Civil Procedure Midterms

7/24/2019 Civil Procedure Midterms

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Rule 1 General Provisions

1. Civil action one by which a party sues another for the enforcement or protection of a right, or the prevention or

redress of a wrong; may be ordinary or special

Criminal action one by which the state prosecutes a person for an act or omission punishable by law

Special proceeding remedy by which a party seeks to establish a status, a right, or a particular fact

2. Rules of Court shall !" be applicable to the following, exceptby analogy or in a suppletory character, and

whenever practicable and convenient

1. #lection cases;

2. $and registration;

%. Cadastral proceedings;

&. aturali'ation proceedings; and

(. )nsolvency proceedings

Rule 2 Cause of Action

1. Cause of action an act or omission by which a party violates the right of another

2. Re*uisites of +oinder of Causes of ction-

1. "he party oining the causes of action shall comply with the rules on oinder of parties;

2. "he oinder shall !" include special civil action or actions governed by special rules;

%. /here the causes of action are between the same parties but pertain to different venues or urisdiction, the

oinder may be allowed in the R"C provided one of the causes of action falls within the urisdiction of the

R"C and the venue lies therein;

%. /here the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed

shall be the test of urisdiction.

&. 0isoinder of causes of action !" a ground for dismissal; the action may, on motion ormotu proprio, be

severed and proceeded with separately.

Rule 3 Parties to Civil Actions

1. Claims that urvive the eath of a 3arty-

1. ctions to recover real and personal property against the estate;

2. ctions to enforce liens thereon;

%. ctions to recover for inury to persons or property by reason of tort;

&. ctions to recover money arising from contract, e4press or implied.

2. eath of defendant in action on contractual money claims before udgment of R"C !" ground for dismissal.

ction continues until entry of final udgment. ny udgment against estate of deceased will be enforced as money

claim. /rit of preliminary attachment, if any, not dissolved.

%. Re*uisites of 3ermissive +oinder of 3arties-

1. Right to relief arises out of the same transaction or series of transactions, whether ointly, severally, or in

the alternative;

2. "here is a *uestion of law or fact common to all the plaintiffs and defendants;

%. uch oinder is not otherwise proscribed by the provisions of the Rules on urisdiction and venue.

&. Re*uisites of a Class uit-

1. ubect matter of the controversy is one of common or general interest to many persons;

2. 3arties affected are so numerous that it is impracticable to bring them all to the court;


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%. 3arties bringing the class suit are sufficiently numerous or representative of the class and have the legal

capacity to file the action.

(. "ransfer of )nterest

5 ction may be continued by or against the original party, unless the court, on motion, directs the transferee tobe substituted in the action or oined with the original party; however, if transfer is made before commencement of

the action, the transferee must necessarily be the party, since only he is the real party in interest.

Rule 4 Venue Of Actions

* Uniform rule on venue in RTC and MTC

1. 6enue of real actions in the proper court which has urisdiction over the area whereinreal property involved or

a portion thereof is situated.

2. 6enue for forcible entry and detainer actions in the 0"C of the municipality or city wherein the real property

or a portion thereof is situated.

%. 6enue of personal actions where the plaintiff or any of the principal plaintiffs resides, or where the defendant

or any of the principal defendants resides, or in the case of a non7resident defendant where he may be found, at the

election of the plaintiff.

!T"# 8residence9 means place where party actually resides at time of action; does !" mean permanent home

or domicile.

&. ction against non7resident not found in the 3hilippines

1. ction ffects the 3laintiff:s 3ersonal tatus in the court of the place where the plaintiff resides.

2. ction ffects ny 3roperty of the efendant in the 3hilippines where the property or any portion

thereof is situated or found.

(. Rules on 6enue shall !" apply-

1. )n those case where a specific rule or law provides otherwise e.g.$civil case for damages in cases of libel,

where rticle %; !R

2. /here the parties have validly agreed ) /R)")? before the filing of the action on the #@C$A)6#

venue thereof.

5 )n this instance, the action can only be filed in the place agreed upon even if the other place is the place of

residence of the parties or the location of the real property involved.

Rule 5 Uniform Procedure in Trial Courts

1. "he procedure in the 0"Cs shall be the same as that in the R"C.

2. Aniform 3rocedure shall !" be applicable-

1. /here a particular provision e4pressly or impliedly applies only to either of said courts.

2. )n civil cases governed by the Rule on ummary 3rocedure.

%.

Rule 6 inds of Pleadin!s

1. egative %efense specific denial of the material fact or facts alleged in the pleading of the claimant essential to

his cause of action.

2. &ffirmative defense an allegation of a new matter which, while hypothetically admitting the material

allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. )ncludes-

1. Braud

2. tatute of limitations


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%. Release

&. 3ayment

(. )llegality

has no urisdiction to hear and determine a set7off or counterclaim in e4cess of its urisdiction.

counterclaim beyond the court:s urisdiction may only be pleaded by way of defense, the purpose of which is to

defeat or weaken the plaintiff:s claim, but !" to obtain affirmative relief. 0!R#!6#R, the amount of udgment

obtained by the defendant on appealcannot e4ceed the urisdiction of the court in which the action began. ince the

trial court did not ac*uire urisdiction over the counterclaim in e4cess of the urisdictional amount, the appellate

court likewise did not have urisdiction over the same. )n such a case, the award in e4cess of the urisdiction of the

trial court is void.

5 Calo vs. &(ax

counterclaim, even if otherwise compulsory, but amount e4ceeds the urisdiction of the inferior court, will only beconsidered permissive. Fence, fact that it is not set7up in the inferior court will not bar plaintiff from instituting a

separate action to prosecute it.

Rule " Parts of a Pleadin!

1. 1. Bormal Re*uirements of 3leadings-

2. 2. ignature of the lawyer constitutes a certification by him that-

1. Caption

2. "itle

%. Gody divided into headings and paragraphs

&. Gody divided into headings and paragraphs

(. ignature and address


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5hall be treated as an unsigned pleading.

1. (. /hat pleadings have to be verified-

1. 3etition for relief from udgment %D.%>

2. ppeal by certiorari from C to C &(.1>

%. Complaint with prayer for preliminary attachment (. %>&. Complaint for inunction (D.&>

(. Complaint for replevin

1=. 3etition for appointment of general guardian E%.2>

11. 3etition for leave to sell or encumber property of estate or guardian E(.1>

12. 3etition for declaration of competency of the ward E.1>

1%. 3etition for habeas corpus 1=2.%>

1&. 3etition for change of name 1=%.2>

1(. 3etition for voluntary dissolution of a corporation 1=&.1>

1

1. 3etition to take deposition in perpetuam rei memoriam before action or pending appeal> 2&.2>

1D. 0otion to set aside a default order of an inferior court

1E. 0otion for dissolution of preliminary inunction on the ground of irreparable damage to the movant while

the adverse party can be fully compensated

2=. 3etition for appointment of receiver

21. 3etition for review of the decision of an R"C in cases within the e4clusive original urisdiction of the

inferior court, by and elevated to the C.

22. 3leadings that need not be verified but must be under oath-

2%. enial of the genuineness and due e4ecution of an actionable document D.D>

2&. enial of allegations of usury D.11>

2(. nswer to written interrogatories 2(.2>

2

%. 0otion for summary udgment or opposition thereto %(.1,2,%,(>

&. 0otion for new trial on the ground of B0# or opposition thereto %.2>

(. 3etition for relief from udgment %D.%>


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%. )f he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same

within ( days therefrom to the court where he filed his complaint.

!T"# B)$AR# "! C!03$H !" CARG$# GH 0#R# 0#0#" !B "F# C!03$)" !R

3$#)? GA" F$$ G# CA# B!R )0)$ !B "F# C# /)"F!A" 3R#+A)C#; )B "F# C"

!B 3R"H !R C!A#$ C$#R$H C!")"A"# /)$$BA$ I #$)G#R"# B!RA0 F!33)?,

?R!A B!R A00RH )0)$ /)"F 3R#+A)C# C!")"A"# )R#C" C!"#03".

5 Bor Borum7hopping to e4ist, there must be-

1. ame transactions involved;

1. ame essential facts and circumstances; and

2. ctions raise identical cause of action, subect matter, and issues#

%.

Rule $ %anner of %a&in! Alle!ations in Pleadin!s

1. llegations of capacity

1. Capacity of party to sue or be sued or the authority of a party to sue or be sued in a representative capacity

or the legal e4istence of an organi'ed association that is made a party must be averred;

2. "o raise an issue as to the legal e4istence of a party or the capacity of a party in a representative capacity,

do so by specific denial, including such supporting particulars as are peculiarly within the pleader:s

knowledge.

2. ction or defense based on document

1. ubstance of such document set forth in the pleading;

2. !riginal or copy attached to the pleading as e4hibit and deemed to be part of the pleading; !R%. Copy may be set forth in the pleading with like effect.

1. %. Fow to contest actionable document- ?enuineness and due e4ecution of instrument deemed admitted

unless adverse party-

1. pecifically denies them under oath;

2. ets forth what he claims to be the facts.

5 Re*uirement of an oath does !" apply-

1. /hen diverse party does not appear to be a party to the instrument; or

2. /hen compliance with an order for an inspection of the original instrument is refused.

5 dmission of genuineness and due e4ecution-

1. 3arty whose signature appears admits that he signed it, or that it was signed by another with his authority

2. /as in words and figures as set out at the time it was signed

%. ocument was delivered

&. ny formal re*uisites re*uired by law which it lacks are waived by him

5 "he following defenses are cut7off by admission of genuineness and due e4ecution of the document-

1. ignature is a forgery

2. ignature is unauthori'ed

%. Corporation is not authori'ed under its charter to sign the instrument

1. 3arty charged signed the instrument in some other capacity than that alleged in the pleading

setting it out

2. ocument was never delivered.

%. &. pecific enial

1. efendant must specify each material allegation of fact the truth of which he does not admit;


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2. efendant must set forth the substance of the matters upon which he relies to support his denial, whenever

practicable;

%. )f denying only part of an averment, he shall specify so much of it as is true and material and shall deny the

remainder;

&. )f defendant does not have knowledge or information sufficient to form a belief as to the truth of a material

averment, he shall so state and this has effect of denial.

5egative pregnant a denial which at the same time involves an admission of the substantial facts in the pleading

responded to.

(. llegations not specifically denied, other than those as to amount of unli*uidated damages deemed admitted.

Rule ' (ffect of )ailure to Plead

1. ?eneral Rule- efenses and obections not pleaded in answer or motion to dismiss are deemed waived !mnibus

0otion Rule>.

"xception#Court shall dismiss the claim, even without allegation in answer or motion to dismiss, if any of the

following appear from the pleadings or the evidence on record-

1. $ack of urisdiction over the subect matter;

2. itis pendentiabetween same parties for the same cause;

%. Res (udicata

&. ction barred by statute of limitations.

1. 2. eclaration of efault

1. efendant entitled to notice of motion to declare him in default and of order of default;

2. 0otion to set aside order of default may be filed after notice and before udgment;

%. 3arty may make motion, under oath, to set aside order of default upon proper showing that failure to

answer was due to B0#;

&. #ffect of order of default party in default entitled to notice of subse*uent proceedings but not to take part

in trial;

(. 3artial default if several defending parties and not all in default, the court shall try the case against all

upon the answers thus filed and evidence presented;


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Amended +u,,lemental

Refers to facts e4isting at the time of the

commencement of the action

Refers to facts arising after the filing of the

original pleading

Results in the withdrawal of the original pleading

0erely an addition, and does !" result in the

withdrawal of, the original pleading

Can sometimes be made as a matter of right lways filed with leave of court

Rule 11 -.en to )ile Res,onsive Pleadin!s

1. 1. nswer to complaint 1( days from service, unless different period fi4ed by the courts;

2. 2. nswer of defendant foreign private uridical entity when service of summons is made on the

government official designated by law, answer to be filed within %= days from receipt of summons by such

entity.

%. %. nswer to amended complaint if amended as a matter of right, 1( days from being served with copy

thereof

5 )f amended not as a matter of right, 1= days from notice of order admitting the same

5 nswer earlier filed may be answer to amended complaint, if no new answer is filed

5 pplicable to amended counterclaim, cross, third, etc,

1. &. nswer to counterclaim or cross7claim within 1= days from service.

2. (. nswer to %rdparty complaint 1( days from service

%.

2. ervice by mail ordinary if no registered mail>

%. ubstituted service delivering copy to clerk of court with proof of failure of 1st2 modes>

5"xceptwith respect to papers emanating from the court, a resort to other modes must be accompanied by a written

e4planation why the service or filing was not done personally.

5 6iolation of rule may be cause to consider the paper as not filed.

1. 2. Jinds of service of final orders-

1. 3ersonal

2. Registered mail

%. 3ublication if summons by publication>

%. 3roof of personal service


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1. /ritten admission of party served;

2. !fficial return of the server; or

%. ffidavit of party serving, containing a full statement of the date, place and manner of service.

Rule 14 +ummons

1. 1. Contents of summons

2. 2. Jinds of service of summons-

%. Fanding a copy to the defendant in person; !R

1. )f he refuses to receive and sign for it, by tendering it to him

2. ubstituted-

1. $eave copies at his residence, with person of suitable age and discretion residing therein;

!R

2. $eave copies at defendant:s officeKregular place of business, with competent person in

charge thereof.

%. %. Gy whom served-

&. &. /hen e4traterritorial service allowed-

(. (. Jinds of e4tra territorial service


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1. 3ublished for the dissemination of local news and general information

2. Fas a bona fide subscription list of subscribers

%. 3ublished at regular intervals

&. ot published for nor devoted to the interest of a particular group of persons

(. 0ust have been regularly published for at least 2 years before the date of the publication in *uestion.

5 0ere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for

the purpose of sumons. )t should be noted that when the appearance of the defendant is precisely to obect to the

urisdiction of the court over his person, it cannot be considered as an appearance in court.

Rule 15 %otions

1. 1. ll motions must be in writing except-

2. 2. "xceptionsto the three7day notice rule-

1. "hose made in open court; !R

2. "hose made in the course of a hearing or trial.

1. "x parte motion

2. Argent motion

%. /hen court sets hearing on shorter notice for good cause

&. 0otion for summary udgment must be served at least 1= days before the hearing>

5 prudent udge would, in the absence of the opposing party in the hearing of a motion, in*uire from the

other party or in*uire from the records the proof of the service of notice rather than proceed with the hearing. Fe

should not rely on a party:s undertaking to notify the adverse party of a scheduled hearing. "he udge must demand

what the rule re*uires, i.e., proof of such notice on the adverse party. !therwise, a contentious motion should be

considered a mere scrap of paper which should not have even been received for filing.

5 ubse*uent service of the motion on the adverse party may be considered substantial compliance with the Rule 1(,

L

&. )dentity of the parties

. 3leading asserting claim states no cause of action;

D. Claim or demand in the plaintiff:s pleading has been paid, waived, abandoned, e4tinguished;

E. Claim on which action is founded is unenforceable under the statute of frauds;


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1=. Condition precedent for filing has not been complied with this includes prior recourse to barangay

conciliation, or failure to make attempts to reach a compromise in cases between members of the same

family>

5 "he court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.

%. ctions that court may take on a 0otion to ismiss-

1. ?rant it remedy- appeal

2. eny !" appealable; but may avail of certiorari, prohibition and mandamus

%. !rder amendment of the pleading

&. )f denied, defendant must file answer within the balance of the 1(7day period, but not less than ( days from the

time he received notice of the denial;

(. ubect to the right to appeal, dismissal based on the following grounds will be bar to refiling-

1. a. Res (udicata

2. #4tinguishment of claim or demand

%. 3rescription

&. Anenforceability under the tatute of Brauds


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RU" ! S""R&C" !/ C!M-US!R0 CC# ismissal of principal action upon plaintiff:s motion or due to

plaintiff:s fault does not necessarily carry with it the dismissal of the compulsory CC; defendant is also given option

to prosecute the same in same or separate action.

1. %. ismissal of counterclaim, cross7claim, or %rd7party complaint must be made by claimant before a

responsive pleading or a motion for summary udgment is served, or if there is none, before the introduction

of evidence.

Rule 1$ PreTrial

1. /hat to consider in pre7trial with notice to counsel or party without counsel>

1. 3ossibility of amicable settlement or arbitration

2. implification of the issues

%. mendments to the pleadings

&. tipulations or admissions of facts and documents

(. $imitation of number of witnesses


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Rule 21 +u,oena

1. 1. ubpoena issued by-

1. "he court before whom witness is re*uired to attend;

2. "he court of the place where the deposition is to be taken;

%. "he officer or body authori'ed by law to do so in connection with its investigations;

&. ny +ustice of the C or C in any case or investigation pending within the 3hils

2. o prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any penal

institution shall be brought outside said institution for appearance or attendance in any court unless authori'ed by the

C.

1. %. ?rounds for *uashing subpoena duces tecum

2. &. ?round for *uashing subpoena ad testificandum

1. )t is unreasonable or oppressive

2. "he articles sought to be produced do not appear to be relevant%. 3erson asking for subpoena does not advance cost of production

1. "he witness is not bound thereby if witness resides more than 1== km from the place where he is to travel

by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court

in which his case is pending

5 "his is known as the 8viatory right9 of the witness;!T", however, that the right is available only in C)6)$ cases

2. /itness fees and kilometrage allowed by rules not tendered when subpoena served.

1. (. ervice of subpoena made in the same manner as personal or substituted service of summons.

2.


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e,ositions Affidavits

/ritten testimony of witness in course of udicial

proceedings, in advance of trial and hearing 0ere sworn written statements

!pportunity for cross7e4amination o cross7e4amination

Can be competent testimonial evidence $ittle probative value hearsay>

1. (. Ase of depositions

5 ny part or all of a deposition which is admissible in evidence may be used against any party who was present or

represented during the taking of the deposition or who had notice thereof as follows-

Deposition of

May be used

byPur,ose

witness ny party

"o contradict or impeach the deponent:s

testimony as a witness

ny party, or anyone who at

the time of taking the

deposition was an officer,

director, or managing agent of a

public or private corporation n adverse party Bor any purpose

!f any witness, whether a party

or not ny party

Bor any purpose, )B court finds that-

1. /itness is dead;

2. b. /itness resides at a distance

more than 1== km from place of

trial, A$# absence procured by

party offering the deposition

%. c. /itness is unable to testify

because of age, sickness, infirmity,

or imprisonment;

&. d. 3arty offering the deposition

has been unable to procure the

attendance of the witness by

subpoena; !R

(. e. !ther e4ceptional

circumstances make it desirable to

allow deposition to be used.

5 eponent is made the witness of the party offering the deposition.

5 )f only part of the deposition is introduced, adverse party may re*uire that all of it which is relevant to the part

introduced be introduced.


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a. /ithin the 3hilippines

1. +udge

2. otary public

%. ny person authori'ed to administer oaths if the parties so stipulate in writing

b. )n foreign countries

1. !n notice, before a secretary of any embassy or legation, consul7general, consul, vice7consul, consular

agent of the 3hils

1. Gefore such person or officer as may be appointed by commission or under letters7rogatories

2. ny person authori'ed to administer oaths if the parties so stipulate.

Commission addressed to any authority in a foreign country authori'ed therein to take down depositions; the

taking of such depositions is subect to the rules laid down by the court issuing the commission

etters Rogatory addressed to udicial authority in the foreign country; the taking of the depositions is subect to

the rules laid down by such foreign udicial authority.

. 3ersons dis*ualified to take depositions

1. Relative within


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(. s to form of written interrogatories waived unless served in writing upon party propounding them

within the time allowed for serving succeeding cross or other interrogatories and within % days after the

service of the last interrogatories authori'ed.


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1. 2. )mplied admission

#ach of the matter re*uested to be admitted shall be deemed admitted within a period designated in the re*uest,

which shall not be less than 1( days after service thereof or within such further time as the court may allow on

motion, A$#, party re*uested serves upon the party re*uesting a sworn statement either specifically denying or

setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

1. %. #ffect of admission

dmission is only for the purpose of the pending action and shall !" constitute an admission for any other person

nor may it be used against him in any other proceeding.

1. &. party who fails to file and serve a re*uest for admission on the adverse party of material facts within

the personal knowledge of the latter shall not be permitted to present evidence thereon,

Rule 2" Production or ns,ection of ocuments or T.in!s

1. ny party may move for the court in which the action is pending to order any party to-

1. 3roduce and permit the inspection and copying or photographing of any designated documents,

papers, books, accounts, letters, photographs, obects or tangible things, not privileged, which-

1. Constitute or contain evidence material to any matter involved in the action

2. re in his possession, custody or control.

%. 3ermit entry upon designated land or other property in his possession or control for the

purpose of inspecting, measuring, surveying, or photographing the property or any designated

relevant obect or operation thereon.

2. "he order-

1. hall specify the time, place and manner of making the inspection and taking copies

2. 0ay prescribe such terms and conditions which are ust.

Rule 2$ P.sical and %ental (7amination of Persons

1. )f the mental or physical condition of a party is in controversy, the court may order him to submit to a

physical or mental e4amination by a physician.

2. "he party e4amined waives any privilege he may have in that action regarding the testimony of the person

who has e4amined or may e4amine him with respect to that same mental or physical e4amination by-

1. Re*uesting and obtaining a report of the e4amination so ordered !R

2. "aking the deposition of the e4aminer.

Rule 2' Refusal to Com,l 8it. t.e %odes of iscover

1. )f a partyKdeponent refused to answer-

1. "he e4amination may be completed on other matters

2. "he e4amination may be adourned

%. "he proponent may apply to the court for order to compel answer

5 "he court may then order-

1. "he refusing party or his counsel to pay the e4penses incurred in obtaining the order, including the

attorney:s fees if it finds the refusal to answer without substantial ustification>

2. "he proponent or his counsel to pay the e4penses incurred in opposing the application, including attorney:s

fees if it finds the application to be without substantial ustification>


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2. )f a partyKwitness refuses to be sworn or to answer after being directed to do so by the court, the refusal may be

considered contempt of that court.

1. )f a partyKofficer or managing agent of a party refuses to obey an order re*uiring him-

a. "o answer designated *uestions

b. "o produce a thing for inspection or to permit entry upon property

1. "o submit to a physical or mental e4amination

5 the court may order-

1. "hat the matters regarding which the *uestions were asked, or the character of the land or the thing, or the

physical and mental condition of the party be taken to be established.

2. "he disallowance of the disobedient party:s claims%. "he prohibition of the disobedient party to present evidence

&. "he striking out of the pleadings or parts thereof

(. "he dismissal of the action or parts thereof


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admission of e4hibits, which obections shall be resolved by the court upon submission of his report and the

transcripts within 1= days from the termination of the hearing.

Rule 31 Consolidation or +everance

1. 1. C!!$)")! the court may order a oint hearing or trial of any or all matters in issue when

actions involving a common *uestion of law or fact are pending before the court.

2. 2. GA" the court may order a separate trial of any claim, cross7claim, counterclaim, or third7party

complaint, in furtherance of convenience or in the interest of ustice.

Rule 32 Trial Commissioner

"rial by commissioner-

1. 1. Reference by consent of both parties

2. 2. Reference by motion of one of the parties or motu proprio-

1. "rial re*uires e4amination of a long account of either side

2. "aking of an account is necessary for the information of the court before udgment or for carrying audgment order into effect

%. Muestion of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case.

Rule 33 emurrer to (vidence

emurrer to evidence is made by the defendant after the plaintiff has completed the presentation of his evidence

where the defendant moves for dismissal on the ground that upon the facts and the law the plaintiff has shown no

right to relief.

1. 1. )f motion denied defendant has the right to present evidence

2. )f motion granted, but reversed on appeal defendant deemed to have waived the right to present evidence.

Rule 34 ud!ment on t.e Pleadin!s

1. +udgment on the 3leadings is proper-

1. )f answer fails to tender an issue; or

2. )f answer otherwise admits the material allegations of the adverse party:s pleading

5 "hen court may, on motion of that party, direct udgment on the pleadings

2. Fowever, the material facts alleged in the complaint shall always be proved in actions for-

1. eclaration of nullity of marriage

2. nnulment of marriage

%. $egal separation

Rule 35 +ummar ud!ments

ummary udgment-

1. 1. 3roper if no genuine issue as to any material fact exceptas to damages recoverable> and if moving

party is entitled to a udgment as a matter of law

2. 2. Gased not only on pleadings but also on affidavits, deposition, and admissions of the parties showing

that, exceptas to the amount of damages, there is no genuine issue.

%. %. 0otion shall be served at least 1= days before the time specified for the hearing.

1. &. 0ay be asked for by a party seeking to recover upon a claim, counterclaim, cross7claim or to

obtain a declaratory relief.


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(. lthough Rule does not specifically provide, also unavailable in actions for annulment of and declaration of

nullity of marriage, and for legal separation since ec. 1 refers to actions 8to recover upon a claim9, or to recover a

debt or a li*uidated demand for money, or 8to obtain declaratory relief.9


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&. 0otion for new trial shall be in writing, and supported by affidavits of merit if the ground is B0#; for newly7

discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is e4pected to be given,

or by duly authenticated documents to be introduced.

0otion for reconsideration shall specifically point out the findings or conclusions of the udgment which are

unsupported by evidence or contrary to law, with e4press reference to the testimonial or documentary evidence or

the provisions of law alleged to be contrary to such findings.

(. -ro formamotion for new trial or reconsideration shall not toll the period for appeal.


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files notice of appeal- +une (

/hen does trial court lose urisdictionN +une 1D

GA", if 3 also files a notice of appeal on +une 1=, trial court loses urisdiction on that date.

5 #4ecution with respect to appealed cases7 there is no need to await remand of the records.

5 #4ecution with respect to conse*uential and e4emplary damages should be postponed until such time as the merits

of the case have been finally determined in the regular appeal, as the amounts remain uncertain and indefinite

pending resolution.

%. a. 0otion for e4ecution of final and e4ecutory udgment should be served on adverse party and set for hearing;

b. )n case of appeal, motion is filed with court of origin supported by certified true copies of final udgment of

appellate court.

%. ppellate court may on motion order court of origin to issue writ of e4ecution C Circular o. 2&7E&,

&K1DKE&>

&. +udgments !" stayed by appeal immediately e4ecutory, unless court provides otherwise>

1. ctions for inunction

2. Receivership

%. ccounting

&. upport

(. +udgments declared immediately e4ecutory

(. final and e4ecutory udgment may be e4ecuted on motion within ( years from entry. 0ay be revived and

enforced by action after lapse of ( years but before 1= years from entry. Revived udgment may be enforced by

motion within ( years from entry and thereafter by action before barred by statute of limitations file motion within

1= years from the finality of the revived udgment.


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2. )f against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees,

tenants, or trustees of the udgment obligor out of that property, with interest

%. )f for sale of real or personal property to sell property, describing it and apply the proceeds in conformity

with udgment.

&. )f for delivery of possession of property deliver possession of the same to the party entitled to it,

describing it, and to satisfy any costs, damages, rents, or profits covered by the udgment out of the personal

property of the person against whom it was rendered, and out of real property if sufficient personal property

cannot be found.

(. )n all cases, writ of e4ecution shall specifically state the amount of the interest, costs, damages, rents, or

profits due as of date of issuance of writ, aside from principal obligation.

5 +udgment obligor is given option to choose which property may be levied on sufficient to satisfy the udgment.

E. 3roperty e4empt from e4ecution

1. Bamily home as provided by law, homestead in which he resides, and land necessarily used in connection

therewith;

2. "ools and implements used in trade, employment, or livelihood;

%. % horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;

&. ecessary clothing and articles for ordinary personal use, e4cluding ewelry;

(. Fousehold furniture and utensils necessary for housekeeping not e4ceeding 3%,===;

.


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12. +udgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold

by paying the purchaser the amount of his purchase, with 1O per month interest plus any assessments or ta4es which

he may have paid thereon after purchase with interest on said amount at 1O per month.

Redemptioners have one year to redeem from the date of registration of the certificate of sale. "hey may also

redeem beyond one7year period within


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1D. 3#C)$ +A?0#" re*uires the performance of any other act than the payment of money or the sale or

delivery of real or personal property.

1E. Remedies against e4ecutory udgments or orders-

1. 3etition for relief

2. irect attack

%. Collateral attack udgment is null on its face or court had no urisdiction

2=. /hen court may order e4ecution even before an e4ecutory udgment and pending an appeal

1. a. $apse of time would make the ultimate udgment ineffective;

2. b. ppeal is clearly dilatory;

%. c. +udgment is for support and the beneficiary is in need thereof;

&. d. rticles subect of the case are perishable;

(. e. efendants are e4hausting their income and have no other property aside from the proceeds from

the subdivision of lots subect of the action;

was posted by them;

. g. +udgment debtor is in imminent danger of insolvency;

D. h. 3revailing party is of advanced age and in a precarious state of health and the right in the

udgment is non7transmissible being for support;

E. i. 3revailing party posts sufficient bond to answer for damages in case of reversal of udgment

5 Gut in most cases, the mere filing of a bond is not sufficient ustification for discretionary e4ecution.

21. !rder granting writ of e4ecution !$H appealable when-

1. !rder varies terms of the udgment

2. /hen vague and court renders what is believed to be wrong interpretation.

22. 3arnishment act of appropriation by the sheriff if the property involved is money, stocks, or other incorporeal

property in the hands of third persons; merely sets apart such funds but does not constitute the creditor the owner of

the garnished property.

2%. 3ersons dis*ualified from participating in the e4ecution sale-

1. !fficer conducting the e4ecution sale or his deputy;

2. ?uardian with respect to the property under his guardianship;

%. gents, the property entrusted to them, unless with principal:s consent;

&. #4ecutors and administrators, the property of the estate under administration;

(. 3ublic officers and employees, the property of the tate or any subdivision thereof, or any ?!CC, the

administration of which has been entrusted to them;

.

Rule 4* A,,eal from %TC to RTC

1. ppeal from udgment or final order of 0"C taken to R"C e4ercising urisdiction over the area to which

0"C pertains. Bile notice of appeal with the 0"C which rendered decision appealed from within 1( days

after notice of such udgment.


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2. Record on appeal is filed within %= days and re*uired only for special proceedings

%. ppellate docket fees paid to clerk of court of 0"C payment not a condition precedent for perfection of

appeal but must nonetheless be paid within the period for taking appeal;

&. 3rocedure for appeal from cases dismissed without trial for lack of urisdiction-

1. )f affirmed because the 0"C has no urisdiction, R"C will try case on the merits as if it has original

urisdiction;

2. )f reversed, the case shall be remanded to the 0"C;

%. )f the first level court tried the case on the merits without urisdiction, the R"C should not dismiss the case

but shall decide it in the e4ercise of original urisdiction.

Documents

Civil Procedure Midterms