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CIVIL PROCEDURE

PART I

General principles

Concept of Remedial Law

1. Remedial law is that branch of law which prescribes the method of enforcing the rights or

obtaining redress for their invasions (Bustos vs. Lucero, 81 Phil. 640).

2. Remedial law refers to legislation, providing means or methods whereby causes of action

may be effectuated, wrongs redressed, and reliefs obtained (Schmidt vs. Jenkins Truck Lines,Inc., 260 Iowa 556, 149 N.W. 2d 789). These statutes pertain to or affect a remedy as

distinguished from those which affect or modify a substantive right or duty ( B l a c k s L a w

Dictionary, 5thEd., p. 1162-1163).

3. Remedial law provides for the mechanics of due process which are: (a) a court or tribunal

clothed with judicial power to hear and determine the matter before it; (b) jurisdiction must

be lawfully acquired over the person of the defendant or over the property which is the

subject of the proceeding; (c) the defendant must be given an opportunity to be heard; and

(d) judgment must be rendered upon lawful hearing (Consolidated Bank and Trust Corp. vs.

CA, 193 SCRA 158).

Substantive law as distinguished from remedial law

1. Substantive law is that part of the law which creates, defines or regulates rights concerning

life, liberty or property or the powers of agencies or instrumentalities for the administrationof public affairs. Remedial law refers to the legislation providing means or methods

whereby causes of action may be effectuated, wrongs redressed and relief obtained.

2. Substantive law makes vested rights possible. Remedial law has no vested rights.

3. Substantive law is prospective in application. Remedial law governs acts and transactions

which took place (retroactive).

4.

Substantive law cannot be enacted by the Supreme Court. In remedial law, the Supreme

Court is expressly empowered to promulgate procedural rules.

Rule-making power of the Supreme Court

Limitations on the rule-making power of the Supreme Court


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judicial precedents on points of remedial law through the amendment of the Rules of Court

(Pinga vs. Heirs of Santiago, G.R. No. 170354, June 30, 2006).

3.

The courts have the power to relax or suspend technical or procedural rules or to except acase from their operation when compelling reasons so warrant or when the purpose of

justice requires it. What constitutes good and sufficient cause that would merit suspension

of the rules is discretionary upon the courts (CIR vs. Migrant Pangbilao Corp., G.R. No.

159593, October 12, 2006).

4. There are indeed, reason, which would warrant the suspension of the rules: (a)the existence

of special or compelling reasons; (b) the merits of the case; (c) a cause not entirely

attributable to the fault or negligence of the party favored by the suspension of the rules; (d)a lack of any showing that the review sought is merely frivolous and dilatory; and (e) the

other party will not be unjustly prejudiced thereby (Sarmiento vs. Zaratan, G.R. No. 167471,

February 5, 2007).

Nature of Philippine courts

Meaning of a court

1. Courts are judicial tribunals in the administration or dispensation of justice. They exist in

every civilized country to resolve and end disputes in accordance with the law peacefully,

orderly, authoritatively, definitely, and finally (The Courts and the Criminal Justice System by

Chief Justice Narvasa).

2. A court is a body in the government to which the public administration of justice is

delegated.

Court as distinguished from a judge

1. Courts may exist without a judge. There may be a judge without a court. Jurisdiction is

vested in the court and not in the judge (Bacalso vs. Ramolete, 21 SCRA 519).

Classification of Philippine courts

1.

Constitutional courts are hose created by the Constitution itself, e.g., the Supreme Court(Art. VIII, 1987 Constitution). The Sandiganbayan is a constitutionally-mandated court. Its

creation was mandated by Art. XIII, Section 5 of the 1973 Constitution.

2. Statutory courts are those created by the legislature. The Court of Appeals, the Regional

Trial Courts the Metropolitan Trial Courts and the Municipal Courts were created by B P


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8. Courts of general jurisdiction are courts which take cognizance of all cases, civil or criminal,

except those assigned to special courts and courts of limited jurisdiction.

9.

Courts of record are those whose proceedings are enrolled and which are bound to keep awritten record of all trial and proceedings handled by them.

10. Land registration courts are those which have jurisdiction over registration of real

properties under the Torrens system (P.D. 1529).

11. Tribal courts are those existing under the customs and traditions of an indigenous cultural

community are not part of the Philippine judicial system (Sec. 1, Art. VIII of the 1987Constitution). They do not possess judicial power. Like the pangkat or conciliation panels

created by P.D. 1508 in the barangay, they are advisory and conciliatory bodies. Decisions of

a tribunal based on a compromise may be enforced or set aside, in and through the regular

courts only (Sps. Badua vs. Cordillera Bodong Administration, G. R. No. 92649, Feb. 14, 1991).

12. Family courts are courts created by R.A. 8639 vested with exclusive original jurisdiction

over child and family cases.

13. Military court or military commission or court martial is not a court of law and does not

form part of the judicial system and process. They are agencies of executive character. Their

decisions are not appealable to the courts but would pass the reviewing and conferring

authority, but the Supreme Court may exercise its supervision or correcting power over

court-martial proceedings when jurisdictional errors are involved or when there is grave

abuse of discretion.

A military commission or tribunal cannot try and exercise jurisdiction over civilians

for offenses allegedly committed by them as long as the civil courts are open and

functioning (Olaguer vs. Military Commission, 150 SCRA 144). Any judgment rendered by

such body relating to a civilian is null and void for lack of jurisdiction on the part of the

military tribunal concerned.

Courts of original and appellate jurisdiction

1. Original jurisdiction is the power of the court to take judicial cognizance of a case institution

for judicial action for the first time under conditions provided by law.

2. Appellate jurisdiction is the authority of a court higher in rank to re-examine the final order

of judgment of a lower court which tried the case now elevated for judicial review.


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1. Constitutional courts are created by the Constitution while statutory courts are created by

law.

2.

Constitutional courts cannot be abolished by Congress without amending the Constitutionwhile statutory courts may be abolished by Congress by just simply repealing the law which

created those courts.

Courts of law and equity

1. A court of law decides a case according to what the promulgated law is while a court of

equity adjudicates a controversy according the common precepts of what is right and just

without inquiring into the terms of the statutes.

2. In the Philippines, every court, both original and appellate exercises both the legal and

equitable jurisdictions (U.S. vs. Tamparong, 31 Phil. 321).

Principle of judicial hierarchy

1. This principle means that a higher court will not entertain direct resort to it unless the

redress desired cannot be obtained in the appropriate courts.

2. While it is true that the SC, CA, and the RTC have concurrent original jurisdiction to issue

writs of certiorari, prohibition and mandamus, such concurrence does not accord litigants

unrestrained freedom of choice of the court to which the application for the writ may be

directed. The application should filed with the court of lower level unless the importance of

the issue involved deserves the action of the court of higher level.

Doctrine of non-interference or doctrine of judicial stability

1. No court has authority to interfere by injunction with the judgment of another court of co-

ordinate jurisdiction (Ngo Bun Tiong vs. Judge Sayo, 163 SCRA 237). The various branches of

the RTC of a province or city, having as they do the same or equal authority and exercising

as they do concurrent and coordinate jurisdiction, should not, cannot, and are not permitted

to interfere with their respective cases, much less with their orders or judgments by means

of injunction (PNB vs. Pineda, 197 SCRA 1).

2. The doctrine of non-interference is an elementary principle of higher importance in the

administration of justice that the judgment of a court of competent jurisdiction may not be

opened, modified, or vacated by any court of concurrent jurisdiction.

3. No Regional Trial Court can pass upon and scrutinize, and much less declare as unjust a


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the parties or by acquiescence of the courts. It cannot be conferred by the rightness of the

decision made or by the regularity of its exercise. Why? Because it is conferred only by law.

Hence, whether or not the court has jurisdiction over the subject matter of an action

instituted before it is dependent upon the laws on jurisdiction.

3. Payment of filing/docket fees The rule as it stands now, requires the payment of the

requisite fees when a complaint is filed. It is not simply the filing of the complaint that vests

the court with jurisdiction over the action filed (even if by law, it has jurisdiction) but also

by the payment of the prescribed docket fee. The Supreme Court in several cases, has held

that a court acquires jurisdiction over the case ONLY upon the payment of the said fees

(Manchester Development Corporation vs. Court of Appeals, G.R. No. 75919, May 7, 1987; Nestle

Philippines, Inc. vs. FY Sons, Inc., G.R. No. 150789, May 5, 2006). This strict rule, as enunciated

in Manchester was prompted by the peculiar circumstances of the case. Here, the Court

noted a frau du lent scheme to a oid pay ment of the docket fee b the plaintiffs deliberate

omission of the amount of damages sought in the prayer although alleged in the body of the

complaint.

This ruling was relaxed in Sun Insurance vs. Court of Appeals ( 149 SCRA 562), when

the Court made a liberal interpretation of the rule by allowing a late payment of the docketfee as long as it shou ld not be made bey ond the actions prescripti e period. It also declared

in the same case that any unpaid fees should be considered a lien on the judgment. In this

case, there is no evidence that the plaintiff tried to evade the payment of the docket fees.

It should be noted that the pronouncements of the Court on the matter of docket fees

have always been influenced by the peculiar legal and equitable circumstances surrounding

each case. The rule is not as simple, as rigid or as uncomplicated as the Manchester casemakes it appear. There are other circumstances equally important. While the timely

payment of docket fees is jurisdictional, considerations of equity also come into the picture

(Yuchengco vs. Republic, 333 SCRA 368).

4. Objections to jurisdiction over the person of the defendant may be made initially either in a

motion to dismiss or in the answer as an affirmative defense. However, objections to

jurisdiction over the subject matter may, as a rule, be made at any stage of the proceedings,

even for the first time on appeal as long as estoppel by laches does not set in (Calimlim vs.Ramirez, 118 SCRA 399; Francel Realty vs. Sycip, 469 SCRA 430). Being estopped to question

jurisdiction is the exception rather than the rule.

5. While jurisdiction over the subject matter is CONFERRED by law, it is DETERMINED by

the allegations of the complaint (Deltaventures Resources Inc vs Cabato 327 SCRA 521)


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Example: Mr. P filed an action for collection of a sum of money, thus: P350,000, the

amo nt of the note; litigation costs of P6,000; attorney s fees of P50,000; damages of P5,000.

In what court shall the action be filed assuming the parties are residents of Manila?

The case should be filed in the MeTC of Manila even if the total claim is P411,000.

The amount to be considered for jurisdictional purposes is only P350,000.

Follow the jurisdictional amounts above even if the case is an admiralty or a maritime

case. In matters of probate, the same jurisdictional amounts apply but the basis is the gross

value of the estate whether in personal or real property. Because of the amendments

introduced to B.P. 129 by R.A. 7691, the MTC may now handle probate cases even if a

probate case is a special proceeding (Sec. 19(4), B.P. 129 as amended by R.A. 7691). It is notcorrect to state that an MTC has no jurisdiction over a special proceeding.

7. Unlawful detainer and forcible entry cases are to be filed with the MTC which has exclusive

original jurisdiction over said cases regardless of the amount of rentals or damages prayed

for (even if the rentals or damages run into millions) (Sec. 34(2), BP 129 as amended by R.A.

7691). This is an instance where the MTC can take cognizance of a special civil action.

Forcible entry and unlawful detainer are treated in Rule 70 as special civil actions (Sec. 33(2),B.P. 129 as amended by R.A. 7691).

Under the same provision of the law, when the defendant raises the issue of

ownership in his pleadings in an unlawful detainer or forcible entry case, the MTC still has

jurisdiction over the case. The MTC may still resolve the issue of ownership but only for the

purpose of resolving the issue of possession. The court shall do so if the question of

ownership cannot be resolved without deciding the issue of ownership (Sec. 33(2), BP 129 as

amended by R.A. 7691).

8. May an MTC now take cognizance over real actions or actions involving title to, or

possession of real property or of any interest therein? YES.

Under R.A. 7691, the answer is in the affirmative depending upon the assessed value

of the land involved in the litigation. If the assessed value of the land or interest therein does

not exceed P20,000 outside Metro Manila or does not exceed P50,000 within Metro Manila,the MTC has original jurisdiction over the case (Sec. 33(3), B.P. 129 as amended by R.A.

7691). Thus, an MTC can now have jurisdiction over cases involving ownership of land.

Under the former law, these cases were under the jurisdiction of the RTC. Hence, an action

for reconveyance of real property, removal of a cloud in a title of real property, cancellation

of title to real property and similar actions shall fall within the jurisdiction of the MTC or the


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Note: Jurisdiction over the person of the defendant is relevant only in an action in

personam. In an action in rem or quasi in rem, what is needed is jurisdiction over the res(the

thing or the status).

Jurisdiction over the defendant is acquired by (a) a valid service of summons or (b)

by his voluntary appearance or submission to the jurisdiction of the court.

T h e d e f e n d a n t s v o l u n t a r y a p p e a r a n c e i n t h e a c t i o n s h a l l b e e q u i v a l e n t t o s e r v i c e o f

s u m m o n s ( S e c . 20, R u l e 1 4, R u l e s o f C o u r t ) .

Lack of ju risdiction ov er ones person may be inv oked in a motion to dismiss

alleging such ground. If no motion to dismiss is filed, it may be raised as an affirmativedefense in the answer.

Under the previous rule, the objection to jurisdiction must be done by making a

special appearance in a motion to dismiss invoking the lack of jurisdiction over the person

of the defendant as the only ground. Adding any other ground in addition to lack of

jurisdiction over the defendant was construed as a voluntary appearance by the defendant

or his voluntary submission to the jurisdiction of the court. The rule as it is now, is different.Now, the n c l u s i o n i n a m o t i o n t o d i s m i s s o f o t h e r g r o u n d s a s i d e f o m l a c k o f j u r i s d i c t i o n o v e r t h e

person of the defendant shall not be deemed a voluntary appearance ( Sec. 20, Rule 14, Rules of

Court).

Illustration under the old rule: Defendant files a motion to dismiss. Ground: Lack of

jurisdiction over his person because of invalid service of summons. He adds another

ground: prescription. Under the old rule, the defendant was considered to have voluntarily

submitted himself to the jurisdiction of the court by adding prescription as a ground. Underthe new rule however, the inclusion of prescription is not equivalent to voluntary

appearance or submission to the jurisdiction of the court.

16. Jurisdiction over the issues This is the power of the court to try and decide issues raised by

the pleadings. In order to determine whether or not the court has jurisdiction over the issues

of the case, one must look into the pleadings. This jurisdiction means that the court must

only pass upon issues raised by the pleadings of the parties. Hence, if the issue raised by theparties is possession, the court has no jurisdiction to pass upon the issue of ownershipbecause

it is not an issue in the case. Conversely, if the issue in the case is ownership and no issue of

possession is found in the pleadings of the parties, the court has no authority to adjudicate

on the possession of the property. Thus, it is not correct for the court to order the lessee to

vacate the premises where the lessor did not include in his pleadings a claim for restoration


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before the action is filed, the matter of demand shall be considered as if it had been alleged

in the pleadings.

If a party presents evidence on a matter not at issue in the pleadings, the other mayobject to such evidence. The court may sustain the objection and exclude the evidence.

However, the same rule likewise allows the court, in the interest of substantial justice, to

direct an amendment to the pleadings so the pleadings may conform to the evidence. This is

true despite the objection to the evidence. The evidence will then be admitted after the

amendments are made (Mercader vs. DBP (Cebu Branch), 332 SCRA 82, 97).

17. Summary procedure Not all pleadings are allowed under the Rules of Summary

Procedure. For example: A party cannot assert a permissive counterclaim although he mayassert a compulsory counterclaim. A reply, a third-party complaint or a complaint -in -

intervention cannot also be filed. The only pleadings allowed are the complaint, compulsory

counterclaim and cross-claim pleaded in the answer, and the answers thereto. (Sec. 3(A) II).

The answer to the complaint shall be filed and served within ten (10) days from

service of summons.

May the defendant file a motion for bill of particulars or a motion to dismiss? No.

These are not allowed. Exception: A motion to dismiss may be filed if premised on (a) lack

of jurisdiction or (b) the failure to comply with the barangay conciliation proceedings.

If the defendant does not file his answer, may the plaintiff file a motion to declare the

defendant in default? The answer is likewise, no! The remedy of the plaintiff is to move for

the rendition of judgment. Even without the requisite motion, the court may motu proprio

render judgment (Sec. 6, II, Rules on Summary Procedure).

NOTE: As of November 25, 2002, the jurisdictional amount subject to summary

procedure is as follows: P100,000 or less (outside Metro Manila); P200,000 or less (within

Metro Manila). An action for forcible entry and an action for unlawful detainer are subject to

summary procedure.

18. An error of jurisdiction is correctible by certiorariwhile an error of judgment is correctible by

appeal. When the error of the court consists in the appreciation of the facts or the evidences

adduced, this is an error of judgment. When the court acts without jurisdiction because it

actually has no jurisdiction, or even if initially it has jurisdiction but gravely abuses said

discretion or acts in excess of jurisdiction tantamount to lack of jurisdiction, the special civil

action of certiorari is the appropriate remedy.


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Reminder: Certiorari under Rule 45 should not be confused with certiorariunder Rule

65. Among others, the most important distinction is the issue raised. In Rule 45, the issue is a

pure question of law; in Rule 65, the issue is whether or not the tribunal, board or officer

acted with grave abuse of discretion amounting to lack of jurisdiction. Rule 45 is certiorariasa mode of appeal. Certiorariunder Rule 65 is not a mode of appeal but a special civil action.

BASIC CONCEPTS TO REMEMBER

1. Remedial law (also known as procedural law or adjective law) is not substantive law.

Substantive law creates, defines and regulates rights and duties but remedial law which

includes civil procedure, merely prescribes the methods of enforcing rights and obligations

created by substantive law. It is not possible to speak of remedial law without reference tosubstantive law, since the latter is the basis of the former.

The rules embodied in the Rules of Court are not laws in the strict sense of the word

since they did not emanate from the legislature, but since they were promulgated under

authority of law, such rules have the force and effect of laws (Alvero vs. De la Rosa, 76 Phil.

428).

The Philippines uses the system of code pleadings as distinguished from the

common law system. In the system of code pleading, the procedural rules are set forth in a

codified form like the Rules of Court. In the common law system, the procedural rules are

not written in codified form but are products of court decisions (Marquez vs. Varela, 92 Phil.

373 (1972).

2. The Supreme Court has the inherent power to suspend the Rules of Court ( Redea vs. Court

of Appeals, G.R. No. 146611, February 6, 2007) but while the rules may be relaxed or even

suspended by the Supreme Court, it will only do so for persuasive and weighty reasons in

order to relieve a litigant of an injustice. The mere invocation of substantial justice is not a

magical incantation that will automatically compel the Court to suspend procedural rules

(Cu-Unjieng vs. Court of Appeals, 479 SCRA 594, January 24, 2006). What impels the Court to

set aside its ru les is not a part s empt inv ocations of liberalit b t the merits of his

position so that the same may not be obstructed by mere deficiencies in form. If a petitionhas not an iota of merit in it, there is nothing for the Court to bring to light at all (Muoz vs.

People, 548 SCRA 473, March 14, 2008).

3. The Rules are to be liberally construed (Sec. 6, Rule 1, Rules of Court).


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general rule, the retroactive application of procedural laws cannot be considered violative of

any personal rights because no vested right may attach to nor arise therefrom (In the Matter

to Declare in Contempt of Court Hon. Simeon Datumanong, G.R. No. 150274, August 4, 2006).

6. The Rules of Court shall not apply to (a) election cases, (b) land registration, (c) cadastral, (d)

naturalization, and (e) insolvency proceedings except by analogy or in a suppletory

character and whenever practicable and convenient (Sec. 4, Rule 1, Rules of Court).

Administrative bodies are not bound by the technical niceties of the rules obtaining

in a court of law. Hence, administrative due process cannot be fully equated with judicial

due process (Samalio vs. Court of Appeals, 454 SCRA 462). Administrative bodies are not

bound by the technical niceties of law and procedure and the rules obtaining in the courts oflaw (Department of Agrarian Reform vs. Uy, G.R. No. 169277, February 9, 2007).

In a naturalization proceeding for instance, the Court of Appeals can deny an

application for naturalization on the basis of documents not formally offered in evidence

during the trial. This procedure is contrary to Sec. 34 of Rule 132 providing that the court

shall consider no evidence which has not been formally offered but this rule however, does

not apply to naturalization proceedings (Ong Chia vs. Republic, 328 SCRA 749 [2000]).

While as a rule, affidavits whose affiants have not been cross-examined are hearsay,

the argument that the affidavits attached to the case are hearsay because the affiants were

not presented in court for cross-examination is not persuasive because the rules of evidence

are not strictly observed in proceedings before administrative bodies like the NLRC where

decisions may be reached on the basis of position papers only (Bantolino vs. Coca-Cola

Bottlers, Phil., Inc., 403 SCRA 699).

7. Philippine courts are both courts of law and equity (U.S. vs. Tamparong, 31 Phil. 321). Equity

cannot be invoked when there is a law applicable to a given case ( Smith Bell Co. vs. Court of

Appeals, 267 SCRA 530). For all its conceded merits, equity is available only in the absence of

law and not as replacement (Tankiko vs. Cezar, 302 SCRA 559). It is availed of only in the

absence of a law and is never availed of against statutory law or judicial pronouncements

(Velez vs. Demetrio, G.R. No. 128576, August 13, 2002; Bell vs. Court of Appeals, 267 SCRA 530;

David-Chan vs. Court of Appeals, 268 SCRA 677).

FUNDAMENTALS OF ORDINARY CIVIL ACTIONS

1. Civil procedure starts with the filing of the complaint. Before filing the complaint, the

plaintiff must initially determine if he has a cause of action against the defendant. Without


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4. The complaint must be signed by the plaintiff or counsel representing him ( Sec. 3, Rule 7,

Rules of Court). The counsel who signs the complaint should be aware of the significance of

his signature. His signature constitutes a certificate by him that (a) he has read the pleading,

(b) that to the best of his knowledge, information and belief there is good ground to supportit, and (c) that it is not interposed for delay (Sec. 3, Rule 7, Rules of Court). Remember that an

unsigned pleading has no legal effect (Sec. 3, Rule 7, Rules of Court). It is a mere scrap of

paper.

5. The address of the party or of the counsel must not be a post office address ( Sec. 3, Rule 7,

Rules of Court).

6.

The pleading need not be under oath. This means that a pleading need not be verified,except when a verification is required by law or by a particular rule. A pleading is verified by

an affidavit that the affiant has read the pleading and that the allegations therein are true of his

personal knowledge or based on authentic records( Sec. 4, Rule 7, Rules of Court).

While the codal provisions seem to indicate that the absence of a verification is a

fatal defect, it has however, been held that the absence of a verification or the non-

compliance with the verification requirement does not necessarily render the pleadingdefective. It is only a formal and not a jurisdictional requirement. The requirement is a

condition affecting only the form of the pleading (Benguet Corporation vs. Cordillera Caraballo

Mission, Inc. 469 SCRA 381; Micro Sales Operation Network vs. NLRC, 472 SCRA 328) and non-

compliance therewith does not necessarily render it fatally defective (Sarmiento vs. Zaratan,

G.R. No. 167471, February 5, 2007).

All pleadings in a summary procedure are to be verified such as the pleadings in an

action for unlawful detainer and forcible entry (Sec. III (B) 1991 Rules on Summary Procedure).

Other examples of those which require a verification are the special civil actions of

certiorari, prohibition and mandamus (Rule 65).

7. Since a complaint is an initiatory pleading, it must be accompanied by a certification against

forum shopping. Note: A thorough preparation for the bar requires remembering the contents

of the certification against forum shopping in Sec. 5, Rule 7 of the Rules of Court. Remember

this provision by heart.

The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional (Robert

Development Corporation vs. Quitain, 315 SCRA 150) and must be signed by the party himself.

It cannot be signed by his counsel (Digital Microwave Corp. vs. Court of Appeals, 328 SCRA

286). This is the general rule and the prevailing rule, subject of course to the power of the


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party or his counsel clearly constitute willful and deliberate forum shopping, the same shall

be a ground for summary dismissal. Here, no hearing and motion is required. The dismissal

in this case is also with prejudice (Sec. 5, Rule 7, Rules of Court).

Where the dismissal is without prejudice, this means the action can be refiled even if

it is dismissed. When the complaint is dismissed without prejudice, the remedy of the

plaintiff is not to appeal. This is because an order dismissing an action without prejudice is

not appealable. If he disagrees with the dismissal, the remedy provided for under Sec. 1 of

Rule 41 is to avail of the appropriate special civil action under Rule 65. This provision allows

a petition for certiorari (Sec. 1(g), Rule 41, Rules of Court). Also, if the dismissal is without

prejudice, another move is to simply refile the case.

8. After all those mentioned above have been considered and duly complied with, the

complaint may now be filed.

The filing of the complaint is the act of presenting the same before the clerk of court

(Sec. 2, Rule 13, Rules of Court). It may be filed personally or by registered mail. ( Sec. 3, Rule

13, Rules of Court). The mailing through a private forwarding agency like Federal Express,

LBC, Johnny Air or UPS, is not allowed (Benguet Electric Cooperative vs. NLRC, 209 SCRA 55).

9. The rule in this jurisdiction is that when an action is filed, the filing must be accompanied by

the payment of the requisite docket and filing fees (Ballatan vs. Court of Appeals, 304 SCRA

34). The fees must be paid because the court acquires jurisdiction over the case only upon

payment of the prescribed fees. Without payment, the complaint is not considered filed

(Manchester Development Corp. vs. Court of Appeals, 149 SCRA 562). Payment of the full

amount of the docket fee is mandatory and jurisdictional ( Ayala Land, Inc. vs. Carpo, 345

SCRA 379). This rule has, however, been relaxed by allowing the payment of the fee within areasonable time but not beyond the prescriptive period (Sun Insurance Office Ltd. vs.

Asuncion, 170 SCRA 274).If the fees are not paid at the time of the filing, the court acquires

jurisdiction only upon full payment of the fees within a reasonable time as the court may

grant, barring prescription (Ballatan vs. Court of Appeals, 304 SCRA 34).

10. When the complaint is filed and the prescribed fees are paid, the action is deemed

commenced (Sec. 5, Rule 1, Rules of Court). The filing of the action is significant. First, thefiling of the complaint enables the court to acquire jurisdiction over the person of the

plaintiff even if the plaintiff is not a resident of the Philippines. Second, it interrupts the

running of the prescriptive period ( Art. 1155, Civil Code of the Philippines).

11. Normally, it is the defendant who seeks the dismissal of a complaint. May the plaintiff also


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Example: Plaintiff filed an action against defendant in the RTC. Before defendant

responded to the complaint, plaintiff filed a notice dismissing the complaint. A couple of

months after, he filed another complaint based on or including the same claim as the

previous complaint dismissed earlier. He once again filed a notice dismissing the secondcomplaint before Defendant served his answer to the complaint.

May he refile the complaint which was already dismissed twice? He may not refile

the same. The rule is clear. He is now barred from doing so under the two dismissal rule.

Under the Rules, the second notice of dismissal operates as an adjudication upon the merits

(Sec. 1, Rule 17, Rules of Court).

After service of the answer or a motion for summary judgment, the plaintiff can nolonger have his action dismissed by mere notice. The plaintiff must now file a motion for the

dismissalof his complaint ( Secs. 1-2, Rule 1, Rules of Court). The dismissal is now subject to

the approval of the court.

What is the effect of the dismissal of the complaint on the counterclaim already

pleaded before the complaint was dismissed? Is the counterclaim also dismissed?

Consider the following example: Plaintiff filed a motion for the dismissal of his own

complaint The defendant ho ev er, prior to the serv ice u pon him of the plaintiffs motion

had pleaded a compulsory counterclaim in his answer. The court dismissed not only the

complaint but the compulsory counterclaim as well. The court reasoned that where the

complaint is dismissed, the compulsory counterclaim becomes moot and has no more legal

basis. Did the court act correctly?

The court acted erroneously. Under the Rules, the dismissal is limited to thecomplaint and is w ithou t preju dice to the defendants prerogati e to prosecu te his

counterclaim in a separate action or in the same action (Sec. 2, Rule 17, Rules of Court).

Since Sec. 2 of Rule 17 makes no distinction as to the counterclaim involved, even a

compulsory counterclaim is not deemed dismissed by the dismissal of the complaint. The

defendant may then prosecute his counterclaim despite the dismissal of the complaint in a

separate action or in the same action (Pinga vs. Heirs of Santiago, 494 SCRA 393).

12. After the filing of his complaint, may the same be amended?

Instead of dismissing his complaint as explained in the immediately preceding

paragraph, the plaintiff may decide to amend his complaint. Amendment of his pleading is


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is not affected by the filing of the motion to dismiss. However, after a responsive pleading

has been served, amendment must be made with leave of court (Sec. 3, Rule 10, Rules of

Court).This means for example, that after an answer has been served, an amendment may

be done only with leave of court.

Note that the rules on amendment apply also to the amendment of pleadings other

than a complaint. In the case of a reply to which no responsive pleading is available, the

reply may be amended as a matter of right within ten (10) days after it is served (Sec. 2, Rule

10, Rules of Court).

Example: A complaint was filed. The defendant served an answer to the complaint.

The amendment is no longer a matter of right because an answer has already been served bythe defendant. The amendment would now require leave of court and the amendment has

become a matter of judicial discretion.

Be it remembered that although existing jurisprudence adopts a liberal policy on

amendments, the amendment will be denied if it is intended for delay. It may also be denied

if it would result in a change in the cause of action or defense or theory of the case, where an

amendment is no longer a matter of right.

Also, when the court has no jurisdiction over the subject matter of the action and the

amendment is for the purpose of conferring jurisdiction upon the court, the amendment

shall not be allowed. Since the court is without jurisdiction over the action, it has no

jurisdiction to act on the motion for leave to amend. Caveat:The cases ( Gaspar vs. Dorado, 15

SCRA 335; Campos Rueda vs. Bautista, 6 SCRA 240), which prohibited amendments to a

complaint for the purpose of vesting the court with jurisdiction, involved cases where an

answer to the complaint has already been served. Because of the answer served, theamendment must now be made subject to judicial discretion. Of course, common reason

suggests that the court would have no jurisdiction to allow the amendment of a complaint

over which it has no jurisdiction. Thus, in one case, the Supreme Court declared that the

court not having jurisdiction over the original complaint, the court has no power to act on

the admission of the amendment complaint (Rosario vs. Carandang, 96 Phil. 845).

Take note however, that there are decisions (Gumabay vs. Baralin, 77 SCRA 258;Soledad vs. Mamangun, 8 SCRA 110) which allowed such amendments when the amendment

is made as a matter of right, i.e., before a responsive pleading has been served. It appears

that the doctrine that amendments cannot be made to cure lack of jurisdiction should be

made to apply only to a situation where a responsive pleading has already been served and

not to a case where an amendment is made as a matter of right (Bar 2005)


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10, Rules of Court). This gives rise to a situation where the issues raised in the trial and the

evidences thereto do not conform to the issues in the pleadings of the parties. As a remedy,

existing rules allow a party to move for an amendment of the pleadings so they may

conform to the evidence.

Now, what if the pleadings are not amended to conform to the evidence? This is not

a problem at all. Since the issues have already been tried with the consent of the parties, the

failure to amend the pleadings does not affect the result of the trial of such issues (Sec. 5,

Rule 10, Rules of Court).The pleadings are hence, deemed amended by implication.

What if evidence to a matter not in issue in the pleadings is offered in the course of

the proceedings and the other party objects on the ground that the evidence is irrelevantbecause it pertains to a matter not in issue? May the court sustain the objection?

It is submitted that the court may sustain the objection but it may also however,

allow the amendment of the pleadings if the presentation of the merits of the action and the

ends of substantial justice will be observed thereby. It may likewise grant a continuance to

enable the amendment to be made (Sec. 5, Rule 10, Rules of Court).

Where the complaint was filed at a time where no cause of action has yet accrued in

favor of the plaintiff, may an amendment cure the defect?

The amendment cannot cure the defect. The reason for this is plain: There is no

cause of action to cure where there is none in the first place.

The curing effect of an amendment under Section 5 is applicable only if a cause of

action in fact exists at the time the complaint is filed, but the complaint is defective for failure toallege the essential facts. This means that the curing effect will apply in a situation where there

was in fact a cause of action and the only problem was the insufficiency of the allegations in

the complaint.

It thu s follow s that a complaint w hose cau se of action has not y et accru ed cannot be

cured or remedied by an amended or supplemental pleading alleging the existence or

accrual of a cause of action while the case is pending. Such an action is prematurely brought

and is, therefore, a groundless suit, which should be dismissed by the court upon proper

motion seasonably filed by the defendant. The underlying reason for this rule is that a

person should not be summoned before the public tribunals to answer for complaints which

are premature (Swagman Hotels and Travel, Inc. vs. Court of Appeals, 455 SCRA 175).


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summons is required so the court may acquire jurisdiction over the person of the defendant

(in an action in personam) and to comply with the requirements of due process. Another way

of acquiring jurisdiction over the person of the defendant is his voluntary appearance in the

action. Voluntary appearance shall be equivalent to service of summons (Sec. 20, Rule 14,Rules of Court).

17. Although under the Rules, the defendant is required to answer the complaint within fifteen

(15) days from service of summons (Sec. 1, Rule 11), the defendant need not answer. If there

are matters in the complaint, which are vague or ambiguous or not averred with sufficient

definiteness, he may file a motion for bill of particulars under Rule 12. It is not procedurally

correct to file a motion to dismiss on the mere ground that the complaint or any other

pleading does not contain particulars or is ambiguous.

If the motion for bill of particulars is granted, the court shall order the submission of

a bill of particulars. If the order is not obeyed, the court may order the striking out of the

pleading or portions thereof to which the order was directed (Secs. 4 & 5, Rule 12, Rules of

Court).

18.

Even when the allegations are now clear enough to enable the defendant to file hisresponsive pleading because the adverse party has already submitted a bill of particulars,

the defendant need not file his answer immediately. He must first explore the possibility of

filing a motion to dismiss under Rule 16. If there is no ground for a motion to dismiss, he has

to file his answer.

When a motion to dismiss is filed, all grounds available at the time the motion is

filed must be invoked in the motion. This is required under the o m n i b u s m o t i o n r u l e .

Grounds not so invoked are deemed waived. The grounds not waived however, are lack ofjurisdiction over the subject matter, litis pendencia, res judicata and prescription (Sec. 8, Rule

15; Sec. 1, Rule 9).

When a motion to dismiss is not filed, the grounds for a motion to dismiss may be

availed of as affirmative defenses in the answer (Sec. 6, Rule 16). No defense is waived

because no motion to dismiss was filed. Note: There is a difference as to effects between

filing and not filing a motion to dismiss in relation to waiver of defenses.

19. If the defendant does not file his answer within the time required by the Rules, he may be

declared in default under the provisions of Sec. 3 of Rule 9. If the defendant answers but

admits all the material allegations of the complaint, the answer is said not to tender an issue.

There is therefore, no issue of fact that could be the subject of a trial. In this case, the plaintiff


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While normally, the affidavit of merit must accompany the motion, it has been held

that this affidavit may be dispensed with if the defendant who fails to file an answer was

never served with summons. In such a case, the order declaring him in default is VOID

because the court did not acquire jurisdiction over the person of the defendant. Thissituation is a proper subject of certiorari proceedings because of the jurisdictional issue

involved (Ponio vs. IAC, 133 SCRA 577). The principles in default do not apply where the

order of default is invalid because of lack of or invalid service of summons (Laus vs. Court of

Appeals, 219 SCRA 688). Also, if there is a pending motion for extension of time to file an

answer, this means that the period to file an answer has not yet lapsed. It is therefore,

improper to file a motion to declare the defendant in default at this stage.

In De Guia vs. De Guia, 356 SCRA 287, the requirement of an affidavit of merit wasliberally interpreted. Here, the requirement for the affidavit was deemed substantially

complied with when the answer filed contained the defenses of the defendant and the


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The intervention must be done before the rendition of judgment (Sec. 2, Rule 19, Rules

of Court).

25. A reply is the last possible pleading that could be filed in the action. It is the responsive

pleading to an answer. You do not file a reply to a counterclaim or cross-claim. What you do

is to file an answer, not a reply. A reply is not mandatory if your purpose is to deny the new

matters alleged in the answer. Even if not filed, the allegations of new matters by the

defendant in his answer are deemed controverted or denied anyway (Sec. 10, Rule 6, Rules of

Court). The failure to file a reply will not result into an admission of the material allegations

of the answer (because said allegations are deemed denied) but the failure to file an answer

to the complaint will involve an implied admission of the material allegations of the

complaint.

A reply must however, be filed if the defendants defense is based on a docu ment

duly pleaded. The reply should be filed because if such document, which forms the basis of

the defendants defense, is not specificall denied u nder oath, its gen ineness and du e

execution shall be deemed admitted. To avoid this admission, the reply must contain a

specific denial. Further, the reply must be under oath (Toribio vs. Bidin, 134 SCRA 162).

n old case held that if the defendants ans er alleges the defense of u su ry , a repl

under oath must be made. If not, the allegation of usury will be deemed admitted ( Sun Bros.

vs. Caluntad, 16 SCRA 895). It is submitted that the phraseology of the present rule on the

matter has made the applicability of the Sun Bros. case suspect. Under Sec. 11 of Rule 8 what

needs to be specifically denied under oath is an allegation of usury in a complaint to recover

usurious interest and not a defense of usury in the answer.

26.

After the last pleading has been served and filed, it shall be the duty of the plaintiff topromptly move that the case be set for pre-trial. The motion is an ex partemotion. Because it

is an ex partemotion, notice need not be served on the defendant. Remember that the filing

of the motion to set the case for pre-trial is the duty of the plaintiff. It is not the duty of the

defendant. Remember too, that to move for a pre-trial before the last pleading has been filed

is premature. Thus, when there is an unresolved motion to dismiss or a motion for bill of

particulars, or when no answer has yet been filed, a pre-trial conference is premature ( Rule


The plaintiff must appear in the pre-trial (Sec. 4, Rule 18, Rules of Court). What is the

consequence of the non-appearance of the plaintiff?

Unless excused, or when a representative appears in his behalf duly authorized in


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The plaintiff appeared in the pre-trial. The defendant did not. What may the court

do?

The court may order that the plaintiff be allowed to present his evidence ex parteand

render judgment on the basis thereof. In the previous Rules, the defendant in this case was

declared as in default . The ords, as in defa lt, no longer appear in the present Rules.

Note that the rules require the parties to file their pre-trial briefs and serve the same

on each other at least three (3) days before the pre-trial. Suppose the plaintiff failed to file

the required brief and the court dismissed the action, did the court act correctly?

It did. The failure to file the pre-trial brief has the same effect as the failure to appearat the pre-trial. The remedy of the plaintiff is to file a motion for reconsideration showing

that his failure to file a pre-trial brief was due to fraud, accident, mistake, or excusable

neglect (Saguid vs. Court of Appeals, 403 SCRA 678).

During the pre-trial conference, the defendant manifested that he has no interest in

any form of amicable settlement. The case was set for a second pre-trial conference. Notice

was duly sent. Defendant did not appear. The court issued an order allowing the plaintiff to

present his evidence ex parte becau se of the defendants failu re to appear Did the cou rt act

correctly? It did not. Once a party manifests his opposition to an amicable settlement, said

party may no longer be compelled to attend another pre-trial conference (Pioneer Service vs.

Hontanosas, 78 SCRA 448; Insurance Company of North America vs. Republic, 21 SCRA 887).

27. Before the trial, any party may avail of any of the modes of discovery from Rules 23-29. Note

that the modes of discovery also apply to a criminal case.

The rules of discovery are cumulative, not alternative. The fact that a party has

resorted to a particular method of discovery will not bar him from using other methods

(Fortune Corp. vs. Court of Appeals, 299 SCRA 376).

Note that w hile the ru le requ ires that onl u ltimate facts mu st be alleged in a

pleading, the modes of discov ery may inqu ire into ev identiary facts Let u s su ppose that a

motion for bill of particulars filed by the defendant was denied. May he avail of the modes

of discovery even if the matters desired in the denied motion are the same matters sought to

be discovered? He may. A bill of particulars is for the purpose of clarifying the allegations of

the adv erse part s pleading Yet, the bill of particu lars w ou ld refer onl to u ltimate facts

since evidentiary facts are not proper in a pleading. On the other hand, the modes of

discovery could elicit evidentiary facts on the matters subject of the prior motion for bill of


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He does not. A party shall not be deemed to make a person his own witness for any

purpose by taking his deposition (Sec. 7, Rule 23, Rules of Court).

The plaintiff served upon the defendant a written request for admission of the

genuineness of several documents as well as relevant and material facts. The defendant

ignored the request. What is the effect?

Each of the matters of which an admission is requested shall be deemed admitted

(Sec. 2, Rule 26, Rules of Court). The admission however, shall apply only to the pending

action and shall not constitute an admission in any other proceeding or for any other

purpose (Sec. 3, Rule 26, Rules of Court).

A party is also required to serve upon the adverse party written interrogatories.

What is the consequence for failure to do so?

A party not served with written interrogatories may not be compelled by the adverse

party to give testimony in open court, or to give a deposition pending appeal (Sec. 6, Rule 25,

Rules of Court). If a party served with written interrogatories does not serve an answer to the

interrogatories, the court, upon motion and notice, may strike out the pleading of that party

or a part of it, dismiss the proceeding or enter a judgment by default against that party, even

if he is the plaintiff because the rule does not distinguish as to the kind of party (Sec. 5, Rule


28. What is the effect of failure to file and serve request for admission?

Unless otherwise allowed by the court for good cause shown and to prevent a failure

of justice, a party who fails to file and serve a request for admission on the adverse party ofmaterial and relevant facts at issue which are, or ought to be, within the personal

knowledge of the latter, shall not be permitted to present evidence on such facts (Sec. 5, Rule


29. After trial (Rule 30), the court shall now render a judgment. A losing party may avail of

certain remedies for the protection of his rights. These remedies are:

(a)

Before the finality of the judgment, a party may avail of (1) a motion for reconsideration(Rule 37); (2) a motion for new trial (Rule 37); or (3) an appeal (Rules 40-45).

The appeal may be (i) an ordinary appeal under Rules 40-41; (ii) a petition for review

under Rule 42; (iii) a petition for review under Rule 43; or (iv) a petition for review on

i i d R l 45


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2. In determining the existence of a cause of action, only the statements in the complaint may

be properly considered. It is error for the court to take cognizance of external facts or hold

preliminary hearings to determine its existence (Diaz vs. Diaz, 331 SCRA 302, 316 [2000]).

The failure to state a cause of action must appear on the face of the complaint and itsexistence may be determined only by the allegations of the complaint, consideration of other

facts being proscribed and any attempt to prove extraneous circumstances not being

allowed (Viewmaster Construction Corporation vs. Roxas, 335 SCRA 540). Note however, that

the annexes to the complaint may be considered in determining whether or not a complaint

states a cause of action because such annexes are considered parts of the complaint (Sea-

Land Service, Inc. vs. Court of Appeals, 327 SCRA 135).

P sues D on a culpa aquiliana theory. D moves to dismiss on the ground that thecomplaint fails to state a cause of action. In the hearing of the motion, the court required the

plaintiff to present evidence on his claims to determine whether or not the complaint states

a cause of action. Is the court correct?

The court is not correct. The allegations of the complaint will tell whether or not the

complaint states a cause of action. Failure to state a cause of action does not mean that the

plaintiff has no cau se of action. It onl means that the plaintiffs allegations are

insufficient for the court to know that there was a violation of his rights by the defendant.

Thu s, ev en if indeed the plaintiffs right w as v iolated, if the same is not set forth in the

complaint, the pleading fails to state a cause of action even if there really is a cause of action.

3. Under R le 16, the grou nd for dismissal in relation to a ca se of action is NOT lack of a

cau se of action or no cau se of action The grou nd is that the pleading asserting the claim

STATES NO CAUSE OF ACTION (Sec. 1(g), Rule 16; San Lorenzo Village Association, Inc. vs.

Court of Appeals, 288 SCRA 115).

In Enojas vs. COMELEC, 283 SCRA 229, the Court held that the ground for dismissal

based on the fact that the pleading asserting the claims states no cause of action is different

from the ground that the case of the claimant should be dismissed for lack of a cause of action.

The first is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed

and can be determined only from the allegations of the pleading and not from evidentiary

matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff hasrested his case and can be resolved only on the basis of the evidence he has presented in

support of his claim (See also Dabuco vs. Court of Appeals, 322 SCRA 853 ).

4. The examinee needs to master the kinds of actions specially the distinction between a real

and a personal action and the distinction among an action in personam quasi in rem or in rem


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1. The distinction between a real action and a personal action is important for the purpose of

determining the VENUE of the action.

2. personal action is transitory , i.e.,venue depends upon the residence of the plaintiff or the

defendant at the option of the plaintiff. real action is local, i.e.,venue depends upon the

location of the property involved in the litigation. An action is real when it is founded upon

the privity of real estate. That means that realty is the subject matter of the action.

3. It must be remembered that not every action involving a real property is a real action

becau se the realt may only be incidental to the su bject matter of the s it To be a real

action, it is not enough that it must deal with real property. It is important that the matter in

litigation must also involve any of the following issues: (a) title (b) ownership, (c)possession, (d) or any interest in real property.

4. An action for damages to real property, while involving realty is a personal action because

although it involves real property, it does not involve any of the issues mentioned.

An action to recover possession of real property (ejectment) plus damages is a real

action because possession of the real property is involved.

An action to recover possession of a personal property is a personal action.

An action for a declaration of the nullity of marriage is a personal action (Tamano vs.

Ortiz, 291 SCRA 584).

An action for specific performance is a personal action (Siosoco vs. Court of Appeals,

303 SCRA 186).

Although a complaint is entitled to be one for specific performance, the action is

actually a real action for the recovery of land where the plaintiff asks that a transfer

certificate of title covering said land be issued to him. The action must therefore, be filed

where the property is situated. Also, if the action is denominated as one for specific

performance, but the plaintiff seeks for the issuance of a deed of assignment in his favor of

certain shares of stocks to regain ownership and possession of said shares, the action is not

one for specific performance but a personal action for the recovery of property. The docketfee therefore, should be computed based on the value of the property and not based on the

docket fee for specific performance (National Steel Corporation vs. Court of Appeals, 302 SCRA

522, 530).

5 If h i i l h f i h i f ll h f ll i


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Remember that unless and until the defendant objects to the venue in a motion to

dismiss, the venue cannot be truly said to be improperly laid, because the venue although

technically wrong may be acceptable to the parties for whose convenience the rules and

venue have been devised The trial cou rt cannot preempt the defendants prerogati e to

object to the improper laying of the venue by motu proprio dismissing the case ( Dacuycoy vs.

Intermediate Appellate Court, 195 SCRA 644).

The trial court cannot motu propriodismiss a case on the ground of improper venue.

The court may dismiss an action motu proprio in case of lack of jurisdiction over the subject

matter, litis pendencia, res judicataand prescription, but not for improper venue ( Rudolf Lietz

Holdings, Inc. vs. Registry of Deeds of Paraaque City, 344 SCRA 680).

Exception: In cases covered by summary procedure or those covered by the rules on

small claims, the court may dismiss a case outright on any of the grounds apparent in the

complaint. This of course includes improper venue. The dismissal here need not be

preceded by a motion to dismiss because it may be done by the court motu proprio ( Sec. 4,

1991 Rules of Summary Procedure).

In a case in the RTC, the defendant filed a motion to dismiss based on lack of

jurisdiction over the subject matter. The court however, dismissed the action based on

improper venue. Is the court correct?

No! The court cannot motu proprio dismiss an action based on improper venue unless

the case is covered by the Rules on Summary Procedure. There is no summary procedure in

the RTC.

8.

Venue can be stipulated upon and may have the effect of changing the rules on venueprovided for in the Rules.

The parties may stipulate on the venue as long as the agreement is (a) in writing, (b)

made before the filing of the action, and (3) exclusive as to the venue. Thus, a stipulation

that any su it arising from this contract shall be filed e x cl si el in Q ez on Cit preclu des

the filing of the case in any other place.

stip lation that the parties agree to su e and be u sed in the cou rts of Manila hasbeen held not to be exclusive (Polytrade Corporation vs. Blanco, 30 SCRA 187). Where the

stipulation is not exclusive, then the effect is to add Manila as a possible venue aside from

the residence of the plaintiff and the residence of the defendant.


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He cannot. An order denying a motion to dismiss is merely interlocutory. It is not

final. Only final orders or judgments may be appealed from. The normal remedy is to file an

answer and interpose the ground as an affirmative defense, go to trial and appeal from the

adverse judgment. However, if the denial is tainted with grave abuse of discretion

amounting to lack of jurisdiction, the remedy is certiorari and prohibition (Emergency Loan

Pawnshop vs. Court of Appeals, 353 SCRA 89).

11. The property of the judgment debtor located in Makati City was foreclosed. Where should

the action be filed if the plaintiff resides in Manila and the defendant in Quezon City?

The action shall be filed in Makati City, the place where the property is situated.

Foreclosure of real property is a real action.

12. Venue is procedural and not substantive. In civil cases, venue is not a matter of jurisdiction

(Heirs of Pedro Lopez vs. de Castro, 324 SCRA 591). Venue becomes jurisdictional only in a

criminal case. In the latter, where the information is filed in a place where the offense was

not committed, the information may be quashed for lack of jurisdiction. This is not so in a

civil case where improper venue is not equivalent to lack of jurisdiction. Because venue in a

civil case is merely procedural, the parties can waive it.

13. It has been earlier mentioned that to determine the venue, determine first if the action is

personal or real. If it is personal, venue is transitory, hence, the venue is the residence of the

plaintiff or the residence of the defendant at the election of the plaintiff (Sec. 3, Rule 4, Rules

of Court). If the action is real, the venue is local, hence, the venue is the place where the real

property is situated (Sec. 1, Rule 4, Rules of Court). However, when the defendant is a non-

resident and is not found in the Philippines and the action affects the personal status of the

plaintiff or any property of the defendant located in the Philippines, the venue is theresidence of the plaintiff or where the property involved is situated ( Sec. 3, Rule 4, rules of

Court).

14. Reminder: If the question shows that venue is improper, do not file a motion to dismiss

anchored on lack of jurisdiction. Venue has nothing to do with jurisdiction in civil cases.

Hence, if a case for unlawful detainer is filed in MTC Laguna when it should have been filed

in MTC Cavite where the property is located, the action filed in Laguna may be dismissedby the court on the ground of improper venue but not on the ground of lack of jurisdiction

because every MTC has jurisdiction over cases of unlawful detainer. Do not inject into your

answer the concept of territorial jurisdiction. It is irrelevant in civil cases. Territorial

jurisdiction applies only in criminal cases where venue is also jurisdictional. This is not so in

a civil case where the concept of venue is distinct from the concept of jurisdiction


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An action for ejectment is a real action because it involves possession of real

property and hence, founded upon an interest in real property but is in personam because it

is directed against a particular defendant. In this action, it is only the defendant who is

sought to be excluded from the premises, not the whole world.

An action for annulment of marriage is a personal action because it is not founded

upon an interest in real estate, but it is an in rem action because the issue of the status of a

person is one addressed to the whole world and not primarily to make the defendant liable

to the plaintiff.

An accion reinvindicatoria, which is an action to recover real property based on the

right of ownership, is a real action because it involves title to or possession of real property.It is also in personam because it is directed against a particular defendant and binds only the

parties to the action or their successors in interest.

2. Why is there a need to make a distinction between an action in personam and an action in

rem/quasi in rem?

This distinction is vital for a party to know whether or not jurisdiction over the

person of the defendant is required and consequently, in order to determine the applicableservice of summons.

Jurisdiction over the person of the defendant is vital when the action is in personam.

In this kind of action, jurisdiction over the person of the defendant is mandatory. In an in

rem or quasi in rem action, what is required is jurisdiction over the res and not jurisdiction

over the person of the defendant.

Where the defendant is a resident of the Philippines and the action against him is in

personam, jurisdiction over him is acquired by faithfully complying with the summons

under Sec. 6 of Rule 14 (service in person) or in case this type of summons is not feasible, by

availing of Sec. 7 of Rule 14 (substituted service).

Be reminded that substituted service is not the general rule. It applies only if service

in person cannot be done within a reasonable time despite the honest and earnest efforts of

the sheriff. Jurisprudence requires that efforts be exhausted to serve the defendant in personand su ch efforts need be stated in the sheriffs ret rn. Compliance w ith this requ irement is

mandatory to justify a subsequent substituted service (Manotoc vs. CA, 499 SCRA 21). If

service in person is made upon the defendant in his residence and he is not found therein at

the time of service, it is not proper to leave the summons outright with a person residing


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4. If the defendant in an action in personam is a non-resident, jurisdiction over his person is

acquired only by service of summons upon him in person within the Philippines (Asiavest

Limited vs. Court of Appeals, 296 SCRA 529) or by his voluntary appearance in the action.

Summons by publication will not acquire jurisdiction over him whether he is in the

Philippines or outside the country.

Now, if the action is in rem like an action for the declaration of the nullity of a

marriage or quasi in rem like partition or foreclosure of real estate mortgage, jurisdiction

over the person of the defendant whether he be a resident or a non-resident defendant, is

not required because what is necessary is jurisdiction over the res. The proceedings may

continue even if jurisdiction over the defendant is not acquired as long as there is

jurisdiction over the res but in the case of foreclosure, the recourse of the plaintiff wouldonly be against the property. Hence, if the debt is P1 million and the property foreclosed

was sold for only P800,000, the creditor/mortgagee cannot recover the deficiency because

recovery of the deficiency is a recovery of a sum of money which by nature is one in

personam.

However, if the defendant in the foreclosure suit is in the Philippines, the better

move is to have the defendant summoned in the manner provided for a defendant in anaction in personam even if the action is technically in rem or quasi in rem so that the

jurisdiction of the court will be acquired not only over the resbut also over his person. Thus,

the non-resident defendant who is in the Philippines shall be served with summons in

person in the Philippines and the resident defendant shall be served in accordance with

Secs. 6 and 7 of Rule 14 as in in personam actions. By so doing, the plaintiffs right to an

claim would not be confined to the property but would extend to claims against the person

of the defendant like claims for the deficiency or damages, if any. Also, if the defendant in

the foreclosure suit voluntarily appears in the action like by filing an answer interposing

affirmative defenses with a counterclaim, his appearance puts his person within the

jurisdiction of the court. Hence, the creditor may be entitled to any deficiency judgment.

5. In an action in rem or quasi in rem against a non-resident defendant who is at the same time

not in the Philippines, the summons by service in person (Sec. 6, Rule 14) and specially

substituted service (Sec. 7, Rule 14), cannot be availed of. The summons that would apply

would be extraterritorial service of summons under Sec. 15 of Rule 14. Under this provision,summons by publication is available. The summons by publication is coupled with a

registered mail of the summons and the order of the court directed to the defendant at his

last known address. Other modes of summons are also available pursuant to Sec. 15, Rule

14. Personal service as in Sec. 6 shall also be available as well as any mode of service which


28/166

land. He obtained a loan while in the Philippines and executed a real estate mortgage on his

inherited land. He left without paying the debt. An action to foreclosure the mortgage was

filed. How may the court obtain jurisdiction over the person of Mr. X? There is no way

unless he makes a voluntary appearance. He is already out of the country. Besides,

jurisdiction over the person of the defendant is not necessary under the facts of the case

because the action for foreclosure is not an action in personam. Foreclosure suits are in rem or

quasi in rem actions. In these kinds of actions, jurisdiction over the person of the defendant is

not necessary. Summons by publication or any other mode of extra-territorial service of

summons would be sufficient for the court to acquire jurisdiction over the res.

May the court therefore, validly render a judgment in the foreclosure proceedings?

The court can. It has jurisdiction over the res as long as any of the modes of

summons provided for under Sec. 15 of Rule 14 on extra-territorial service is complied with.

If however, a deficiency exists after the foreclosure sale, the deficiency cannot be recovered

under the summons used because such recovery is in the nature of a proceeding in personam

and jurisdiction over the person of the defendant was not acquired.

8. There are instances where a non-resident defendant has properties in the Philippines. In an

action in personam, as when the suit is for a sum of money or for damages, there is no

problem in acquiring jurisdiction over his person if he is in the Philippines because he may

be served summons by using the service under Sec. 6 of Rule 14 (service in person). If

however, he is already out of the country when the summons is to be served, service in

person would not be possible if the purpose is to acquire jurisdiction over his person.

Summons by publication would likewise be ineffective to acquire jurisdiction over his

person. The remedy is to file the suit and at the same time avail of the provisional remedy of

attachment. Following established principles, jurisdiction over the person of the defendantw o u ld no longer be req ired w hen there is a w rit of attachment ov er the defendants

properties because the suit has assumed the status of an action quasi in rem which merely

requires jurisdiction over the res. Summons by publication or other modes of extraterritorial

service would now be available and thereafter, the suit can proceed despite the absence of

the defendant because it would now be the property and not the person of the defendant

which would be the object of the judicial power.

SPLITTING/JOINDER OF CAUSES OF ACTIONS

1. Splitting a single cause of action is disallowed by the Rules because it breeds multiplicity of

suits.


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Examples:

(a) A complaint for the quieting of title (claim of ownership) of the land must include

any claim for the income and fruits of the land. The claim for income is merely

incidental to the claim of ownership and cannot be the subject of a separate action.(b) An action for partition and a claim for improvements on the land cannot be split in

two separate complaints. When you file an action for partition, you have to claim the

value of the improvements in the same action.

(c) Where a note is secured by a mortgage, the creditor has a single cause of action.

Although the loan and the mortgage are two separate agreements, the mortgage is

subsidiary to the debt or loan and both refer to the same obligation. The creditor

therefore, cannot file both an action for foreclosure of the mortgage and anotheraction to collect a sum of money. To file both is to split a single cause of action.

(d) Where an obligation is to be performed at different times and therefore, divisible,

each breach is a distinct cause of action. This situation occurs in obligations to be

performed in installments where each default of an installment gives rise to a

distinct cause of action. Each default may therefore, be the subject of a separate suit.

If however, suit is filed only after several breaches, all such breaches should be

embodied under a single complaint only. Also, where the breach is total as when thedefendant gives notice of his refusal to comply with the contract at the outset, there

is an anticipatory breach and there can only be one action filed.

3. One significant rule under causes of action is joinder of causes of action.

ccording to the R les of Co rt, part may in one pleading assert, in the

alternative or otherwise, as many causes of action as he may have against an opposing

part


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action be joined? Yes, but excluding foreclosure of real estate mortgage which is a special

civil action and is governed by special rules.

4. When there are two or more defendants, or one or more plaintiffs, the causes of action

against the defendants can be joined if there is a compliance with the rules on joinder ofparties under Sec. 6 of Rule 3. This provision requires that the right to relief should arise out

of the same transaction and that there exists a common question of law or fact. This

requirement does not apply when there is only one plaintiff and one defendant.

Suppose C is the creditor of D for P300,000 and also of E for P200,000. Both debts are

due and these debts have been contracted separately. May C join D and E as defendants in

the same complaint?

The answer is NO. Where a party sues two or more defendants, it is necessary for the

causes of action against both to arise out of the same transaction and that there should be a

common question of law or fact. The debt of D is a transaction different from the debt of E.

Suppose P is a passenger in a passenger bus owned by O and driven by D. Because

of the negligence of D, P sustained injuries when the vehicle fell into a ditch by the roadside.

May P join O and D as defendants in the same complaint based on torts?

Yes. The liability of O and D arose out of the same transaction (same accident) which

gives rise to a common question of law or fact.

In a promissory note signed jointly (not solidary) by the makers (debtors), in favor of

the same creditor, there are as many debts as there debtors. Hence, if B and C jointly

promise to pay P, their creditor P1 million, there are two debts of P500,000 each. There are

therefore, two distinct causes of actions. P may file an action against one of them only to

recover the share of each. However, since, their debts arose out of a single transaction (same

promissory note signed), P may join his causes of action against both under one complaint.

PARTIES

1. A suit must be defended and prosecuted in the name of the real party in interest ( Sec. 2, Rule

3, Rules of Court).

For instance, under Art. 1768 of the Civil Code of the Philippines, a partnership has a

juridical personality separate and distinct from that of each of the partners. Hence, if the

contract was entered into by the partnership in its name, it is the partnership, not its officers

hi h h ld b i l d d i li i i i l i i d i i


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said business. If it has a license to engage in business in the Philippines, it can sue and it can

be sued. If it is engaged in business in the Philippines, and does not have a license to engage

in business, it can be sued but it cannot sue (Sec. 133, Corporation Code of the Philippines). If it

is not engaged in business in the Philippines, it does not need a license for that purpose

simply because it is not engaged in business. But it can sue in the Philippines on an isolated

transaction or for the purpose of protecting its goodwill or trade name.

4. Mr. X, a pedestrian was injured in the collision of two vehicles. He suffered injuries but does

not know with certainty which vehicle caused the mishap. What should Mr. X do if he

wants to sue? He should sue the vehicle drivers/owners in the alternative (Sec. 13, Rule 3,

Rules of Court.

5. P delivered some goods to D pursuant to a contract. The goods were delivered to E, the

designated agent of D. D did not pay P. D contends that he has not received the goods. E

claims otherwise and insists that D had received the goods. Should P sue D or should he sue

E? P should sue both but in the alternative.

6. B bought a car from S on installment. A chattel mortgage was executed on the car in favor of

S to secure the obligation. Before the payment was completed, B sold the car to D. It was

agreed that D would be responsible for the monthly installments. May S sue D alone in the

foreclosure suit or replevin suit?

He cannot. B must be made defendant. B is an indispensable party. The foreclosure

or replevin is premised in the default of B, the debtor. S would have no right to foreclose the

mortgage or repossess the car without establishing the default of B.

In the immediately preceding problem, if only D is impleaded as a defendant, whatmay D do? D may move for the issuance of an order requiring S to amend his complaint and

implead B. If the court issues an order to implead B and S fails or refuses to comply with the

order of the court, then D should move for the dismissal of the case under Rule 17, Sec. 3.

The ground would be failure to comply with the order of the court. Note that failure to

comply with the order may be a ground for a motu propriodismissal but the mere failure to

implead a party or non-joinder (as well as misjoinder) is not a ground for dismissal (Sec. 11,

Rule 3, Rules of Court).

7. Requisites of a class suit: (a) The subject matter is one of common or general interest to

many persons, and (b) the persons are so numerous that it is impracticable to join all of them

as parties. When these requisites are present, the suit may be brought by the class as

plaintiffs or against the class as defendants.


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9. When the action is for the recovery of money arising from contract and the defendant dies

before entry of final judgment, the court shall not dismiss the suit. It shall continue and his

legal representative or legal heir shall substitute the deceased. If the plaintiff obtains a

favorable judgment, said judgment shall be enforced as a money claim against the estate of

the deceased (Sec. 20, Rule 3). It would not then be proper to file a motion for the issuance of

an order or writ of execution.

PLEADINGS

1. A compulsory counterclaim if not set up is barred while a permissive counterclaim even if not

set up is not barred. Because a permissive counterclaim does not arise out of the same

transaction as that of the complaint, if can be brought as a separate action in itself. A docketfee must be paid for the permissive counterclaim. It must be also answered by the adverse

party to prevent default. It also needs a certificate against forum shopping. A compulsory

counterclaim need not be answered and does not need a certificate against forum shopping.

2. Every pleading must be signedby the party or counsel representing him stating the address

which should not be a post office box (Sec. 3, Rule 7, Rules of Court).

3.

The signature of counsel is extremely significant. The signature of counsel signifies that (a)he has read the pleading, (b) that to the best of his knowledge, information and belief, there

are good grounds to support it, and (c) that is not interposed for delay.

4. It is a rule of pleading that the prayer for relief though part of the complaint, is not part of

the cause of action and the plaintiff is entitled to as much relief as the facts may warrant. It is

the material allegations of fact of the complaint, not the legal conclusions in the prayer that

determine the relief to which the plaintiff is entitled. The court shall grant relief on the basisof the allegations in the pleading and the proof even if no such relief is prayed for (UBS

Marketing Corporation vs. Court of Appeals, 332 SCRA 534); Bangko Filipino Savings and

Mortgage Bank vs. Court of Appeals, 332 SCRA 241).

Example: The prayer is for P3 million and for such other relief as may be deemed

just and equitable. The amount proved during the trial is P5 million without objection from

the adverse party. May the court award P5 million?

The court may award P5 million where no objection is interposed to the evidence of

P5 million. It is as if the issue of P5 million was raised in the pleadings. Exception: A

judgment rendered against a party in default shall not exceed the amount or be different in

kind from that prayed for nor award unliquidated damages (Rule 9, Section 3(d)).


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8. Failure to comply with the required certification against forum shopping is a cause for

dismissal of the action but only upon motion and hearing. The defect is NOT curable by

amendment (Barroso vs. Ampig, Jr., 328 SCRA 530, 536).

9.

A reply is not mandatorybecause even if there is no reply, the allegations of new matters inthe answer of the defendant are deemed controverted, meaning, DENIED (Sec. 10, Rule 6,

Rules of Court). A reply however, is advisable when the defense is founded upon an

instrument (actionable document) as described under Sec. 7and Sec. 8 of Rule 8. In such a

case the reply must specifically deny the instrument under oath otherwise the genuineness

and due execution of the instrument will be deemed admitted. Note that a denial of an

actionable document must always be under oath to avoid an implied admission of its

genuineness and due execution (Sec. 8, Rule 8, Rules of Court).

Note: Allegations of usury in a complaint to recover usurious interest must also be

denied under oath. (Sec. 11, Rule 8, Rules of Court).

SUMMONS

1. Service of summons is the means of acquiring jurisdiction over the person of the defendant

in an action in personam and a means by which the due process requirement of notice of theconstitution is complied with. The rules require not just a mere service of summons. The

modes of service must be strictly followed in order that the court may acquire jurisdiction

over the person of the defendant. (Umandap vs. Sabio, Jr., 339 SCRA 243; Gan Hock vs. Court of

Appeals, 197 SCRA 223).

2. With respect to foreign corporations, when a foreign corporation has designated a person to

receive summons in its behalf pursuant to the Corporation Code, that designation isexclusive and service of summons on any other person is inefficacious (H.B. Zachry Company

International vs. Court of Appeals, 232 SCRA 329).

3. As to domestic corporations, the rule is: Summons must be served ONLY upon persons

enumerated in Sec. 11 of Rule 14 (president, general manager, managing partner, corporate

secretary, treasurer, and in-house counsel). The enumeration is exclusive. Service upon any

other person will not enable the court to acquire jurisdiction over person of the defendant

(E.B. Villarosa vs. Benito, 312 SCRA 7; Mason vs. C.A., G.R. No. 144662, October 13, 2003 ;Paramount Insurance Corporation vs. A.C. Ordoez Corporation, G.R. No. 175109, August 6,

2008).

Previous rulings which allowed service through a clerk (Golden Country Farms vs.


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4. Remember too that the judgment to be rendered against the party in default shall not exceed

the amount or be different in kind than that prayed for. Unliquidated damages cannot be

awarded. Note also that there is no default in an action for annulment or declaration of

nullity of marriage or for legal separation even if the defendant fails to file an answer.

5. A party declared in default may file a motion under oath to set aside the order of default

upon proper showing of FAME (fraud, accident, mistake or excusable negligence). He must

also show that he has meritorious defense and which must be stated in an affidavit of merit

(Sec. 3(b), Rul

2011 remedial notes complete (1)

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