Civil Procedure Rem Law Review (Gesmundo) 2nd Sem 2010-2011

REMEDIAL LAW REVIEW 2010-20114C

DISCLAIMER: I didn’t have time to read this so I’m sure there are lots of typos/grammatical errors. Sorry about that. There are a few gaps in the notes from when I zoned out/was absent or couldn’t type fast enough. Anyway, hope you find these notes useful. If there are any corrections, please let me know asap! Good luck everyone

11.22.10

DEFAULT

If the DEFENDING party fails to file a responsive pleading (answer) can be declared in default

o Not limited to a complaint o Also applies to counter-claim, third etc. see Sec 2 Rule 6o All these pleadings assert a claimo Rule 11 Sec 1 15 day period applies to complaint,

answer to third fourth party etc complaint. If you do not serve summons, the period to file responsive pleadings does not yet start to run.

The answer should be filed within 10 days from the service of the pleading asserting a counterclaim or a cross-claim in this case, there is no need to serve summons so you don’t need 15 days! They are already parties to the action.

Amended complaint (as a matter of right) 15 days from receiving a copy thereof

Amended complaint (with leave of court) 10 days from receipt of the order of the court granting the amended complaint

Filing of a reply is OPTIONAL, but if one is filed, should be filed within 10 days

Process to have a party declared in default:

1. Motion by the claiming party to declare the defending party in default

This is not necessarily the defendant, because if the defendant files a counterclaim and the plaintiff does not answer, the plaintiff can be declared in default

2. Notice to the defending party (comply w/ Rule 15 on motions, this is a litigated motion and should be set for hearing)

3. Order of default Remedies available to a party declared in default:

o Before judgment: the defending party can have the motion to set aside the order of default or certiorari under Rule 65 (but this is only for certain circumstances)

e.g. if you file 1 day late the court should probably overlook the technicality

o After judgment but before finality: motion for new trial appeal motion for reconsideration

Between these periods, a party can also file for bill of particulars

MOTIONS

What is a motion?o Application for relief other than a pleading

A pleading is not the same as a motion this is an express provision Sec 1 Rule 15

Motion basically relates to an incident in the proceeding, it is not usually based on the merits of an action

o e.g. motion for extension of time, bill of particulars etc Rule 41 Sec 1

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o No appeal may be taken from etc..o Motions cannot be appealed because you’re asking the

court for something but it is not related to the merits of the case

o Note that motion for certiorari etc are not appealable because these are discretionary

o Hence the definition that a motion is an application for relief other than a pleading

Requirements:o Must be in writing (sec 2)o Must state the grounds upon which it is based (sec 3)o If required by rules/need to prove facts accompanied

with affidavits and other papers (sec 3) Kinds of motions

o Motion ex parte – addressed to the discretion to the court, not prejudicial to adverse party, no hearing needed

o Motion of course (motions in due course) – not required to be in writing! Made in the due course of the proceeding e.g. 132 motion when grounds become reasonably apparent such as: (as stated by Justice Gesmundo)

During cross ex, Mr. Witness what did you saw? The accused is a carpenter! Objection! Question not responsive! Motion to

strike!o Litigated motion – made with notice to the adverse

party, who should be given an opportunity to opposeo Special motion – addressed to discretion of the court

e.g. rule 28 physical/mental examination

3 day Notice Rule: Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.

o Without being set for hearing, motion is a mere scrap of paper and should be consigned to the dust bin

Exception: Rule 35 Sec 3: summary judgment. 10 day Notice Rule: The motion shall be served at least 10 days

before the time specified for the hearing. Before filing a motion, it must be served on the adverse party.

Rule 15 Sec 6o Preference is PERSONAL service

Motion day: Rule 15 Sec 7 Fridayo Rule 20 Sec 1: “motions to set for hearing” should be

included in the calendar. Motions are usually set on Friday.

Omnibus Motion Rule: Rule 15 Sec 8 subject to sec 1 rule 9, In a motion attacking a pleading, order, judgment or proceeding, include all objections available

o Rule 9 Sec 1: All defenses not raised deemed waived Motion for leave Rule 15 Sec 9: motion for leave to file a

pleading shall be accompanied by a pleading or motion to be admitted

BILL OF PARTICULARS

Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him to properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days

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from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired.

Bill of particulars is filed when the allegations in the pleading are vague

In certain instances, motion to dismiss is not the remedy, the remedy is a motion for bill of particulars

o Counterpart in crimpro, also called a bill of particulars What should the court do as soon as the motion is filed?

o Clerk of court must immediately bring it to attention of the court

So the court can examine the pleading and deny it outright

If there is merit, the court can set it for hearing The party may respond to it directly by filing a separate

pleading, or the party can amend its pleading and incorporate

If you’re a defending party and want to stall…

After you are served with summons File a motion for b of p, because this SUSPENDS the period

within which to file a responsive pleading After this.. file a motion to dismiss! (to delay) If the MTD is denied, then file a motion to extend time to file

answero If allowed, you still have the remainder of time but this

is in no case less than 5 days

11.23.2010

Service summons by publication: in no case less than 60 days

For foreign juridical persons period is 30 days from receipt by the foreign corporation not by the government agency (Rule 11 Sec 2)

MOTION TO DISMISS

Within what period must you file an MTD?o Within the time for filing an answer or responsive

pleadingo May be 15, 30, 60, depending on who the defendant is

Grounds for MTD: (Rule 16 Sec 1)o No jurisdiction over person of defending partyo No jurisdiction SMo Venue impropero P has no legal capacityo Another action pending between the same parties for

the same causeo Failure to state cause of actiono Claim/demand are extinguishedo Unenforceable under statute of fraudso Lack of condition precedent

When can the court can act motu proptio:o Lack of jurisdiction, prescription, litis pendentia, res

judicata, prescription

Venue is Improperly Laid

How do you determine issues on proper venue?o Nature of the actiono Stipulation or agreemento Residence of the parties especially in personal actions

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o When there is a specific law or rules that provides for venue

e.g. Rule 66 Sec 7 Quo Warranto What is the rule when several parcels of land are subject of an

action located in different places?o It depends!o If they are the subject of the same contract, any courto If they are the subject of different contracts, each

property, 1 court of jurisdiction What if the defendant is a domestic corporation and there is a

personal action arising from a contract, what is the venue?o Principal place of business as stated in the AOI

What if the plaintiff is a foreign corporation and wants to sue one of the parties in the Philippines arising from breach of contract?

o Residence of the defendant What about if a person sues a sole proprietorship arising from

breach of contract? What is the venue?o A sole proprietorship is not a juridical entity, so it should

be the residence of the plaintiff What about partnership?

o Rule 3 Sec 15o May be sued under the name by which they are

generally or commonly knowno As far as venue is concerned it would depend on what

the action is What about this rule on stipulation on parties?

o Parties may agree in writing in the contract or agreement

o Executed before the action should ariseo The terminology must be restrictive or qualifying

E.g. in case of breach of contract the action shall be filed exclusively in the court of Makati

(exclusively, solely, only.. nowhere else except..)

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Plaintiff has no legal capacity to use

Rule 8 Sec 4o Things which must be averred

Capacity to sue or be sued, Authority to sue or be sued in a representative

capacity, or Legal existence of an organized association of

persons that is made a party Capacity to sue or be sued – the party is not suffering from any

disqualification such as minority, civil interdiction, limited legal personality, incompetence, insanity

What allegation is required if the party is a foreign private juridical entity?

o Must allege that it is duly licensed to do business in the Philippines, even if it turns out during trial that it is not in fact authorized

o Or that it is a foreign corp suing on a single isolated transaction

Litis Pendentia

Rule 2 Sec 3+ 4: two or more suits instituted on the basis of the same cause of action

Rationale: avoid multiplicity of suits and avoid double jeopardy.. no person shall be twice vexed for the same cause of action

Requisites:o Identity of parties OR the parties represent the same

interest in the same actiono Identity of cause of actiono Judgment in one is res judicata in the other

Which should be dismissed?o Choose the action in which all the issues may be

litigated! The other action should be dismissed Difference between res judicata & litis pendentia

o Litis pendentia doesn’t require prior action, there must be a pending action

o Res judicata requires a final and executory judgment What is the conclusivity of judgment?

o Rule 39 Sec 47 a (applies to actions in rem) b (res judicata proper; preclusion of claims

cannot re-litigate) c (preclusion of issues any issue relating

thereto cannot be litigated in another action)

11.25.2010

Res Judicata

requisites of res judicata:o identity of partieso identity as to cause of actiono identity as to issueso identity as to subject matter of the actiono previous final judgment on the meritso court rendering judgment has jurisdiction over the

subject matter of the action final = final and executory

o Rule 36 Sec 2: Upon the lapse of the period to appeal or to file an MR, the judgment shall be entered by the clerk in the book of entries of judgments. The date of finality

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of the judgment or final order shall be deemed to be the date of its entry.

Judgment based on the merits: (definition) It is erroneous to say that judgment based on the merits means

that there was trial/facts threshed out. Example of dismissal on the merits without trial:

o Rule 17 Sec 1 + 3 (dismissal upon notice by plaintiff + dismissal due to fault of plaintiff)

o Rule 18 Sec 5 (failure to appear on part of plaintiff during pre-trial)

GR probate court can’t determine ownership over the property except for purposes of inventory or if the parties agree that the probate court can decide. If probate court decides without the parties agreeing, the decision is merely provisional and cannot be considered res judicata. But if the parties agree, it is considered res judicata.

Judgment on a compromise with respect to res judicata: immediately final + executory! As a general rule, you cannot appeal. To question the validity, (e.g. fraud attended execution) annul the judgment first. For purposes of another litigation over the same parties, and the same subject matter, you can invoke res judicata

Failure to State Cause of Action

Cause of action: the act or omission by which a party violates a right of another (Rule 2 Sec 2)

Requisites of a Cause of Action: o There must be a right on the part of the plaintiffo Correlative duty of defendant to respect righto Act or omission on part of the defendant violating the

right of the plaintiff or resulting in breach of contract

When a defendant files an MTD based on this ground, what is the nature of this?

o The defendant hypothetically admits the allegations except:

Legal Conclusions Unliquidated damages

o Can the court consider facts not alleged in the complaint?

NO. The court cannot consider evidence aliunde, it may only consider allegations on the complaint, it cannot consider extraneous facts, except:

where there is no dispute as to the due execution of the document

jurisprudence because courts are obliged to take judicial notice

annexes, motions and evidence presented outside of the pleading but presented during the hearing of the motion (Rule 16 Sec 2)

evidence presented during the hearing on provisional remedies

Rule 133 Sec 7 tells you how evidence on motion is presented as in cases for MNT based on FAME when the court is unhappy with the evidence on record, it can require additional affidavits or depositions. This also applies in MTD when the court can require parties to appear to prove the grounds of the MTD. Usually this evidence is automatically reproduced in the trial so you don’t have to recall the witnesses.

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RANDOM NOTES:

Rule 2 Sec 6: Misjoinder of causes of action – NOT a ground for dismissal, the remedy is to sever the issue and continue

Misjoinder of parties is also NOT a ground for dismissal, parties may be joined or severed as provided by the court

For purposes of the amended complaint, plaintiff can amend on anything including vesting jurisdiction for so as long as no responsive pleading has been filed. Even if a MTD has been filed, you can still amend as a matter of right because an MTD is NOT a responsive pleading.

o If the MTD

Claim has been extinguished

These are in the nature of affirmative defenses In these instances there may be a preliminary hearing if in

answer (Rule 16 Sec 6)o No MTD filed, any of the grounds for dismissal may be

pleaded as an affirmative defense in the answer and at the discretion of the court and a preliminary hearing may be had

Barred by the Statute of Limitations

Prescription: Rights may be acquired or lost through the passage of time

Found in the Civil Code:o (memorize these grounds daw)

Example of when prescription is important: Rule 1 Sec 4 2nd

sentence: additional defendant impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading…

o You shouldn’t use the date of the original complaint as the basis of prescription but the date of the later pleading. The action may not have prescribed on the date of the original complaint, but it may have prescribed on the date of the later pleading.

Prescriptive period:o Actions concerning movables – 8 yearso Real actions over immovables – 30 yearso Mortgage – 10 yearso Written contract – 10 yearso Obligations created by law – 10 yearso Judgment – 10 years

Which of the following must be brought within one year?o Defamation o Unlawful detainer o Recision of contracto Specific performance

Can prescription be invoked against the state?o No

Sources of extinguishment of obligations: (See Art 1231 NCC)o Payment/Performanceo Loss of the thing dueo Condonation/remission of the debto Confusion/merger of the rights of creditor and debtoro Compensationo Novationo Annulment, rescission, fulfillment of resolutory

conditiono Prescription

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Failure to comply with Conditions Precedent

e.g. barangay conciliation, earnest effort to compromise between family members

Unenforceable under the Statue of Frauds

See Art 1403 NCC Should be in writing in order to be enforceable

o e.g. sale of real property should be in a public instrument

o e.g. donation must be accepted in writing Do NOT confuse with parole evidence

Rule 16 Sec 3

What may court do after hearing on MTD?o Granto Denyo Order amendment of pleading

What is meant by “indubitable” in the provision? Not open to question. This is because in the past courts could refuse to rule on the MTD. This is no longer allowed.

Rule 16 Sec 4

The filing of an MTD suspends the period to file a responsive pleading

This is similar to the filing of a motion for bill of particulars If the MTD denied, the party can file an answer within the

remaining period, which in no case shall be less than 5 days

o Note: if the remaining period is longer than 5 days, that’s the period he has to file. But if the remaining period is less than 5 days, the period becomes 5 days

Rule 16 Sec 5

Cannot re-file if: (PURE)o Prescriptiono Unenforceable under the statue of fraudso Res judicatao Extinguished claim

Rule 16 Sec 6

If a complaint is dismissed on this ground does not dismiss the counterclaim pleaded in the answer

Compare w/ Rule 17 Sec 2 + 3

Rule 16 Rule 17No need to manifest intention to continue with counterclaim

This is because in this case it is the defendant who already deliberated on what he plans to do with his counterclaim

Need to manifest intention to continue with counterclaim w/in 15 days

Since this is filed at the instance of the plaintiff, the defendant is granted the 15 days from notice to decide if he wants to continue w/ counterclaim

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ANSWER

When are issues joined in a civil action?o When an answer is filed

When are issues joined in a criminal action?o During arraignment, because there is no responsive

pleading to an information When should an answer be filed?

o Rule 14 Sec 12o Rule 11 Sec 2o Service upon resident agent – 15 dayso Service upon government agency – 30 dayso Service via publication – 60 days

Note that the rule on liberality should NOT be applied to periods, as these are mandatory and should be strictly complied with.. otherwise you will delay the proceedings

Note that answer does not necessarily apply to complaint, may also be counter-claim, cross-claim etc. it should be filed in response to a pleading that asserts a claim against him

Rule 9 Sec 1:o Defenses and objections not pleaded either in an MTD

or in the Answer are deemed waivedo Because of this you have an option to plead in MTD or

in the Answero Exceptions: res judicata, prescription, jurisdiction over

the SM and litis pendentia Under Rule 8 the requirements:

Section 1o Answer should also state the ultimate facts relied on for

claim/defense

o If defense is a matter of law, state the specific provision of law and say why it is applicable Section 2

o Conflicting defenses may be raised in answer based on alternative defenses

o See Section 10 re: specific denial. Can’t just specifically deny the allegations, must specify reason you are denying it

E.g. defendant denies allegations in paragraph 1 2 3 because (then state reason of denial like payment etc)

o Also see Rule 6 Sec 5 – affirmative + negative defenses

I WAS ABSENT, SORRY!

MODES OF DISCOVERY

Note circular which concerns due date on Sunday! Rule 23 25 and 26 do not require leave of court unless an

answer has not yet been filed But 27 and 28 need leave of court

Rule 23

Two purposes:o mode of discoveryo testimonial evidence

Depositions may initially be a mode of discovery, and may be used for testimonial evidence

Even if file motion for Bill of Particulars, and same granted/ denied, can still avail of modes

Modes are CUMULATIVE, can avail of all of them and technically at any stage of the proceeding

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Most are resorted to prior to trial but there is nothing in the rules that will prevent a party from taking a deposition in the course of a trial, even in the course of the execution of judgment

Two kinds of depositions: depositions in bene esse, in perpetuam rei memoriam

o Court may in its discretion prohibit the taking of the deposition

o Liberal application of rules but still subject to limitations Bad faith etc.

Sec 2 of Rule 23o Can examine deponent whether party on ANY MATTER

Restrictions: not privileged must show some relevance (not as strict

as in Rule 128), but what is asked should be germane to purpose

Sec 16 (Protective Orders prior to taking of Depositions)

Sec 8 (Protective Orders while Depositions going on)

What is privileged/not privileged?o Rule 130 Sec 4 – privileged communications cannot be

the subject of depositions Even the location of persons/document can be subject of the

deposition the idea is to be able to determine prior to trial whether a particular person has possession of documents/information which may be relevant to the trial

Any party can ask that their deposition be taken. If they don’t know anything, don’t call them as witnesses at trial. If their knowledge is adverse to you, don’t use them as witnesses.

*Sec 4 important:o use will be based on whether or not deponent is party

to the actiono if NOT a party, can only use the deposition to IMPEACH

the witness e.g. prior inconsistent statement Sec 13 Rule

132o exception: if you call an adverse party, you can use the

deposition for ANY purpose; not only for purposes of impeachment, but also as your own evidence!

Taking a deposition is like an advance trial, so it’s a good idea to take the deposition of the adverse party since at that time he has not been coached as a witness and because he will testify under oath. You can use the deposition as direct evidence! You can also use the deposition to impeach the adverse party

o Paragraph c applies whether or not the witness is a party. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that:

The witness is dead The witness resides at a distance more than

100km from the trial or hearing (this was also taken up under subpoena – viatory rights!)

Witness is unable to attend because of age, sickness, infirmity or imprisonment

The party offering the deposition unable procure attendance by subpoena

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NOTE: the party asking for the deposition cannot procure the unavailability of the witness

Exceptional circumstances See Rule 132 Sec 17

The reference to Rule 132 is because of the mention in Sec 3 that the USE of deposition must comply with the rules on admissibility in evidence, which is Rule 132

Section 6: Substitution of parties - depositions taken by previous party may be used

Section 7: if a party takes the deposition of another, he cannot be compelled to call the deponent as a witness

o E.g. if the party finds out that the deponent doesn’t know anything/knowledge is adverse, cannot be made to call as witness

o NOTE: deadman’s statute in evidence Section 8: if you use the deposition for a purpose other than

impeaching a witness, you should make the deponent your witness!

o Unless you are using the deposition of the adverse party, because you cannot be compelled to make the adverse party your witness

o Note: For purposes of USE of deposition, must distinguish whether deponent party or not

Depositions may be taken in Philippines, outside of the Philippines or in Foreign Jurisdiction

o In Phil: Judge Notary public Person authorized to admin oath if agreed upon

by party in writing

Can a barangay captain take a deposition?o If he is allowed under local government code to

administer oaths, he can be authorized to take the deposition

Outside the Philippines (with leave of court)o Commission – request that a particular person is

designated to take the deposition of a deponent situated in that foreign jurisdiction

If the deponent doesn’t show up before the commission there is nothing you can do because the commission doesn’t have compulsory powers

NOTE: the commission person CANNOT rule on the objections. He/she can only note them down.

However, the rules provide that objections not raised at the first opportunity are deemed waived

Objections Re: rules of admissibility, raise at the time the deposition is being offered into evidence

o Letters Rogatory Before you can resort to this you must show the

failure of the commission! This is based on reciprocity..

Leave of court is needed because the court should determine whether the same info can be gathered from other witnesses who are in the Philippines because then you can procure appearance through subpoena

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Must be NECESSARY + CONVENIENT How do you procure testimony if within 100km?

o Subpoena! How do you procure testimony of a witness outside the

Philippines? o Through a commission/ letters rogatory

Disqualifications: against the DEPONENT up to the 6th degree (2nd cousins)

Formal requirements:o What should deposing officer do?

Take it stenographically unless agree otherwise In one case, was made directly using typewriter,

the other party objected but the SC disagreed and allowed the deposition

The other way to take depositions is through written interrogatories

o Instead of oral examination of the deponent outside the Philippines, you can resort to written interrogatories

o Here there is an exchange of questioning

Rule 24

Deposition BEFORE action This pertains to a situtation wherein you anticipate that the

litigation will arise later, and you know of a person who has knowledge, so you decide to take his deposition to preserve his testimony

This is only available in CIVIL cases not criminal cases (Sec 1) But Sec 7 deposition pending appeal is applicable to criminal +

civil actions The manner by which the deposition may be taken is similar to

Rule 23 and the use is practically the same

o Differences: when it is to be taken and the objective of the taking

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Rule 25

These do not require leave of court These are practically in the in the nature of judicial admissions

and do not need to be offered as evidence because they are furnished to the court and form part of the records of the proceedings

o Note Rule 35 Sec 1 – can use depositions in motion for summary judgments

Note Sec 4

Rule 27

This is more useful than a subpoena! Because you can procure the document BEFORE trial instead of

getting it during the trial Can you ask for exhumation of a cadaver under Rule 27?

o Yes, a cadaver is a THING! But if the person is still alive, that will fall under Rule 28 (examination of persons)

Rule 28

<zoned out>

Rule 29

If a person refuses to comply with modes of discovery, you can have the person cited in contempt

If a person refuses to have himself physically/mentally examined can he be held in contempt?

o NO because in the hierarchy of rights, the right to privacy is superior!

12.01.10

TRIAL (RULE 30)

Difference between trial and hearingo Hearing is more broad than trialo Trial primarily involves the presentation of evidenceo Remember that in certain cases there can be hearing

and judgment WITHOUT trial E.g. Motion for summary judgment, judgment

on pleadings. In these cases there is no trial but there is a hearing.

What is an adjournment?o When the business for that day is done

What is a postponement?o ..?o Based on lack or absence of evidenceo Difference between postponement and continuance?

Essentially NO distinction, just a different nomenclature

But it is different from adjournment Is there a specific period for trial?

o Not more than one month for each adjournment or total of three months

Where should court conduct its trial?o Rule 135 Sec 7 – in open court and so far as convenient

in a regular court room. All other acts or proceedings may be done by judge in chambers

o NOTE: pre-trial can be conducted in the chambers of judge

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o Remember: Exclusion of the public under Rules of Evidence. Trial may be held in the chambers because of the nature of the testimony. Also remember the rules on examination of a child witness can be a closed circuit television.

Requisites of motion to postpone trial because of absence of evidence:

o Filed on motion supported by affidavit Material and relevant evidence Due diligence in procure it

o This refers to all kinds of evidence: testimonial, object and real

E.g. if you subpoena records and the officer does not give them to you, or if the person you need is a prisoner in detention

o Problem with this rule is that there should be an affidavit showing that the evidence is material and relevant. This should be known to the court because of the exclusionary rule related to pre-trial.

Postponement because of illness of party/counsel:o Motion stating the ground with affidavit or sworn

certification showing: Presence of party/counsel indispensable Character of illness renders non-attendance

excusableo Note: in civil cases, you can have trial even without the

party present, especially after pre-trial. What matters it the absence of counsel, since the party cannot represent himself

o Is the absent party required to submit medical certificate in all cases?

No because it can be an affidavit or sworn certification

o It should be the affidavit of the doctor!o Note: Under Rule 141 Sec 4 h, fee for filing of a motion

for postponement is five hundred pesoso Note: this rule does NOT apply to criminal cases

because it is covered under Sec 2 Rule 119o Court would not ordinarily accept the illness of the

handling lawyer because there is usually another lawyer in the firm who can represent the party

Order of Trial: o (Differentiate with Rule 132 Sec 4 – order of

examination of witnesses: direct, cross, re-direct, re-cross)

o Rule 30 Sec 5 refers to the order of PRESENTATION OF EVIDENCE

Plaintiff present evidence on complaint Note that if the evidence being

presented is testimonial evidence, you must abide by order of examination of witness mentioned in Rule 132 Sec 4. This should be followed for each witness presented.

Rule 132 Sec 35 When to offer:o Testimony, at the time witness

is calledo Documentary/object evidence,

after presentation of testimonial. Should also be

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done orally unless allowed by court to be in writing.

Correlate w/ Rule 17 Sec 3 dismissal due to fault of plaintiff

o But if the defendant doesn’t show up?

o Note Rule 30 Sec 5 g “upon admission of the evidence” refers to both the parties who must have rested their case (so the court can render judgment)

o Also read Rule 36 Sec 1 Defendant

o SUMMARY: plaintiff presents evidence, makes formal offer, court makes ruling on evidence of plaintiff, after all parties present evidence, court makes another ruling, then technically can render judgment. But prior to that the court can require the parties to submit their respective memoranda. Note that the submission of the memoranda is NOT mandatory but is discretionary.

o If the court requires the submission of memoranda and the party fails to do so, what is the effect?

NOTHING! The court cannot refuse to issue judgment, so the court should render judgment.

The submission of memoranda is a privilege granted by the court! So if the party doesn’t file a memorandum, the court is still bound to render judgment. In practice you should submit this memoranda because this may be used as the ‘draft’ of the decision of the court.

o If there are several defendants, during pre-trial you will agree on the sequence of the presentation of evidence to avoid confusion

Agreed statement of facts:o See Rule 128 Sec 1, evidence defined the main

purpose of trial is to see through the conflicting facts. Because if there is no conflict in the pleadings or if there are no factual controversies, there is no need to go to trial.

o This is in addition to the stipulations agreed upon during pre-trial. The agreement should be made in writing. The parties may submit the case for judgment on the facts.

o E.g. During pre-trial the party refuses to admit the due execution of the document. During trial, the party can change their mind and can choose to stipulate the due execution of the document and then submit the case for judgment

o This is different from the stipulation in the course of the proceedings. If during the proceeding parties decide that there is no need for the witness to testify, can just stipulate and excuse the witness. Then the stipulation forms part of the records of the case WITHOUT the parties agreeing in writing.

These stipulations during the trial are already recorded! There is no need for the parties to sign the transcript. They are admitted!!

In the case of Sec 6, they are made prior to the trial in addition to the facts agreed upon during pre-trial, since they are not yet part of the records of the case, they should agree in writing

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o NOTE: stipulations not applicable in legal separation and annulment of marriage (possibly also in recognition of illegitimate child, Sir is not sure)

Statement of the judge:o Same as Rule 132 Sec 2 – Proceedings to be recorded.

Entire proceedings of a trial or hearing, including questions propounded to a witness and statements made by the judge..

o Statements made by the judge made with reference to the case should be recorded.

o NOTE: Rule 5 which requires the proceedings in all courts should be the same, because all courts are courts of record so the statements of judges should always be recorded!

o How should it be recorded? By means of shorthand/stenotype/other means

sanctioned by the court Rule 136 Sec 17 – pro tanto deemed modified

because all courts now are courts of record, so you can ignore this rule haha

Suspension of actions:o Because parties may settle amicably so there is no need

to prolong trialo Article 2030:

Willingness to discuss a possible compromise expressed by one or both parties

If it appears one of the parties before commencement offered to compromise but the other party rejected this

Reception of evidence:o GR: judge must personally receive the evidence

Reason: Rule 133 Sec 1 Preponderance of Evidence – court should consider manner of witness testifying, probability of their testimony being true etc. in order to comply with this, judge should personally receive the evidence! Otherwise it is difficult for him observe the manner of the witness testifying.

NOTE: in adoption cases it is MANDATORY for the judge to personally receive the evidence

o EXCEPT: delegation to Clerk of Court (member of bar) Default Ex parte hearing

e.g. Rule 18 Sec 5 Failure of defendant to appear at pre-trial shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment

Agreement of the parties in writing

CONSOLIDATION OR SEVERANCE (RULE 31)

What is consolidation?o involves several actions having a common question of

law or fact which may be jointly tried. Purpose:

o To avoid multiplicity of suitso Guard against oppression or abuse o Prevent delay o Clear congested dockets o Simplify the work of the trial court o Save unnecessary costs and expenseso To avoid conflicting decisions

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Ways of consolidation of cases:o by recasting the cases already institutedo by consolidation by proper or by consolidating existing

caseso by test-case method

NOTE: if the cases are pending in different courts you need the authorization of the SC

Parties may be different but the Courts may still consolidate the cases, the requirement is that there is a common question of law or fact

See Rule 111 allowing consolidation of civil and criminal actions In some cases, the consolidation of the civil and criminal actions

is MANDATORYo E.g. Rule 111 Sec 1b BP 22o RA7975 sec4 (jurisdiction of the sandiganbayan)

Modifies rule 111 sec 5. Deemed instituted by the institution of the criminal action, no reservation allowed. Automatic consolidation.

Severance – opposite of consolidation

TRIAL BY COMMISSIONER (Rule 32) Commissioner: the one referred by the Court to receive

evidence Need commissioners because sometimes the evidence is

technical in nature Two kinds of trial by commissioner:

o By consent or agreement of the partieso By order of the court

Note you can still have trial by commissioners AFTER judgment for purposes of execution

o E.g. partition, the commissioners determine the aliquot shares of the heirs

Clerk of Court Receive Evidence Commissioner Receive EvidenceMust be lawyer Not need to be lawyerCan NOT rule on objections CAN rule on objectionsDuring trial Even after judgment final Can a commissioner cite a party for contempt?

o Yes through the court who referred him Are the commissioners entitled to compensation?

o Yes, to be paid by the defeated party, or the court can order that it be apportioned between the parties

DEMURRER TO EVIDENCE (Rule 33) GR the concept is that there is only judgment after full blown

trial (aka after both parties have presented evidence) BUT in certain instances, there can be judgment..:

o After partial presentation of evidence This is where the demurrer to evidence comes

ino Even if there is no presentation of evidenceo Full presentation of parties evidence

Demurrer to evidence: after the plaintiff presents his evidence and rests his case, the defendants ask the court to render judgment because the plaintiff has no right to relief

Differentiate:

Demurrer to evidence MTD failure to state cause of action

Based on the evidence presented by the plaintiff

Based on the allegations on the complaint

J. Britanico 17


Failure to PROVE cause of actionBecause of insufficiency of EVIDENCE

Failure to STATE cause of actionBecause of insufficiency of ALLEGATIONS

This is allowed because the plaintiff claims he has a cause of actions, so he must prove that he has a cause of action!

12.02.2010

What is judgment?o The ruling by the court of competent jurisdiction which

determines the rights and obligations of the parties to the action

o FINAL adjudication by the court What are the kinds of judgment?

o Judgment on compromiseo On ???o On the meritso Summary judgmento Clarificatory judgmento Judgment on the pleadingso Conditional judgmento Judgment nunc pro tuncto Special judgmento Judgment pro hac vice

Judgment that you cannot take as a precedent ruling

The classification of judgment depends on the kinds of proceedings of the court

In the rules beginning Rule 33-35, there is a demurrer to evidence. That kind of ruling is in the nature of a judgment.

You need to distinguish, because there can be judgment w/ no reception of evidence (no trial), but there is a hearing!

Also, under Rule 16: when certain grounds are invoked and the case is dismissed, it is in effect a judgment

o Rule 16 Sec 3 in every case the resolution shall state clearly and distinctly the reasons therefore (in resolution of motion).

o Rule 40 Sec 1 appeal from final judgment that disposes of a cases

In rule 16 there can be an adjudication even though there is only a hearing, but no trial. This is because section 3 says “hearing of a motion” and it also mentions affirmative defenses wherein there needs to be a preliminary hearing (sec 6)

o If granted there is already an adjudication However it is also possible that there can be partial trial or

partial presentation of evidence and there can already be an adjudication, as in Rule 33 Demurrer

What constitutes “last pleading”: depends on the number of parties in the action and the number of pleadings filed

After a pre-trial, the court may render judgment on pleadings or summary judgment. If this is the case, there is also an adjudication w/o trial. There is no presentation of evidence.

Judgment may be arrived at and there can be partial hearing, partial trial or a full blown trial. It depends on the kind of judgment the party is seeking

Judgment on the pleadings:o Based purely on the pleadings, partial hearing

Summary judgment:o No trial at all, basis of judgment is the affidavits,

admissions etc Demurrer to evidence:

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o There should be partial trial because it is required that the plaintiff present his evidence

Default:o No trial but there is hearing (ex parte)

The judgment contemplated on the rule on judgment is one that is arrived after FULL BLOWN TRIAL, meaning both parties were able to present their respective evidence

JUDGMENT ON THE PLEADINGS (RULE 34) When the answer fails to raise an issue or otherwise admits the

material allegations of the adverse partyo Note: answer expected from defending party. This can

also apply to cross-claim, counterclaim etc. E.g. A v. B, B files counterclaim, A files an answer, but the

answer fails to tender an issue, there can be judgment on the pleadings

Similarly there can be a default on the counterclaim, cross-claim, third-party etc complaint

Example of when the answer fails to tender an issue/otherwise admits the material allegations:

o If there is a general denial or insufficient denialo e.g. based on the manner of making allegations in the

pleadings: such as in Rule 8 Sec 10 lack of

knowledge/insufficient information to form a belief and has the effect of a denial

However, if in his answer the defendant admits that he owes the plaintiff but cannot pay the amount, this is different from an affirmative defense which hypothetically admits facts, but at the same time raises new issues. In this case judgment on pleadings is NOT allowed because the defense raises an issue.

What may not be the subject of judgment on the pleadings?o Annulment of marriage/ Nullity of marriageo Legal separation

Who may ask for judgment on the pleadings?o The plaintiff

J. Britanico 19


SUMMARY JUDGMENTS (RULE 35) There is no trial, no presentation of evidence but the court

renders judgment but there is NO GENUINE ISSUEo “no genuine issue” no genuine issue as to triable

facts, no necessity to present evidence because factual issues are sham or contrived

Is there a limitation as to what may be subject of summary judgment?

o …? Summary judgments are also possible w/ respect to

counterclaim, cross-claim, third-party etc., for as long as there is a pleading that asserts a claim

Who may ask for summary judgment?o Both parties! Summary judgments are NOT limited to

the claiming party. Defending party may also ask for summary judgment.

In lieu of trial, the judgment will be based on affidavits, depositions, admissions etc.

When can the claiming party file for a summary judgment?o After an answer filed, because this is the only time that

you can determine that the matters raised in the pleadings are sham, fictitious, contrived

What about the defending party?o At any time!

Does this apply to modes of discovery?o Yes, when the defending party asks for deposition, they

may be taken at any time (Rule 23) What may be the subject/what may be adjudicated in summary

judgment?o Two stages:

Party file a motion for summary judgment, it is required that there be hearing. This is AN EXCEPTION TO THE 3 DAY NOTICE RULE. Hearing must be set at least 10 days before the hearing. This is to give the adverse party a chance to file countervailing affidavits

When there is a motion, the court will first determine the propriety of rendering summary judgment (determine w/n there is a triable issue)

If no trialable issue, can render summary judgment. If there is an issue, proceed to trial!

In summary judgment the court can already determine w/n there is liability to pay damages, so should the court still go to trial?

o Yes! To determine the amount of damages. Because damages require proof. You cannot controvert w/n you are liable, but you can contest the AMOUNT of the damages you need to pay.

Note Sec 4 when cases not fully adjudicated Is a summary judgment appealable?

o There is a controversy!!o In one case: partial judgment not appealable (IGNORE)o More RECENT case: appealable!

The failure of the plaintiff/claiming party to file a controverting affidavit does NOT amount to an admission of the pleading of the party asking for a summary judgment

o The option given to the adverse party to file controverting affidavits is not mandatory! This is because the motion for summary judgment will still be

J. Britanico 20


heard by the court whether or not the party submits the affidavits.

There is a sanction if you try to procure summary judgment using affidavits in bad faith (which is basically perjury)

Judgment may be rendered when there is partial presentation of evidence, or when there is partial trial, which starts with..

o Rule 9 Sec 3, Default The judge has two options:

Render judgment granting the relief “as his pleading may warrant” no hearing at all

The court in its discretion requires the claimant to submit evidence (ex parte) this is PARTIAL hearing and PARTIAL reception of evidence

o Rule 33, Demurrer (can file demurrer only after the evidence has

been FORMALLY offered, and the court has MADE a ruling on the plaintiff’s formal offer of evidence) before this, the filing of demurrer is premature

test of sufficiency of evidence in civil action: quantum of evidence rule 133 Sec 1

If denied: proceed to trial. Defendant presents evidence

If granted: the action is dismissed. This is considered to be a final adjudication on the merits and is APPEALABLE

NOTE: if on appeal the order granting the demurrer is reversed, the defendant is deemed to have waived his right to present evidence

This means that judgment will be rendered solely on the basis of the plaintiff’s evidence, which will result in deciding that there is preponderance of evidence because there was error on the part of the TC in granting demurrer

JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF (RULE 36) Usually after a full blown trial Can the judge refuse to render judgment?

o NCC Article 9: judge will not refuse to render judgment based on silence, obscurity or insufficiency of laws

o Even if there is no provision in the NCC, the judge would still need to render judgment because our courts are courts of EQUITY

Formal requirements of judgment:o In writing (no verbal/oral judgment because all courts

now are courts of record)o Personally and directly prepared by the judgeo Signed by the judge

This is only required in all courts except the Supreme Court! Because the Supreme Court can issue MINUTE RESOLUTIONS (this is different from a memorandum decision)

o Filed with the Clerk of Courts Substantial requirement of judgment:

o Stating the clearly and distinctly the facts and the law on which it is based

J. Britanico 21


12.06.2010JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF (RULE 36)Continued..

What are the parts of the judgment?o Opinion – why you find the evidence lacking/sufficient,

the narration of facts, statement of the law in questiono Fallo/dispositive portion – the adjudication, this is what

will be executed, “so ordered…”o Signature of the judgeo Body

If there is a conflict between opinion and the fallo, the fallo should prevail

o EXCEPT if …? If a judge is about to write a decision and is transferred, he is

allowed to write the decision provided the parties file a manifestation that the same judge be allowed to write the decision, AND provided he is transferred to a court of the same grade or category

Rule 135 Sec 9 – when judge in province transferred to another court and can send the decision by registered mail

Rule 131 Sec 3 (m) (n) (o) – presumption of regularity of official duty, court or judge acting in the Phil in the lawful exercise of jurisdiction; all matters w/in an issue…

Rule upon judgment upon the compromise – when approved by the court, final and executory

o Remedy: first have judgment/compromise nullified What constitutes promulgation of judgment?

o The filing of the decision w/ the clerk of court, NOT the signing of the decision.

Can a judgment be orally promulgated?

o NO. The judgment must be in writing. What completes promulgation of a judgment?

o Rule 13 Sec 9 – service of judgments, final orders or resolutions must be served either personally or by registered mail

o Decision is filed w/ clerk of court, then clerk of court causes the service of the decision personally or through registered mail (note this is different from criminal actions)

o Prior to that point the judge may do anything he wants, he can recall the decision, he change it etc. because there is no rendition of judgment and there is no promulgation yet

PROMULGATION: when sent via registered mail, date received considered

FILING PLEADINGS: date sent is considered Judgment contrary to law is still a valid judgment unless it is

attacked by an aggrieved party What is your remedy if the judgment is ambiguous?

o File a motion for clarification Amended vs supplemental judgment

o Amended judgment vacates the original judgment. This can be done before finality of judgment

o Supplement judgment does not supersede the original judgment, it only adds to it

Before finality, only clerical errors can be amended What can be changed after finality?

o Court still has jurisdiction w/ respect to the execution stage

Exceptions to immutability of judgmento Clerical errors

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o Nunc pro tunc actions that could have been done but were not done, and are now being done

o Void judgments What is a supplemental decision?

o Does not supersede the original decision but only adds to it

o This is similar to amended + supplemental pleadings

How do you attack a judgment?o Can it be attacked collaterally?

Generally, NO, except: Lack of jurisdiction

When does a judgment become final + executory?o Rule 36 Sec 2 – if the period provided to file an appeal

lapses and no appeal/MR/NMT is filed, judgment is final and executory and should be entered into the book of judgment

What is the period within w/c to appeal?o 15 days (ordinary actions) or 30 days (if a record on

appeal is required, multiple appeals may be allowed) EXCEPT

o Rule 102 in relation to Rule 41 – appeal from habeas corpus w/in 48 hours from notice of judgment/final order

When should the entry in the book of judgment be made?o Date of finality deemed date of entry even if entry made

much much later than date of finalityo Date of entry is important in the following

circumstances: Relief from judgment 6 days 6 months from

the date of entry

Rule 39 Sec 6 Execution by motion or by independent action. The reckoning date is w/in 5 years from the date of entry

Rule 36 Sec 6 of the NCC revival of judgment. Reckoning time w/in 5 years from date of entry.

Rule 136 Section 9. Book of Entries – the clerk shall keep a judgment book containing a copy of each judgment and book of entry containing the dispositive portion

Sec 3: Judgment for or against one or more of several parties.

o For or against several plaintiffs, and for or against one or more of several defendants

o But this does not apply to solidary debtors Sec 4: Several judgment

o NOTE: Here only defendants are several. This is different from Section 3, where plaintiffs are several and defendants may or may not be several.

o Read w/ Rule 41 Sec 1 (f) + Rule 31 Sec 2 + Rule 39 Sec 2b

Judgment of support does NOT become final and executory Sec 5: Separate judgments Sec 6: Judgment against entity without juridical personality

o Read w/ Rule 3 Sec 15 Post-judgment remedies available to aggrieved party

o Depends on when you want to avail of it!o BEFORE finality of judgment or final order:

Motion for reconsideration this will toll the period for appeal. But if denied, there will be FRESH PERIOD within which to appeal.

J. Britanico 23


Motion for new trial this will toll the period for appeal. But if denied, there will be FRESH PERIOD within which to appeal.

Appeal w/in 15/30 days(can avail of both MR and MNT)

o AFTER finality of judgment or final order: Relief from judgment/final order Annulment of judgment Petition for certiorari Collateral attachment of judgment

12.07.2010

NEW TRIAL OR RECONSIDERATION (RULE 37)

Who may file a motion for reconsideration?o Any aggrieved party (either plaintiff/defendant)

In some instances the prevailing party still seeks for reconsideration if he does not feel the judgment rendered is not sufficient. That’s why the rule says “aggrieved party” and not “prevailing party”

Sec 1: within the period for taking an appeal. You can find this in Rule 40/41.

NOTE: it is prohibited to file a motion for extension of time to file MR/MNT. In rule 11 we learned that you can seek extensions.

o Rule 11 Sec 11: extension of time to plead. Upon motion and such terms as may be just, court may extend the time to plead

o This section is EXPRESSLY inapplicable to MR/MNT. Rule 40 Sec 2 last sentence. No motion for extension of time to file a motion for new trial/recon shall be allowed. This is the same as in Rule 41 Sec 3.

NOTE: a second motion for reconsideration is PROHIBITED. A party is only entitled to one MR.

This rule applies to judgments that are final but not yet executory.

The grounds are: o FAME.

This is the second time. FAME is also in Rule 9 Sec 3.

FAME in rule 9 is the same as in rule 37

When FAME is a ground:o Default, Rule 9 Sec 3o MR/MNT Rule 37 Sec 1o Relief from Judgment Rule 38 Sec 1

** NOTE: FAME always requires that the petition is accompanied by an affidavit of merit **

When you speak of fraud, what is the fraud that is contemplated?

o Extrinsic Fraud. o E.g. if a witness testifies but perjures during a trial is this

the fraud that will be a ground for an MR or MNT? No. This is not extrinsic fraud, it is intrinsic fraud

or collateral fraud. o Extrinsic fraud is when the judgment seems to be alright

but outside of that, there is something wrong..?

J. Britanico 24


When you say accident, what is contemplated?o E.g. Where a party was not able to present his evidence

because did not receive notice. Or a party declared in default because he was the address was wrong. Or file an answer which gets lost in the mail.

What about mistake? Whose mistake is contemplated?o Mistake of FACT not mistake of lawo E.g. in one case the SC forgave a party because he

thought there were only 30 days in October. What about negligence?

o Refers to excusable neglect of the party. What is excusable depends on each case.

o Note that generally, negligence of counsel is binding UNLESS it was so great that the party was prejudiced

o Note that this does not refer to gross negligence In these motions especially for MNT, you have to submit two

affidavits:o Affidavit of merit (constituting FAME this must be

specified in particular, cannot be averred generally)o Affidavits of meritorious cause of action or meritorious

defense When are affidavits of merit not necessary?

o When NOT based on FAMEo Basis of NT is lack of jurisdiction SMo Basis of NT is lack of jurisdiction defendanto Motion is sham because it failed to comply w/ Rule 15

NO notice of hearingo In judgments on default even before answer is filed

What is a pro forma motion?

o When there is no affidavit of merit, or when the affidavit of merit does not substantiate the claim of FAME etc.

e.g. when the circumstances constituting the ground of fraud is not specified with peculiarity

e.g. reiterates the same evidence presented in trial

e.g. DOES NOT COMPLY W/ RULE 15 no notice of hearing

o Does it toll the period? No, expressly provided in law.

If pleading says “motion for new trial” but the ground specified is for motion for reconsideration, should the court allow the pleading?

o Yes, the court should treat the motion as an MR

Requisites for newly discovered evidence for NT:o Discovered after trial o Could not have been discovered + produced at trial w/

reasonable diligenceo Evidence would alter the result of the actiono Must also be accompanied by affidavits

Witnesses etc which are in the nature of the synthesis of the evidence sought to be presented or if documents, attach the documents

Motion for New Trial Motion for Reopening

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After promulgation of judgment After each party rests its case but before the rendition of judgment

Rule 37 Rule 132 Sec 9 recalling witness

Basic requirements of both MNT/MR:o Should be in writingo Should state the groundso Written notice of which served by the movant on the

adverse party Jurisprudence: when you serve a copy of the

motion on the adverse party, for purposes of the filing of the MR, the date given to the adverse party should be the reckoning period

o Should comply w/ rule on “proof of motions” Rule 133 Sec 7 – evidence on motion. When

court not satisfied w/ facts appearing on record, court may direct that matter be heard wholly or partly on oral testimony/depositions

What is an affidavit?o Statement of facts verified and under oath so person

can be held liable for perjury What is the effect of filing a MNT?

o Tolling the reglementary period to file an appealo If denied: file an appeal within 15 days, can NO LONGER

file for certiorari Rule 37 Sec 9: an order denying a motion for

new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order

Appeal should be on the judgment, not on the denial of the MNT

o If granted: judgment is vacated, and there is trial de novo. (

Rule 37 Sec 7 The evidence presented at the previous trial will

be disregarded; the trial de novo will be confined to the newly discovered evidence. BUT in rendering the decision, the evidence originally presented and the new evidence will be considered together. But if the new evidence is still not sufficient, the old judgment will be practically the same as the new one.

What happens when a motion for reconsideration is granted?o The court will re-evaluate w/n the damages awarded

are excessive, and w/n the evidence presented is sufficient (Rule 37 Sec 1)

o Note: only those matters raised in the motion should be reconsidered by the court

Partial new trial or reconsideration:o Sec 8 Note “if they are severable”

Effect of order for partial new trialo See Rule 31 Sec 2

NOTE: in the SUPREME COURT you can ask the court for an extension to file a MOTION FOR RECONSIDERATION. The SC can even suspend the rules.

Relief from Judgment

Available after the judgment has become final and executory

J. Britanico 26


DOUBLE CHECK Whats the difference between Rule 38 and Rule 47?

o Rule 38 only available in the SAME COURT that rendered the judgment that is final and executory

o Rule 47 at least w/ trial court but filed w/ CA only available in HIGHER COURT

Can you avail of relief from judgment if it is based on compromise? Considering the judgment is immediately final and executory

o Yes because if the grounds are still FAME Example of other proceeding

o Order of execution Sec 2 vs Sec 1

o Sec 2: deprived of an opportunity to appeal, within the period to appeal b/c of FAME

E.g. not yet receive but the record shows that it was already received

Sec 3: time for filing petitiono Remember Rule 36 Sec 2 date of finality = date of the

entry regardless of when the actual physical entry was made by the Clerk of Court.

o Is this period extendible? Both periods must be complied with

o 60 days from date of ACTUAL knowledge What if notice served through counsel? Notice

to counsel is notice to party UNLESS counsel incompetent??

Reckoned from date of actual knowledge of party

o 6 month period from date of entry o Must be verified

o Is it an initiatory pleading? NO. It is a contingent claim based on the

original action. Docket fees? Certification of non-forum

shopping? Sir did not really answer? But James said No and No.

Can there be default? NO default. See Rule 38 Sec 6. After the

period to file an answer has lapsed, the court is required to hear the petition for relief

o Tehnically there are 2 stages: Hear the petition, determine whether or not the

petition for relief should be granted, examine the affidavits of merits.

If petition is sham (lost right to appeal b/c of own fault) then you should deny.

If petition has merit, grant. NOTE: in petition should allege not just

FAME but also that you have good cause of action or defense

If granted, hear the main case as if a new trial was granted

What is an injunction?o To forestall the proceedings. o If you don’t file injunction, writ of execution may be

issued! This is because the judgment is already final and executory.

NOTE: NO SUMMONS in petition for relief. In lieu of this, there is an ORDER TO ANSWER. This is in any manner which the court

J. Britanico 27


may direct w/ copies of petition and affidavits. Can be personally or by mail.

Can you appeal the order granting/denying petition for relief?o Rule 41 Sec 1 a: no appeal denying a petition from relief

of judgmento Remedy: CERTIORARI Rule 45

Sec 7: if petition granted, the appeal will be as if timely filed

Appeal

Judgment is final but not yet executory Always remember the doctrine of hierarchy of courts Which courts have appellate jurisdiction?

o All courts except the first level courts What is the nature of an appeal?

o It is a statutory right, a privilege granted by law When you see appeal, that basically means “review”. That’s why

when you look at the courts, the first two are trial courts. In the constitution the rules must be uniform in all courts of the same ground. RTC and MunTC are the same level because they are both trial courts.

Sandiganbayan is both a trial court and an appellate court. SB SC because “three heads are better than one” in RTC

there is only 1 judge, in SB there are three. “Weirdest situation” CTA division appeal to CTA en banc. So

you appeal your own decision.

12.08.10

Appeal What is an appeal?

o Remedy given to an aggrieved party, resort to a superior court to review the decision of the lower court

Purpose: review of errors of fact or law in the JUDGMENTo NOT errors of jurisdiction

Error of jurisdiction correctible by certiorari under Rule 65 When is appeal a matter of right?

o Generally, appeal is NOT a matter of right. but once granted, cannot deprive a party of that right. appeal from the initial judgment from a lower court to a superior court.

Ex Rule 40 appeal first level rtc is a matter of right

RTC appellate is in original jurisdiction The rest are called “discretionary appeals” Petition for review and appeal by certiorari are

called discretionary appealsRule 45 Sec 6: Section 6. Review discretionary. — A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons thereof. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered:(a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power

J. Britanico 28


of supervision. (4a) The acceptance of discretionary appeals depends on the

appellate court Can the TC refuse to give due course to the appeal?

o No it is upon the appellate court to say that. Appellate court has the right to determine w/n it should be entertained.

Who can appeal?Requisites:

o Must have real interest in the case E.g. A filed a case against B, C filed to intervene,

denied, after judgment can C appeal? NO!o The party must be aggrieved or prejudiced by the

decisions With respect to appeals as regards party, don’t forget Rule 3 Sec

16 this may not be the right provisiono There can still be substitution of parties even at the

appellate level What may be appealed as a matter of right?

o First level courts What is a judgment?

o Order by court which on the merits disposes of the action with finality

o Grants the relief prayed for in the action! If it doesn’t, its not a judgment. That’s why

there are instances in the proceedings that are not appealable

What is a final order?o E.g. in expropriation an order that the property may be

taken for public purpose

Second issue is just compensation this order is also appealable

o E.g. in partition can appeal whether partition is proper Second issue is how it should be partitioned

this order is also appealableo Rule 109 Sec 1

Appeals allowed: Allows/disallow a will Who are lawful heirs + distributive

share Etc…

Note: 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;(b) An order denying a petition for relief or any similar motion seeking relief from judgment;(c) An interlocutory order;(d) An order disallowing or dismissing an appeal;(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;(f) An order of execution;(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(h) An order dismissing an action without prejudice.

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In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (n)

The above are interlocutory orders and are not appealable. The proper remedy is certiorari under rule 65 because of GADLEJ.

Exceptions to final judgment rule:o If this judgment finally puts an end to a particular

action, can appeal within the time under the ruleso Exceptions:

Multiple appeals Rule 41 Sec 1 (f) A judgment or final order for or

against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom;

E.g. A filed action against B, B files third party complaint against C, court renders judgment saying B liable, w/ regard to third party complaint, court renders a separate judgment saying C is liable to B for whatever B owes A. Only B appeals. What’s the effect of the appeal by B?

o Decision between B + C finalo Decision between A + B still

appealo This is because C did not pursue

an appealo

Taking an appeal v. perfecting an appeal

o Perfecting = complied w/ requirements of court Notice of appeal file w/in 15 day period,

deemed perfected if there is nothing to be done on his part

Record on appeal mere filing is NOT perfecting the appeal , you also need the APPROVAL of the record on the appeal within the period for filing an appeal

These are important because it determines the residual power of the courtRule 41 Sec 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 him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.

In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the appeal of the other parties.

In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which

J. Britanico 30


do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the appeal. (9a)

Rule 38 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 possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.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. (2a)

o In bullet points: (O-PAPA) Order execution pending appeal Issue orders for the preservation

Approve compromise Permit appeal by an indigent

Rule 3 Sec 21: Section 21. Indigent party. — A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides.

Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by the court, execution shall issue or the payment

J. Britanico 31


thereof, without prejudice to such other sanctions as the court may impose. (22a)

Allow withdrawal of the appeal NOTE: these requirements on appeals are MANDATORY. This is

because appeals are not a matter of right. The requirements are:

o Periodo Payment of docket fees

When do you reckon the period to appeal?o Rule 13 Sec 9

Section 9. Service of judgments, final orders, or resolutions. — Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a)

o If represented by counsel, service by counsel is the serving date. If not by counsel, service on party is the reckoning date. If a counsel withdraws without the approval of the court, service upon him is valid because counsel should be w/ consent of client and court. If moved address and not inform the court, service to old address is valid. Should file manifestation of changed address.

How do you compute the hours?o Rule 22o If it falls on Sat, Sun, holiday, file on next business day

What is a record on appeal?o Manner of filing an appeal in special civil actions and

special proceedings

o E.g. P filed notice on appeal today, and then D files an MR or MNT the next day, can he do this?

This is allowed because the appeal is only deemed perfected as to the plaintiff. The defendant has a different right compared to the plaintiff’s right to appeal. In this scenario, TC must not give due course to appeal, but must first rule upon the MR or MNT of the defendant. (double check)

What is a notice of appeal?o Manifestation to the court that you are appealing to a

superior court Contents of a notice of appeal. Rule 41 Sec 5:

Section 5. Notice of appeal. — The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order or part thereof appealed from, specify the court to which the appeal is being taken, and state the material dates showing the timeliness of the appeal. (4a)

o Bullet points: Parties Judgment/final order appealed from Court to which appeal is taken Material dates showing timeliness

o Note that you should specify who is appealing e.g. plaintiff - appellant, defendant – appellee

o Notice of Appeal must be served and filed to give him opportunity to oppose. The appellant may have made misrepresentations as to timeliness etc.

Read: Elepante v. Madayag (habeas corpus filed after 15 days) NOTE: you can extend the period for making a record appeal,

but you CANNOT extend the period for taking an appeal

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o If multiple appeals, record of appeal is needed, period is 30 days. If you cannot finish the record of appeal within the period, you can ask for an extension. You must ask for the extension between the 30 day period.

Contents of a record on appeal:o Rule 41 Sec 6

Section 6. Record on appeal; form and contents thereof. — The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and it shall include the judgment or final order from which the appeal is taken and, in chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and documentary, taken upon the issue involved. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits. Every record on appeal exceeding twenty (20) pages must contain a subject index. (6a)

o Basically, everything relevant to that particular issue that you are appealing.

Example: settlement of the will, issue on grant of allowance of the will

Record on appeal should contain copy of the will, testimony of witnesses on allowance/disallowance, order of court granting the allowance

Example: appointment of executor Record on appeal should contain those

relevant to the issue on the appointment

Example: expropriation, court granted b/c use for public use

Record on appeal should include documents showing validity of the expropriation. Do NOT include documents on valuation.

Record on appeal must be APPROVED by the courto A copy should be furnished on the adverse party so he

can question it. Parties may have JOINT record on appeal to save time and

money. When is record on appeal allowed?

o Special proceedingso Expropriationo Partitiono Foreclosure real estate mortgage

Rule 40

Mode of appeal is an ordinary appeal NOTE: habeas corpus is NOT included in this rule because it is an

exception since it is only when no RTC judges available

J. Britanico 33


Where the first level court decides the case under the doctrine of delegated jurisdiction, the appeal is to be to the CA. this is an express provision of BP 129

o E.g. In land registration cases, value not exceed 100k, appealable to the CA. (this is in the outline on jurisdiction! MEMORIZE!)

Rule 40 Sec 8: Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. — If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings.If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (n)

1st paragraph NO trial. if lower had no jurisdiction and RTC has jurisdiction, conduct trial. 2nd paragraph, and lower court has no jurisdiction, will decide using evidence but can allow amended pleading

Rule 42

Is this a matter of discretion?o Yes because only the first appeals are a matter of right.

Rule 43 appeal from decision for quasi-judicial bodies. Also a petition for review! But different from Rule 43

How do you pursue a petition for review?o Verified petitiono Pay lawful docket feeso Certification of non-forum shopping because this is

discretionary and is an initiatory pleading! (comply w/ Rule 7 parts of a pleading for initatory pleading)

o Within 15 days from notice of the petitiono But this period is extendible for 15 days if there is a

compelling reason Why are 7 seven copies needed in Section 2?

o Because in the court of appeals there are 3 justices in a division. If there is a special division of 5 made, you’ll have to request for additional copies. This will take time. of course there should be one copy for the archives.

o In the SC you need 18 copies. But there are 15 justices. 5 members in the division so you should only be required for 6, but what if it goes to en banc? You’ll need extra copies.

You must attach legible copies of duplicate originals OR certified true copy, certified by clerk of court of the quasi-judicial bodies

o If not the petition will be dismissed. NOTE: no transmittal of records unlike in ordinary appeal

(Section 7)Section 7. Elevation of record. — Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the Regional Trial Court to elevate the original record of the case including the oral and documentary evidence within fifteen (15) days from notice. (n)

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NOTE: “deems it necessary” What is a comment?

o Rule 42 Section 5Section 5. Contents of comment. — The comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies of such material portions of the record referred to therein together with other supporting papers and shall (a) state whether or not he accepts the statement of matters involved in the petition; (b) point out such insufficiencies or inaccuracies as he believes exist in petitioner's statement of matters involved but without repetition; and (c) state the reasons why the petition should not be given due course. A copy thereof shall be served on the petitioner. (a)

Note perfection! Also residual jurisdiction of the court in the interim. Section 8. Perfection of appeal; effect thereof. — (a) Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner.

The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal. (9a, R41)

(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the judgment or final order unless the Court of Appeals, the law, or these Rules shall

provide otherwise. (a) Because the provisions says “without necessarily giving due

course,” how do you know the court gave due course to your petition?

o Normally the court issues a resolution stating that petition is given due course and requiring the parties to submit memorandum

o But most of the time, you know the petition is given due course when you receive the decision

o Until you receive the decision, the court has residual jurisdiction

o When the court that the petition is given due course, it does not mean that the petitioner won. It means that the case will be decided on the merits

After this, you go to the SC by certiorari under Rule 45

12.13.10

Cannot just say “affirm a toto” must state facts on which based

Rule 43

Appeals from quasi-judicial bodies to the CTA CTA division appeal to CTA en banc Since quasi-judicial bodies, essentially what are they

performing?o Administrative bodies performing quasi-judicial

functions, part of the executive branch In reference to Office of the President and appeals to CA, what

does this refer to?

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o These are w/ respect to cases where the admin office under OP exercises quasi-judicial functions. You appeal under Rule 43

o This is DIFFERENT from when President exercises executive power follow consti w/c provides from CERTIORARI e.g. validity of executive order

“final order or resolution”o the decisions of the admin bodies are final + executory

no provision that says that you appeal from NLRC. So in this sense, it could be final and executory. But by reason of the consti, which says that courts can review actions of other bodies. The remedy in NLRC cases is CERTIORARI under Rule 45. This is different from petition for review under Rule 43.

Of all the consti commissions, there is one office whose decision is appealable to CA under Rule 43, this is CSC

o This is because the CSC is “makulit” b/c they were trying to supplant the decision of the SC.

What would be the basis of the review of judgment from quasi-judicial bodies?

o Fact or law or both What may be raised?

o see Sec 10Section 10. Due course. — If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on the records the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the

court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals. (n)

Note that prima facie means on its face that there is error in terms of fact or law

o As a GR the court will not disturb the findings of facts of these courts

o This means it should be grave abuse of discretion but not that falling under Rule 65

o See also Rule 133 Sec 5 Substantial Evidenceo Must show:

grave abuse or that the decision is NOT supported by

SUBSTANTIAL EVIDENCE Absent the prima facie showing, the appeal will not prosper Appeal w/in 15 days from denial, publication or denial MR MNT Can extend by 15 days but need to pay full docket fee; generally

not extend after except for 15 days “most compelling reason” This is different from certiorari b/c no extension allowed Appeal will not stay the judgment or order unlike petition for

review (Rule 42)o Sec 12 Rule 43 v. Sec 8b Rule 42o If its rule 42 appeal from RTC in appellate

jurisdiction, appeal will stay the judgmento If its rule 43 filing of the petition will NOT stay

judgment, unless CA orders otherwiseo This may be done by availing of provisional remedies,

PRELIMINIARY INJUNCTION or TRO (Rule 58). When you file petition for review under 43 ask for TRO or injunction in the prayer so stay the execution of the judgment

Number of copies are the same.

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Take note that the docket fees are paid to the APPELLATE COURT. In ordinary appeals, pay docket fees to original court, the CoC is required to submit to appellate court proof of payment

Transmittal of records from lower court/ quasi-judicial records is discretion

Rule 44

How many briefs are required?o Appellant’s brief and the appellee’s brief and reply briefo There are NO MEMORANDUM (only in petitions for

reviews + rule 45) In ordinary appeal, there are no changes in title except for

appellee/appellant, assumption that lawyers are the same as in TC

Sec 3 Rule 44Section 3. Order of transmittal of record. — If the original record or the record on appeal is not transmitted to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal. (3a, R46)

Read w/ Sec 10 Rule 41 duties of CoC when appealed to CAo Transmission of record, evidence + transcript of

stenographic noteso The period w/in which he must transmit

Once records are transmitted to the CA , no mention in Rule 44 and 41.. there are now 3 CAs in the Philippines. CA CDO (Mindanao) + CA Cebu (visayas) so if you’re practicing, make sure you transmit the records to the appropriate CA

Once the records are complete, the CoC of the CA will notify the appellant that the records are complete and at their disposal

w/in 45 days receipt of notice file appellant’s briefSection 8. Appellee's brief. — Within forty-five (45) days from receipt of the appellant's brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant. (11a, R46)

Appellant: File 7 copies, 2 copies to adverse partyo Reckoning for appellee’s brief is from RECEIPT OF

APPELLANT’s BRIEF. The CA will NOT notify the appellee b/c the rule says!

o Appellee should file w/in 45 dayso If not do so, court will consider you to have waived

appellee’s brief so the appellant will win Reply Brief w/in 20 days. This time the receipt of the appellee’s

brief is the reckoning point. The period is shorter b/c it will only cover the things in the appellee’s brief not covered in appellant’s brief

See Rule 46 Sec 1 + 2Section 1. Title of cases. — In all cases originally filed in the Court of Appeals, the party instituting the action shall be called the petitioner and the opposing party the respondent. (1a)Section 2. To what actions applicable. — This Rule shall apply to original actions for certiorari, prohibition, mandamus and quo warranto.Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule 47, for certiorari, prohibition and mandamus by Rule 65, and for quo warranto by Rule 66. (n)Sec 10 Rule 44Section 10. Time of filing memoranda in special cases. — In

J. Britanico 37


certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record. (13a, R46)The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. (n)

Gesmundo: Sec 10 Rule 44 should be placed in Sec 46. Sec 10 refers to original actions in the CA but not in ordinary appeals

Sec 11 Rule 43Section 11. Several appellants or appellees or several counsel for each party. — Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. (14a, R46)

When there are several appellants/appellees, one counsel represent all, only give one notice. If several counsel, copies may be served on any of them

Sec 12 Rule 43 Rule 15 motions must be set for hearing. This requirement

DOES NOT APPLY IN APPEALLANT COURTS. This includes CA + SC. For example, you file motion for extension of time.. there is no motion to set this for hearing in the appellate courts b/c it is the responsibility of the division clerk of court to put in the agenda. Whether you set it for motion or not, division clerk of court will put it in the agenda, including motion for extension of time

Change of theory: when case is tried upon theory, cannot be permitted to change otherwise would be unfair to the adverse

partyo EXCEPT: if the adverse party can answer the new theory

w/o the presentation of new evidence Contents of appellant’s brief

o Subject indexo Assignment of errorso Statement of the caseo Statement of the factso Clear and concise statement of issues fact/lawo Argumento Reliefo Copy of the judgment

Contents of appellee’s briefo Subject indexo Counter-statement of factso Arguments

Sec 1 Rule 50 (d)o Unauthorized alterations, omissions, or additions in the

approved record on appeal as provided in Sec 4 of Rule 44

Rule 50 Sec 1

Section 1. Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:(a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules;(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules;(c) Failure of the appellant to pay the docket and other lawful

J. Britanico 38


fees as provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No. 803, 17 February 1998)(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44;(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules;(f) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;(g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and(i) The fact that the order or judgment appealed from is not appealable. (1a)

o NOTE: these grounds are when the court can dismiss MOTU PROPIO

This is also in Rule 41 Sec 1: no appeal in a b c d e f g. the proper remedy is certiorari

Take the necessary steps to complete the record. If there is a transcript of records of stenographic notes, obtain these it can be submitted.

Sec 2:Section 2. Dismissal of improper appeal to the Court of Appeals. — An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional

Trial Court shall be dismissed. (n)An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. (3a)

If you chose the wrong mode of appeal, to the wrong court, the appeal will be dismissed and this will not toll the period of the running of final judgment. The appellate court cannot refer the case to the proper court.

Note Sec 3 withdrawal of appeal

Rule 51 (for this section, he mostly asked the person reciting to read the codal) Sec 1 Rule 51 Ordinary Appeals remember BRIEFS

1) Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing.2) Where such a hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing.In original actions and petitions for review petition,

comment, sometimes reply1) Where no comment is filed, upon the expiration of the period

to comment.2) Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing.3) Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or

J. Britanico 39


memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. (n)

Petition for review: petitions are basically petition, comment, sometimes reply. Thereafter memorandum. After this the case is deemed ready for judgment or resolution.

It is prohibited to file pleadings in the SC when not required. If you want to file pleading, need leave of court. Rejoinder is prohibited in the SC.

When a case is appealed to the CA, it will be raffled once to a division. The purpose is for completion of records. This will signal the filing of briefs, notice of briefs. When the briefs are completed, the case will be raffled again for decision.

Unlike in petitions, there is NO SECOND RAFFLE. The court that receives the petition makes the decision.

In the CA cannot render adjudication of cases EN BANC. This is also true for Sandiganbayan. But in CTA and SC there is en banc.

SC: Initially there are 3 Justices, if one dissents, borrow 2 more Justices and make it a special division. The majority would then be at least 3.

Sec 6: from the appellate court, the CA will only abandon/modify the judgment of the TC, if the error in the judgment of the TC is one that substantially affects the rights of the parties (harmless error rule)

Sec 7: o Remember the discussion on parties

Sec 8: this is a variant on the change of theory on appeal. This does NOT apply in criminal cases. This is because in criminal cases, the ENTIRE case is open for review and the appellate court can consider matters not raised previously.

Sec 10 will come into play ONLY if no further appeal made to SC under Rule 45, but if there is MNT or MR etc the rule will not

applyo Rule 39 Sec 1 2nd paragraph:Section 1. Execution upon judgments or final orders. — Execution shall issue as a matter of right, or 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. (1a)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. (n)o Entry + finality only if no further appeals by parties

Note Sec 11 last paragraph in some cases, judgment may be executed notwithstanding pending appeal. In this case it issued directly by Court of Appeals. Unlike when there is a point in time when the records are not transmitted to the CA, TC still has residual jurisdiction.

Rule 52 + 53

Nothing new, we took this up before w/ Rule 37 The periods are the same as w/ Rule 45, 15 days. No second MR Sec 4 the filing of the MR stays the execution of judgment Sec 1 Rule 53 duration of the period: it depends on when appeal

is deemed perfected! Section 1. Period for filing; ground. — At any time after the

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appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. (1a)

o The first period is 15 days. But you can file second MNT if the ground is MNT.

o BUT In the CA, the period may e different. The law states “w/in period of perfecting the appeal up to time loses jurisdiction.” One may be longer than the other. Deemed perfected after lapse of period to pursue an appeal! Under Rule 37 it’s only w/in 15 day period.

o The ground is only newly discovered evidence. There is NO FAME. This is because the remedy would be Rule 38 (petition for relief), or if there is fraud it would rule 47 (annulment of judgment)

Under rule 53, the court itself must receive newly discovered evidence

Sec 4 Rule 53.. can ask for affidavits, if not satisfied, have affiant presented in the court

Rule 54 All the rules on internal business are in the internal rules of the

CA. the internal rules show raffles, resignation etc etc

Rule 49 Now hearings in the SC are w/ respect to habeas data, writ of

amparo etc. so this rule isn’t really used anymore

Oral argument based on where there is lack of clarity in pleadings but this is usually threshed out in the CA

Rule 48 This is the same as pre-trial in a lower court Seldom practiced rule There is preliminary conference in the CA

Rule 46 will be taken up w/ SCA

12.14.10

Rule 45 Appeal by certiorari

o Also known as petition for review on certiorari. Do not confuse w/ certiorari under rule 65 original special civil action

Although rule 45 provided in Rule 41 is a mode of appeal, what makes it diff from an ordinary appeal?

o It’s a matter of discretion… but also.. it involves ONLY QUESTIONS OF LAW

o Hence it is also known as the “writ of error” This is because it is filed w/ the SC, and the SC is NOT a trier of

fact. It is a court of last resort, whose main function is to interpret the law. The factual issues are left to lower courts

When the appeal is by certiorari, the SC will not disturb the factual findings of the lower courts

The ONLY exception is in criminal cases, ordinary appeal b/c of People v. Mateo, no more automatic appeal to the SC (appeal to CA, CA renders judgment but does not enter and certify to the SC). Note amendment in 122.

J. Britanico 41


Judgment by the SB, penalty is less than death, the appeal to the SC is by Rule 45

Conviction by TC appeal to SC by Rule 45 Question of fact v. question of law

o Law facts are no longer in dispute, but the question is how to apply law to given facts

o Fact question is to the truth/falsity of the facts, the SC should not review

E.g. w/n there is preponderance of evidence. You are asking the court to weigh sufficiency of evidence. Question of fact.

Rule: factual findings are binding on the SCo EXCEPTIONS: (SEE RULE 3 INTERNAL RULES OF SC)

memorize daw CA @ variance w/ the TC Absurd or impossible Misapprehension of facts by the TC There is GAD in the appreciation of facts Conclusion a finding grounded entirely on

speculation, surmises, conjectures CA in making finding went beyond the issues of

the case w/o citation of specific evidence on which they

are based facts in petition as well as in main and reply

briefs not disputed by the respondents facts of CA is premised on the supposed

absence of evidence and is contracted by the evidence on record

When may you file a petition for review under Rule 45?o w/in 15 days from notice of the judgment by the CA

o service may be by personal service/registered mail, either way, reckon from date of receipt

is this period extendible?o YES. You can file a motion for extension to file petition

for review w/in the 15 day period. cannot extend something that has already attached. In practice, also pay docket + attach copy of decision you want to appeal from. Also, furnish adverse copy of motion to extend time so they don’t file motion to execute judgment.

o Present rules: filing for petition for review + certiorari STAYS the execution of judgment. SC now issues STATUS QUO ORDER. (different from TRO/injunction). This retroacts to the time of the FILING OF THE PETITION. In other words, if there was partial payment, under a status quo order this should be returned, unlike in the TRO. Also, a status quo order has no expiry date. Unlike a TRO which has a lifetime of 20 days. “No action shall be taken until further action by the SC” they can put this in the status quo order

18 legible copies should be filedo Extra copies b/c there is no distinction btwn division and

en banc cases. Instead of requiring parties to file pleadings again

Contents:o Full name of the appealing party same as in original

actiono Do NOT implead the court that rendered the judgment

This is different from Rule 65 Because it is the responsibility of the

respondent to ---???

J. Britanico 42


NOTE: in 65, you need a TRO, so you need the court to be a respondent so the TRO can be directed at the court to direct that court to issue the TRO. This is different from R45 b/c there is no need for a TRO so the court doesn’t need to be impleaded

o Dates: (MATERIAL DATE RULE) Date filing MNT/MR Date of denial MNT/MR Date of receipt of judgment/final

order/resolutiono Concise statement of matters + reasons and arguments

relied on for the allowance of the petitiono Clearly legible duplicate original or certified true copy of

the judgment/order/resolution Should be certified by the CoC. (if by CSC, it

should be the CoC of the CSC, if the COMELEC, the CoC of the COMELEC)

o Sworn certification against forum shopping This is basically a petition. You need this is

initiatory pleading + petitions. When may it be denied?

o Yes, may be done motu propio or on motion of respondent.

Rule 56, §5: Grounds for dismissal of appeal (petition for review on certiorari is included)

Rule 45, §5: Dismissal or denial of petition Both are grounds for the dismissal and both

may be done motu propio by the Court What may the petitioner raise as grounds for the appeal?

o Rule 45, §6 (only 2 grounds)

Section 6. Review discretionary. — A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons thereof. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered:(a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision

Court a quo refers to the CA In R 45 Sec 6 a)

when the petition raises a NOVEL issues not decided before by the SC

when the Court a quo has DEVIATED from the rulings/law of the SC

In R 45 Sec 6 b) did not follow the procedure set forth

e.g. no decision, no trial, judge just said after pre-trial I’ll make a decision! CA said.. TAMA!

Is it enough that you just recite these groundso Must show specific circumstances/situations where the

ground(s) was/were committed. It’s not sufficient to allege. Must show in your petition the facts as to when the grounds were committed.

Aside from the basic pleadings, what may be required?o Briefs + memorandum

J. Britanico 43


NOTE WHEN MEMORANDUM NOT REQUIRED ordinary appeal. b/c what is required is BRIEFS

What happens if the petition is given due course?o The SC may allow the filing of memoranda

Section 8. Due course; elevation of records. — If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice. (2a)

READ: Laguna mets v. Dongdong v. SB

Rule 39 GR No 55076 who may redeem properties When judgment is final + executory vary depending on w/n

appeal was pursued. Execution: process provided by law for the enforcement of a

final judgment. Fruit of litigation. Purpose of execution is to enforce the judgment so that there

can be satisfaction The last part of a civil action is a proclusion of claim and

proclusion of issues res judicata! Section 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 missed 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)

Execution judgment/final order:o Kinds:

As a matter of right (ministerial) Discretionary

Sec 1 pertains to execution as a matter of right. The court has no choice but to execute. There should be a motion made by the party. There should not be any appeal taken.

Judgment final:o Judgment by TC, and no one appealso But in Sec 1 R 39, the situation contemplated is that

which is after the lapse of the reglementary period to file an appeal and no appeal is file and no MR etc, the judgment becomes final and executory by operation of law

BUT you still need to file a MOTION for

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execution Sec 1, 2nd pgrph if appeal duly perfected and finally resolved.

o At what stage is the appeal perfected? Depends on what extent the appeal was taken by the aggrieved party. If the party was happy after the CA and did not file under Rule 45, judgment is already final since the party opted not to file a further appeal under Rule 45

Case may start at the first level court! Can appeal to RTC, can appeal to CA.. it depends on what point in time the appeal is FINALLY RESOLVED. When the appeal is finally resolved by the appellate court (be it CA or SC) it can be subject of a writ of execution

NOTE: the motion for issuance for writ of execution is filed in the court of origin NOT in the appellate court w/c final resolved the appeal

Experience has shown before you can ask for writ of execution, appellate court must send back to the court of origin the records of the case! This is because during appeal, the entire records are transmitted. This is especially true in cases of record on appeal. NOTE: R 45 doesn’t require that all the records be transmitted to the SC. BUT the SC may in its discretion require the transmission of the entire record. Once the judgment is rendered by the CA and it has become final and executory, meaning no appeal taken, CA transmit to court of origin. If SC is the final court, from SC to CA, CA to the court of origin. The SC cannot transmit directly to the court of origin. This transmittal of records caused undue delay.. as such, the PRESENT RULE is:

o You can file on motion (Sec 1 2nd pgrph R 39)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. (n)

The reason it is directed to the court of origin is because there is no sheriff in the SC or CA.

Appellate court may direct the court of origin to issue the writ of execution on the premise that judgment final + executory

Sec 2: Discretionary executiono GR: cannot file execution until judgment final. This

section is an exception to the GRo There is final judgment but not yet executoryo Instances:

Must consider when the motion for execution is FILED, because this motion can be filed in the court of origin, or in the appellate court.

What is important is that there should be “a good reason”

What is good reason?o E.g. Rule 70 Sec 19o Insolvency of judgment debtoro Wastage of assetso Old age and the person is dying

Remember: appeal perfected upon the transmittal of the records to the appellate court

o The rule says “appellate court” because it may vary at what stage you ask for execution. Again, it can be after the CA or after the SC. Note: you can skip the CA and raise pure questions of law and go directly the SC. It depends on the mode of the appeal taken.

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NOTE: there should be a hearing because this is essentially a litigated motion. Are you entitled to execution pending final judgment

Don’t forget Sec 2 paragraph b, in relation to 31 consolidation + severance

Sec 3: Discretionary Executiono Adverse party may prevent by putting up bondo Supersedeas bond required! designed to supersede

the ordero What is a bond?

Filed in court to guarantee satifsfaction Sec 4: Judgments not stayed by appeal

o Without motion, cannot prevent its execution. It must be satisfied! This is the exception to the general rule that appeal stays execution

o Injunctiono Receivershipo Accountingo Supporto Forcible entry/unlawful detainer

12.15.10

When can a writ of execution be quashed?o Based on dormant judgmento Judgment novatedo Writ of execution varies judgmento Change in the situation of the parties making execution

inequitable/unjusto Enforced against property exempt from executiono Controversy never submitted to the judgment of the

courto When the terms of the judgment are not clear enough

and there remains room for interpretationo Improvidently issuedo Defective in substance, issued against the wrong party,

judgment debt paid or satisfied, writ issued w/o authority

o Petition from relief from judgment issued Rule 38o Annulment of Judgment Rule 47

Sec 5: Effect of reversal of executed judgmento Remedies if judgment reversed/annulled wholly or

partially Restitution: bring back to how it was before Reparation: return value plus damages, or

income if any Sec 6: execution by motion or by judgment

o How you execute a judgment w/in the first 5 years from date of entry

Motion within 5 years from date of entry Action for revival of judgment after 5 years but

before statute of limitations (10 years) Reason: protect judgment creditors

from unscrupulous debtors who hide property etc

Limitation: can only enforce what was in the original judgment since it is only a revival

Where to file revival of judgment?o Subject to Rule 4, it depends on the type of action that

you are filingo Enfante v. Aran Builders 531 SCRA 123

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Can you question the merits of the judgment?o As a rule, you cannot attack the judgment but you can

attack it in such a way so that it cannot be executedRule 132 Sec 29 Any judicial record may be impeached by evidence of

a) want of jurisdiction in the court or judicial officer b) collusion between the parties or c) fraud in the part offering the record, in respect to

the proceedingo Jurisdiction can always be questioned!

How many times can you revive a judgment?o First revival: 5 yearso Can revive the one above! But it has to be filed within

the 10 year period in the statute of limitationso After this prescription has set in

Remember that Sec 6 is reckoned from the date of entry (as in Rule 36 which states that the date of finality is deemed the date of entry)

Court will only issue writ of execution onceo If still not executed, you can ask for ALIAS writ of

execution When the reason for non-payment is at behest of debtor, the

period should be suspended. This is because delay is not attributable to the judgment creditor. The delay will not affect the effectivity of the writ of execution.

?? Cire facias??? come to court and show why it should not be issued

Judgment on a compromise is immediately executory, when judgment based thereon is rendered, that is the reckoning date

How do you compute the 5 year period?o Using the civil code. Each year is 365 days. 365 x 5

Sec 7: Execution in case of death of partieso In Rule 3, party must be substituted

This is because once client dies, attorney client relationship ceases to exist. The only thing the attorney can do is inform the court of substitution

o Paragraph a) judgment obligee dies, his executor/administrator/successor in interest can execute the judgment

o Rule 3 Sec 16 Filing a petition for settlement of the estate of

the adverse party This is the only time when a party w/ an

INCHOATE action can enforce the judgment In Special Proceedings, this may only be done by

interested parties. Heirs or creditorso Paligte v. Recos? successors in interest for purposes

of exercising ___ sold on writ of executiono Paragraph b) judgment obligor dies, the first question is,

what kind of action? Action and contractual money claims

Rule 3 Sec 20Section 20. Action and 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

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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)

o do not ask for writ of execution, file a claim against the estate, Rule 86 Sec 5 and Rule 87 Sec 1

if it is an action for recovery of real/personal property, the writ of execution will be enforced against the administrator/executor of the estate

action for enforcement of a lien e.g. foreclosure of mortgage

o Paragraph c) Read w/ Rule 39 Sec 9 b (illustration of levy)

(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 insufficient to answer for the judgment.

If there is already a levy, you can sell the

property on the execution sale. But if there is execution but no levy, beyond the 5 years, you cannot enforce the writ of execution. There must be a writ of execution and levy before the 5 year period

Sec 8:Section 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;

o Because it is the sheriff who executes it, and he is the representative of the state. Since it is a coercive writ, it should be in the name of the Philippines.

(2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and

o So there is a reference to the specific caseo Because this is part that will be enforced. Verbatim to

prevent confusion and abuse on the part of the sheriff.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;* judgment is against the property, must specify to allow for full satisfaction of the judgment

(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;* possible that not in possession of the specific property, may

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be in the possession of someone else

(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;* example Rule 69 partition, if you cannot divide the property, court may order the sale

(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*example Rule 70 forcible entry or unlawful detainer. Also Replevin Rule 60 for the delivery of real or personal property* take note of the order: sell first personal property, if not enough, go to real property

(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)* there should already be a computation on how much should be satisfied. This is to prevent the sheriff from exercising discretion

When may writ of possession be issued?o Extrajudicial foreclosure of REM

o Judicial foreclosure of REMo Ejectment/unlawful detainero Land registration

If they refuse to comply w/ writ of possession, the remedy is NOT contempt. If it is a structure, then you can file for demolition but there must be a hearing. If it is for people you can ask for assistance from the court

Remedy from the denial writ of execution?o Appeal from a denial of writ of execution

Remedy from the grant of the writ of execution? How do you execute a judgment for sum of money?

o Demand payment!o In what manner: cash, certified bank check (sufficient

funds), any other form acceptable (e.g. treasury bonds)o Also pay all the fees.. sheriff’s fees etc, interests,

charges What if the judgment obligee or his authorized representative is

not present to receive payment?o Deliver everything to the executing sheriff. The sheriff

will turn over everything to the CoC. If not, deposit w/ depositary bank of locality. Land Bank, BSP, Veterans, Philippine Postal Bank…

o Check may not be made payable to the sheriff Satisfaction by levy

o When do you levy? When an action is for sum of money and there is deficiency in whole/partial payment, so you levy on the property of the judgment obligor. It may be personal/real property. It may be tangible or non-tangible.

o What properties? Properties of every kind and nature can be levied, that may be disposed of for value. But

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excluding properties exempt from executiono Whats the order of disposition on levy? You can ask the

judgment obligor what his preference ito Remember it must be levied upon for the sale to be

valid Garnishment of Debts and Credit:

o Garnishment of debt: o Garnishment of credits:

Examples of financial interest: dividends due on the stock How do you make the levy?

o Serve notice upon the corporate secretary, who will note in books

Execution of judgment for specific act:o Not the same as specific performance

In Section 10, even if the person ties himself to the house, seek assitance from the court! Not contempt!

10b: go back to court and ask court for special writ of demolition. The person is a builder in bad faith and is not entitled to any compensation. If not, get writ of demolition

10c: example replevin. Take back the car! If there are damages also have to satisfy (E.g. rent for use of vehicle)

11: Execution of special judgment:o e.g. hereby ordered to issue a permit blah blah. If not

obey, cite in contempt 12: writ of levy is important, judgment obligee takes property

subject to all the existing liens existing at the time of levy. If same property subject of sale and subject of REM, the judgment obligee takes the property subject to lien. Important when obligor insolvent b/c then must apply preference of credits

13: MEMORIZE property exempt from execution. exempt b/c of public policy

real prop depends value need notice judg obligor – chance to pay 16 important!!! Subject to execution claimed by 3rd person

not exclusiveo 130 days to bring action to vindicate right

note sec 21: premise that no 3rd party claimant notice of publication of sale on first sale brevi manu 23, not capable of delivery deliver by symbolic

delivery example: machinery attached to an immovable + certificate of

sale 25 NOTE D this is different from mortgage w/c is 12 months,

this is 1 year w/c is 365 dayso this sale is merely provisional b/c purchaser has no right

until there is a cerificate of sale saying he is the winning bidder

o redemption is in the nature of a property right, you can sell it

who may redeem?o Redemptioner creditor having lien by virtue of

attachment subsequent to lien under which property was sold

Recall date of levy important b/c subject to all existing liens

o Successors-in-interest?? 30 proof required of redemptioner. So they don’t allow the

wrong person to redeem. May go into hands of strangers and cannot be recovered

note, right of redemption transferrable but not if for judgment of money

can you redeem piecemeal? Yes!

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Who may use the property during period of redemption? Judgment obligor, even the rights to the rents

After period of redemption expired, purchaser has full title over the property

Revival of judgment 6 v. rule 34o 6: independent, 5 years lapse, judgment creditor

himself or assignee, reason for filing is because of lapse 5 years

o 34: same action, judgment executed, party is not judgment creditor but highest bidder, reason for filing is deprived of property

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Documents

Civil Procedure Rem Law Review (Gesmundo) 2nd Sem 2010-2011