and that is enough to satisfy the debt, then do not sell anymore. Do not sell more than what is necessary to satisfy the judgment.

“When the sale is of real property, consisting of several known lots, they must be sold separately.” Years ago, I witnessed an auction sale of subdivision here. Obviously, the owner of the subdivision

could not pay his account. So there was a public auction. Of course, the subdivision consists of more than 100 lots — iba-iba ang location, may mapa eh. Now, you cannot say, “Alright, 150 lots. Pila man?” Hindi puydi iyan. Isa-isa dapat – Lot #1, lot #2, lot #3… “kaya pa ba iyan? I may be interested to buy only one lot.” So, lot #1, highest bidder, lot #2…until the proceeds are enough to satisfy the account. So hindi pwedeng one time, garapalan iyan, kapal ng sheriff niyan. “Mga 170 lots…” ah hindi pwede iyan—isa-isa dapat. That is how tedious it is.

The law says, the debtor, if he is present, he can intervene. He says, “Alright, unahin mo muna ito…”

because he may know of somebody who is willing to buy his property. So he can tell the sheriff, “If you want to sell unahin mo muna ito because merong malaking bayad yan eh…” in order for his other properties to be saved from the execution.

Now, the last paragraph, the last sentence says, “neither the officer conducting the execution sale, nor his

deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale”. So the sheriff and his deputy cannot participate in the auction, these are prohibited interest.

I think there is also a prohibition in the Civil Code on this — on prohibited sales. The judge cannot

be interested in the sale of a property which is the subject matter of the litigation. The lawyer here cannot purchase a property involving a case which he handled, to prevent conflict of interest.

Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to pay the

amount bid by him for property struck off to him at a sale under execution, the

officer may again sell the property to the highest bidder and shall not be

responsible for any loss occasioned thereby; but the court may order the

refusing purchaser to pay into the court the amount of such loss, with costs,

and may punish him for contempt if he disobeys the order. The amount of such

payment shall be for the benefit of the person entitled to the proceeds of the

execution, unless the execution has been fully satisfied, in which event such

proceeds shall be for the benefit of the judgment obligor. The officer may

thereafter reject any subsequent bid of such purchaser who refuses to pay.

(22a)

Auction sale: “We are now going to sell this piece of property. Alright, highest bidder—P10,000, next

P11,000, P12,000, P13,000.” Sabi noong isa, “Alright, P40,000!” Sheriff: “Any other bid?—wala na? Ok wala na! then, it’s sold to you. Saan ang pera mo?” Bidder: “Wala akong pera, biro lang iyon.”

My golly! Pwede kang i-contempt niyan ba! [nagpapatawa, hindi naman kalbo!] You can be declared

in contempt of court. Hindi ito biruan. This is a proceeding. So we will repeat the procedure kasi wala man. Kalokohan pala ito. Bwiset!

Q: May he bid again? A: No more. The officer may thereafter reject any subsequent bid of such purchaser who refused to

pay. So do not fool around there when you make a bid. You must be serious and you must be ready to pay for you bid.

Sec. 21. Judgment obligee as purchaser. When the purchaser is the judgment

obligee, and no third-party claim has been filed, he need not pay the amount of

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the bid if it does not exceed the amount of his judgment. If it does, he shall

pay only the excess. (23a)

Q: Can the judgment obligee – the creditor-plaintiff – participate in the auction sale? A: YES, under Section 21. The sale is open to the public. As a matter of fact, in normal auction sale,

the first bidder is the plaintiff himself. A: Suppose, he is the highest bidder. So the property is declared sold to him. Is he obliged to pay

his bid? A: GENERAL RULE: NO. Why? You simply apply the law on compensation – I owe you money on

the purchase price for your property but you also owe me money based on the judgment. So quits na tayo. Wala ng bayaran! Iyang property na ang pinaka-bayad mo.

EXCEPTION: Two (2) instances when obligee may be required to pay for his bid: 1.) When his bid is higher than the judgment. So he has to pay the cash for the excess or

EXAMPLE: The judgment in my favor is P1 million, my bid is P1.2 million and I’m the

highest bidder. So I have to pay you the balance, the P200,000 because that is more than the judgment in my favor.

2.) when the property which is to be sold is a subject of a third party claim because it is really

controversial whether the property is really owned by the judgment debtor.

So, if there is a 3rd party claim, he has to pay because it is controversial - as to who really is the owner of the property. Of course, iyong pera naka-deposit iyan. Your money will be returned to you if it turns out the claim is frivolous. If the third party claim turns out to be valid, it will be given to the real owner because the property that you bought turned out to be owned by somebody who is not your debtor.

Sec. 22. Adjournment of sale. By written consent of the judgment obligor and

obligee, or their duly authorized representatives, the officer may adjourn the

sale to any date and time agreed upon by them. Without such agreement, he may

adjourn the sale from day to day if it becomes necessary to do so for lack of

time to complete the sale on the day fixed in the notice or the day to which it

was adjourned. (24a)

Suppose the auction sale was scheduled today. Hindi natapos because there are many properties to

be sold like 200 lots. Then we can continue tomorrow. Suppose we will continue next week. Then both parties must agree by written consent of the

judgment obligor and obligee if we will postpone it to another date na mas malayo. Q: Do you know why these things are very important? A: Because you already advertised that it will be held on this day. So any change on the date has

to be strictly complied with. That’s the reason behind these. Q: Now, what properties can be sold at public auction? A: It’s either personal property or real property. We are sure about that. TWO TYPES OF PERSONAL PROPERTY: 1.) one capable of manual delivery; and 2.) one not capable of manual delivery – iyong mga intangibles ba! Q: What is the procedure for the sale of personal property capable of manual delivery and one not

capable of manual delivery? A: You have Section 23 and Section 24.

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Q: When it comes to real property, what is the procedure? A: The procedure is Section 25. So let’s go over there, conveyance to purchaser of personal property capable of manual delivery.

Like a car and appliance or any other tangible object.

Sec. 23. Conveyance to purchaser of personal property capable of manual

delivery. When the purchaser of any personal property, capable of manual

delivery, pays the purchase price, the officer making the sale must deliver the

property to the purchaser and, if desired, execute and deliver to him a

certificate of sale. The sale conveys to the purchaser all the rights which the

judgment obligor had in such property as of the date of the levy on execution

or preliminary attachment. (25a)

Sec. 24. Conveyance to purchaser of personal property not capable of manual

delivery. When the purchaser of any personal property, not capable of manual

delivery, pays the purchase price, the officer making the sale must execute and

deliver to the purchaser a certificate of sale. Such certificate conveys to the

purchaser all the rights which the judgment obligor had in such property as of

the date of the levy on execution or preliminary attachment. (26a)

Q: What is the procedure for the sale of property capable of manual delivery? A: When the property is CAPABLE OF MANUAL DELIVERY, and you are the highest bidder, I

will deliver the car to you, and execute and deliver to you a certificate of sale. The certificate of sale should be signed by the sheriff to prove that you are the highest bidder. And with that certificate of sale, you can register that with the LTO. Automatically, the LTO will transfer the ownership and the registration of the car in your name.

Q: What is the procedure for the sale of property NOT CAPABLE OF MANUAL DELIVERY? Mga

intangible assets? A: There is nothing to physically give you. But according to Section 24, the officer making the same

must execute and deliver to the purchaser a certificate and that is actually tantamount to delivery already.

Q: When you buy a personal property at an auction sale and the sheriff executes a certificate of sale

in your favor, do you become the owner of the property? A: Both sections say, “the sale conveys to the purchaser all the rights which the judgment obligor have in

such property as of the date of the levy on execution.” At the sale, you acquire all the rights which the obligor had in such property. You become the owner because you acquire the judgment obligor’s right of ownership over such property.

BUT suppose the obligor holding the property is not the owner of the property although he has some right over the property and his rights where sold, then you only acquire whatever rights he has over the property. You do not acquire ownership. A spring cannot rise higher than its source.

EXAMPLE: You are the defendant but you enjoy rights over the property as usufructuary – you are

the beneficial owner of the property but not the naked owner. And your rights as usufructuary were levied. I am the purchaser. Can I acquire naked ownership? Of course NOT. I only acquire beneficial ownership. I only acquire whatever right the debtor has over the property.

The SC made a commentary on that issue on the nature of the sheriff’s sale and one of which is the

case of LEYSON vs. TAÑADA

109 SCRA 66 [1981] HELD: “At a sheriff’s sale they do not sell the land advertised to sell, although that is a

common acceptation, but they simply sell what interest in that land the judgment debtor has; and if you buy his interest, and it afterwards develops that he has none, you are still liable on your bid, because you have offered so much for his interest in open market, and it is for you to determine before you bid what is his interest in the property.”

JBD 170

So, it is for you to determine what his interest is before you bid. That is why you look at the sheriff’s notice of sale, meron mang warning ba: “Notice to prospective bidders. You are advised to find out whatever interest the debtor has.”

For EXAMPLE: You buy the land and it turns out na hindi pala may-ari iyong taong iyon, iba ang

rights niya. Then you are to uphold his rights, “Ah, I will hold the sheriff liable!” No you cannot. There is no warranty here on ownership.

So, do not confuse this with private sale of property—warranty against eviction—wala iyan sa

sheriff’s sale. The sheriff does not warrant the ownership of the property. The law only warrants the guarantee that you will acquire whatever interest he has. And if his interest is less than what you expect, pasensha ka. This is a case of CAVEAT EMPTOR – let the buyer beware. That is the thing you have to remember about action sale.

Sec. 25. Conveyance of real property; certificate thereof given to purchaser

and filed with registry of deeds. Upon a sale of real property, the officer

must give to the purchaser a certificate of sale containing:

(a) A particular description of the real property sold;

(b) The price paid for each distinct lot or parcel;

(c) The whole price paid by him;

(d) A statement that the right of redemption expires one (1) year from the

date of the registration of the certificate of sale.

Such certificate must be registered in the registry of deeds of the place

where the property is situated. (27a)

If the property sold at public auction is a piece of land (real property), the sheriff will execute in

your favor what is known as the sheriff’s CERTIFICATE OF SALE. Ano’ng nakalagay diyan? It is practically what a normal deed of sale provides – the description of the land, the property sold, the whole price paid, the lot if there are different parcels, how much per parcel.

The important paragraph is [d]: “A statement that the right of redemption expires one (1) year from the

date of the registration of the certificate of sale”. Q: What is the main difference between a sale of personal property under Section 23 and sale of

real property under Section 25? A: When the property sold at public auction is real property, the debtor has one (1) year to redeem

the property. That’s what you call the RIGHT OF REDEMPTION from the purchaser. But if the property sold at public auction is personal property, like cars or appliances, there is no right of redemption.

There is no right of redemption in personal property. That is only recognized in real property. So if

your (personal) property is sold at public auction, and then there is a highest bidder, you cannot say, “Anyway, pwede ko namang bawiin iyon.” NO, wala iyang bawi, kanya na yan. But if the property sold at public auction is real property, that is not kissing your land goodbye. You have one year to redeem it. That is your last chance.

Q: Summary: If you are the highest bidder, when do you acquire ownership of the property sold in a

auction sale? A: It DEPENDS whether the property sold is personal or real:

a.) If it is PERSONAL PROPERTY, the title is transferred after payment of the purchase price and delivery upon the purchaser. Delivery is either physical or symbolic; (Sections 23 & 24)

b.) If it is REAL PROPERTY, the title is transferred, not after the auction sale, but after expiration of the right to redeem. (Section 25)

There is no right of redemption under personal property. It can only be exercised in real property. Now, take note that the period to redeem is ONE YEAR FROM THE DATE OF THE

REGISTRATION of the certificate of sale in the office of the registrar of deeds. It is NOT from the date of the auction sale.

JBD 171

Under the old law, malabo eh: “from the date of sale.” Anong sale? Date of the auction sale or date of

the issuance of certificate of sale? According to the SC, the date of the registration. That is the start of the counting. Kaya nga if there is a sale in your favor, pag i-delay mo ang registration, ikaw ang kawawa because the longer you delay it, the redemption period is being stretched. Instead of cutting after one year, period of redemption has not been cut off kaya there must be a registration.

Under the present rule, the right of redemption expires after one (1) year from the date of the

registration of the certificate of sale. Under the old law, it expires after twelve (12) months. Q: Is the ‘one year’ under the present rule and the ‘12 months’ under the old rules the same? A: NO, and we know that 12 months is 360 days. One month is 30 days times 12 is 360 days. But

one year is 365 days. So they are not the same. That’s why before, the redemption period for extrajudicial foreclosure of mortgage is one year. And

the redemption in execution under Rule 39 is 12 months. So there is a difference. But NOW, pareho na. That’s why the old case of STATE INVESTMENT HOUSE when the SC made the distinction

between the one year period for mortgage and the 12 months period under Rule 39 is already MEANINGLESS because the one year period. NOW is uniform.

Q: Can you attack the validity of an auction sale? A: GENERAL RULE: NO, you cannot attack the auction sale on the presumption that every fair

sale is final. There is a presumption of regular performance of duty by the sheriff. EXCEPTION: When an execution may be set aside:

1.) When it is shown from the nature of the irregularity or from intrinsic facts injury resulted therefrom. (Navarro vs. Navarro, 76 Phil. 122) Meaning, there were serious irregularities committed by the officer in conducting the sale like no publication, no notice, no prior levy, etc.;

2.) When the price obtained at the execution sale is shockingly inadequate and it is shown that

a better price can be obtained at a resale. (Barrozo vs. Macadaeg, 83 Phil. 378) Meaning, the highest bid is shockingly inadequate.

EXAMPLE: I owed you for P100,000 – P100,000 ang judgment! And what is levied is a brand new

Mercedes Benz. So sobra na yon na pambayad sa utang. But the highest bid is P30,000. Just imagine the highest bid is 30,000, tapos meron pang deficiency judgment for P70,000 – of course, there is something wrong here. So, that is an exception, no! That is, when the price obtained at the execution sale is SHOCKINGLY INADEQUATE to the senses and it is shown that a better price can be obtained.

‘Shocking to the senses’ means hindi naman yung the difference is very slight. EXCEPTION TO THE EXCEPTION: The rule that you can question the validity of the auction sale if

the price obtained is shockingly inadequate applies ONLY when the property sold is PERSONAL property. The exception does not apply when the property sold is real property because if the property sold is a personal property, there is no right of redemption. But if the property sold is real property, you cannot complain because, anyway, you have one year to pay and the redemption price is lower. So, you are not really prejudiced. So why are you complaining? That’s what the SC said in the case of

RAMOS vs. PABLO 146 SCRA 5 [1986]

HELD: “A reading of plaintiffs' (petitioners') complaint shows that inadequacy of price

was raised as one of the issues. Assuming that the price was shockingly low, the same cannot vitiate the auction sale for redemption would be comparatively easier.”

JBD 172

That is because the property sold in RAMOS is real property. Pero kung personal property, I think

it is really unfair. You lose the property forever with a very small amount.

Sec. 26. Certificate of sale where property claimed by third person. When a

property sold by virtue of a writ of execution has been claimed by a third

person, the certificate of sale to be issued by the sheriff pursuant to

sections 23, 24 and 25 of this Rule shall make express mention of the existence

of such third-party claim. (28a)

If the property sold at public auction is a subject of a third party claim under Section 16, the

certificate of sale to the property is issued subject to the outcome of the third party claim by a stranger.

Sec. 27. Who may redeem real property so sold. Real property sold as

provided in the last preceding section, or any part thereof sold separately,

may be redeemed in the manner hereinafter provided, by the following persons:

(a) The judgment obligor, or his successor in interest in the whole or any

part of the property;

(b) A creditor having a lien by virtue of an attachment, judgment or

mortgage on the property sold, or on some part thereof, subsequent to the lien

under which the property was sold. Such redeeming creditor is termed a

redemptioner. (29a)

That is an important section. Q: Who are entitled to redeem real property? A: There are two (2):

1.) The judgment obligor or his successor-in-interest; and 2.) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property

sold, subsequent to the lien under which the property was sold. He is know as the REDEMPTIONER.

JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST Judgment obligor is clear – the defendant who lost the case – the defendant whose property was

levied. Or, his successor-in-interest. For EXAMPLE: During the one year period to redeem, the judgment debtor died. So it could be his heirs, his children, his spouse who could exercise the right to redeem because they step into his shoes. Also, successor-in-interest would also refer to a person to whom the obligor assigned or transferred his right to redeem.

Q: Can the defendant sell, aside from transferring, his right to another person? A: YES, because the right to redeem is property by itself. My right to redeem is also property such

as an interest to the real property which can be the subject matter of a sale. EXAMPLE: “Alright, may property ako worth P5 million. Na-sheriff for P2 million. Wala na, hindi

ko na kaya. Ibenta ko sa iyo for P3 million. Give me P1 million cash at ikaw na ang mag redeem sa purchaser.” Ginansiya ka pa rin di ba? P5 million gud iyon. So I can sell, and once I sell the right to redeem to you, you are classified as successor-in-interest for the judgment obligor.

REDEMPTIONER Q: Define redemptioner. A: A redemptioner is a creditor having a lien by virtue of an attachment, judgment or mortgage on

the property sold, or on some part thereof, subsequent to the lien under which the property was sold.

JBD 173

ILLUSTRATION: Suppose there is a title owned by X and he has four (4) creditors. Let’s say the

property is worth P10 million and he owes A for P2 million. So A levied the property. Now there’s another judgment in favor of B and there is no other property, ito na lang. So ang ginawa ni B, tinatakan niya – another P2 million.

Under the Law on Land Titles and Deeds, B has inferior rights. In other words, the right of A is

superior to the right of B. A has no obligation to respect the right of B but B is obliged to respect the right of A. And Assuming that there is a third creditor – C – for another P2 million. Thus, subsequent holder din si C. If D is also a creditor, apat na sila.

Of course, the right of A is superior. He levies the property, may one year to redeem. Sabi ni X,

“Wala na akong property, so ano pang pakialam ko kay B?” Suppose X will not redeem, so A becomes the owner after one year. What happens to B, C and D? Bura lahat kayo because you are underneath. A has no obligation to respect your liens.

In other words, A acquires the entire property for only P2M because hindi na interesado si X.

Shempre si B interesado. So B will pay A within the redemption period para matanggal si A. Yung utang ni X na P2M binayaran niya kay A. So P4 million na ang hawak ni B. And B will now be the number one. B will now acquire the property. Pero sabi ni C, “Hindi pwede iyan, lugi ako!” Kasi pagna-acquire na ni B ang property, patay na naman si C and D. Sabi ni C, “Bababuyin, ah este… Babayaran kita (B)! O ayan ang P4 million. Saksak mo sa baga mo!” D can do the same thing to C.

Iyan ang tinatawag na redemptioners – people who have lien subsequent because that is your only

way to protect your lien over the property. Anyway, even if D will pay everybody, hindi pa rin lugi because the property is worth P10 million. But he spent P8 million because he had to buy or redeem it from people who are ahead of him. That is the illustration of redemptioners, they have a personality or a right to redeem the property from whoever is ahead of him in order to protect his lien over the property because if he will not redeem, the quickest one will acquire the property free from any lien or encumbrance. Eh, kung wala na yung property? Patay na ako. What property will I get to satisfy the account wala na akong property, isa nalang. That is the rule on redemption. That is what Section 27 is all about.

Take note that redemptioners cannot redeem if the judgment debtor redeems. (For Review Class) Now, let us discuss the case of PALICTE vs. REMOLITE, infa. This case is

instructive on the issue of right of redemption under Rule 39 in relation to special proceedings – the estate of deceased person. This is what happened:

PALICTE vs. REMOLETE

154 SCRA 132 [1987] FACTS: A man lost a case and his properties were levied. So let’s say his properties

were levied for P1 million. But during the 1-year period of redemption, he died. And he is survived by 5 children. And there is an administrator appointed by the court to administer the properties of the deceased. During the one period to redeem, one of five children, siguro mayaman, redeemed the properties of their father.

Take note that only one of the heirs redeemed the entire property from the judgment

creditor- obligee. And one of the issues raised is whether one heir alone has the personality to redeem from the creditor the property of the estate when there is an administrator. Remember, ha – the legal representative under the law, is the administrator.

ISSUE #1: So, who has the right to redeem? The heir or the administrator? HELD: The HEIR has the right to redeem. “At the moment of the decedent’s death, the

heirs start to own the property, subject to the decedent’s liabilities. In fact, they may dispose of the same even while the property is under administration. If the heirs may dispose of

JBD 174

their shares in the decedent’s property even while it is under administration with more reason should the heirs be allowed to redeem redeemable properties despite the presence of an administrator.”

ISSUE #2: Must the one redeeming prove that the other co-heirs, the administrator and

the court expressly agreed to the redemption? Is it necessary for him to get their consent? HELD: “There is NO NEED for such prior approval. While it may have been desirable, it

is not indispensable. There is likewise nothing in the records to indicate that the redemption was not beneficial to the estate.” Anyway, the estate was benefited. The property was returned to the estate rather than acquired by the creditors.

ISSUE #3: How can one specific heir redeem alone when his interest in the estate is not

fixed and determinate pending the order of distribution by the court? He is just a 1/5 owner and then he is redeeming everything, how can that be done?

HELD: “It may be true that the interest of a specific heir is not yet fixed and determinate pending the order of distribution BUT, nonetheless, the heir’s interest in the preservation of the estate and the recovery of its properties is greater than anybody else’s, definitely more than the administrator’s who merely holds it for the creditors, the heirs, and the legatees.”

ISSUE #4: Can we not consider the administrator as the judgment-debtor himself and

the only one successor-in-interest? HELD: NO. “The estate of the deceased is the judgment-debtor and the heirs who will

eventually acquire that estate should not be prohibited from doing their share in its preservation.”

ISSUE #5: So, sabi ng redeeming heir, “Okey, so now let the property be registered in my

name because pera ko man ang ginamit. I spent my money in paying the property including the shares of my brothers and sisters who have no money.” Is the redeeming heir correct?

HELD: NO. “The motion to transfer the titles of the properties to the name of the redeeming heir cannot prosper at this time. Otherwise, to allow such transfer of title would amount to a distribution of the estate.” That is tantamount to premature distribution of the estate. You cannot distribute the estate in favor of one heir immediately.

So, what is the solution? “The other heirs are, therefore, given a six-month period to join as co-redemptioners in the redemption made by the petitioner before the motion to transfer titles to the latter’s name may be granted.”

So meaning, if the other heirs are given 6 months, hindi nyo mabayaran, pwede na yan, kasi pera

man niya ang ginamit.

Sec. 28. Time and manner of, and amounts payable on, successive redemptions;

notice to be given and filed. The judgment obligor, or redemptioner, may redeem

the property from the purchaser, at any time within one (1) year from the date

of the registration of the certificate of sale, by paying the purchaser the

amount of his purchase, with one per centum per month interest thereon in

addition, up to the time of redemption, together with the amount of any

assessments or taxes which the purchaser may have paid thereon after purchase,

and interest on such last named amount at the same rate; and if the purchaser

be also a creditor having a prior lien to that of the redemptioner, other than

the judgment under which such purchase was made, the amount of such other lien,

with interest.

Property so redeemed may again be redeemed within sixty (60) days after the

last redemption upon payment of the sum paid on the last redemption, with two

per centum thereon in addition, and the amount of any assessments or taxes

which the last redemptioner may have paid thereon after redemption by him, with

interest on such last-named amount, and in addition, the amount of any liens

held by said last redemptioner prior to his own, with interest. The property

may be again, and as often as a redemptioner is so disposed, redeemed from any

previous redemptioner within sixty (60) days after the last redemption, on

paying the sum paid on the last previous redemption, with two per centum

thereon in addition, and the amounts of any assessments or taxes which the last

previous redemptioner paid after the redemption thereon, with interest thereon,

JBD 175

and the amount of any liens held by the last redemptioner prior to his own,

with interest.

Written notice of any redemption must be given to the officer who made the

sale and a duplicate filed with the registry of deeds of the place, and if any

assessments or taxes are paid by the redemptioner or if he has or acquires any

lien other than that upon which the redemption was made, notice thereof must in

like manner be given to the officer and filed with the registry of deeds; if

such notice be not filed, the property may be redeemed without paying such

assessments, taxes, or liens. (30a)

ILLUSTRATION: Brown Sugar is a judgment obligor. She has four creditors (A, B, C, and D) and all

of them obtained judgment against her and all of them levied on the same property. Brown Sugar is given one year from the registration of the sale to redeem it from A. Now, suppose SUGAR cannot redeem, B will be the one to redeem because the first redemptioner and the judgment obligor have one year to redeem from the date of registration. That is what Section 28 says “the judgment obligor, or redemptioner.” Now, C is given 60 days to redeem. After that, wala ng right. Suppose C was able to redeem, D has another 60 days to redeem from C.

Q: So what is the period of redemption? A: There are two periods of redemption: The judgment obligor and first redemptioner are given

ONE YEAR from the date of registration of the certificate of sale to redeem and after that all subsequent redemptioners are given 60 days.

So the second redemptioner can redeem it within 60 days. So, within 60 days, the 3rd redemptioner

can redeem it. Pasa yan, in order that the redemptioner can protect their lien over the property. So, the redemption period is ONE YEAR and 60 DAYS respectively.

Q: Now, suppose Brown Sugar or B would like to redeem the property from A. How much will the

property be redeemed? A: Under Section 28, the purchase or the bid price for the property PLUS one percent per month

interest, and reimbursement for taxes of the property with interest also. But definitely, the redemption price = the bid price + 1% interest month. So, if you will redeem after one year, the bid price and 12% of the bid price.

ILLUSTRATION: So kung P1 million ang bid price plus + P120,000 (1%/month) = P1.12 million Now there are two interesting cases here which I want you to remember. The conflicting ruling in

PNB vs. CA (140 SCRA 360) and the case of SY vs. CA (172 SCRA 125). The two cases involved a foreclosure of mortgage not execution but the Rules of Court applies. Under the extra-judicial foreclosure of mortgage Act 3135, the provision of the Rules of Court are also applicable to redemption in a foreclosure sale. So the provision in Section 28 also applies to the redemption during an extrajudicial foreclosure of property.

PNB vs. COURT OFAPPEALS

140 SCRA 360 [1985] FACTS: Suppose I will borrow money from the bank and stipulate an interest at 24% per

annum. During the auction sale, it was sold to the bank. Within one year, you approach me, gusto mo na i-redeem. Magkano ang bid price—P2M plus interest of 2% per month for the next seven or eight months. Sabihin ng debtor, “No, 1% lang. Di ba nakalagay sa law 1% lang.” Pero ang usapan natin is 3% monthly.

ISSUE: So which prevails - the 1% per month under the Rules of Court or the 2% per

month as stipulated in the promissory note? HELD: The 1% of the Rules of Court prevails. Why? The rights of the debtor or creditor,

the bank for example, under the promissory note, or even under the mortgage law, is only good up to the auction sale. From the moment the auction sale is finished and there was already a bid, we are now talking of the one year period to redeem. So the rate in the promissory note is no longer applicable.

JBD 176

The case of PNB was somehow modified by the SC in the subsequent case of Sy vs. CA (172 SCRA

125) where the facts are identical. SY vs. COURT OF APPEALS

172 SCRA 125 [1989] FACTS: They borrowed money from the bank at 2% a month and they failed to pay the

loan. Thus, there was a foreclosure of mortgage then there was an execution of sale. ISSUE: Within the one year period of redemption, pila man ang interest? The debtor

will say 1% but according to the bank, it is 2% as stipulated. Which will prevail? HELD: The 3% a month stipulated under the mortgage contract prevails. Why? Because

of a special law – Section 78 of the General Banking Act R.A. 337. Between Section 28 of Rule 39 and Section 78 of the General Banking Act, the latter prevails because it is a special law. It applies to banks.

“The General Banking Act partakes of the nature of an amendment to the mortgage law in so far as the redemption price is concerned. When the mortgagee or the creditor is a bank or banking credit institution, Section 6 of the mortgage law in relation to Section 28 of Rule 39 of the Rules of Court is inconsistent with Section 78 of the General Banking Act.” So the bank rate prevails.

Paano nangyari ito? I have only one single explanation. Hindi nakita ng mga abogado ng PNB ang

provision na iyon. They did not research very well. They failed to cite the provision of the General Banking Act which authorizes the bank to continue charging the higher rate even during the redemption period. Ginamit ng SC ang general rule eh. So mas magaling ang lawyer nung bank in the second case because they were able to detect an exception under the general rule.

You know, if you are a lawyer of a bank, you must know all the laws regarding banks. Just the

same, if you are a labor lawyer, you master all the labor laws. But if you are a bar candidate, you master all laws! Yaaaann!

Sec. 29. Effect of redemption by judgment obligor, and a certificate to be

delivered and recorded thereupon; to whom payments on redemption made. If the

judgment obligor redeems, he must make the same payments as are required to

effect a redemption by a redemptioner, whereupon, no further redemption shall

be allowed and he is restored to his estate. The person to whom the redemption

payment is made must execute and deliver to him a certificate of redemption

acknowledged before a notary public or other officer authorized to take

acknowledgments of conveyances of real property. Such certificate must be filed

and recorded in the registry of deeds of the place in which the property is

situated, and the registrar of deeds must note the record thereof on the margin

of the record of the certificate of sale. The payments mentioned in this and

the last preceding sections may be made to the purchaser or redemptioner, or

for him to the officer who made the sale. (31a)

Q: Suppose Tikla redeems the property from Joshua. If the sheriff will execute in favor of Tikla a

certificate of redemption, to whom should Tikla pay? A: The law says she can pay directly to the purchaser, the redemptioner or the person who made

the sale.

Sec. 30. Proof required of redemptioner. A redemptioner must produce to the

officer, or person from whom he seeks to redeem, and serve with his notice to

the officer a copy of the judgment or final order under which he claims the

right to redeem, certified by the clerk of the court wherein the judgment or

final order is entered; or, if he redeems upon a mortgage or other lien, a

memorandum of the record thereof, certified by the registrar of deeds; or an

original or certified copy of any assignment necessary to establish his claim;

and an affidavit executed by him or his agent, showing the amount then actually

due on the lien. (32a)

JBD 177

When the ORIGINAL OWNER wants to redeem the property from B, there is NO NEED for him to prove his right as a judgment debtor. The judgment debtor has the automatic right to redeem.

But when it is B, C or D (REDEMPTIONERS) who wants to redeem, they MUST PROVE to the

sheriff that they are qualified to redeem. They must prove their status because not every person in the world has the right to redeem. The right to redeem is only given to the debtor, the successor-in-interest or the redemptioner. Thus, you must prove your personality to effect redemption.

Sec. 31. Manner of using premises pending redemption; waste restrained.

Until the expiration of the time allowed for redemption, the court may, as in

other proper cases, restrain the commission of waste on the property by

injunction, on the application of the purchaser or the judgment obligee, with

or without notice; but it is not waste for a person in possession of the

property at the time of the sale, or entitled to possession afterwards, during

the period allowed for redemption, to continue to use it in the same manner in

which it was previously used; or to use it in the ordinary course of husbandry;

or to make the necessary repairs to buildings thereon while he occupies the

property. (33a)

PROBLEM: Suppose X is the debtor, A is the purchaser because the highest bidder could be any

person. During the 1-year period to redeem, who is in possessor of the property? The purchaser or the debtor?

A: The DEBTOR. During the one-year period, iyo pa rin yan. The buyer or the purchaser cannot take over during the institution. He has to wait for the one-year period to expire before he can take over. Therefore, X continues to occupy the property. He continues to use it the same manner it was previously used. Use it in the ordinary course of husbandry, to make the necessary repairs to buildings thereon while he occupies the property.

Q: Suppose 8 months has passed. Sabi ni X, “Mukhang wala na akong pag-asa. Hindi ko na ito

mababayaran. Sige, wasakin ko na lang ang property. Sirain ko na lang. I will make a waste of the land. I will cut all the coconut trees. I will destroy all the improvements. Para pag-take-over mo, wala na. Bwahahaha!” What is the remedy of A?

A: He can ask the court to issue a writ of injunction according to Section 31 – an injunction to restrain the commission of waste on the property. So, you can also stop him by injunction.

Sec. 32. Rents, earnings and income of property pending redemption. The

purchaser or a redemptioner shall not be entitled to receive the rents,

earnings and income of the property sold on execution, or the value of the use

and occupation thereof when such property is in the possession of a tenant. All

rents, earnings and income derived from the property pending redemption shall

belong to the judgment obligor until the expiration of his period of

redemption. (34a)

Section 32 is the continuation of Section 31. Q: My property was sold on execution in your favor. But my property earns income. May mga

tenants diyan na nagbabayad ng renta. During the one-year period, who will get the rentals? The purchaser or the debtor?

A: The DEBTOR. He continues to receive all the earnings. For defensive purposes, he is still the owner. Do not say that, “Ako ang highest bidder, akin ang income!” (Gunggong!) You wait for the one-year redemption period to expire to get the income.

Under the OLD rules, the 1964 Rules, during the one-year period to redeem, the debtor/defendant

continues to get the income of the property but when the creditor may opt: “Your Honor, akin ang income ha?” That’s allowed by the old law. But everything is deductible also form the redemption price. NGAYON wala na yan. 100% the debtor is the one enjoying the income over the property. That is a major amendment introduced by the 1997 Rules.

Q: Now, what happens if after the lapse of one year there is no redemption? What is the next step? A: That is Section 33:

JBD 178

Sec. 33. Deed and possession to be given at expiration of redemption period;

by whom executed or given. If no redemption be made within one (1) year from

the date of the registration of the certificate of sale, the purchaser is

entitled to a conveyance and possession of the property; or, if so redeemed

whenever sixty (60) days have elapsed and no other redemption has been made,

and notice thereof given, and the time for redemption has expired, the last

redemptioner is entitled to the conveyance and possession; but in all cases the

judgment obligor shall have the entire period of one (1) year from the date of

the registration of the sale to redeem the property. The deed shall be executed

by the officer making the sale or by his successor in office, and in the latter

case shall have the same validity as though the officer making the sale had

continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or

redemptioner shall be substituted to and acquire all the rights, title,

interest and claim of the judgment obligor to the property as of the time of

the levy. The possession of the property shall be given to the purchaser or

last redemptioner by the same officer unless a third party is actually holding

the property adversely to the judgment obligor. (35a)

If the period to redeem expires, no more right of redemption. What will happen? The sheriff now

will now execute in favor of the highest bidder or purchaser what is known as the final deed of sale or DEED OF CONVEYANCE. Remember that there are two documents here which the sheriff executes in case of real property.

Q: What are they (two documents which the sheriff executes in case of real property)? A: The following:

1.) CERTIFICATE OF SALE. After the auction sale, he will execute in your favor the certificate of sale under Section 25, by the time you register that, you start counting the one year.

2.) DEED OF CONVEYANCE. If after one year there is no redemption, a deed of conveyance is executed. (Section 33)

Q: Which of the two documents transfers the ownership to the purchaser? A: Only the DEED OF CONVEYANCE transfers title to the property. The certificate of sale one year ago does not transfer the ownership of the land to the purchaser. It is

only a memorial that you are the highest bidder, that you paid so much and that you are the purchaser but there is no transfer of ownership. Only the final deed of sale in Section 33 conveys title to property. So do not confuse the sheriff’s certificate of sale under Section 25 with the final deed of sale under Section 33. Although in an extra-judicial foreclosure, there is no need of deed of sale. Only affidavit of consolidation is needed under the mortgage law.

Q: How can the sheriff give it to you? Suppose the debtor refuse to vacate, is there a need to file

another action of unlawful detainer or forcible entry? A: There is no more need of filing another action to eject the former owner. The procedure is, the

purchaser can ask the court to issue a WRIT OF POSSESSION under the Property Registration Decree to take over the property.

Now, another interesting case about this stage in relation to property exempted from execution, is

the case of GOMEZ vs. GEALONE

203 SCRA 474 [1991] FACTS: The property of the defendant was levied and sold in a public auction to the

highest bidder. One year after, there was no redemption. Then after the period has expired, here comes the defendant questioning the auction sale because the property was exempt from execution and the property really turned out to be exempt from execution.

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ISSUE: Is there a deadline for a judgment debtor to claim exemption from execution of his property? Can the debtor still raise the issue that the property is exempt from execution after the expiration of the redemption period.

HELD: The rules do not expressly mention up to what point “although the rules of court

does not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-settled that the right of exemption must be claimed by the debtor himself at the time of the levy or within a reasonable time thereafter.” What is “reasonable time”?

“’REASONABLE TIME,’ for purposes of the law on exemption, does not mean a time after the expiration of the one-year period for judgment debtors to redeem the property sold on execution, otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of execution - to put an end to litigation.”

“We now rule that claims for exemption from execution of properties under Section 13 must be presented before its sale on execution by the sheriff.”

Meaning, you raise the issue of exemption at the time of the levy but not later that the auction sale.

There is a deadline because if you claim exemption after that, masyadong ng atrasado—too late na ba. Thus, the claim for exemption must be raised. That’s the ruling in the case of GOMEZ vs. GEALONE.

Sec. 34. Recovery of price if sale not effective; revival of judgment. If

the purchaser of real property sold on execution, or his successor in interest,

fails to recover the possession thereof, or is evicted therefrom, in

consequence of irregularities in the proceedings concerning the sale, or

because the judgment has been reversed or set aside, or because the property

sold was exempt from execution, or because a third person has vindicated his

claim to the property, he may on motion in the same action or in a separate

action recover from the judgment obligee the price paid, with interest, or so

much thereof as has not been delivered to the judgment obligor; or he may, on

motion, have the original judgment revived in his name for the whole price with

interest, or so much thereof as has been delivered to the judgment obligor. The

judgment so revived shall have the same force and effect as an original

judgment would have as of the date of the revival and no more. (36a)

Q: Suppose A is the highest bidder. There is a third-party claim which turned out to be valid. So the

property is removed from A. So, paano naman si A? Nakabayad gud siya diyan. Paano niya babawiin ang kuwarta niya?

A: A’s options under Section 34: 1.) Recover the money from obligee (A here is not the judgment obligee); or 2.) Have the judgment revived in your name and you look for other properties of the obligor to

execute because: a.) He lost possession of the property; b.) He was evicted; c.) There was irregularity of the proceedings; d.) The judgment has been reversed or set aside on appeal; e.) The property sold was exempt from execution; or, f.) A third person has validity of his claim of the property.

That’s one way of property being removed from the purchaser. Your remedy is to recover the

money from the obligee ASSUMING that the obligee is different from the purchase. Or have the judgment revived in your name – hahabol ka na lang sa ibang properties ng debtor. That’s the procedure alright.

Sec. 35. Right to contribution or reimbursement. When property liable to an

execution against several persons is sold thereon, and more than a due

proportion of the judgment is satisfied out of the proceeds of the sale of the

property of one of them, or one of them pays, without a sale, more than his

proportion, he may compel a contribution from the others; and when a judgment

is upon an obligation of one of them, as security for another, and the surety

pays the amount, or any part thereof, either by sale of his property or before

sale, he may compel repayment from the principal. (37a)

JBD 180

Q: The judgment is against A, B, and C, solidary debtors. A paid everything. What is the right of A? A: A has the right to seek reimbursement from B and C. Or if the surety was made to pay the loan, he can claim reimbursement from the principal debtor.

That’s under the Law on Obligations and Contracts—right to reimbursement.

REMEDIES IN AID OF EXECUTION Another important portion of the rule to remember are the so-called provisions of the rules in aid of

execution – remedies “in aid of execution” – because execution is a difficult process. The purpose of the remedies in aid of execution is to help the obligee realize the fruits of the judgment.

It is sometimes very hard to grasp out properties of the obligor especially if he knows how to hide

them by conveying remedies to assist him in locating the properties of the defendant and these remedies in aid of execution are found in Section 36 to Section 43. And the most famous are those found in Sections 36 and 37:

Sec. 36. Examination of judgment obligor when judgment unsatisfied. When the

return of a writ of execution issued against property of a judgment obligor, or

any one of several obligors in the same judgment, shows that the judgment

remains unsatisfied, in whole or in part, the judgment obligee, at any time

after such return is made, shall be entitled to an order from the court which

rendered the said judgment, requiring such judgment obligor to appear and be

examined concerning his property and income before such court or before a

commissioner appointed by it, at a specified time and place; and proceedings

may thereupon be had for the application of the property and income of the

judgment obligor towards the satisfaction of the judgment. But no judgment

obligor shall be so required to appear before a court or commissioner outside

the province or city in which such obligor resides or is found. (38a)

Sec. 37. Examination of obligor of judgment obligor. When the return of a

writ of execution against the property of a judgment obligor shows that the

judgment remains unsatisfied, in whole or in part, and upon proof to the

satisfaction of the court which issued the writ, that a person, corporation, or

other juridical entity has property of such judgment obligor or is indebted to

him, the court may, by an order, require such person, corporation, or other

juridical entity, or any officer or member thereof, to appear before the court

or a commissioner appointed by it, at a time and place within the province or

city where such debtor resides or is found, and be examined concerning the

same. The service of the order shall bind all credits due the judgment obligor

and all money and property of the judgment obligor in the possession or in the

control of such person, corporation, or juridical entity from the time of

service; and the court may also require notice of such proceedings to be given

to any party to the action in such manner as it may deem proper. (39a)

So under Section 36, you can ask the court to render judgment to allow you to subpoena the obligor

and take the witness stand subject to questioning so that you can discover where his properties are. So in effect, Section 36 is related to modes of discovery. This is actually a mode of discovery. This is a type of deposition taking. It is related to the subject of deposition taking where the discovery of the witness stand to effect execution.

EXAMPLE: The sheriff did not find any property of the obligor. So the obligee can file a motion

under Section 36 for examination of the obligor under oath hoping that in the course of asking questions, he might make some admissions. And the procedure is the same as in deposition but this is only done right inside the courtroom.

On the other hand under Section 37, you can also examine people whom you believe owe the

obligor such as his debtors, or those holding his property, so that you can discover all his collectibles and ask that the same be garnished. So this time, it is the “obligor” of the judgment obligor who will be examined.

EXAMPLE: Kenneth, Thadd, and Francis owe the judgment obligor a sum of money. The obligee

can file a motion under Section 37 to subpoena Kenneth, Thadd and Francis to find out if it is true that

JBD 181

they are indebted to the judgment obligor. In this case, the obligee can as the court to garnish the money.

So, those are the objects of Sections 36 and 37. Of course there are others, just go over them.

Sec. 38. Enforcement of attendance and conduct of examination. A party or

other person may be compelled, by an order or subpoena, to attend before the

court or commissioner to testify as provided in the two preceding sections, and

upon failure to obey such order or subpoena or to be sworn, or to answer as a

witness or to subscribe his deposition, may be punished for contempt as in

other cases. Examinations shall not be unduly prolonged, but the proceedings

may be adjourned from time to time, until they are completed. If the

examination is before a commissioner, he must take it in writing and certify it

to the court. All examinations and answers before a court or commissioner must

be under oath, and when a corporation or other juridical entity answers, it

must be on the oath of an authorized officer or agent thereof. (40a)

Section 38 is the continuation of Section 37. If the judgment obligor, or Kenneth, Thad and Francis

refuse to comply with the subpoena, they can be punished for contempt.

Sec. 39. Obligor may pay execution against obligee. After a writ of

execution against property has been issued, a person indebted to the judgment

obligor may pay to the sheriff holding the writ of execution the amount of his

debt or so much thereof as may be necessary to satisfy the judgment, in the

manner prescribed in section 9 of this Rule, and the sheriff's receipt shall be

a sufficient discharge for the amount so paid or directed to be credited by the

judgment obligee on the execution. (41a)

Here, there is a change of the party creditor. The best example is garnishment from a bank. B is the

debtor of the judgment obligor. If B, instead of paying the judgment obligor, will pay the judgment creditor, B is no longer indebted to the judgment obligor.

Sec. 40. Order for application of property and income to satisfaction of

judgment. The court may order any property of the judgment obligor, or money

due him, not exempt from execution, in the hands of either himself or another

person, or of a corporation or other juridical entity, to be applied to the

satisfaction of the judgment, subject to any prior rights over such property.

If, upon investigation of his current income and expenses, it appears that

the earnings of the judgment obligor for his personal services are more than

necessary for the support of his family, the court may order that he pay the

judgment in fixed monthly installments, and upon his failure to pay any such

installment when due without good excuse, may punish him for indirect contempt.

(42a)

If upon investigation of his current income and expenses, it appears that the earnings of the

judgment obligor for his personal services are more than necessary for the support of his family, the court may order that he pay the judgment obligee in fixed monthly installments, and upon his failure to pay any such installment when due without good excuse, may punish him for indirect contempt.

Q: Can the salary of an employee be garnished? A: Yes IF there is excess for support of his family. (Section 40) Section 40 related to Section 13,

paragraph [i] properties exempt from execution:

(i) So much of the salaries, wages, or earnings of the judgment obligor for

his personal services within the four months preceding the levy as are

necessary for the support of his family;

Normally, you cannot levy on the earnings of a person which he needs for support of his family.

But actually, it is not the entire earnings because if you’re earning a lot, it is more than sufficient for your family. So the excess of your income can be garnished under Section 40.

Sec. 41. Appointment of receiver. The court may appoint a receiver of the

property of the judgment obligor; and it may also forbid a transfer or other

JBD 182

disposition of, or any interference with, the property of the judgment obligor

not exempt from execution. (43a)

The court may appoint a receiver who is an officer of the court who will manage the property of

the litigants pending litigation. This remedy is found under Rule 59 on Receivership. The purpose of receivership is to preserve the property by placing it in the hands of the court to remove it from the control of a party because a party may dispose of the property.

Sec. 42. Sale of ascertainable interest of judgment obligor in real estate.

If it appears that the judgment obligor has an interest in real estate in the

place in which proceedings are had, as mortgagor or mortgagee or otherwise, and

his interest therein can be ascertained without controversy, the receiver may

be ordered to sell and convey such real estate or the interest of the obligor

therein; and such sale shall be conducted in all respects in the same manner as

is provided for the sale of real estate upon execution, and the proceedings

thereon shall be approved by the court before the execution of the deed. (44a)

EXAMPLE: The obligor turns out to have an interest in real property as a mortgagee, or he has a

right to redeem, or right to foreclose, or right to repurchase. The obligee can levy on these rights because these rights are property rights by themselves. This time, it is not the property which is sold but your interest.

Sec. 43. Proceedings when indebtedness denied or another person claims the

property. If it appears that a person or corporation, alleged to have property

of the judgment obligor or to be indebted to him, claims an interest in the

property adverse to him or denies the debt, the court may authorize, by an

order made to that effect, the judgment obligee to institute an action against

such person or corporation for the recovery of such interest or debt, forbid a

transfer or other disposition of such interest or debt within one hundred

twenty (120) days from notice of the order, and may punish disobedience of such

order as for contempt. Such order may be modified or vacated at any time by the

court which issued it, or by the court in which the action is brought, upon

such terms as may be just. (45a)

EXAMPLE: The obligee cannot find any property of the obligor. But there is a rumor that Pong

owes the obligor a sum of money. Upon examination, Pong denies indebtedness. But the obligee believes that he has evidence that Pong owes the obligor money. In this case, the obligee can ask the court that he be allowed to file a collection case against Pong on behalf of the obligor.

Q: Can the obligee considered as a real party in interest in this case? A: YES. The obligee is now considered as a representative party. Section 43 is an example of the

phrase, “or a party authorized by law or these Rules…” under Rule 3, Section 3:

Sec. 3. Representatives as parties. x x x x x A representative may be a

trustee of an express trust, a guardian, an executor or administrator, or a

party authorized by law or these Rules. x x x x x x

SATISFACTION OF JUDGMENT

Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction

of a judgment shall be entered by the clerk of court in the court docket, and

in the execution book, upon the return of a writ of execution showing the full

satisfaction of the judgment, or upon the filing of an admission to the

satisfaction of the judgment executed and acknowledged in the same manner as a

conveyance of real property by the judgment obligee or by his counsel unless a

revocation of his authority is filed, or upon the endorsement of such admission

by the judgment obligee or his counsel on the face of the record of the

judgment. (46a)

Sec. 45. Entry of satisfaction with or without admission. Whenever a

judgment is satisfied in fact, or otherwise than upon an execution, on demand

of the judgment obligor, the judgment obligee or his counsel must execute and

acknowledge, or indorse, an admission of the satisfaction as provided in the

last preceding section, and after notice and upon motion the court may order

either the judgment obligee or his counsel to do so, or may order the entry of

satisfaction to be made without such admission. (47a)

JBD 183

Q: What does satisfaction of judgement mean? A: SATISFACTION OF JUDGMENT is the compliance with or fulfillment of the mandate thereof

(31 Am. Jur. 354). Execution is not the same as satisfaction. Execution is the method of enforcement of a judgment.

Satisfaction refers to compliance with or fulfillment of the mandate of judgment. Normally, execution precedes satisfaction. But you can satisfy a judgment without execution by simply paying voluntarily. And when the judgment is satisfied, it has to be recorded the manner of which is found in Sections 44 and 45 – either the sheriff himself will record “fully satisfied,” or, the creditor will file an admission that the judgment is fully satisfied, or, the debtor on motion will ask that it be recorded that he has already paid.

Q: Who may compel satisfaction of judgment? A: Satisfaction of judgment may be compelled by the judgment-creditor by means of execution,

or by the judgment-debtor by means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil. 236) Now, here is an interesting question which has not yet been asked in the Bar. They were expecting

it as early as 2 years ago. Q: Can a plaintiff appeal from the judgment and at the same time move for execution of the same?

Can you do both without being self-contradictory? Can you demand satisfaction of judgment and at the same time appeal said judgment?

A: PRIOR CASES say, you cannot do it because it is inconsistent. When you comply with the satisfaction of judgment, you are already accepting the correctness of judgment. But when you are appealing it, you do not accept the same. That was the old ruling which was MODIFIED in the case of

VITAL-GOSON vs. COURT OF APPEALS

212 SCRA 235 [1992] (en banc) ISSUE: Whether or not a judgment creditor is estopped from appealing or seeking

modification of a judgment which has been executed at his instance. HELD: It depends upon the nature of the judgment as being indivisible or not. This is

the doctrine laid down by this Court in a case decided as early as 1925, Verches v. Rios, where the judgment is INDIVISIBLE, acceptance of full satisfaction of the judgment annihilates the right to further prosecute the appeal; and that even partial execution by compulsory legal process at the instance of the prevailing party, places said party in estoppel to ask that the judgment be amended.” Indivisible means either you accept it as correct or you appeal. But you can not have your cake and eat it too.

“Where the judgment is DIVISIBLE, estoppel should not operate against the judgment creditor who causes implementation of a part of the decision by writ of execution. This is the clear import of Verches .and the precedents therein invoked. The principle is fully consistent not only with the opinion that acceptance of payment of only the uncontroverted part of the claim should not preclude the plaintiff from prosecuting his appeal, to determine whether he should not have been allowed more, but also with logic and common sense.” In other words, if a judgment is divisible, there is no prohibition.

EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating 2 or more causes of action – I am

satisfied with one cause but I am not with the other. So, my appeal is only on the 2nd cause of action where the award should be higher. I am not appealing in the first cause of action and the defendant did not also appeal. So I can move to execute that portion of judgment, as far as the first cause of action is concerned and continue with my appeal on the second. This is a divisible judgment. This is allowed.

PROBLEM: Plaintiff sues for P1 million damages. The court gave an award of P500,000 only (one-

half the damages sued for). Defendant did not appeal because he is satisfied with the judgement. Meaning, he accepts the liability of up to P500,000, “Judgment is good.” Plaintiff, however, is not

JBD 184

satisfied, “It should be P1 million, so I will appeal.” He believes that even if he loses the appeal, he is insured as to the P500,000.

Q: Can plaintiff move for the satisfaction of P500,000 and let the other half continue on appeal? A: YES, I think so. Anyway, there is no quarrel with respect to the first half. To my mind, this is a

DIVISIBLE judgment since defendant accepts it and even if plaintiff loses appeal, the former is still liable up to P500,000. So the plaintiff might as well claim it now for it is final insofar as the defendant is concerned while plaintiff’s appeal is with respect to the balance. This is a possibility under the ruling in VITAL-GOSON.

Sec. 46. When principal bound by judgment against surety. When a judgment is

rendered against a party who stands as surety for another, the latter is also

bound from the time that he has notice of the action or proceeding, and an

opportunity at the surety's request to join in the defense. (48a)

When there is a judgment against the surety, the principal debtor is also bound by the judgment

from the time he has notice of the action or proceeding and an opportunity at the surety’s request to join in the defense. The surety is only liable legally but the real party liable is the debtor.

RES ADJUDICATA And finally, the most important section in Rule 39 is Section 47 – effect of judgment or final order.

This is what we call the principle of res adjudicata.

Sec. 47. Effect of judgments or final orders. The effect of a judgment or

final order rendered by a court of the Philippines, having jurisdiction to

pronounce the judgment or final order, may be as follows:

(a) In case of a judgment or final order against a specific thing, or in

respect to the probate of a will, or the administration of the estate of a

deceased person, or in respect to the personal, political, or legal condition

or status of a particular person or his relationship to another, the judgment

or final order is conclusive upon the title to the thing, the will or

administration, or the condition, status or relationship of the person;

however, the probate of a will or granting of letters of administration shall

only be prima facie evidence of the death of the testator or intestate;

(b) In other cases, the judgment or final order is, with respect to the

matter directly adjudged or as to any other matter that could have been raised

in relation thereto, conclusive between the parties and their successors in

interest by title subsequent to the commencement of the action or special

proceeding, litigating for the same thing and under the same title and in the

same capacity; and

(c) In any other litigation between the same parties or their successors in

interest, that only is deemed to have been adjudged in a former judgment or

final order which appears upon its face to have been so adjudged, or which was

actually and necessarily included therein or necessary thereto. (49a)

We know what this is all about – when the matter is already decided or finish already, you cannot

re-open that easily. The direct provision of law which enunciates that principle is Section 47, which is composed of 3 portions: paragraphs [a], [b] and [c].

Now, paragraph [a] is the principle of res adjudicata as applied in judgment in rem (binding on the

whole world) or at least quasi in rem. Paragraphs [b] and [c] are the application of the same doctrine with respect to judgment in personam (binding only on the parties).

RES ADJUDICATA and RES JUDICATA are the same. In the Philippines, that is influenced by

Roman Law and Spanish Law (Pua vs. Lapitan, 57 O.G. 4914) But the principle is known worldwide, although maybe known by another name. In Anglo-American law, it is known as the doctrine of Estoppel By Judgment (Fajardo vs. Bayona, 98 Phil. 659). But it is the same. The concept is similar. That is why in the 1994 case of

JBD 185

SALUD vs. COURT OF APPEALS 236 SCRA 384 [1994]

HELD: “The rules of res judicata are of common law origin and they initially evolved

from court decisions. It is now considered a principle of universal jurisprudence forming a part of the legal system of all civilized nations.”

Q: What is the FOUNDATION PRINCIPLE upon which the doctrine of res judicata rests? A: It rests from the principle that parties ought not to be permitted to litigate the same issue more

than once; that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or where an opportunity for such trial had been given, the judgment of the court shall be conclusive upon the parties and those in privity with them. Otherwise, without this doctrine, litigation would become interminable, rights of parties would be involved in endless confusion, courts would be stripped of their most efficient powers, and the most important function of government, that of ascertaining and enforcing rights, would go unfulfilled. (Zambales Academy vs. Villanueva, L-19884, May 8, 1969; People vs. Macadaeg, 91 Phil. 410; Oberiano vs. Sobremesana, L-4622, May 30, 1952; Peñalosa vs. Tuazon, 22 Phil. 303)

I think we agree with that. Imagine, if two persons litigated for years over the ownership of a parcel

of land. Then after years of litigation, all the way to the SC, defendant won. Final. After one generation, both plaintiff and defendant are dead but their children would continue. Here comes the children of the plaintiff raising the same issue of ownership. So, there is no end if there is no res judicata.

REQUISITES OF RES ADJUDICATA

What are the requisites of res adjudicata? How do we know, since there are 2 cases here? Does it

mean that simply because there is a case between us, there will be no more case between us in the future? NO.

Q: So what are the requisites of res adjudicata? A: There is res judicata if the following REQUISITES are present:

1.) The judgment or order invoked as res adjudicata must be final; 2.) The court rendering the same must have jurisdiction over the subject matter and of the

parties; 3.) The judgment or order must be upon the merits; and 4.) There must be, between the two cases, identity of parties, identity of subject matter, and

identity of cause of action. So the elements are similar with litis pendentia. Actually, they are based on the same rule – splitting

of the cause of action. The only difference is, in litis pendentia, the first action is still pending. In res adjudicata, the first action has already been decided and the decision has already become final.

First Requisite: JUDGMENT OF ORDER INVOKED MUST BE FINAL When it says ‘final’, the previous judgment has been final and executory (Hubahib vs. Insular Drug,

64 Phil. 119) Meaning, it can no longer be changed. This is because there is such a thing as final and appealable. A final and executory judgment is already beyond the power of the court to alter while a final and appealable judgment is still subject to modification by the appellate court. (Macapinlac vs. CA, 86 Phil. 359)

So where there is a judgment now that you received, and before it becomes executory, you filed

another case, it is not res judicata. It is litis pendentia because the first case is still pending.

JBD 186

EXAMPLE: Jessa files a case against Charles. Charles lost and then appealed. While his appeal is

pending, Jessa filed the same case against Charles. Charles filed a motion to dismiss the second case. The ground for the motion to dismiss should be Litis Pendentia because while there is already a decision, the same is not yet final and executory. It is still on appeal. In such case, it is improper to invoke the principle of res adjudicata because the first element is missing.

Q: Now, when did the first judgment become final? Is it before the second case is filed? Or is it after

the second case filed? A: Either one. It could have been final before the filing of the second action or after, provided when

the defendant invoked it, the first judgment is already final. (Galiancia vs. CA, 173 SCRA 42) Second Requisite: THE COURT RENDERING THE SAME MUST HAVE JURISDICTION OVER THE

SUBJECT MATTER AND OF THE PARTIES Meaning, the first judgment is valid because if the court never acquired jurisdiction over the subject

matter and the parties and rendered judgment, the judgment is void and cannot be invoked as res judicata. (Banco Español-Filipino vs. Palanca, 37 Phil. 921)

Q: May a voidable judgment be invoked as res adjudicata? A: YES because such kind of judgment is binding upon the parties until annulled. (Reyes vs.

Barretto-Datu, 94 Phil. 446) Now, the classic example of the second element is the case which I mentioned to you when we were

in Rule 17 – the case of

REPUBLIC PLANTERS BANK (RBP) vs. MOLINA 166 SCRA 39 [1988]

FACTS: The RPB filed a case against the defendant for a sum of money. Defendant

cannot be summoned because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed. After a while the court dismissed the complaint for RBP’s failure to prosecute. And the order of dismissal was silent. So, following Section 3 of Rule 17, the dismissal is with prejudice – “it shall have the effect of an adjudication upon the merits, unless the order provides otherwise.”

Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed the compliant. Defendant moved to dismiss because when the first complaint was dismissed and the order of dismissal was silent then the dismissal has the effect of an adjudication on the merits.

HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res

adjudicata under Rule 39. One of the elements of res adjudicata is: When the case is terminated, the court has

jurisdiction over the case both as to the person and the subject matter; In the case of RPB, the court never acquired jurisdiction over the person of the defendant

because he was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata. The second element of res judicata is missing.

Third Requisite: THE JUDGMENT OR ORDER MUST BE UPON THE MERITS

JBD 187

What do we mean by this? A judgment on the merits for the purpose of res judicata is one finally settling the issues raised in the pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144). Normally, it is after trial when there is presentation of evidence.

Therefore, when a complaint is dismissed for lack of jurisdiction or improper venue, even if said

dismissal becomes final, the plaintiff can re-file the case because the dismissal upon improper venue or lack of jurisdiction is not upon the merits. It never dealt with the correctness or validity of the cause of action. There should be trial, generally.

So, GENERALLY, a dismissal without a trial is not an adjudication upon the merits EXCEPT in

Rule 17, Section 3 where the case was dismissed for failure of the plaintiff to appear during the presentation of his evidence in chief, or to prosecute his action for an unreasonable, period of time, or failed to comply with the rules or order of the court. There is no trial there but according to Rule 17, Section 3, the dismissal shall have the effect of an adjudication upon the merits. This is the exception even if there was no trial in the first case.

Fourth Requisite: THERE MUST BE, BETWEEN THE TWO CASES, IDENTITY OF PARTIES, IDENTITY OF SUBJECT MATTER, AND IDENTITY OF CAUSE OF ACTION

I. IDENTITY OF PARTIES

Q: When there is identity of parties for the purpose of res judicata? A: There is identity of parties for the purpose of res judicata:

1.) When the parties in the second action are the same as the parties in the first action; or 2.) When the parties in the second action are successors-in-interest of the parties in the first

action, such as heirs or purchasers who acquired title after the commencement of the first action.

EXAMPLE: The example I gave you, the quarrel between parents, then the children did the same. That is the same parties. The children are the successors-in-interest of the original parties, although literally they are not the same parties.

One good illustration of res adjudicata on identity of parties as applied in a labor case was the case

of DELFIN vs. INCIONG

192 SCRA 151 [1990] NOTE: The doctrine of res adjudicata applies not only to the decisions of regular courts

but can be invoked even in administrative cases. It also applies to decisions of administrative bodies.

FACTS: In the case of DELFIN, a union filed a case of unfair labor practice (ULP) against the employer. Then later on, the case was dismissed by the NLRC. When the case was dismissed, the employees filed another case based on the same ULP. The employer invoked res adjudicata and the complainants said, “No, it is not the same parties. In the first case, it was the union. Now it is us (employees).”

HELD: NO! When the union filed the first case, it was filing in behalf of the employees.

This is what you call representative party. In effect, it is the same party. “While it is true that the complainants in the first charge was the union, in reality it had

no material interest in the outcome of the case. The real party who stands to be benefited or defeated by a case brought in the name of the union are the union members themselves. Since the judgment therein had become final and executory, the subsequent filing of another ULP charge against the employer for the same violations committed during its existence, is barred by res judicata.”

JBD 188

“The bringing of the same action in the name of the individual members of the union will not take out the case from the ambit of the principle of res judicata.” So, it is still the same parties.

II. IDENTITY OF SUBJECT MATTER Q: When is there identity of subject matter? A: There is identity of subject matter if in the second case, the same thing is involved or included in

the first case. (Agregado vs. Muñoz, 26 Phil. 546) EXAMPLE: A judgment in an action for the recovery of a large tract of land shall be a bar for a

subsequent action for the recovery of a smaller parcel included in the large tract. (Rubiso vs. Rivera, 41 Phil. 39)

EXAMPLE: A judgment in an action for accounting of a certain funds would be a bar for a

subsequent action for the partition of the same funds. (Chua Tan vs. Del Rosario, 57 Phil. 411) EXAMPLE: A case for recovery of property was dismissed. The losing party file a second case for

recovery of the value of the property. In this case, there is res adjudicata. So, you can not deviate ‘no? Kahit konting retoke lang, it is the same.

III. IDENTITY OF CAUSES OF ACTION Q: When is there identity of causes of action for the purpose of res judicata? A: There is identity of causes of action for the purpose of res judicata when the two actions are

based on the same delict or wrong committed by the defendant, even if the remedies be different (Qiogue vs. Bautista, L-13159, Feb. 2, 1962). You cannot change the remedy in order to escape from the principle of res adjudicata.

Sometimes, it is one of the hardest – same cause of action – because sometimes there are 2 causes of

action which are interrelated, even between the same parties. Now, if there are 2 interrelated causes of action, there is no res adjudicata. Interrelated only, because the law says similar causes of action. That is hard to determine.

That is why the SC had to give some tests to determine whether the causes of action are the same or

not. Among these tests given by the Court:

TESTS TO DETERMINE WHETHER OR NOT THE CAUSES OF ACTION ARE THE SAME: 1) SAME EVIDENCE Test as laid down in the case of

AQUILA ESTATE vs. BACOLOD-MURCIA MILLING CO. 144 SCRA 482

HELD: Res adjudicata can not be applied even though in the 2 cases there is identity of

parties, subject matter, and relief prayed for, the evidence adduced to sustain the cause of action in the first case is not sufficient to sustain the second case. So, the evidence was sufficient to prove the first case while the same evidence is not sufficient to prove the second case. Therefore, it must be different cause of action for how come the same evidence will not suffice anymore. So, it must be a different one.

2. INCONSISTENCY Test given in the case of

VALENCIA vs. RTC

JBD 189

184 SCRA 80 HELD: One test of the identity of cause of action is whether or not the judgment sought

in the subsequent case will be inconsistent with the prior judgment. Meaning, you are asking for a decision which is in conflict with the original decision.

Q: Suppose there is an inconsistency, is this a sign of res adjudicata or no res judicata? A: Well, I think if there is an inconsistency, that is a sign of res adjudicata because you are trying to

change what has already been rendered. To my mind, that is how it should be interpreted because if the judgment I am seeking is inconsistent with what has been decided, then I think that is violating the rule of res adjudicata – I am re-opening something which was already decided.

3.) And the test in the 1995 case of

GUEVARRA vs. BENITO 247 SCRA 570

HELD: The causes of action can not be the same if the cause of action in one case only

arose after the judgment in the other. The principle of res judicata extends only to the facts and conditions as they existed at the time the judgment was rendered.

Those are the important principles to remember (read the cases in short).

RARE INSTANCES WHERE SC REFUSES TO ALLOW RES JUDICATA DESPITE ITS EXISTENCE

Another point, res adjudicata is a rule of law, rule of convenience, of practicality and when the

evidence are present, the courts shall not allow second litigation. We know that but I have to admit that there are some rare cases where despite the elements of res adjudicata, the courts refused to allow it.

This what we call EQUITY CASES. But this is very rare. When there is a higher principle to be

observed rather than the rule of res adjudicata – there are higher values of society which would be subverted if we will stick to res adjudicata. A good example is the case of

SUAREZ vs. COURT OF APPEALS

193 SCRA 183 [1991] FACTS: This involves a custody case. A certain Rosemarie Manese file a petition for

habeas corpus for the recovery of her minor child from her former live-in partner or common-law husband, Renato Suarez. Later, Manese filed a motion to dismiss the habeas corpus case for she intended to pursue another remedy – custody of minor under Rule 99 of the Rules of Court in Special Proceedings.

Actually, as observed by the SC, her move was wrong because you can obtain custody of your child through habeas corpus. She though she had the wrong remedy, so she changed it. Actually she was correct. The trouble is, she withdrew it. In the trial for the dismissal of the habeas corpus, it was with prejudice so actually, it is on the merits ‘no?

Thereafter, she filed the custody case against Suarez. The latter moved to dismiss on the ground of res adjudicata. All the evidence are admitted there. There was a decision on the merits.

HELD: “The principle of res judicata should be disregarded if its application would

involve the sacrifice of justice to technicality.” In other words, this is what we call EQUITY. The application of the res adjudicata should be taken on a case to case basis; you cannot

say you apply res adjudicata through and through. It must be taken under the particular facts obtained. Meaning, there are certain facts in that case which will warrant a deviation from the usual rule, to do “otherwise would amount to denial of justice and/or bar to a vindication of a legitimate grievance.”

JBD 190

“It is worth stating here that the controversy in the instant case is not just an ordinary suit between parties over a trivial matter but a litigation initiated by the natural mother over the welfare and custody of her child, in which the State has a paramount interest.” This is not a simple collection case.

“The fundamental policy of the State as embodied in the Constitution in promoting and protecting the welfare of children shall not be disregarded by the courts by mere technicality in resolving disputes which involve the family and the youth.”

So there is a collision here between the family view found in the Constitution and the technical

principle of res adjudicata. If we sustain the principle of res adjudicata then the mother can no longer recover her child. But if we disregard res judicata, the mother will be given a chance to get back her child, which is higher in value than res judicata.

This principle observed in SUAREZ was actually repeated in the 1994 case of

SALUD vs. COURT OF APPEALS 233 SCRA 284 [1994]

HELD: “There should not be a mechanical and uncaring reliance on res judicata where

more important societal values deserve protection. The doctrine of res adjudicata is a rule of justice which cannot be rigidly applied when it results to injustice.”

This is another pronouncement which leans on the equitable side of the situation rather than on the

observance of the technical rules of res adjudicata. You can disagree with the decision but the same can not be wrong. This is what you call infallible. Infallible means no room for error. That is why Justice Jackson said commenting on the US SC: “We are not final because we are infallible. But we are infallible because we are final.”

BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF JUDGMENT If you have read the questionnaire in Remedial Law last September (1997), one of the questions

asked by the examiner is: Distinguish the concept of BAR BY A FORMER JUDGMENT and the concept of CONCLUSIVENESS OF JUDGMENT.

The two concepts are found in Section 47. The concept of bar by a former judgment is in paragraph

[b] and conclusiveness of judgment is in paragraph [c]. These are two parts of the res adjudicata rule. The two concepts were discussed by the SC in the case of SALUD: The concept of Bar By A Former

Judgment is known in traditional terminology as merger or bar; and in modern terminology, it is called CLAIM PRECLUSION; while Conclusiveness Of Judgment is traditionally known as collateral estoppel and in modern terminology it is called ISSUE PRECLUSION.

Q: Distinguish BAR BY A FORMER JUDGMENT and CONCLUSIVENESS OF JUDGMENT. A: The following are the distinctions: 1.) As to Effect: If you analyze paragraph [b], there are two judgments – in BAR BY A FORMER

JUDGMENT, the first judgment constitute an absolute bar to all matters directly adjudged as well as matters that might have been adjudged; whereas

In CONCLUSIVENESS OF JUDGMENT, the first judgment is conclusive only on matters actually litigated and adjudged in the first action under paragraph [c].

2.) As to the Requisites: In BAR BY A FORMER JUDGMENT, there must be identity of parties,

subject matter, and cause of action; but In CONCLUSIVENESS OF JUDGMENT, even if there is identity of parties or subject matter, it

is not necessary that there is identity of causes of action.

JBD 191

Of course, for purposes of the bar exams, that kind of answer will suffice but mas maganda if there

is illustration: Kung bar by prior judgment – the first judgment is res adjudicata to the second or matters that have been adjudged and matters that could have been adjudged in relation thereto.

EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim. I filed a case against you for

recovery of land. Meron ka pa lang claim sa akin for reimbursement for necessary expenses. It must be set-up in the main action otherwise it is barred forever. But you did not set it up and then afterwards, you file a case against me for reimbursement for necessary expenses, I will move to dismiss. Your claim is already barred because you should have raised it as a compulsory counterclaim in the first action. The barring of the counterclaim is considered as the application of res adjudicata by applying the concept of bar by a former judgment.

EXAMPLE of Conclusiveness of Judgment: The debtor borrows from the creditor P3 million

payable in 3 installments without any acceleration clause. When the first installment fell due the creditor sue the debtor and the debtor raised the defense of forgery, “That the promissory note is forged and as an alternative defense assuming that the promissory note is valid, the first installment was already extinguished by payment.” After trial, the court decided against the defendant. Tapos na. Now, the second installment fell due. It is another cause of action. Now, here comes the plaintiff filing the case to collect the second installment.

Q: Can the debtor raise again, in the second case, the defense of FORGERY of the promissory note? A: NO. Tapos na yan. We have already decided that the promissory note was genuine and that

there was no forgery. This is the same promissory note that we are talking about. So, in other words, the issue of forgery is already adjudged in the first case and therefore res adjudicata in the second installment.

Q: Can the debtor raise the defense of PAYMENT, that the second installment is already paid or is it

also barred? A: YES, because in the first case what was resolved was whether the first installment is paid. The

judgment is already conclusive on matters directly adjudged but not to matters which have not been adjudged. The issue on whether the second or third installment have already been paid was never adjudged in the first case. That is the application. Take note that there is no identity of cause of action.

Another example of Conclusiveness of Judgment was the ruling in the case

CARANDANG vs. VENTURANZA 133 SCRA 344 [1984]

FACTS: This involves a conflict between two brothers, B1 and B2. There is already bad

blood between them because according to B1, B2 appropriated all the properties of their parents. So there was this threat from B1 to sue B2 to recover his share.

So B2 consulted his friend X. X suggested that B2 enters into a simulated sale with X. B2 sold his property to X. As expected, B1 filed a case against both of them to annul or rescind the action. Unfortunately, B1 has never proved that the sale was simulated. The case was dismissed.

Then later B1 died. After that, B2 said to X, “Isauli mo na sa akin ang mga properties ko.” X said, “What are you talking about? I already bought it from you, akin na ito!” B2 filed a case against X. The defense of X is res adjudicata.

HELD: There is NO res adjudicata. In the first place, one of the elements of res

adjudicata is identity of parties. Of course, both of them are also parties of the first case but they were not adverse to each other. They were co-defendants in the first case.

Res adjudicata is only applicable between adverse parties in the former suit and not between parties. Co-parties for the judgment therein ordinarily settle claims as to their relative rights and liabilities as co-plaintiffs or co-defendants per se.

JBD 192

But the second reason is, the cause of action is completely different and therefore the judgment in the first case is conclusive only insofar as the right of B1 is concerned. It cannot be conclusive as to the rights of B2 and X because it is a separate cause of action.

Another was the 1993 case of

VDA FISH BROKER vs. NLRC 228 SCRA 681 [1993]

FACTS: A complaint filed by an employee for non-payment of service incentive leave,

COLA, 13th month pay, holiday pay, is dismissed based on the finding that no employer-employee relationship existed between the complainant and the respondent. The ruling became final.

Subsequently, the same complainants filed another case against the same respondent for reinstatement due to illegal dismissal. (How can you file for reinstatement na wala man kayong ER-EE relationship in the first case???)

ISSUE: Is the finding of no ER-EE relationship in the first case res adjudicata to the

second case for illegal termination? HELD: YES. “The issue of employer-employee relationship is crucial in the

determination of the rights of the parties in both cases. Res adjudicata applies even when the cause of action is not similar under the concept of conclusiveness of judgment. The ruling in the first case that there is no Employer-Employee relationship between the parties is conclusive in subsequent cases although the cause of action is not the same.”

“If were we to ignore the principle of res judicata, an absurd situation would arise where the same administrative agency would have diametrically opposed conclusions based on apparently similar circumstances.” This is what will happen - for the second case, there is ER-EE relationship. It is the same agency which said there is none in the first case. Conflict!

OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH RES JUDICATA: A.) LAW OF THE CASE

B.) STARE DECISIS Another question that can be asked here is, how to explain and distinguish 3 concepts which

appear to be similar. These 3 concepts are all anchored on the same thing: there is a final judgement. The concept of res adjudicata, law of the case and stare decisis. That was also asked in the bar.

We already know RES ADJUDICATA – finality of judgment, or the issues decided in a case, once

the decision has become final and executory and cannot be litigated again by the same parties in a subsequent action involving the same subject matter. (Peñalosa vs. Tuazon, supra.)

Q: What about the LAW OF THE CASE? A: LAW OF THE CASE means that legal conclusions announced on a first appeal, whether on the

general law of the law as applied to the concrete facts, not only prescribe the duty and limit the power of the trial court to strict obedience and conformity thereto, but they become and remain the law of the case in all after steps, whether in the lower court of in the appellate court on a subsequent appeal. (Zarate vs. Dir. of Lands, 39 Phil. 747)

EXAMPLE of law of the case: There is a case between us and then an issue is raised before the CA

and there is a ruling, right or wrong. That ruling will subsequently bind the parties in the same litigation. Once the case comes back, the future now of the case will be governed by that ruling. Right or wrong, that principle will now be the controlling principle affecting the parties. The principle will continue until the case is terminated.

JBD 193

TABACO vs. COURT OF APPEALS 239 SCRA 485 [1994]

ISSUE: Can a case be re-opened if the law of the case has been changed? HELD: NO, because when the case was decided, it was the governing law at the time,

even if it turns out to be wrong. “Under the law of the case concept, whatever is once irrevocably established as the

controlling legal principle or decision continues to be the law of the case between the same parties in the same case, whether correct or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. Such stability and conclusiveness given to final judgments of courts of competent jurisdiction are said to be grounded on reasons of public policy, judicial orderliness and economy as well as protection of the time and interests of the litigants.”

A good EXAMPLE: File ako ng kaso – collection of an unpaid loan based on the provision of the

Civil Code but the debtor said, “There is no cause of action because the provision of the civil code is unconstitutional.” After trial the court said, “Yes, article so-so of the Civil Code is unconstitutional. The debtor is not obliged to pay.” Tapos na. Final na ang decision because there was no appeal. What will happen? We are bound. As far as this case is concerned, the Civil Code is unconstitutional. That is the law of the case.

KILOSBAYAN vs. MORATO 246 SCRA 540 [1995]

HELD: The doctrine of the law of the case applies whenever the case before the court

came for the second time after a ruling of the appellate court (???). Q: What you mean by STARE DECISIS? A: Stare Decisis means that the decision of a court should stand as precedents for future guidance

(Ballentine’s Law Dict., 2nd Ed., 1228) Example is the decisions of the SC which stands as precedents for future cases. The purpose of this is to attain stability and judicial order. That is why we are citing precedents.

ROSALES vs. COURT OF FIRST INSTANCE

154 SCRA 153 [1987] HELD: “Precedents are helpful in deciding cases when they are substantially identical

with previous litigations. Argumentum a simili valet in lege. Earlier decisions are guideposts that can lead us in the right direction as we tread the 'highways and byways of the law in the search for truth and justice. These pronouncements represent the wisdom of the past. They are the voice of vanished judges talking to the future. Except where there is a need to reverse them because of an emergent viewpoint or an altered situation, they urge us strongly that, indeed, the trodden path is best.”

‘Trodden Path’ – example is when you go on hiking like in Mt. Apo. If there is already a path or trail,

you will not have a hard time looking for your way up to the peak of Mt. Apo. There is already a way which will guide you to reach your destination.

But the doctrine of stare decisis admittedly does not mean that courts should be slave forever to

precedents. A doctrine long standing has also been reversed. The SC explained also why once in a while it abandons the doctrine of stare decisis:

PEOPLE vs. MUÑOZ 170 SCRA 107 [1989]

JBD 194

HELD: “If we have seen fit to take a second look at the doctrine on which we were all agreed before, it is not because of a change in the composition of this body. It is virtually the same Court that is changing its mind after reflecting on the question again in the light of new perspectives. The decisions of this Court are not petrified rules grown rigid once pronounced but vital, growing things subject to change as all life is. While we are told that the trodden path is best, this should not prevent us from opening a fresh trial or exploring the other side or testing a new idea in a spirit of continuing inquiry.”

Q: Distinguish Res Adjudicata and Stare Decisis. A: RES ADJUDICATA operates between two actions involving the same parties and the same

cause(of action); while STARE DECISIS refers to cases with different parties. STARE DECISIS refers only to decisions of the SC (decisions of the CA are not a basis of stare

decisis); while the doctrine of RES ADJUDICATA refers to all courts: SC, CA, RTC and MTC. Q: Distinguish Law Of The Case and Stare Decisis. A: LAW OF THE CASE refers only to one case which may or may not be invoked in subsequent

cases, while STARE DECISIS may refer to various cases which are usually invoked in subsequent cases.

Sec. 48. Effect of foreign judgments or final orders. - The effect of a

judgment or final order of a tribunal or a foreign country, having jurisdiction

to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment

or final order is conclusive upon the title to the thing; and

(b) In case of a judgment or final order against a person, the judgment or

final order is presumptive evidence of a right as between the parties and their

successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a

want of jurisdiction, want of notice to the party, collusion, fraud, or clear

mistake of law or fact. (50a)

Sec. 48 is actually a law on conflict of laws - effect of foreign judgment. If a judgment is rendered in

U.S. and is being invoked in the Philippines, should we honor it? Yes. So, is it conclusive? Yes. The law says, in case of judgment upon a specific thing, the judgment or final order is conclusive effectively.

PROBLEM: Mortverine and Mistiqla were both in the U.S. and they quarreled about the ownership

of a ring. They went to an American court. After trial, the court ruled that Mortverine is the legitimate owner of the ring. The judgment became final. Subsequently both of them came to the Philippines and Mistiqla filed a case against Mortverine to recover the same ring. Sabi ni Mortverine, “Res adjudicata na ito eh, tapos na yan. Here is the decision in America. Therefore it is settled.”

Q: Is A correct? A: YES. Under paragraph [a]. In case of a foreign judgment upon a SPECIFIC THING, the judgment

is conclusive upon the parties. Hindi puwedeng buksan. That’s already litigated abroad, merong nang decision. We will respect it.

Suppose the judgment is against a person. The law says it is presumptive evidence of a right as

between the parties. EXAMPLE: A and B were both Americans. They were married in the U.S. and obtained a divorce in

the states. They came to the Philippines. The issue is whether the marriage was validly terminated. According to one party, “Yes, meron man tayong divorce ba.” Is the decree of divorce abroad involving these American couple allowed in the Philippines considering we have no divorce here? That is their law. It is presumptive evidence of a right of the parties.

EXAMPLE: H and W are Philippine citizens. They went abroad and somehow able to get a divorce

in an American court which became final. They came back here. Will the Philippine court honor the

JBD 195

divorce? Here, the judgment may be repelled by want of jurisdiction of the American court, etc. The judgment is presumed to be valid unless you can attack by showing lack of jurisdiction.

What is the principle in private international law? A judgment of divorce rendered by an American

court between 2 Filipinos is null and void. Why? The American court never acquired jurisdiction over the status of the parties (because they are not U.S. citizens). But judgment in personam is honored here except when there is want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Q: How do you enforce a foreign judgment? A: The usual procedure, you file a case against the same defendant here and the cause of action is

enforcement of a foreign judgment. And then the Philippine court will render a judgment enforcing it and then you can execute.

The SC commented on the enforcement of a foreign judgment in the Philippines in the case of

PHILSEC vs. COURT OF APPEALS June 19, 1997

HELD: “While this court has given the effect of res judicata to foreign judgments in

several cases, it was after the parties opposed to the judgment had been given ample opportunity to repel them on grounds allowed under the law. It is not necessary for this purpose to initiate a separate action or proceeding for enforcement of the foreign judgment. What is essential is that there is opportunity to challenge the foreign judgment, in order for the court to properly determine its efficacy. This is because in this jurisdiction, with respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary.”

With that, we are now through with Rule 39. (Wheew!)

-oOo-

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