rule 1 -rules of court

8/9/2019 RULE 1 -Rules of court

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RULE 1

General Provisions

Section 1. Title of the Rules. — These Rule shall be known and cited asthe Rules of Court. 1!

Section ". #n what courts a$$licable. — These Rules shall a$$l% in all thecourts& e'ce$t as otherwise $rovided b% the Su$re(e Court. n!

Section ). Cases *overned. — These Rules shall *overn the $rocedure tobe observed in actions& civil or cri(inal and s$ecial $roceedin*s.

a! + civil action is one b% which a $art% sues another for theenforce(ent or $rotection of a ri*ht& or the $revention or redress of awron*& 1a& R"!

+ civil action (a% either be ordinar% or s$ecial. ,oth are *overned b% therules for ordinar% civil actions& sub-ect to the s$eci c rules $rescribed fora s$ecial civil action. n!

b! + cri(inal action is one b% which the State $rosecutes a $erson foran act or o(ission $unishable b% law. n!

c! + s$ecial $roceedin* is a re(ed% b% which a $art% seeks to establisha status& a ri*ht& or a $articular fact. "a& R"!

Section /. #n what case not a$$licable. — These Rules shall not a$$l% toelection cases& land re*istration& cadastral& naturali0ation and insolvenc%$roceedin*s& and other cases not herein $rovided for& e'ce$t b% analo*%or in a su$$letor% character and whenever $racticable and convenient.

R1/)a!

Section . Co((ence(ent of action. — + civil action is co((enced b% thelin* of the ori*inal co($laint in court. #f an additional defendant is

i($leaded in a later $leadin*& the action is co((enced with re*ard to hi(



on the dated of the lin* of such later $leadin*& irres$ective of whetherthe (otion for its ad(ission& if necessar%& is denied b% the court. 2a!

Section 2. Construction. — These Rules shall be liberall% construed in

order to $ro(ote their ob-ective of securin* a -ust& s$eed% andine'$ensive dis$osition of ever% action and $roceedin*. "a!

Rule 1 General Provisions

1. Civil action – one by which a party sues another for the enforcement orprotection of a right, or the prevention or redress of a wrong; may be ordinary orspecial

Criminal action – one by which the state prosecutes a person for an act oromission punishable by law

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

2. Rules of Court shall !" be applicable to the following, except by analogy or in asuppletory character, and whenever practicable and convenient

1. #lection cases;

2. $and registration;

%. Cadastral proceedings;

&. aturali'ation proceedings; and

(. )nsolvency proceedings

RULE "

Cause of +ction

*ection 1. !rdinary civil actions, basis of. + #very ordinary civil action must bebased on a cause of action. n-

*ection 2. Cause of action, de ned. + / cause of action is the act or omission bywhich a party violates a right of another. n-

*ection %. !ne suit for a single cause of action. + / party may not institute morethan one suit for a single cause of action. %a-



*ection &. *plitting a single cause of action; e0ect of. + )f two or more suits areinstituted on the basis of the same cause of action, the ling of one or a udgmentupon the merits in any one is available as a ground for the dismissal of the others.

&a-

*ection (. oinder of causes of action. + / party may in one pleading assert, inthe alternative or otherwise, as many causes of action as he may have against anopposing party, sub ect to the following conditions3

a- "he party oining the causes of action shall comply with the rules on oinderof parties;

b- "he oinder shall not include special civil actions or actions governed byspecial rules;

c- 4here the causes of action are between the same parties but pertain todi0erent venues or urisdictions, the oinder may be allowed in the Regional "rialCourt provided one of the causes of action falls within the urisdiction of said courtand the venue lies therein; and

d- 4here the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of urisdiction. (a-

*ection 5. 6is oinder of causes of action. + 6is oinder of causes of action is not aground for dismissal of an action. / mis oined cause of action may, on motion of aparty or on the initiative of the court, be severed and proceeded with separately. n-

Rule " Cause of +ction

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

2. Re7uisites of oinder of Causes of /ction3

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

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



%. 4here the causes of action are between the same parties but pertain todi0erent venues or urisdiction, the oinder may be allowed in the R"Cprovided one of the causes of action falls within the urisdiction of the R"Cand the venue lies therein;

%. 4here the claims in all the causes of action are principally for recovery ofmoney, the aggregate amount claimed shall be the test of urisdiction.

&. 6is oinder of causes of action !" a ground for dismissal; the action may, onmotion or motu proprio , be severed and proceeded with separately.

R8$# %

9arties to Civil /ctions

*ection 1. 4ho may be parties; plainti0 and defendant. + !nly natural or uridicalpersons, or entities authori'ed by law may be parties in a civil action. "he term:plainti0: may refer to the claiming party, the counter claimant, the cross claimant,or the third fourth, etc.- + party plainti0. "he term :defendant: may refer to theoriginal defending party, the defendant in a counter claim, the cross defendant, orthe third fourth, etc.- + party defendant. 1a-

*ection 2. 9arties in interest. + / real party in interest is the party who stands tobe bene ted or in ured by the udgment in the suit, or the party entitled to theavails of the suit. 8nless otherwise authori'ed by law or these Rules, every action

must be prosecuted or defended in the name of the real party in interest. 2a-

*ection %. Representatives as parties. + 4here the action is allowed to beprosecuted and defended by a representative or someone acting in a duciarycapacity, the bene ciary shall be included in the title of the case and shall bedeemed to be the real property in interest. / representative may be a trustee of ane<pert trust, a guardian, an e<ecutor or administrator, or a party authori'ed by lawor these Rules. /n agent acting in his own name and for the bene t of anundisclosed principal may sue or be sued without oining the principal e<cept whenthe contract involves things belonging to the principal. %a-

*ection &. *pouses as parties. + =usband and wife shall sue or be sued ointly,e<cept as provided by law. &a-



*ection (. 6inor or incompetent persons. + / minor or a person alleged to beincompetent, may sue or be sued with the assistance of his father, mother,guardian, or if he has none, a guardian ad litem. (a-

*ection 5. 9ermissive oinder of parties. + /ll persons in whom or against whomany right to relief in respect to or arising out of the same transaction or series oftransactions is alleged to e<ist, whether ointly, severally, or in the alternative, may,e<cept as otherwise provided in these Rules, oin as plainti0s or be oined asdefendants in one complaint, where any 7uestion of law or fact common to all suchplainti0s or to all such defendants may arise in the action; but the court may makesuch orders as may be ust to prevent any plainti0 or defendant from beingembarrassed or put to e<pense in connection with any proceedings in which he mayhave no interest. 5n-

*ection >. Compulsory oinder of indispensable parties. + 9arties in interestwithout whom no nal determination can be had of an action shall be oined eitheras plainti0s or defendants. >-

*ection ?. ecessary party. + / necessary party is one who is not indispensablebut who ought to be oined as a party if complete relief is to be accorded as to thosealready parties, or for a complete determination or settlement of the claim sub ectof the action. ?a-

*ection @. on oinder of necessary parties to be pleaded. + 4henever in anypleading in which a claim is asserted a necessary party is not oined, the pleadershall set forth his name, if known, and shall state why he is omitted. *hould thecourt nd the reason for the omission unmeritorious, it may order the inclusion ofthe omitted necessary party if urisdiction over his person may be obtained.

"he failure to comply with the order for his inclusion, without usti able cause, shallbe deemed a waiver of the claim against such party.

"he non inclusion of a necessary party does not prevent the court from proceedingin the action, and the udgment rendered therein shall be without pre udice to therights of such necessary party. ?a, @a-



*ection 1A. 8nwilling co plainti0. + )f the consent of any party who should be oined as plainti0 can not be obtained, he may be made a defendant and the reasontherefor shall be stated in the complaint. 1A-

*ection 11. 6is oinder and non oinder of parties. + either mis oinder nor non oinder of parties is ground for dismissal of an action. 9arties may be dropped oradded by order of the court on motion of any party or on its own initiative at anystage the action and on such terms as are ust. /ny claim against a mis oined partymay be severed and proceeded with separately. 11a-

*ection 12. Class suit. + 4hen the sub ect matter of the controversy is one ofcommon or general interest to many persons so numerous that it is impracticable to

oin all as parties, a number of them which the court nds to be suBcientlynumerous and representative as to fully protect the interests of all concerned may

sue or defend for the bene t of all. /ny party in interest shall have the right tointervene to protect his individual interest. 12a-

*ection 1%. /lternative defendants. + 4here the plainti0 is uncertain against whoof several persons he is entitled to relief, he may oin any or all of them asdefendants in the alternative, although a right to relief against one may beinconsistent with a right of relief against the other. 1%a-

*ection 1&. 8nknown identity or name of defendant. + 4henever the identity orname of a defendant is unknown, he may be sued as the unknown owner heirdevisee, or by such other designation as the case may re7uire, when his identity ortrue name is discovered, the pleading must be amended accordingly. 1&-

*ection 1(. #ntity without uridical personality as defendant. + 4hen two or morepersons not organi'ed as an entity with uridical personality enter into a transaction,they may be sued under the name by which they are generally or commonly known.

)n the answer of such defendant, the name and addresses of the persons composingsaid entity must all be revealed. 1(a-

*ection 15. eath of party; duty of counsel. + 4henever a party to a pendingaction dies, and the claim is not thereby e<tinguished, it shall be the duty of hiscounsel to inform the court within thirty %A- days after such death of the factthereof, and to give the name and address of his legal representative or



representatives. Dailure of counsel to comply with his duty shall be a ground fordisciplinary action.

"he heirs of the deceased may be allowed to be substituted for the deceased,

without re7uiring the appointment of an e<ecutor or administrator and the courtmay appoint a guardian ad litem for the minor heirs.

"he court shall forthwith order said legal representative or representatives toappear and be substituted within a period of thirty %A- days from notice.

)f no legal representative is named by the counsel for the deceased party, or if theone so named shall fail to appear within the speci ed period, the court may orderthe opposing party, within a speci ed time to procure the appointment of an

e<ecutor or administrator for the estate of the deceased and the latter shallimmediately appear for and on behalf of the deceased. "he court charges inprocuring such appointment, if defrayed by the opposing party, may be recoveredas costs. 15a, 1>a-

*ection 1>. eath or separation of a party who is a public oBcer. + 4hen a publicoBcer is a party in an action in his oBcial capacity and during its pendency dies,resigns, or otherwise ceases to hold oBce, the action may be continued andmaintained by or against his successor if, within thirty %A- days after the successortakes oBce or such time as may be granted by the court, it is satisfactorily shown tothe court by any party that there is a substantial need for continuing or maintainingit and that the successor adopts or continues or threatens to adopt or continue toadopt or continue the action of his predecessor. Eefore a substitution is made, theparty or oBcer to be a0ected, unless e<pressly assenting thereto, shall be givenreasonable notice of the application therefor and accorded an opportunity to beheard. 1?a-

*ection 1?. )ncompetency or incapacity. + )f a party becomes incompetent orincapacitated, the court, upon motion with notice, may allow the action to becontinued by or against the incompetent or incapacitated person assisted by hislegal guardian or guardian ad litem. 1@a-

*ection 1@. "ransfer of interest. + )n case of any transfer of interest, the actionmay be continued by or against the original party, unless the court upon motiondirects the person to whom the interest is transferred to be substituted in the actionor oined with the original party. 2A-



*ection 2A. /ction and contractual money claims. + 4hen the action is forrecovery of money arising from contract, e<press or implied, and the defendant diesbefore entry of nal udgment in the court in which the action was pending at thetime of such death, it shall not be dismissed but shall instead be allowed to continueuntil entry of nal udgment. / favorable udgment obtained by the plainti0 thereinshall be enforced in the manner especially provided in these Rules for prosecutingclaims against the estate of a deceased person. 21a-

*ection 21. )ndigent party. + / party may be authori'ed to litigate his action, claimor defense as an indigent if the court, upon an e< parte application and hearing, issatis ed that the party is one who has no money or property suBcient and availablefor food, shelter and basic necessities for himself and his family.

*uch authority shall include an e<emption from payment of docket and other lawfulfees, and of transcripts of stenographic notes which the court may order to befurnished him. "he amount of the docket and other lawful fees which the indigentwas e<empted from paying shall be a lien on any udgment rendered in the casefavorable to the indigent, unless the court otherwise provides.

/ny adverse party may contest the grant of such authority at any time before udgment is rendered by the trial court. )f the court should determine after hearingthat the party declared as an indigent is in fact a person with suBcient income orproperty, the proper docket and other lawful fees shall be assessed and collected bythe clerk of court. )f payment is not made within the time <ed by the court,e<ecution shall issue or the payment thereof, without pre udice to such othersanctions as the court may impose. 22a-

*ection 22. otice to the *olicitor Feneral. + )n any action involving the validity ofany treaty, law, ordinance, e<ecutive order, presidential decree, rules or regulations,the court, in its discretion, may re7uire the appearance of the *olicitor Feneral whomay be heard in person or a representative duly designated by him. 2%a-

Rule ) Parties to Civil +ctions

1. Claims that *urvive the eath of a 9arty3

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

2. /ctions to enforce liens thereon;



%. /ctions to recover for in ury to persons or property by reason of tort;

&. /ctions to recover money arising from contract, e<press or implied.

2. eath of defendant in action on contractual money claims before udgment ofR"C !" ground for dismissal. /ction continues until entry of nal udgment. /ny

udgment against estate of deceased will be enforced as money claim. 4rit ofpreliminary attachment, if any, not dissolved.

%. Re7uisites of 9ermissive oinder of 9arties3

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 7uestion of law or fact common to all the plainti0s and defendants;

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

&. Re7uisites of a Class *uit31. *ub ect matter of the controversy is one of common or general interest to

many persons;

2. 9arties a0ected are so numerous that it is impracticable to bring them all tothe court;

%. 9arties bringing the class suit are suBciently numerous or representative ofthe class and have the legal capacity to le the action.

(. "ransfer of )nterest

G /ction may be continued by or against the original party, unless the court, onmotion, directs the transferee to be substituted in the action or oined with theoriginal party; however, if transfer is made before commencement of the action, thetransferee must necessarily be the party, since only he is the real party in interest.

Rule / 3enue 4f +ctions

* Uniform rule on venue in RTC and MTC

1. Henue of real actions – in the proper court which has urisdiction over the areawherein real property involved or a portion thereof is situated .



2. Henue for forcible entry and detainer actions – in the 6"C of the municipality orcity wherein the real property or a portion thereof is situated.

%. Henue of personal actions – where the plainti or any of the principal plainti sresides , or where the defendant or any of the principal defendants resides , or in thecase of a non resident defendant where he may e found , at the election of theplainti0.

!"T#$ IresidenceJ means place where party actually resides at time of action;does !" mean permanent home or domicile.

&. /ction against non resident not found in the 9hilippines

1. /ction /0ects the 9lainti0Ks 9ersonal *tatus – in the court of the place wherethe plainti0 resides.

2. /ction /0ects /ny 9roperty of the efendant in the 9hilippines – where theproperty or any portion thereof is situated or found.

(. Rules on Henue shall !" apply31. )n those case where a speci c rule or law provides otherwise e.g.% civil case

for damages in cases of libel, where /rticle %5A of R9C provides speci c ruleson venue-; !R

2. 4here the parties have validly agreed ) 4R)") F before the ling of theaction on the #LC$8*)H# venue thereof.

G )n this instance, the action can only be led in the place agreed upon even if theother place is the place of residence of the parties or the location of the realproperty involved.

Rule Unifor( Procedure in Trial Courts

1. "he procedure in the 6"Cs shall be the same as that in the R"C.

2. 8niform 9rocedure shall !" be applicable3

1. 4here a particular provision e<pressly or impliedly applies only to either ofsaid courts.

2. )n civil cases governed by the Rule on *ummary 9rocedure.

Rule 2 5inds of Pleadin*s

1. !egative &efense – speci c denial of the material fact or facts alleged in thepleading of the claimant essential to his cause of action.

2. '(rmative defense – an allegation of a new matter which, while hypotheticallyadmitting the material allegations in the pleading of the claimant, wouldnevertheless prevent or bar recovery by him. )ncludes3

1. Draud

2. *tatute of limitations



%. Release

&. 9ayment

(. )llegality

5. *tatue of frauds

>. #stoppel

?. Dormer recovery

@. ischarge in bankruptcy

1A./ny other matter by way of confession or avoidance.

%. Compulsory counterclaim – Re7uisites3

1. /rises out of or is necessarily connected with the transaction or occurrencewhich is the sub ect matter of the opposing partyKs claim;

2. oes not re7uire for its ad udication the presence of % rd parties of whom thecourt cannot ac7uire urisdiction; and

%. 6ust be within the urisdiction of the court both as to the nature and theamount, except that in an !R)F) /$ action in the R"C, the counterclaim maybe considered regardless of the amount.

G 'gustin vs. )acalang

/ court if 6"C- has no urisdiction to hear and determine a set o0 or counterclaimin e<cess of its urisdiction. / counterclaim beyond the courtKs urisdiction may onlybe pleaded by way of defense, the purpose of which is to defeat or weaken the

plainti0Ks claim, but !" to obtain aBrmative relief. 6!R#!H#R, the amount of udgment obtained by the defendant on appeal cannot e<ceed the urisdiction of thecourt in which the action began. *ince the trial court did not ac7uire urisdictionover the counterclaim in e<cess of the urisdictional amount, the appellate courtlikewise did not have urisdiction over the same. )n such a case, the award ine<cess of the urisdiction of the trial court is void.

G Calo vs. ' ax

/ counterclaim, even if otherwise compulsory, but amount e<ceeds the urisdictionof the inferior court, will only be considered permissive. =ence, fact that it is notset up in the inferior court will not bar plainti0 from instituting a separate action toprosecute it.

Rule 6 Parts of a Pleadin*

1. 1. Dormal Re7uirements of 9leadings3

2. 2. *ignature of the lawyer constitutes a certi cation by him that3

1. Caption



2. "itle

%. Eody divided into headings and paragraphs

&. Eody divided into headings and paragraphs

(. *ignature and address

5. Heri cation in some cases

1. =e has read pleading

2. "o the best of his knowledge, information, and belief, there is good ground tosupport it

%. )t is not interposed for delay.

%. =ow a 9leading is Heri ed3 Ey an aBdavit stating that

1. /Bant person verifying- has read the pleading

2. /llegations therein are true and correct as of his personal +nowledge orased on authentic records . *C Circular &? 2AAA, e ective 6ay 1, 2AAA-

&. / pleading re7uired to be veri ed which3

1. Contains a veri cation based on Iinformation and beliefJ, !R

2. Contains a veri cation based on Iknowledge, information and belief,J !R

%. $acks a proper veri cation

*hall be treated as an unsigned pleading.

1. (. 4hat pleadings have to be veri ed31. 9etition for relief from udgment %?.%-

2. /ppeal by certiorari from C/ to *C &(.1-

%. Complaint with prayer for preliminary attachment (>. %-

&. Complaint for in unction (?.&-

(. Complaint for replevin 5A.2-

5. 9etition for certiorari 5(.1-

>. 9etition for prohibition 5(.2-?. 9etition for mandamus 5(.%-

@. Complaint for forcible entry or unlawful detainer >A.&-

1A.9etition for appointment of general guardian @%.2-

11.9etition for leave to sell or encumber property of estate or guardian @(.1-



12.9etition for declaration of competency of the ward @>.1-

1%.9etition for ha eas corpus 1A2.%-

1&.9etition for change of name 1A%.2-

1(.9etition for voluntary dissolution of a corporation 1A&.1-

15.9etition for cancellation or correction of entries in the civil registry 1A?.1-

1>.9etition to take deposition in perpetuam rei memoriam before action orpending appeal- 2&.2-

1?.6otion to set aside a default order of an inferior court

[email protected] for dissolution of preliminary in unction on the ground of irreparabledamage to the movant while the adverse party can be fully compensated

2A.9etition for appointment of receiver

21.9etition for review of the decision of an R"C in cases within the e<clusiveoriginal urisdiction of the inferior court, by and elevated to the C/.

22.9leadings that need not be veri ed but must be under oath3

2%. enial of the genuineness and due e<ecution of an actionable document ?.?-

2&. enial of allegations of usury ?.11-

2(./nswer to written interrogatories 2(.2-

25./nswer to re7uest for admission 25.2-

2>. otice of appeal from administrative tribunals to the C/

5. *upporting aBdavits of merit re7uired3

1. 6otion to postpone for absence of evidence %A.%-

2. 6otion to postpone for illness of a party or counsel %A.&-

%. 6otion for summary udgment or opposition thereto %(.1,2,%,(-

&. 6otion for new trial on the ground of D/6# or opposition thereto %>.2-

(. 9etition for relief from udgment %?.%-

5. "hird party claim %@.15-

>. 9roof re7uired of a redemptioner %@.%A-

?. 6otion for preliminary attachment (>.%-

@. 6otion for dissolution of preliminary in unction (?.5-

1A./pplication for writ of replevin 5A.2-

11.Claim against the estate of the decedent ?5.@-



12.6otion for new trial based on newly discovered evidence in criminal cases121.&-

>. Certi cation against Dorum *hopping3 9lainti0 or principal party shall certifyunder oath in the complaint or other initiatory pleading or in a sworn certi cationanne<ed and led therewith3

1. "hat he has not commenced any action or led any claim involving the sameissues in any court, tribunal or 7uasi udicial agency; to the best of hisknowledge no such other claim or action pending;

2. )f there is such other pending action, a complete statement of the presentstatus thereof;

%. )f he should thereafter learn that same or similar action or claim is led orpending, he shall report the same within ( days therefrom to the court wherehe led his complaint.

!"T#$ D/)$8R# "! C!69$M !" C8R/E$# EM 6#R# /6# 6# " !D "=#C!69$/) " !R 9$#/ ) F E8" *=/$$ E# C/8*# D!R )*6)**/$ !D "=# C/*#4)"=!8" 9R# 8 )C#; )D "=# /C"* !D 9/R"M !R C!8 *#$ C$#/R$M C! *")"8"#4)$$D8$ N #$)E#R/"# D!R86 *=!99) F, FR!8 D!R *866/RM )*6)**/$4)"= 9R# 8 )C# / C! *")"8"# )R#C" C! "#69".

G Dor Dorum *hopping to e<ist, there must be3

1. *ame transactions involved;

1. *ame essential facts and circumstances; and

2. /ctions raise identical cause of action, sub ect matter, and issues .

Rule 7 8anner of 8akin* +lle*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 besued in a representative capacity or the legal e<istence of an organi'edassociation that is made a party must be averred;

2. "o raise an issue as to the legal e<istence of a party or the capacity of a partyin a representative capacity, do so by speci c denial, including suchsupporting particulars as are peculiarly within the pleaderKs 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 e<hibit and deemed to be part of the pleading; !R

%. Copy may be set forth in the pleading with like e0ect.



1. %. =ow to contest actionable document3 Fenuineness and due e<ecution ofinstrument deemed admitted unless adverse party3

1. *peci cally denies them under oath;

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

G Re7uirement of an oath does !" apply3

1. 4hen diverse party does not appear to be a party to the instrument; or

2. 4hen compliance with an order for an inspection of the original instrument isrefused.

G /dmission of genuineness and due e<ecution3

1. 9arty whose signature appears admits that he signed it, or that it was signedby another with his authority

2. 4as in words and gures as set out at the time it was signed

%. ocument was delivered

&. /ny formal re7uisites re7uired by law which it lacks are waived by him

G "he following defenses are cut o0 by admission of genuineness and duee<ecution of the document3

1. *ignature is a forgery

2. *ignature is unauthori'ed

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

1. 9arty charged signed the instrument in some other capacity than thatalleged in the pleading setting it out

2. ocument was never delivered.

%. &. *peci c enial

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

2. efendant must set forth the substance of the matters upon which he reliesto support his denial, whenever practicable;

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

&. )f defendant does not have knowledge or information suBcient to form abelief as to the truth of a material averment, he shall so state and this hase0ect of denial.

G !egative pregnant – a denial which at the same time involves an admission of thesubstantial facts in the pleading responded to.



(. /llegations not speci cally denied, other than those as to amount ofunli7uidated damages deemed admitted.

Rule 9 E:ect of ;ailure to Plead

1. Feneral Rule3 efenses and ob ections not pleaded in answer or motion to

dismiss are deemed waived !mnibus 6otion Rule-.#xception$ Court shall dismiss the claim, even without allegation in answer ormotion to dismiss, if any of the following appear from the pleadings or the evidenceon record3

1. $ack of urisdiction over the sub ect matter;

2. ,itis pendentia between 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 orderof default;

2. 6otion to set aside order of default may be led after notice and before udgment;

%. 9arty may make motion, under oath, to set aside order of default upon propershowing that failure to answer was due to D/6#;

&. #0ect of order of default – party in default entitled to notice of subse7uentproceedings but not to take part in trial;

(. 9artial default – if several defending parties and not all in default, the courtshall try the case against all upon the answers thus led and evidencepresented;

5. /fter declaration of default, court may render udgment on the basis of thecomplaint or re7uire claimant to submit evidence;

>. udgment against party in default shall not e<ceed the amount or di0er inkind from that prayed for nor award unli7uidated damages;

?. o defaults in action for annulment or declaration of nullity of marriage or for

legal separation.Rule 1< +(ended and Su$$le(ental Pleadin*s

1. /mendments of pleadings may be made once as a matter of right3

1. /t any time before responsive pleading is served

2. )n the case of a reply, anytime within 1A days after service.



G 9lainti0 may amend complaint as a matter of right even after defendant les a6otion to ismiss, since the same is not a Iresponsive pleading.J

1. 2. *ubstantial amendments may be made only with leave ofcourt, except as provided above.

2. %. /n amended pleading supersedes the pleading that it amends butadmissions in superseded pleadings may be received in evidence against thepleader. !" udicial admissions anymore; thus, must be formally o0ered-

%. &. Claims and defenses alleged in original but not incorporated in theamended pleading shall be deemed waived.

(. /mended and *upplemental pleadings distinguished3

+(ended Su$$le(ental

Refers to facts e<isting at the timeof the commencement of the action

Refers to facts arising after the lingof the original pleading

Results in the withdrawal of theoriginal pleading

6erely an addition, and does !"result in the withdrawal of, theoriginal pleading

Can sometimes be made as amatter of right /lways led with leave of court

I. SUMMONS (Rule 14)

(1) Summons is a writ or process issued and served upon the defendant in a civil actionfor the purpose of securing his appearance therein.

(2) The service of summons enables the court to acquire jurisdiction over the person ofthe defendant. If there is no service of summons an! judgment rendered or proceedingshad in a case are null and void e"cept in case of voluntar! appearance (Echevarria vs.Parsons Hardware, 51 Phil. 980) . The law requiring the manner of service of summons in

jurisdictional (Toyota Cu ao vs. C!, "# 1$%&$1, 'ct. $&, 199 ) . Nature and purpose of summons in relation to actions in personam , inrem and quasi in rem(1) In an action in ersona* the purpose of summons is not onl! to notif! the defendantof the action against him but also to acquire jurisdiction over his person (+*anda vs.

a io, -r., &&9 C#! $ &) . The filing of the complaint does not enable the courts to acquire



jurisdiction over the person of the defendant. #! the filing of the complaint and the pa!mentof the required filing and doc$et fees the court acquires jurisdiction onl! over the person ofthe plaintiff not over the person of the defendant. %cquisition of jurisdiction over the latteris accomplished b! a valid service of summons upon him. Service of summons logicall!follows the filing of the complaint. &ote further that the filing of the complaint tolls the

running of the prescriptive period of the cause of action in accordance with %rticle 11'' ofthe ivil ode.(2) In an action in re* or /uasi in re* jurisdiction over the defendant is not requiredand the court acquires jurisdiction over an action as long as it acquires jurisdiction over theres. The purpose of summons in these actions is not the acquisition of jurisdiction over thedefendant but mainl! to satisf! the constitutional requirement of due process ("o*e vs.C!, $0 C#! 98) .

Voluntary appearance

(1) oluntar! appearance is an! appearance of the defendant in court provided he doesnot raise the question of lac$ of jurisdiction of the court ( lores vs. 2ur ito, & Phil. %3Car allo vs. Encarnacion, 9$ Phil. 9 ) . It is equivalent to service of summons ( ec. $0) .(2) %n appearance is whatever form without e"plicitl! objecting to the jurisdiction of thecourt over the person is a submission to the jurisdiction of the court over the person. Itma! be made b! simpl! filing a formal motion or plea or answer. If his motion is for an!other purpose than to object to the jurisdiction of the court over his person he thereb!submits himself to the jurisdiction of the court (4usue o vs. C!, 67 8955, -une &0, 198 36a aval ru Cor . vs. C!, 5 C! 91 ) .

(*) oluntar! appearance ma! be in form of+

(a) oluntar! appearance of attorne!,

(b) % motion b! answer or simple manifestation ( lores vs. ur ito) ,(c) % telegraphic motion for postponement (Pun alan vs. Pa ica, e . $9, 19%0) ,

(d) -iling a motion for dissolution of attachment,

(e) -ailure to question the invalid service of summons ( avale vs. C!, "# 10995 , e .$0, 199%) ,

(f) -iling a motion for e"tension of time to file an answer.

ersonal ser!ice(1) It shall be served b! handling a cop! to the defendant in person or if he refuses itb! tendering it to him ( ec. %, #ule 1 ) .



Su"stituted ser!ice

(1) If the defendant cannot be served within a reasonable time service ma! be effected+

(a) #! leaving copies of the summons at the defendant s dwelling house or residence withsome person of suitable age and discretion then residing therein, or

(b) #! leaving copies at defendant s office or regular place of business with somecompetent person in charge thereof ( ec. ) .(2) It ma! be resorted to if there are justifiable causes where the defendant cannot beserved within a reasonable time (Sec. /). %n e"ample is when the defendant is in hiding andresorted to it intentionall! to avoid service of summons or when the defendant refuseswithout justifiable reason to receive the summons ( avale vs. C!, $5& C#! 05) .(*) In substituted service of summons actual receipt of the summons b! the defendantthrough the person served must be shown (:illenniu* ;ndustrial Co**ercial Cor . vs. Tan,&8& Phil. %8) . It further requires that where there is substituted service there should be a

report indicating that the person who received the summons in defendant s behalf was onewith whom petitioner had a relation of confidence ensuring that the latter would receive orwould be notified of the summons issued in his name (!n Pin vs. C!, &%9 Phil. %093Casi*ina vs. Hon. 6e as i, "# 1 5&0, -une $9, $005) .(0) Substituted service is not allowed in service of summons on domesticcorporations ( elta :otor ales Cor . vs. :an osin , 0 C#! 598) .

#onstructi!e ser!ice ("y pu"lication)(1) %s a rule summons b! publication is available onl! in actions in re* or /uasi in re* .

It is not available as a means of acquiring jurisdiction over the person of the defendant in anaction in ersona* .(2) %gainst a resident the recogni ed mode of service is service in person on thedefendant under Sec. 3ule 10. In a case where the defendant cannot be served within areasonable time substituted service will appl! ( ec. , #ule 1 ) but no summons b!publication which is permissible however under the conditions set forth in Sec. 10 3ule 10.(*) %gainst a non4resident jurisdiction is acquired over the defendant b! service upon hisperson while said defendant is within the 5hilippines. %s once held when the defendant is anonresident personal service of summons in the state is essential to the acquisition of

jurisdiction over him (#anco 6o #rasil supra). This is in fact the onl! wa! of acquiring

jurisdiction over his person if he does not voluntaril! appear in the action. Summons b!publication against a nonresident in an action in ersona* is not a proper mode of service.(0) 5ublication is notice to the whole world that the proceeding has for its object to barindefinitel! all who might be minded to ma$e an objection of an! sort against the rightsought to be established. It is the publication of such notice that brings the whole world as apart! in the case and vests the court with jurisdiction to hear and decide it (!la an vs. C!,"# 15%0$1, e t. $&, $005) .



Ser!ice upon a defendant $%ere %is identity is un&no$n or $%ere %is $%erea"outsare un&no$n(1) 7here the defendant is designated as un$nown or whenever his whereabouts are

un$nown and cannot be ascertained despite a diligent inquir! service ma! with prior leaveof court be effected upon the defendant b! publication in a newspaper of generalcirculation. The place and the frequenc! of the publication is a matter for the court todetermine ( ec. 1 , #ule 1 ) . The rule does not distinguish whether the actionis in ersona* in re* or /uasi in re* . The tenor of the rule authori es summons b!publication whatever the action ma! be as long as the identit! of the defendant is un$nownor his whereabouts are un$nown. 8nder the previous rulings jurisdiction over the defendantin an action in personam cannot be acquired b! the summons b! publication (Pantaleon vs.

!suncion, 105 Phil. %13 Consolidated Plyware ;ndustries vs. 4reva, 1%% C#! 51%) .

Rules on Summons on 'efendant

(1) 3esident

(a) 5resent in the 5hilippines

1. 5ersonal service (#ule 1 , ec. %)2. Substituted service (#ule 1 , ec. )

*. 5ublication but onl! if

1. his identit! or whereabouts is un$nown (#ule 1 , ec. 1 )3 and 2. the action is in rem or quasi in rem (Citi en urety v. :elencio7Herrera &8

C#! &%9 <19 1=) .

(b) %bsent from the 5hilippines

1. Substituted service (#ule 1 , ec. )2. 9"traterritorial service (#ule 1 , ec. 1% and 15)3 action need not be in re* or /uasi

in re* (>al*onte v. C!, $5$ C#! 9$ <199%=)

(2) &on4resident

1. 5resent in the 5hilippines

1. 5ersonal service ( ec. %, #ule 1 )2. Substituted service ( ec. , #ule 1 )

*. %bsent from the 5hilippines



1. %ction in rem or quasi in rem : onl! 9"traterritorial service (3ule 10Sec. 1')

2. %ction in personam and judgment cannot be secured b! attachment(e.g. action for injunction)

*. 7ait for the defendant to come to the 5hilippines and to servesummons then

0. #ait the defendant to voluntaril! appear in court (3ule 10 Sec. 2;)

'. 5laintiff cannot resort to e"traterritorial service of summons ( ?awasa@i Port ervices vs. !*ores 199 C#! $&0 <1991=3 ial Cor oration vs. oriano,1%1 C#! & <1988=) .

Ser!ice upon residents temporarily outside t%e %ilippines

(1) Service of summons upon a resident of the 5hilippines who is temporaril! out of thecountr! ma! b! leave of court be effected out of the 5hilippines as under the rules one"traterritorial service in Sec. 1' 3ule 10 b! an! of the following modes+ (a) b! personalservice as in Sec. (b) b! publication in a news paper of general circulation together with aregistered mailing of a cop! of the summons and the order of the court to the last $nownaddress of the defendant or (c) b! an! manner the court ma! deem sufficient under Sec.1 . <i$e in the case of an un$nown defendant or one whose whereabouts are un$nown therule affecting residents who are temporaril! out of the 5hilippines applies in an! action. &otealso that summons b! publication ma! be effected against the defendant.

(2) The defendant ma! however also be served b! substituted service (:ontal an vs.:aAi*o, $$ C#! 10 0) . This is because even if he is abroad he has a residence in the5hilippines or a place of business and surel! because of his absence he cannot be served inperson within a reasonable time.

tra*territorial ser!ice, $%en allo$ed

(1) 8nder Sec. 1' 3ule 10 e"traterritorial service of summons is proper onl! in four (0)

instances namel!+

(a) 7hen the action affects the personal status of the plaintiffs,

(b) 7hen the action relates to or the subject of which is propert! within the 5hilippinesin which the defendant has or claims a lien or interest actual or contingent,



(c) 7hen the relief demanded in such action consists wholl! or in part in e"cluding thedefendant from an! interest in propert! located in the 5hilippines, and

(d) 7hen the defendant non4resident s propert! has been attached within the 5hilippines.

(2) 9"traterritorial service of summons applies when the following requisites concur+

(a) The defendant is nonresident,

(b) =e is not found in the 5hilippines, and

(c) The action against him is either in re* or /uasi in re* .(*) If the action is in ersona* this mode of service will not be available. There is noe"traterritorial service of summons in an action in ersona* . =ence e"traterritorial serviceupon a nonresident in an action for injunction which is in personam is not proper (?awasa@iPort ervice Cor . vs. !*ores, 199 C#! $&03 4anco o 4rasil vs. C!, &&& C#! 5 5) .

Ser!ice upon prisoners and minors(1) >n a minor. Service shall be made on him personall! and on his legal guardian if hehas one or if none upon his guardian ad lite* whose appointment shall be applied for b!the plaintiff or upon a person e"ercising parental authorit! over him but the court ma!order that service made on a minor of 1' or more !ears of age shall be sufficient ( ec. 10) ,(2) >n prisoners. It shall be made upon him b! serving on the officer having themanagement of the jail or institution who is deemed deputi ed as a special sheriff for saidpurpose ( ec. 9) .

roof of ser!ice(1) 7hen the service has been completed the server shall within five (') da!stherefrom serve a cop! of the return personall! or b! registered mail to the plaintiff scounsel and shall return the summons to the cler$ who issued it accompanied b! proof ofservice ( ec. , #ule 1 ) .(2) %fter the completion of the service a proof of service is required to be filed b! theserver of the summons. The proof of service of summons shall be made in writing b! theserver and shall set forth the manner place and date of service, shall specif! an! papers

which have been served with the process and the name of the person who received thesame, and shall be sworn to when made b! a person other than a sheriff or hisdeput! ( ec. 18) . II. MO+IONS (Rule 1 )



'efinition of Motion(1) % motion is an application for relief other than b! a pleading ( ec. 1, #ule 15) .Motions !ersus leadin-s(1) % pleading is a written statement of the respective claims and defenses of the partiessubmitted to the court for appropriate judgment ( ec. 1, #ule %) . It ma! be in the form of a

complaint counterclaim cross4claim third4part! complaint or complaint4in4interventionanswer or repl! ( ec. $, #ule %) .(2) % motion on the other hand is an application for relief other than a pleading ( ec. 1,#ule 15) .#ontents and form of motions(1) % motion shall state the order sought to be obtained and the grounds which it isbased and if necessar! shall be accompanied b! supporting affidavits and otherpapers ( ec. &) .(2) %ll motions must be in writing e"cept those made in open court or in the course of ahearing or trial ( ec. $) .

Omni"us Motion Rule(1) The rule is a procedural principle which requires that ever! motion that attac$s apleading judgment order or proceeding shall include all grounds then available and allobjections not so included shall be deemed waived ( ec. 8) . Since the rule is subject to theprovisions of Sec. 1 3ule ? the objections mentioned therein are not deemed waived evenif not included in the motion. These objections are+ (a) that the court has no jurisdictionover the subject matter (b) that there is another action pending between the same partiesfor the same cause (litis endencia) (c) that the action is barred b! a prior judgment (res

Budicata) and (d) that the action is barred b! the statute of limitations ( rescri tion) ( ec.1, ar. $, #ule 9).

(2) % motion to dismiss is a t!pical e"ample of a motion subject to omnibus motion rulesince a motion to dismiss attac$s a complaint which is a pleading. -ollowing the omnibusmotion rule if a motion to dismiss is filed then the motion must invo$e all objections whichare available at the time of the filing of said motion. If the objection which is available at thetime is not included in the motion that ground is deemed waived. It can no longer beinvo$ed as affirmative defense in the answer which the movant ma! file following the denialof his motion to dismiss.

iti-ated and ex parte motions(1) % litigated motion is one which requires the parties to be heard before a ruling on themotion is made b! the court. Sec. 0 establishes the general rule that ever! written motion isdeemed a litigated motion. % motion to dismiss (#ule 1%) a motion for judgment for thepleadings (#ule & ) and a summar! judgment (#ule &5) are litigated motions.(2) %n eA arte motion is one which does not require that the parties be heard andwhich the court ma! act upon without prejudicing the rights of the other part!. This $ind ofmotion is not covered b! the hearing requirement of the 3ules ( ec. $) . %n e"ample of



an eA arte motion is that one filed b! the plaintiff pursuant to Sec. 1 3ule 1@ in which hemoves promptl! that the case be set for pre4trial. % motion for e"tension of time is an eA

arte motion made to the court in behalf of one or the other of the parties to the action inthe absence and usuall! without the $nowledge of the other part! or parties. 9" partemotions are frequentl! permissible in procedural matters and also in situations and under

circumstances of emergenc!, and an e"ception to the rule requiring notice is sometimesmade where notice or the resulting dela! might tend to defeat the objective of themotion ( ar*iento vs. 2aratan, "# 1% 1, e . 5, $00 ) .

ro*forma motions(1) The ourt has consistentl! held that a motion which does not meet the requirementsof Sections 0 and ' of 3ule 1' on hearing and notice of the hearing is a mere scrap of paperwhich the cler$ of court has no right to receive and the trial court has no authorit! to actupon. Service of a cop! of a motion containing a notice of the time and the place of hearing

of that motion is a mandator! requirement and the failure of movants to compl! with theserequirements renders their motions fatall! defective (>ette ;ndustrial ales vs. Chen , "#1 0$&$71 0&01, ec. 5, $00%) .(2) % pro forma motion is one which does not satisf! the requirements of the rules andone which will be treated as a motion intended to dela! the proceedings (:ari@ina

evelo *ent Cor oratoin vs. loBo, $51 C#! 8 ) .

Motions for /ill of articulars (Rule 10)

urpose and $%en applied for(1) % part! s right to move for a bill of particulars in accordance with Sec. 1 3ule 12(doesn t include matters evidentiar! in nature which are covered b! Aodes of 6iscover!)when the allegations of the complaint are vague and uncertain is intended to afford a part!not onl! a chance to properl! prepare a responsive pleading but also an opportunit! toprepare an intelligent answer. This is to avert the danger where the opposing part! will finddifficult! in squarel! meeting the issues raised against him and plead the correspondingdefenses which if not timel! raised in the answer will be deemed waived. The properpreparation of an intelligent answer requires information as to the precise nature character

scope and e"tent of the cause of action in order that the pleader ma! be able to squarel!meet the issues raised thereb! circumscribing them within determined confines andpreventing surprises during the trial and in order that he ma! set forth his defenses whichma! not be so readil! availed of if the allegations controverted are vague indefiniteuncertain or are mere general conclusions. The latter tas$ assumes significance becausedefenses not pleaded (save those e"cepted in Sec. 2 3ule ? and whenever appropriate the



defenses of prescription) in a motion to dismiss or in the answer are deemedwaived (#e u lic vs. andi an ayan, "# 115 8, !u . , 199%) .

(2) The purpose of the motion is to see$ an order from the court directing the pleader tosubmit a bill of particulars which avers matters with Bsufficient definitiveness or particularit! to enable the movant to prepare his responsive pleading (Sec. 1 3ule 12) not to enable themovant to prepare for trial. The latter purpose is the ultimate objective of the discover!procedures from 3ules 2* to 2? and ever of a pre4trial under 3ule 1@. In other words thefunction of a bill of particulars is to clarif! the allegations in the pleading so an adversepart! ma! be informed with certaint! of the e"act character of a cause of action or adefense. 7ithout the clarifications sought b! the motion the movant ma! be deprived of theopportunit! to submit an intelligent responsive pleading.

(*) % motion for a bill of particulars is to be filed before not after responding to apleading ( ec. 1, #ule 1$) . The period to file a motion refers to the period for filing theresponsive pleading in 3ule 11. Thus where the motion for bill of particulars is directed to a

complaint the motion should be filed within fifteen (1') da!s after service of summons. Ifthe motion is directed to a counterclaim then the same must be filed within ten (1;) da!sfrom service of the counterclaim which is the period provided for b! Sec. 0 3ule 11 toanswer a counterclaim.(0) In case of a repl! to which no responsive pleading is provided for b! the 3ules themotion for bill of particulars must be filed within ten (1;) da!s of the service of saidrepl! ( ec. 1, #ule 1$) .

ctions of t%e court

(1) 8pon receipt of the motion which the cler$ of court must immediatel! bring to theattention of the court the latter has three possible options namel!+ (a) to den! the motionoutright (b) to grant the motion outright or (c) to hold a hearing on the motion.

#ompliance $it% t%e order and effect of non*compliance(1) If a motion for bill of particulars is granted the court shall order the pleader tosubmit a bill of particulars to the pleading to which the motion is directed. The complianceshall be effected within ten (1;) da!s from notice of the order or within the period fi"ed b!

the court ( ec. &, #ule 1$) .(2) In compl!ing with the order the pleader ma! file the bill of particulars either in aseparate pleading or in the form or an amended pleading ( ec. &, #ule 1$) . The bill ofparticulars submitted becomes part of the pleading for which it is intended ( ec. %, #ule1$) .(*) If the order to file a bill of particulars is not obe!ed or in case of insufficientcompliance therewith the court ma! order (a) the stri$ing out of the pleading (b) or the



portions thereof to which the order was directed (c) or ma$e such other order as it deems just ( ec. ) .

ffect on t%e period to file a responsi!e pleadin-(1) % motion for bill of particulars is not a pleading hence not a responsive pleading.7hether or not his motion is granted the movant ma! file his responsive pleading. 7hen hefiles a motion for #>5 the period to file the responsive pleading is sta!ed or interrupted.%fter service of the bill of particulars upon him or after notice of the denial of his motion hema! file his responsive pleading within the period to which he is entitled to at the time themotion for bill of particulars is filed. If he has still eleven (11) da!s to file his pleading at thetime the motion for #>5 is filed then he has the same number of da!s to file his responsivepleading from the service upon him of the #>5. If the motion is denied then he has thesame number of da!s within which to file his pleading counted from his receipt of the noticeof the order den!ing his motion. If the movant has less than five (') da!s to file his

responsive pleading after service of the bill of particulars or after notice of the denial of hismotion he nevertheless has five (') da!s within which to file his responsive pleading.( ec.5, #ule 1$) .(2) % seasonable motion for a bill of particulars interrupts the period within which toanswer. %fter service of the bill of particulars or of a more definite pleading of after noticeof denial of his motion the moving part! shall have the same time to serve his responsivepleading if an! is permitted b! the rules as that to which he was entitled at the time ofserving his motion but no less than five (') da!s in an! event (Tan vs. andi a ayan, "#8 195, ec. 11, 19893 ec. 5) .

Motion to 'ismiss (Rule 12)(1) % motion to dismiss is not a pleading. It is merel! a motion. It is an application forrelief other than b! a pleading ( ec. 1, #ule 15) . The pleadings allowed under the 3ules are+(a) complaint (b) answer (c) counterclaim (d) cross4claim (e) third (fourth etc.) :part!complaint (f) complaint in intervention ( ec. $, #ule %) and repl! ( ec. 10, #ule %) . %motion is not one of those specificall! designated as a pleading.3rounds

(1) 8nder Sec. 1 3ule 1 a motion to dismiss ma! be filed on an! of the followinggrounds+

(a) The court has no jurisdiction over the person of the defending part!,

(b) The court has no jurisdiction over the subject matter of the claim,

(c) The venue is improperl! laid,

(d) The plaintiff has no legal capacit! to sue,



(e) There is another action pending between the same parties and for the same cause( lis endens ),(f) The cause of action is barred b! a prior judgment ( res Budicata ) or b! the statute oflimitations (prescription),

(g) The pleading asserting the claim states no cause of action,

(h) The claim or demand set forth in the plaintiff s pleading has been paid waivedabandoned or otherwise e"tinguished,

(i) The claim on which the action is founded is unenforceable under the provisions of thestatute of frauds, and

(j) % condition precedent for filing the action has not been complied with.

(2) The language of the rule particularl! on the relation of the words CabandonedD and Cotherwise e"tinguishedD to the phrase Cclaim or demand deemed set forth in the plaintiff spleadingD is broad enough to include within its ambit the defense of bar b! laches. =oweverwhen a part! moves for the dismissal of the complaint based on laches the trial court mustset a hearing on the motion where the parties shall submit not onl! their arguments on thequestions of law but also their evidence on the questions of fact involved. Thus beingfactual in nature the elements of laches must be proved or disproved through thepresentation of evidence b! the parties (Pineda vs. Heirs o Eliseo "uevara, "# 1 &188,

e . 1 , $00 ) .

Resolution of motion(1) %fter the hearing the court ma! dismiss the action or claim den! the motion ororder the amendment of the pleading. The court shall not defer the resolution of the motionfor the reason that the ground relied upon is not indubitable. In ever! case the resolutionshall state clearl! and distinctl! the reasons therefor ( ec. &) .

(2) >ptions of the court after hearing : but not to defer the resolution of the motion forthe reason that the ground relied upon is not indubitable+

(1) dismiss the action or claim,

(2) den! the motion to dismiss, or

(*) order amendment of the pleading.

Remedies of plaintiff $%en t%e complaint is dismissed



(1) If the motion is granted the complaint is dismissed. Since the dismissal is final andnot interlocutor! in character the defendant has several options+

(a) 3efile the complaint depending upon the ground for the dismissal of the action. -orinstance if the ground for dismissal was anchored on improper venue the defendant ma!

file the action in the proper venue.

(b) %ppeal from the order of dismissal where the ground relied upon is one which barsthe refiling of the complaint li$e res judicata prescription e"tinguishment of the obligationor violation of the statute of frauds (Sec. ' 3ule 1 ). Since the complaint cannot be refiledthe dismissal is with prejudice. 8nder Sec. 1EhF 3ule 01 it is an order dismissing an actionwithout prejudice which cannot be appealed from. onversel! where the dismissal is withprejudice an appeal from the order of dismissal is not precluded. =owever where theground for dismissal for instance is the failure of the complaint to state cause of action theplaintiff ma! simpl! file the complaint anew, but since the dismissal is without prejudice toits refilling the order of dismissal cannot be appealed from under the terms of Sec. 1EhF3ule 01.

(c) 5etition for certiorari is availed of if the court gravel! abuses its discretion in a manneramounting to lac$ of jurisdiction and is the appropriate remed! in those instances when thedismissal is without prejudice ( ec. 1, #ule 1) .

Remedies of t%e defendant $%en t%e motion is denied(1) -ile answer within the balance of the period prescribed b! 3ule 11 to which he wasentitled at the time of serving his motion but not less than five (') da!s in an! event ( ec.

, #ule 1%) . %s a rule the filing of an answer going through the usual trial process and thefiling of a timel! appeal from an adverse judgment are the proper remedies against a denialof a motion to dismiss. The filing of an appeal from an order den!ing a motion to dismiss isnot the remed! prescribed b! e"isting rules. The order of denial being interlocutor! is notappealable b! e"press provision of Sec 1EcF 3ule 01.

(2) ivil action under 3ule '. This remed! however is predicated upon an allegation anda showing that the denial of the motion was tainted with grave abuse of discretionamounting to lac$ of jurisdiction. 7ithout such showing 3ule ' cannot be availed of as aremed!.

(*) The general rule is that the denial of a motion to dismiss cannot be questioned in aspecial civil action for certiorari which is a remed! designed to correct errors of jurisdictionand not errors of judgment. &either can a denial of a motion to dismiss be the subject of anappeal unless and until a final judgment or order is rendered. In order to justif! the grant of the e"traordinar! remed! of certiorari the denial of the motion to dismiss must have beentainted with grave abuse of discretion amounting to lac$ or e"cess of jurisdiction ( ou las6u D* vs. "ertrudes a ua, "r 1%1&09, e . $&, $005) .



(0) -ile an appeal because b! the clear language of Sec. ' the dismissal is subject tothe right of appeal. This remed! is appropriate in the instances where the defendant isbarred from refiling the same action of claim if the dismissal is based on the followinggrounds+

(a) The cause of action is barred b! a prior judgment

(b) The cause of action is barred b! the statute of limitations

(c) The claim or demand has been paid waived abandoned or otherwise e"tinguished

(d) The claim on which the action is founded is unenforceable under the provisions of thestatute of frauds.

(') The denial of a motion to dismiss is interlocutor! hence the remed! is to file ananswer proceed to trial and await judgment before interposing an appeal. The denial

should be raised as an error of the trial court on appeal. Certiorari is not the proper remed!.% writ of certiorari is not intended to correct ever! controversial interlocutor! ruling+ It isresorted to onl! to correct a grave abuse of discretion or a whimsical e"ercise of judgmentequivalent to lac$ of jurisdiction. Its function is limited to $eeping an inferior court within its

jurisdiction and to relieve persons from arbitrar! acts acts which courts or judges have nopower or authorit! in law to perform. It is not designed to correct erroneous findings andconclusions made b! the courts (4oni acio Construction :ana e*ent Cor . vs. Hon. Estela4erna e, "# 1 81 , -une &0, $005) .

ffect of dismissal of complaint on certain -rounds(1) -ailure to state cause of action : defendant h!potheticall! admits all the avermentsthereof. The test of sufficienc! of the facts found in a complaint as constituting a cause ofaction is whether or not admitting the facts alleged the court can render a valid judgmentupon the same in accordance with the pra!er thereof. The h!pothetical admission e"tends tothe relevant and material facts well pleaded in the complaint and inferences fairl! deducibletherefrom. =ence if the allegations in the complaint can be maintained the same shouldnot be dismissed regardless of the defense that ma! be assessed b! the defendant ( avao6i ht and Power Co. vs.Hon. -ud e, avao City #TC, "# 1 058, :arch 10, $005) .(2) 7hen the complaint is dismissed on the grounds of prior judgment or b! the statute

of limitations or pa!ment waiver abandonment or e"tinguishment of the claim orunenforceabilit! of the cause of action under the statute of frauds the dismissal shall barthe refiling of the same action or claim but this is without prejudice to the right of the otherpart! to appeal from the order of dismissal because such dismissal is a final order notmerel! interlocutor! ( ec. 5) .



%en -rounds pleaded as affirmati!e defenses(1) If no motion to dismiss has been filed an! of the grounds provided for dismissal ma!be pleaded as an affirmative defense in the answer and in the discretion of the court apreliminar! hearing ma! be had thereon as if a motion to dismiss has been filed ( ec. %,#ule 1%) .

(2) Implied under Sec. 3ule 1 is that the grounds for a motion to dismiss are notwaived even if the defendant fails to file a motion to dismiss because he ma! still avail ofthe defenses under 3ule 1 as affirmative defenses in his answer.

(*) The preliminar! hearing authori ed on the affirmative defenses raised in the answerapplies onl! if no motion to dismiss has been filed. %s a rule a preliminar! hearing is notauthori ed when a motion to dismiss has been filed. %n e"ception previousl! carved out as if the trial court had not categoricall! resolved the motion to dismiss. %nother e"ception wouldbe justified under the liberal construction rule as when it is evident that the action is barredb! res Budicata . % strict application of Sec. would accordingl! lead to absurdit! when an

obviousl! barred complaint continues to be litigated. The denial of a motion to dismiss doesnot preclude an! future reliance on the grounds relied thereupon ( s. #asdas vs. s.>illa, "# 15 %05, ec. 1&, $005) .

/ar "y dismissal(1) #es Budicata as a ground for dismissal is based on two grounds namel!+ (a) publicpolic! and necessit! which ma$es it to the interest of the State that there should be an endto litigation (re u licae ut sit litiu*) , and (b) the hardship on the individual of being ve"edtwice for the same cause (ne*o de et is veAari et eade* causa) . %ccordingl! courts will

simpl! refuse to reopen what has been decided. The! will not allow the same parties or theirprivies to litigate anew a question once it has been considered and decided with finalit!.<itigations must end and terminate sometime and somewhere. The effective and efficientadministration of justice requires that once a judgment has become final the prevailingpart! should not be deprived of the fruits of the verdict b! subsequent suits on the sameissues filed b! the same parties ( ells, ;nc. vs. Prov. o 4atan as, "# 1%855 , e . 19,$00 ) .(2) #es Budicata comprehends two distinct concepts+ (a) bar b! a former judgment and(b) conclusiveness of judgment (Heirs o enceslao Ta ia vs.C!, "# 1$9& F 1$9&99,

e . $$, $00 ) . The first concept bars the prosecution of a second action upon the same

claim demand or cause of action. The second concept states that a fact or question whichwas in issue in a former suit and was there judiciall! passed upon and determined b! acourt of competent jurisdiction is conclusivel! settled b! the judgment therein as far as theparties to that action and persons in privit! with them are concerned and cannot be againlitigated in an! future action between such parties or their privies in the same court or an!other court of concurrent jurisdiction on either the same or different cause of action while



the judgment remains unreversed b! proper authorit! (:ora a vs. ouses o*o, "#1%% 81, e t. 5, $00%) .

(*) Grounds for dismissal that bar refiling

(a) cause of action is barred b! a prior judgment,

(b) cause of action is barred b! the statute of limitations,

(c) claim or demand set forth in the plaintiff s pleading has been paid waivedabandoned or otherwise e"tinguished,

(d) claim is unenforceable under the statute of frauds.

'istin-uis%ed from 'emurrer to !idence (Rule 33)

(1) 6emurrer to evidence is a motion to dismiss filed b! the defendant after the plaintiffhad rested his case on the ground of insufficienc! of evidence. It ma! be filed after theplaintiff has completed the presentation of his evidence. It is an aid or instrument for thee"peditious termination of an action similar to a motion to dismiss which the court ortribunal ma! either grant or den!.

(2) 6istinctions+

(a) % motion to dismiss is usuall! filed before the service and filing of the answer, ademurrer to evidence is made after the plaintiff rests his case,

(b) % motion to dismiss is anchored on man! grounds, a demurrer is anchored on onegroundHplaintiff has no right to relief, and

(c) If a motion to dismiss is denied the defendant ma! file his responsive pleading, in ademurrer the defendant ma! present his evidence.

III. 'ISMISS O5 #+IONS (Rule 16)

'ismissal upon notice "y plaintiff (1) 4e ore the service of an answer or the service of a motion for summar! judgment acomplaint ma! be dismissed b! the plaintiff b! filing a notice o dis*issal . 8pon the filing of



the notice of dismissal the court shall issue an order confirming the dismissal. (Sec. 1 3ule1/).

(2) it is not the order confirming the dismissal which operates to dismiss the complaint.%s the name of the order implies said order merel! confirms a dismissal alread! effected b!the filing of the notice of dismissal. The court does not have to approve the dismissalbecause it has no discretion on the matter. #efore an answer or a motion for summar!

judgment has been served upon the plaintiff the dismissal b! the plaintiff b! the filing ofthe notice is a matter of right. The dismissal occurs as of the date of the notice is filed b!the plaintiff and not the date the court issues the order confirming the dismissal.

(*) 8nder the clear terms of Sec. 1 3ule 1/ the dismissal as a matter of right ceaseswhen an answer or a motion for summar! judgment is served on the plaintiff and not whenthe answer or the motion is filed with the court. Thus if a notice of dismissal is filed b! theplaintiff even after an answer has been filed in court but before the responsive pleading hasbeen served on the plaintiff the notice of dismissal is still a matter of right.

+$o*dismissal rule

(1) The two4dismissal rule applies when the plaintiff has (a) twice dismissed actions (b)based on or including the same claim (c) in a court of competent jurisdiction. The secondnotice of dismissal will bar the refiling of the action because it will operate as anadjudication of the claim upon the merits. In other words the claim ma! onl! be filed twicethe first being the claim embodied in the original complaint. Since as a rule the dismissal iswithout prejudice the same claim ma! be filed. If the refilled claim or complaint is

dismissed again through a second notice of dismissal that second notice triggers theapplication of the two4dismissal rule and the dismissal is to be deemed one with prejudicebecause it is considered as an adjudication upon the merits.

'ismissal upon motion "y plaintiff (1) >nce either an answer or motion for summar! judgment has been served on theplaintiff the dismissal is no longer a matter of right and will require the filing of a motion todismiss not a mere notice of dismissal. The motion to dismiss will now be subject to theapproval of the court which will decide on the motion upon such terms and conditions as are

just ( ec. $, #ule 1 ) . The dismissal under Sec. 2 is no longer a matter of right on the partof the plaintiff but a matter of discretion upon the court.

ffect of dismissal upon e istin- counterclaim(1) If a counterclaim has alread! been pleaded b! the defendant prior to the service uponhim of the plaintiff s motion to dismiss and the court grants said motion to dismiss thedismissal C shall e li*ited to the co* laintG ( ec. $, #ule 1 ) . The phraseolog! of the



provision is clear+ the counterclaim is not dismissed whether it is a compulsor! or apermissive counterclaim because the rule ma$es no distinction. The defendant if he sodesires ma! prosecute his counterclaim either in a separate action or in the same action.Should he choose to have his counterclaim resolved in the same action he must notif! thecourt of his preference within fifteen (1') da!s from the notice of the plaintiff s motion to

dismiss. Should he opt to prosecute his counterclaim in a separate action the court shouldrender the corresponding order granting and reserving his right to prosecute his claim in aseparate complaint.

(2) % similar rule is adopted in Sec. 3ule 1 and Sec. * 3ule 1/ wherein the dismissalof the counterclaim does not carr! with it the dismissal of the counterclaim. The sameprovision also grants the defendant a choice in the prosecution of his counterclaim.

'ismissal due to t%e fault of plaintiff

(1) % complaint ma! be dismissed even if the plaintiff has no desire to have the samedismissed. The dismissal is this case will be through reasons attributed to his fault. Sec. 23ule 1/ provides the following grounds for dismissal+

(a) -ailure of the plaintiff without justifiable reasons to appear on the date on the dateof the presentation of his evidence in chief,

(b) -ailure of the plaintiff to prosecute his action for an unreasonable length of time,

(c) -ailure of the plaintiff to compl! with the 3ules of ourt, or

(d) -ailure of the plaintiff to obe! an! order of the court.

(2) The dismissal due to the fault of the plaintiff ma! be done b! the court *otu ro io or upon a motion filed b! the defendant (Sec. 2 3ule 1/). The court ma! dismiss anaction *otu ro io +

(a) -ailure to prosecute for unreasonable length of time,

(b) -ailure to appear at the trial,

(c) -ailure to compl! with the rules,

(d) -ailure to compl! with the order of the court, and

(e) <ac$ of jurisdiction.

'ismissal of counterclaim, cross*claim or t%ird*part complaint



(1) The rule on the dismissal of a complaint applies to the dismissal of an! counterclaimcross4claim or third4part! claim. % voluntar! dismissal b! the claimant alone b! noticepursuant to Sec. 1 3ule 1/ shall be made before a responsive pleading or a motion forsummar! judgment is served or if there is none before the introduction of evidence at thetrial or hearing ( ec. ) .

IV. R *+RI (Rule17)#oncept of pre*trial

(1) %fter the last pleading has been served and filed it shall be the dut! of the plaintiff topromptl! move e" parte that the case be set for pre4trial.

Nature and purpose(1) The conduct of a pre4trial is mandator!. 5re4trial is a procedural device intended toclarif! and limit the basic issues between the parties. It thus paves the wa! for a lesscluttered trial and resolution of the case. Its main objective is to simplif! abbreviate ande"pedite trial or totall! dispense with it (! u a@ar vs. ! u a@ar, &1 C#! $% ) . It is abasic precept that the parties are bound to honor the stipulations made during the pre4trial (;nterlinin Cor . vs. Phil. Trust Co., "# 1 190, :arch %, $00$) .

(2) 5re4trial is a procedural device held prior to the trial for the court to consider thefollowing purposes+

(a) The possibilit! of an amicable settlement or a submission to alternative modes ofdispute resolution,

(b) Simplification of issues,

(c) &ecessit! or desirabilit! of amendments to the pleadings,

(d) 5ossibilit! of obtaining stipulations or admissions of facts and of documents to avoidunnecessar! proof,

(e) <imitation of the number of witnesses,

(f) %dvisabilit! of a preliminar! reference of issues to a commissioner,

(g) 5ropriet! of rendering judgment on the pleadings or summar! judgment or ofdismissing the action should a valid ground therefor be found to e"ist,

(h) %dvisabilit! or necessit! of suspending the proceedings, and

(i) >ther matters as ma! aid in the prompt disposition of the action ( ec. $, #ule 18) .Notice of pre*trial



(1) The notice of pre4trial shall be served on the counsel of the part! if the latter isrepresented b! counsel. >therwise the notice shall be served on the part! himself. Thecounsel is charged with the dut! of notif!ing his client of the date time and place of thepre4trial ( ec. &, #ule 18) .(2) &otice of pre4trial is so important that it would be grave abuse of discretion for the

court for e"ample to allow the plaintiff to present his evidence eA arte for failure of thedefendant to appear before the pre4trial who did not receive through his counsel a notice ofpre4trial. %ccordingl! there is no legal basis for a court to consider a part! notified of thepre4trial and to consider that there is no longer a need to send notice of pre4trial merel!because it was his counsel who suggested the date of pre4trail (! ulto vs. Tucson, %

C#! &95) .ppearance of parties8 effect of failure to appear

(1) It shall be the dut! of both the parties and their counsels to appear at the pre4trial ( ec. , #ule 18) .(2) The failure of the plaintiff to appear shall be cause for the dismissal of the action. This

dismissal shall be with prejudice e"cept when the court orders otherwise ( ec. 5, #ule 18) .Since the dismissal of the action shall be with prejudice unless otherwise provided thesame shall have the effect of an adjudication on the merits thus final. The remed! of theplaintiff is to appeal from the order of dismissal. %n order dismissing an action withprejudice is appealable. 8nder the 3ules it is onl! when the order of dismissal is withoutprejudice that appeal cannot be availed of ( ec. 1<h=, #ule 1) . Since appeal isavailable certiorari is not the remed! because the application of a petitionfor certiorari under 3ule ' is conditioned upon the absence of appeal or an! plain speed!and adequate remed! ( ec. 1, #ule %5) .(*) The failure of the defendant to appear shall be cause to allow the plaintiff to present

his evidence eA arte and for the court to render judgment on the basis of the evidencepresented b! the plaintiff ( ec. 5, #ule 18) . The order of the court allowing the plaintiff topresent his evidence eA arte does not dispose of the case with finalit!. The order istherefore merel! interlocutor!, hence not appealable. 8nder Sec. 1(c) of 3ule 01 noappeal ma! be ta$en from an interlocutor! order. The defendant who feels aggrieved b! theorder ma! move for the reconsideration of the order and if the denial is tainted with graveabuse of discretion he ma! file a petition for certiorari .

re*trial "rief8 effect of failure to file

(1) The parties shall file with the court their respective pre4trial briefs which shall bereceived at least three (*) da!s before the date of the pre4trial. This pre4trial brief shall beserved on the adverse part! ( ec. %, #ule 18) .

(2) The pre4trial brief shall contain the following matters+

(a) % statement of their willingness to enter into an amicable settlement or alternativemodes of dispute resolution indicating the desired terms thereof,



(b) % summar! of admitted facts and proposed stipulation of facts,

(c) The issues to be tried or resolved,

(d) The documents or e"hibits to be presented stating the purposes thereof,

(e) % manifestation of their having availed of or their intention to avail of discover!procedures or referral to commissioners, and

(f) The number and names of the witnesses and the substance of their respectivetestimonies ( ec.%, #ule 18) .(*) -ailure to file the pre4trial brief shall have the same effect as failure to appear at thepre4trial ( ec. %, #ule 18) . =ence if it is the plaintiff who fails to file a pre4trial brief suchfailure shall be cause for dismissal of the action. If it is the defendant who fails to do sosuch failure shall be cause to allow the plaintiff to present his evidence eA arte . % pre4trialbrief is not required in a criminal case.

'istinction "et$een pre*trial in ci!il case and pre*trial in criminal case(1) The pre4trial in a civil case is set when the plaintiff moves eA arte to set the case forpre4trial ( ec.1, #ule 18) . The pre4trial in criminal case is ordered b! the court and nomotion to set the case for pre4trial is required from either the prosecution or thedefense ( ec. 1, #ule 118) .(2) The motion to set the case for pre4trial in a civil case is made after the last pleadinghas been served and filed ( ec. 1, #ule 18) . In a criminal case the pre4trial is ordered b!the court after arraignment and within thirt! (*;) da!s from the date the court acquires

jurisdiction over the person of the accused ( ec. 1, #ule 118) .(*) The pre4trial in a civil case considers the possibilit! of an amicable settlement as an

important objective ( ec. $<a=, #ule 18) . The pre4trial in a criminal case does not includethe considering of the possibilit! of amicable settlement of criminal liabilit! as one of itspurposes ( ec.1, #ule 118) .(0) In a civil case the agreements and admissions made in the pre4trial are not requiredto be signed b! the parties and their counsels. The! are to be contained in the record ofpre4trial and the pre4trial order ( ec. , #ule 18) . In a criminal case all agreements oradmissions made or entered during the pre4trial conference shall be reduced in writing andsigned b! the accused and counsel, otherwise the! cannot be used against theaccuse ( ec. $, #ule 118) .(') The sanctions for non4appearance in a pre4trial are imposed upon the plaintiff or the

defendant in a civil case ( ec. , #ule 18) . The sanctions in a criminal case are imposedupon the counsel for the accused or the prosecutor ( ec. &, #ule 118) .

#i!il re*trial #riminal re*trialAandator! Aandator!5resence of defendant and counselmandator!

%ccused need not be present but hiscounsel must be present otherwisehe ma! be sanctioned

%micable settlement is discussed %micable settlement is not



discussed unless the criminal case iscovered b! summar! procedure

%greement included in pre4trialorder need not be in writing

%greements or admissions must bewritten and signed b! the accusedand counsel to be admissible againsthim.

an have proffer of evidence 5roffer of evidence onl! after trial

lternati!e 'ispute Resolution ( 'R)(1) If the case has alread! filed a complaint with the trial court without prior recourse toarbitration the proper procedure to enable an arbitration panel to resolve the partiesdispute pursuant to the contract is for the trial court to sta! the proceedings. %fter thearbitration proceeding has alread! been pursued and completed then the trial court ma!confirm the award made b! the arbitration panel ( iesta orld :all Cor . vs. 6in er Phils.;nc., "# 15$ 1, !u . 18, $00%) .

(2) % part! has several judicial remedies available at its disposal after the %rbitrationommittee denied its Aotion for 3econsideration+

(a) It ma! petition the proper 3T to issue an order vacating the award on the groundsprovided for under Sec. 20 of the %rbitration <aw,

(b) -ile a petition for review under 3ule 0* with the ourt of %ppeals on questions of factof law or mi"ed questions of fact and law ( ec. 1, ! #) ,(c) -ile a petition for certiorari under 3ule ' on the ground that the %rbitration

ommittee acted without or in e"cess of its jurisdiction or with grave abuse of discretionamounting to lac$ or e"cess of jurisdiction (;nsular avin s 4an@ vs. ar East 4an@ andTrust Co., "# 1 1818, -une $$, $00%) .

V. IN+ RV N+ION (Rule 19)(1) Intervention is a legal proceeding b! which a person who is not a part! to the actionis permitted b! the court to become a part! b! intervening in a pending action after meetingthe conditions and requirements set b! the 3ules. This third person who intervenes is onewho is not originall! impleaded in the action ( irst Phili ine Holdin s Cor . andi an ayan,$5& C#! &03 #ule 19) .

(2) Intervention is merel! a collateral or accessor! or ancillar! to the principal action adnot an independent proceeding. 7ith the final dismissal of the original action the complaintin intervention can no longer be acted upon.

Re:uisites for inter!ention



(1) The following requisites must be complied with before a non4part! ma! intervene in apending action+

(a) There must be a motion for intervention filed e ore rendition of judgment b! the trialcourt ( ec. 1, #ule 19) . % motion is necessar! because leave of court is required before a

person ma! be allowed to intervene.

(b) The movant must show in his motion that he has+

(1) % legal interest in the matter in litigation the success of either of the parties in theaction or against both parties,

(2) That the movant is so situated as to be adversel! affected b! a distribution or otherdisposition of propert! in the custod! of the court or of an officer thereof, and

(*) That the intervention must not onl! undul! dela! or prejudice the adjudication of therights of the original parties and that the intervenor s rights ma! not be full! protected in aseparate proceeding (:a ayo ar*s, ;nc. vs. C!, "# 1 0058, !u . 1, $00$) .

+ime to inter!ene(1) The motion to intervene ma! be filed at an! time before the rendition of judgment b!the trial court ( ec. $, #ule 18) . Intervention after trial and decision can no longer bepermitted (Dau vs. :anila 4an@in Cor ., "# 1$% &1, -uly 11, $00$) .Remedy for t%e denial of motion to inter!ention(1) The remed! of the aggrieved part! is appeal. :anda*us will not lie e"cept in case ofgrave abuse of discretion.

VI. SU/ O N (Rule 01)(1) Su"poena is a process directed to a person requiring him to attend and to testif! atthe hearing or the trial of an action or at an! investigation conducted under the laws of the5hilippines or for ta$ing of his deposition ( ec. 1, #ule $1) .(2) Su"poena duces tecum is a process directed to a person requiring him to bringwith him at the hearing or trial of an action an! boo$s documents or other things under hiscontrol.(*) Su"poena ad testificandum is a process b! which the court at the instance of apart! commands a witness who has in his possession or control some document or paperthat is pertinent to the issues of a pending controvers! to produce it as the trial (4lac@ s6aw isctionary, 5 th Ed.) .

Ser!ice of su"poena



(1) It shall be made in the same manner as personal or substituted service of summons.The original shall be e"hibited and a cop! thereof delivered to the person on whom it isserved tendering to him the fees for one da! s attendance and the $ilometrage allowed b!the 3ules e"cept that when a subpoena is issued b! or on behalf of the 3epublic or anofficer or agenc! thereof the tender need not be made. The service must be made so as to

allow the witness a reasonable time for preparation and travel to the place of attendance. Ifthe subpoena is duces tecu* the reasonable cost of producing the boo$s documents orthings demanded shall alsp be tendered.(2) Service of a subpoena shall be made b! the sheriff b! his deput! or b! an! otherperson speciall! authori ed who is not a part! and is not less than eighteen (1@) !ears ofage ( ec. %, #ule $1) . #ompellin- attendance of $itnesses8 #ontempt(1) In case of failure of a witness to attend the court or judge issuing the subpoenaupon proof of the service thereof and of the failure of the witness ma! issue a warrant to

the sheriff of the province or his deput! to arrest the witness and bring him before thecourt or officer where his attendance is required and the cost of such warrant and sei ureof such witness shall be paid b! the witness if the court issuing it shall determine that hisfailure to answer the subpoena was willful and without just cause ( ec. 8) .(2) -ailure b! an! person without adequate cause to obe! a subpoena served upon himshall be deemed a contempt of the court from which the subpoena is issued. If thesubpoena was not issued b! a court the disobedience thereto shall be punished inaccordance with the applicable law or 3ule ( ec. 9) .

;uas%in- of su"poena(1) The court ma! quash a subpoena duces tecu* upon motion promptl! made and inan! event at or before the time specified therein+ (a) if it is unreasonable and oppressiveor (b) the relevanc! of the boo$s documents or things does not appear or (c) if the personis whose behalf the subpoena is issued fails to advance the reasonable cost of theproduction thereof ( ec. ) .(2) Subpoena ad testi icandu* ma! be quashed on the ground that the witness is notbound thereb!. In either case the subpoena ma! be quashed on the ground that thewitness fees and $ilometrage allowed b! the 3ules were not tendered when the subpoenawas served ( ec. ) .

VII. MO' S O5 'IS#OV R< (Rules 0=*07)

(1) Aodes of discover!+



(a) 6epositions pending action (3ule 2*),

(b) 6epositions before action or pending appeal (3ule 20),

(c) Interrogatories to parties (3ule 2')

(d) %dmission b! adverse part! (3ule 2 ),

(e) 5roduction or inspection of documents and things (3ule 2/), and

(f) 5h!sical and mental e"amination of persons (3ule 2@).

(2) The importance of the rules of discover! is that the! shorten the period of litigationand speed up adjudication. The evident purpose is to enable the parties consistent withrecogni ed principles to obtain the fullest possible $nowledge of the facts and issues beforecivil trials and thus prevent said trials from being carried on in the dar$. The rules of

discover! serve as (a) devices along with the pre4trial hearing under 3ule 1@ to narrowand clarif! the basis issues between the parties, and (b) devices for ascertaining the factsrelative to those issues (#e u lic vs. andi an ayan, $0 C#! $1$) .

(*) The basic purposes of the rules of discover! are+

(a) To enable a part! to obtain $nowledge of material facts within the $nowledge of theadverse part! or of third parties through depositions,

(b) To obtain $nowledge of material facts or admissions from the adverse part! throughwritten interrogatories,

(c) To obtain admissions from the adverse part! regarding the genuineness of relevantdocuments or relevant matters of fact through requests for admissions,

(d) To inspect relevant documents or objects and lands or other propert! in thepossession and control of the adverse part!, and

(e) To determine the ph!sical or mental condition of a part! when such is incontrovers! (?oh vs. ;!C, 1 C#! $59) .

'epositions endin- ction (Rule 0=)'epositions "efore action or pendin- appealMeanin- of 'eposition(1) % deposition is the ta$ing of the testimon! of an! person whether he be a part! ornot but at the instance of a part! to the action. This testimon! is ta$en out of court. It ma!be either b! oral e"amination or b! a written interrogator! ( ec. 1, #ule $&) .(2) inds of depositions+



(a) 6eposition de ene esse : one ta$en pending action ( ec. 1, #ule $&) , and(b) 6eposition in er etua rei *e*oria* : one ta$en prior to the institution of anapprehended or intended action (#ule 1& ) .Uses(1) % deposition ma! be sought for use in a future action (#ule $ ) during a pending

action (#ule $&) or for use in a pending appeal (#ule $ ) . If the deposition is for useduring a pending action it is commonl! called a de osition benne esse and is governed b!3ule 2*. If it is to perpetuate a testimon! for use in future proceedings as when it is soughtbefore the e"istence of an action or for cases on appeal it is called adeposition in perpetuam rei memoriam . %n! or all of the deposition so far as admissibleunder the rules of evidence ma! be used (a) against an! part! who was present orrepresented at the ta$ing of the deposition or (b) against one who had due notice of thedeposition ( ec. , #ule $&) .(2) The deposition ma! be used for the following purposes+(a) -or contradicting or impeaching the testimon! of the deponent as a witness,

(b) -or an! purpose b! the adverse part! where the deponent is a part!,(c) -or an! purpose b! an! part! where the deponent is a witness if the court finds that+(1) The witness is dead,(2) The witness resides more than 1;; $ilometers from the place of trial or hearing or isout of the 5hilippines unless it appears that his absence was procured b! the part! offeringthe deposition,(*) That the witness is unable to attend or testif! because of age sic$ness infirmit! orimprisonment, or(0) That the part! offering the deposition has been unable to procure the attendance ofwitnesses b! subpoena, or

(') 7hen e"ceptional circumstances e"ist ( ec. , #ule $&) . Scope of e amination(1) 8nless otherwise ordered b! the court as provided b! Sec. 1 or 1@ the deponentma! be e"amined regarding an! matter not privileged which is relevant to the pendingaction whether relating to the claim or defense of an! other part! including the e"istencedescription nature custod! condition and location of an! boo$s documents or othertangible things and the identit! and location of persons having $nowledge of relevantfacts ( ec. $) .

%en may O">ections to dmissi"ility "e Made(1) Subject to the provisions of Sec. 2? objection ma! be made at the trial or hearing toreceiving in evidence an! deposition or part thereof for an! reason which would require thee"clusion of the evidence if the witness were then present and testif!ing ( ec. %) .

%en may ta&in- of deposition "e terminated or its scope limited(1) %t an! time during the ta$ing of the deposition on motion or petition of an! part! orof the deponent and upon showing that the e"amination is being conducted in bad faith orin such manner as reasonabl! to anno! embarrass or oppress the deponent or part! the



court in which the action is pending or the 3T of the place where the deposition is beingta$en ma! order the officer conducting the e"amination to cease forthwith from ta$ing thedeposition or ma! limit the scope and manner of the ta$ing of the deposition as providedin Sec. 1 3ule 2*. If the order made terminates the e"amination it shall be resumedthereafter onl! upon the order of the court in which the action is pending. 8pon demand of

the objecting part! or deponent the ta$ing of the deposition shall be suspended for thetime necessar! to ma$e a notice for an order. In granting or refusing such order the courtma! impose upon either part! or upon the witness the requirement to pa! such costs ore"penses as the court ma! deem reasonable ( ec. 18) .

ritten interro-atories to ad!erse parties#onse:uences of refusal to ans$er

(1) If a part! or other deponent refuses to answer an! question upon oral e"aminationthe e"amination ma! be completed on other matters or adjourned as the proponent of thequestion ma! prefer. The proponent ma! thereafter appl! to the proper court of the placewhere the deposition is being ta$en for an order to compel an answer. The same procedurema! be availed of when a part! or a witness refuses to answer an! interrogator! submittedunder 3ules 2* or 2'.

If the application is granted the court shall require the refusing part! or deponent toanswer the question or interrogator! and if it also finds that the refusal to answer waswithout substantial justification it ma! require the refusing part! or deponent or thecounsel advising the refusal or both of them to pa! the proponent the amount of thereasonable e"penses incurred in obtaining the order including attorne! s fees.

If the application is denied and the court finds that it was filed without substantial justification the court ma! require the proponent or the counsel advising the filing of theapplication or both of them to pa! to the refusing part! or deponent the amount of thereasonable e"penses incurred in opposing the application including attorne! s fees ( ec. 1,#ule $9) .(2) If a part! or other witness refuses to be sworn or refuses to answer an! questionafter being directed to do so b! the court of the place in which the deposition is being ta$enthe refusal ma! be considered a contempt of that court ( ec. $, #ule $9) .

(*) If an! part! or an officer or managing agent of a part! refuses to obe! an order made

under section 1 of this 3ule requiring him to answer designated questions or an orderunder 3ule 2/ to produce an! document or other thing for inspection cop!ing orphotographing or to permit it to be done or to permit entr! upon land or other propert! oran order made under 3ule 2@ requiring him to submit to a ph!sical or mental e"aminationthe court ma! ma$e such orders in regard to the refusal as are just and among others thefollowing+



(a) %n order that the matters regarding which the questions were as$ed or the character ordescription of the thing or land or the contents of the paper or the ph!sical or mentalcondition of the part! or an! other designated facts shall be ta$en to be established for thepurposes of the action in accordance with the claim of the part! obtaining the order,

(b) %n order refusing to allow the disobedient part! to support or oppose designated claimsor defenses or prohibiting him from introducing in evidence designated documents or thingsor items of testimon! or from introducing evidence of ph!sical or mental condition,

(c) %n order stri$ing out pleadings or parts thereof or sta!ing further proceedings until theorder is obe!ed or dismissing the action or proceeding or an! part thereof or rendering a

judgment b! default against the disobedient part!, and)

(d) In lieu of an! of the foregoing orders or in addition thereto an order directing the arrestof an! part! or agent of a part! for disobe!ing an! of such orders e"cept an order to submitto a ph!sical or mental e"amination ( ec. &, #ule $9) .

ffect of failure to ser!e $ritten interro-atories(1) % part! not served with written interrogatories ma! not be compelled b! the adversepart! to give testimon! in open court or to give deposition pending appeal unless allowedb! the court or to prevent a failure of justice ( ec. %, #ule $5) . This provision encouragesthe use of written interrogatories although a part! is not compelled to use this discover!procedure the rule imposes sanctions for his failure to serve written interrogatories b!depriving him of the privilege to call the adverse part! as a witness or to give a depositionpending appeal.

Re:uest for admission (Rule 02)(1) % part! although not compelled b! the 3ules is advised to file and serve a writtenrequest for admission on the adverse part! of those material and relevant facts at issuewhich are or ought to be within the personal $nowledge of said adverse part!. The part!who fails to file and serve the request shall not be permitted to present evidence on suchfacts ( ec. 5, #ule $%) . Implied admission "y ad!erse party(1) 9ach of the matters of which an admission is requested shall be deemed admitted

unless within a period designated in the request which shall not be less than fifteen (1')da!s after service thereof or within such further time as the court ma! allow on motion thepart! to whom the request is directed files and serves upon the part! requesting theadmission a sworn statement either den!ing specificall! the matters of which an admissionis requested or setting forth in detail the reasons wh! he cannot truthfull! either admit orden! those matters ( ec. $, ar. 1) .



(2) >bjections to an! request for admission shall be submitted to the court b! the part!requested within the period for and prior to the filing of his sworn statement ascontemplated in the preceding paragraph and his compliance therewith shall be deferreduntil such objections are resolved which resolution shall be made as earl! aspracticable ( ec. $, ar. $) .

#onse:uences of failure to ans$er re:uest for admission

(1) The facts or documents are deemed admitted. 8nder the 3ules each of the mattersof which an admission is requested shall be deemed admitted unless within a perioddesignated in the request which shall not be less than 1' da!s after service thereof orwithin such further time as the court ma! allow on motion the part! to whom the request isdirected files and serves upon the part! requesting the admission a sworn statement eitherden!ing specificall! the matter of which an admission is requested or setting forth in detailthe reason wh! he cannot truthfull! either admit or den! those matters.

ffect of admission

(1) %n! admission made b! a part! pursuant to such request is for the purpose of thepending action onl! and shall not constitute an admission b! him for an! other purpose norma! the same be used against him in an! other proceeding ( ec. &) .

ffect of failure to file and ser!e re:uest for admission(1) % part! who fails to file and serve a request for admission on the adverse part! ofmaterial and relevant facts at issue which are or ought to be within the personal$nowledge of the latter shall not be permitted to present evidence on such facts ( ec. 5) .

roduction of inspection of documents or t%in-s (Rule 06)

(1) 8pon motion of an! part! showing good cause therefor the court in which an action ispending ma!+

(a) >rder an! part! to produce and permit the inspection and cop!ing or photographingb! or on behalf of the moving part! of an! designated documents papers boo$s accountsletters photographs objects or tangible things not privileged which constitute or containevidence material to an! matter involved in the action and which are in his possessioncustod! or control, or

(b) >rder an! part! to permit entr! upon designated land or other propert! in hispossession or control for the purpose of inspecting measuring surve!ing or photographingthe propert! or an! designated relevant object or operation thereon. The order shall specif!



the time place and manner of ma$ing the inspection and ta$ing copies and photographsand ma! prescribe such terms and conditions as are just.

(2) 3equirements for the production or inspection of documents or things+

(a) % motion must be filed b! a part! showing good cause therefor,

(b) The motion must sufficientl! describe the document or thing sought to be produced orinspected,

(c) The motion must be given to all the other parties,

(d) The document or thing sought to be produced or inspected must constitute or containevidence material to the pending action,

(e) The document or thing sought to be produced or inspected must not be privileged,

and

(f) The document or thing sought to be produced or inspected must be in the possessionof the adverse part! or at least under his control ( ec. 1, #ule $ 3 6i*e Cor . vs. :oran,59 Phil. 1 5)

%ysical and mental e amination of persons (Rule 07)

(1) 3equirements of ph!sical and mental e"amination of persons+

(a) The ph!sical or mental condition of a part! must be in controvers! in the action,

(b) % motion showing good cause must be filed, and

(c) &otion of the motion must be given to the part! to be e"amined and to all the otherparties ( ecs. 1 and $) .

(2) 3ules governing the rights of parties on the report of the e"amining ph!sicianregarding the ph!sical or mental condition of part! e"amined+

(a) The person e"amined shall upon request be entitled to a cop! of the detailed writtenreport of the e"amining ph!sician setting out his findings and conclusions,

(b) The part! causing the e"amination to be made shall be entitled upon request toreceive from the part! e"amined a li$e report of an! e"amination previousl! or thereaftermade of the same ph!sical or mental condition,

(c) If the part! e"amined refuses to deliver such report the court on motion and noticema! ma$e an order requiring deliver!,



(d) If a ph!sician fails or refuses to ma$e such report the court ma! e"clude histestimon! if offered at the trial,

(e) The part! e"amined who obtains a reports of the e"amination or ta$es the depositionof the e"aminer waives an! privilege he ma! have in that action or an! other action

involving the same controvers! regarding the testimon! of ever! other person who hase"amined or ma! thereafter e"amine him in respect of the same mental or ph!sicale"amination ( ec. ) .

#onse:uences of refusal to comply $it% modes of disco!ery (Rule 09)

(1) The following are the consequences of a plaintiff s refusal to ma$e discover!+

(a) The e"amining part! ma! complete the e"amination on the other matters or adjournto the same ( ec. 1) ,

(b) Thereafter on reasonable notice to all persons affected thereb! he ma! appl! to thecourt of the province where the deposition is being ta$en for an order compelling answer,

(c) If the court finds that the refusal was without substantial justification it ma! orderthe refusing part! or the attorne! advising him or both of them to pa! the e"amining part!the amount of reasonable attorne! s fees,

(d) The refusal to answer ma! be considered as contempt of court ( ec. $) ,(e) The court ma! order that the facts sought to be established b! the e"amining part!shall e ta$en to be established for the purpose of the action in accordance with the claim of

the part! obtaining the order ( ec. &<a=) ,(f) The court ma! issue an order refusing to allow the disobedient part! to support oroppose designated claims or defenses or prohibiting him from introducing in evidencedesignated documents or things or items of testimon! ( ec. &< =) ,(g) The court ma! order the stri$ing out of pleadings or part! thereof ( ec. &<c=)3

(h) The court ma! sta! further proceedings until the order is obe!ed,

(i) The court ma! dismiss the action or proceeding or an! part! thereof or render judgment b! default against the disobedient part! ( ec. 5) ,(j) The court ma! order the arrest of an! part! who refuses to admit the truth of an!

matter of fact or the genuineness of an! document to pa! the part! who made the requestand who proves the truth of an! such matters or the genuineness of such documentreasonable e"penses incurred in ma$ing such proof including reasonable attorne! sfees ( ec. ) .



VIII. +RI (Rule =?)(1) % trial is the judicial process of investigating and determining the legal controversiesstarting with the production of evidence b! the plaintiff and ending with his closingarguments (!costa vs. Peo le, 5 C#! ) .

d>ournments and postponements

(1) The general rule is that a court ma! adjourn a trial from da! to da! and to an! statedtime as the e"peditious and convenient transaction of business ma! require ( ec. $) .(2) The court has no power to adjourn a trial for a period longer than one month fromeach adjournment nor more than three (*) months in all e"cept when authori ed in writingb! the ourt %dministrator. % motion for postponement should not be filed on the last hourespeciall! when there is no reason wh! it could not have been presented earlier (#e u licvs. andi an ayan, &01 C#! $& ) .(*) 5ostponement is not a matter of right. It is addressed to the sound discretion of thecourt ("arces vs. >alen uela, 1 0 C#! 5) .

Re:uisites of motion to postpone trial for a"sence of e!idence

(1) Trial ma! be postponed on the ground of absence of evidence upon compliance withthe following+

(a) % motion for postponement must be filed,

(b) The motion must be supported b! an affidavit or sworn certification showing (1) thematerialit! or relevanc! of the evidence and (2) that due diligence has been used toprocure it ( ec. &) .

(2) If the adverse part! admits the facts given in evidence the trial shall not bepostponed even if he reserves the right to object to the admissibilit! of the evidence ( ec.&).

Re:uisites of motion to postpone trial illness of party or counsel

(1) % motion for postponement must be filed,

(2) The motion must be supported b! an affidavit or sworn certification showing that (a)the presence of the part! or counsel at the trial is indispensable and (b) that the character

of his illness is such as to render his non4attendance e"cusable ( ec. ) .

-reed statements of facts(1) If the parties agree in writing on the facts involved in the action the! ma! then as$the court to render judgment thereon without the introduction of evidence. If the agreementof facts is partial trial shall be held as to others ( ec. %) . The agreed statement of facts is



conclusive on the parties as well as on the court. &either of the parties ma! withdraw fromthe agreement nor ma! the court ignore the same (:c"uire vs. :anu acturers 6i e ;ns., 8Phil. & 0) .

Order of trial

(1) Subject to the provisions of Sec. 2 3ule *1 and unless the court for special reasonsotherwise directs the trial shall be limited to the issues stated in the pre4trial order andshall proceed as follows+

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

(b) The defendant shall then adduce evidence in support of his defense counterclaimcross4claim and third part! complaint,

(c) The third part! defendant if an! shall adduce evidence of his defense counterclaimcross4claim and fourth4part! complaint,

(d) The fourth part! and so forth if an! shall adduce evidence of the material factspleaded b! them,

(e) The parties against whom an! counterclaim or cross4claim has been pleaded shalladduce evidence in support of their defense in the order to be prescribed b! the court,

(f) The parties ma! then respectivel! adduce rebutting evidence onl! unless the courtfor good reasons and in the furtherance of justice permits them to adduce evidence upon

their original case, and

(g) 8pon admission of the evidence the case shall be deemed submitted for decisionunless the court directs the parties to argue or to submit their respective memoranda or an!further pleadings.

If several defendants or third part! defendants and so fort! having separate defensesappear b! different counsel the court shall determine the relative order of presentation oftheir evidence ( ec. 5) #onsolidation or Se!erance of %earin- or trial (Rule =1)(1) onsolidation. 7hen actions involving a common question of law or facts are pendingbefore the court it ma! order a joint hearing or trial of an! or all the matters in issue in theactions, it ma! order all the actions consolidated, and it ma! ma$e such orders concerningproceedings therein as ma! tend to avoid unnecessar! costs or dela! ( ec. 1).(2) Severance (Separate) Trials. The court in furtherance of convenience or to avoidprejudice ma! order a separate trial of an! claim cross4claim counterclaim or third part!



complaint or of an! separate issue or of an! number of claims cross4claims counterclaimthird part! complaints or issue ( ec. $) .

'ele-ation of reception of e!idence

(1) The judge of the court where the case is pending shall personall! receive theevidence to be adduced b! the parties. 3eception of the evidence ma! nevertheless bedelegated to the cler$ of court who is a member of the bar in an! of the following cases+

(a) In default hearings,

(b) In eA arte hearings, or(c) In an! case b! written agreement of the parties ( ec. 9) .

+rial "y commissioners (Rule =0)(1) ommissioner includes a referee an auditor and an e"aminer ( ec. 1)Reference "y consent(1) #! written consent of both parties the court ma! order an! or all of the issues in acase to be referred to a commissioner to be agreed upon b! the parties or to be appointedb! the court ( ec. 1) .

Reference ordered on motion

(1) 7hen the parties do not consent the court ma! upon the application of either or onits own motion direct a reference to a commissioner in the following cases+

(a) 7hen the trial of an issue of fact requires the e"amination of a long account on eitherside in which case the commissioner ma! be directed to hear and report upon the wholeissue or an! specific question involved therein,

(b) 7hen the ta$ing of an account is necessar! for the information of the court before judgment or for carr!ing a judgment or order into effect,

(c) 7hen a question of fact other than upon the pleadings arises upon motion or

otherwise in an! stage of a case or for carr!ing a judgment or order into effect ( ec. $) .

o$ers of commissioner

(1) 8nder the 3ules the court s order ma! specif! or limit the powers of thecommissioner. =ence the order ma! direct him to+

(a) 3eport onl! upon particular issues,



(b) 6o or perform particular acts, or

(c) 3eceive and report evidence onl!.

(2) The order ma! also fi" the date for beginning and closing of the hearings and for the

filing of his report.

(*) Subject to such limitations stated in the order the commissioner+

(a) Shall e"ercise the power to regulate the proceedings in ever! hearing before him,

(b) Shall do all acts and ta$e all measures necessar! or proper for the efficientperformance of his duties under the order

(c) Aa! issue subpoenas and subpoenas duces tecu* and swear witnesses, and(d) 3ule upon the admissibilit! of evidence unless otherwise provided in the order of

reference ( ec. &, #ule &$) .

#ommissioner@s report8 notice to parties and %earin- on t%e report(1) 8pon completion of the trial or hearing or proceeding before the commissioner heshall file with the court his report in writing upon the matters submitted to him b! the orderof reference. 7hen his powers are not specified or limited he shall set forth his findings offact and conclusions or law in his report. =e shall attach in his report all e"hibits affidavitsdepositions papers and the transcript if an! of the evidence presented before him ( ec.9) .

(2) The commissioner s report is not binding upon the court which is free to adoptmodif! or reject in whole or in part the report. The court ma! receive further evidence orrecommit the report with instructions ( ec. 11, #ule &$3 4alta ar vs. 6i* in, 9 Phil. &9) .(*) &otice of the filing of the report must be sent to the parties for the purpose of givingthem an opportunit! to present their objections ( antos vs. "u *an, 5 Phil. % %) . Thefailure to grant the parties in due form this opportunit! to object ma! in some instancesconstitute a serious error in violation of their substantial rights ("ovt. vs. 'sorio, 50 Phil.8% ) .The rule however is not absolute. In :anila Tradin and u ly Co. vs. Phil. 6a or +nion,

1 Phil. 5&9 it was ruled that although the parties were not notified of the filing of thecommissioner s reports and the court failed to set said report for hearing if the parties whoappeared before the commissioner were dul! represented b! counsel and given anopportunit! to be heard the requirement of due process has been satisfied and a decisionon the basis of such report with the other evidence of the case is a decision which meetsthe requirements of fair and open hearing.(0) In the hearing to be conducted on the commissioner s report the court will reviewonl! so much as ma! be drawn in question b! proper objections. It is not e"pected to rehearthe case upon the entire record (?reidt vs. :cCullou h and Co., & Phi. ) .



IA. ' MURR R +O VI' N# (Rule ==)(1) 6emurrer to evidence is a motion to dismiss filed b! the defendant after the plaintiffhad rested his case on the ground of insufficienc! of evidence (4allentine s 6aw ictionary) .

(2) The provision of the 3ules governing demurrer to evidence does not appl! to anelection case ("e*enti a vs. C':E6EC, &5& C#! $ ) .

3round

(1) The onl! ground for demurrer to evidence is that the plaintiff has no right to relief.

ffect of denial8 ffect of -rant

(1) In the event his motion is denied the defendant does not waive his right to offerevidence. %n order den!ing a demurrer to evidence is interlocutor! and is therefore notappealable. It can however be the subject of a petition for certiorari in case of grave abuseof discretion or an oppressive e"ercise of judicial authorit!.

(2) If the motion is granted and the order of dismissal is reversed on appeal themovants loses his right to present the evidence on his behalf. In the case of reversal theappellate court shall render judgment for the plaintiff based on the evidence alone.

(*) It is not correct for the appellate court reversing the order granting the demurrer toremand the case to the trial court for further proceedings. The appellate court should

instead of remanding the case render judgment on the basis of the evidence submitted b!the plaintiff (#adiowealth inance Cor . vs. el #osario, &&5 C#! $88) .

ai!er of ri-%t to present e!idence

(1) If the demurrer is granted but on appeal the order of dismissal is reversed thedefendant is deemed to have waived his right to present evidence.

'emurrer to e!idence in a ci!il case !ersus demurrer to e!idence in a criminal case(1) In a civil case leave of court is not required before filing a demurrer. In a criminalcase leave of court is filed with or without leave of court ( ec. $&, #ule 119) .

(2) In a civil case if the demurrer is granted the order of dismissal is appealableHsincethe motion is interlocutor!. In a criminal case the order of dismissal is not appealablebecause of the constitutional polic! against double jeopard!Hdenial is tantamount toacquittal final and e"ecutor!.



(*) In civil case if the demurrer is denied the defendant ma! proceed to present hisevidence. In a criminal case the accused ma! adduce his evidence onl! if the demurrer isfiled with leave of court. =e cannot present his evidence if he filed the demurrer withoutleave of court ( ec. $&, #ule 119) .

A. BU'3M N+S N' 5IN OR' RS (Rules =4 C =2) Bud-ment $it%out trial(1) The theor! of summar! judgment is that although an answer ma! on its face appearto tender issuesHrequiring trialH!et if it is demonstrated b! affidavits depositions oradmissions that those issues are not genuine but sham or fictitious the ourt is justified indispensing with the trial and rendering summar! judgment for plaintiff. The court ise"pected to act chiefl! on the basis of the affidavits depositions admissions submitted b!the movants and those of the other part! in opposition thereto. The hearing contemplated(with 1;4da! notice) is for the purpose of determining whether the issues are genuine or

not not to receive evidence on the issues set up in the pleadings. % hearing is not thus deri uer . The matter ma! be resolved and usuall! is on the basis of affidavits depositionsadmissions. 8nder the circumstances of the case a hearing would serve no purpose andclearl! unnecessar!. The summar! judgment here was justified considering the absence ofopposing affidavits to contradict the affidavits ("alicia vs. Polo, 67 9%%8, ov. 1 , 19893Carcon evt. Cor . vs. C!, "# 88$18, ec. 1 , 1989) .#ontents of a >ud-ment(1) Judgment has two parts+ (a) the bod! of the judgment or the ratio decidendi and (b)the dispositive portion of the judgment or allo. The bod! of the decision (ratio decidendi) isnot the part of the judgment that is subject to e"ecution but the fallo because it is the latter

which is the latter which is the judgment of the court. The importance of allo or dispositiveportion of a decision should state whether the complaint or petition is granted or denied thespecific relief granted and the costs (:orales vs. C!, %1 C#! & ) . It is the dispositive partof the judgment that actuall! settles and declares the rights and obligations of the partiesfinall! definitivel! and authoritativel! (6i ht #ail Transit !uthority vs. C!, C#! 1$5) .(2) The general rule is that where there is a conflict between the allo and the ratiodecidendi the fallo controls. This rule rests on the theor! that the allo is the final orderwhile the opinion in the bod! is merel! a statement ordering nothing. 7here the inevitableconclusion from the bod! of the decision is so clear that there was a mere mista$e in thedispositive portion the bod! of the decision prevails (Poland ;ndustrial 6i*ited vs. ational

evelo *ent Co* any, % C#! 500) .

Bud-ment on t%e pleadin-s (Rule =4)(1) 7here an answer fails to tender an issue or otherwise admits the material allegationsof the adverse part! s pleading the court ma! on motion of that part! direct judgment onsuch pleading. =owever in actions for declaration of nullit! or annulment of marriage or for



legal separation (or for unliquidated damages or admission of the truth of allegation ofadverse part!) the material facts alleged in the complaint shall alwa!s be proved ( ec. 1) .

Summary >ud-ments (Rule = )(1) % summar! judgment or accelerated judgment is a procedural technique to promptl!dispose of cases where the facts appear undisputed and certain from the pleadingsdepositions admissions and affidavits on record of for weeding out sham claims ordefenses at an earl! stage of the litigation to avoid the e"pense and loss of time involved ina trial. Its object is to separate what is formal or pretended denial or averment from what isgenuine and substantial so that onl! the latter ma! subject a part!4in4interest to the burdenof trial. Aoreover said summar! judgment must be premised on the absence of an! othertriable genuine issues of fact. >therwise the movants cannot be allowed to obtainimmediate relief. % genuine issue is such issue of fact which requires presentation ofevidence as distinguished from a sham fictitious contrived or false claim (:onterey oods

Cor . vs. EserBose, "# 15&1$%, e t. 11, $00&) .

(2) The requisites are+ (a) there must be no genuine issue as to an! material fact e"ceptfor the amount of damages, and (b) the part! presenting the motion for summar! judgmentmust be entitled to a judgment as a matter of law.

5or t%e claimant(1) % part! see$ing to recover upon a claim counterclaim or cross4claim or to obtain adeclarator! relief ma! at an! time after the pleading in answer thereto has been served

move with supporting affidavits depositions or admissions for a summar! judgment in hisfavor upon all or an! part thereof ( ec. 1) .

5or t%e defendant(1) % part! against whom a claim counterclaim or cross4claim is asserted or adeclarator! relief is sought ma! at an! time move with supporting affidavits depositions oradmissions for a summar! judgment in his favor as to all or an! part thereof ( ec. $) .

%en t%e case not fully ad>udicated(1) If on motion judgment is not rendered upon the whole case of for all the reliefssought and a trail is necessar! the court at the hearing of the motion b! e"amining thepleadings and the evidence before it and b! interrogating counsel shall ascertain whatmaterial facts e"ist without substantial controvers! and what are actuall! and in good faithcontroverted. It shall thereupon ma$e an order specif!ing the facts that appear withoutsubstantial controvers! including the e"tent to which the amount of damages or other relief



is not in controvers! and directing such further proceedings in the action as are just. Thefacts so specified shall be deemed established and the trial shall be conducted on thecontroverted facts accordingl! ( ec. , #ule &5) .

ffida!its and attac%ments(1) Supporting and opposing affidavits shall be made on personal $nowledge shall setforth such facts as would be admissible in evidence and shall show affirmativel! that theaffiant is competent to testif! to the matters stated therein. ertified true copies of allpapers or parts thereof referred to in the affidavit shall be attached thereto or servedtherewith ( ec. 5) .(2) Should it appear to its satisfaction at an! time that an! of the affidavits presentedpursuant to the 3ules are presented in bad faith or solel! for the purpose of dela! thecourt shall forthwith order the offending part! or counsel to pa! to the other part! theamount of the reasonable e"penses which the filing of the affidavits caused him to incur

including attorne! s fees. It ma! after hearing further adjudge the offending part! orcounsel guilt! of contempt ( ec. %) .

Bud-ments on t%e pleadin-s !ersus summary >ud-ments

(1) In the judgment on the pleadings the answer does not tender an issue, in summar! judgment there is an issue tendered in the answer but it is not genuine or real issue asma! be shown b! affidavits and depositions that there is no real issue and that the part! isentitled to judgment as a matter of right,

(2) In judgment on the pleadings the movants must give a *4da! notice of hearing,while in summar! judgment the opposing part! is given 1; da!s notice,

(*) In judgment on the pleadings the entire case ma! be terminated, while in summar! judgment it ma! onl! be partial,

(0) In judgment on the pleadings onl! the plaintiff or the defendants as far as thecounterclaim cross4claim or third4part! complaint is concerned can file the same, while insummar! judgment either the plaintiff or the defendant ma! file it.

Rendition of >ud-ments and final orders(1) 3endition of judgment is the filing of the same with the cler$ of court. It is not thepronouncement of the judgment in open court that constitutes the rendition. 9ven if the

judgment has alread! been put in writing and signed it is still subject to amendment if ithas not !et been filed with the cler$ of court and before its filing does not !et constitute the



real judgment of the court (! o vs. C!, % C#! 5&0) . It is not the writing of the judgmentor its signing which constitutes rendition of the judgment (Castro vs. :ala o, 99 C#! 1% ) .(2) % judgment or final order determining the merits of the case shall be in writingpersonall! and directl! prepared b! the judge stating clearl! and distinctl! the facts and thelaw on which it is based signed b! him and filed with the cler$ of the court ( ec. 1, #ule

&%).

ntry of >ud-ment and final order(1) If no appeal or motion for new trial or reconsideration is filed within the time providedin the 3ules the judgment or final order shall forthwith be entered b! the cler$ in the boo$of entries of judgments. The date of finalit! of the judgment or final order shall be deemedthe date of its entr!. The record shall contain the dispositive part of the judgment or finalorder and shall be signed b! the cler$ with a certificate that such judgment or final orderhas become final and e"ecutor ( ec. $) .

(2) The entr! of judgment refers to the ph!sical act performed b! the cler$ of court inentering the dispositive portion of the judgment in the boo$ of entries of judgment and afterthe same has become final and e"ecutor. The record shall contain the dispositive portion ofthe judgment or final order and shall be signed b! the cler$ of court with a certificate b!said cler$ that the judgment has alread! become final and e"ecutor ( ec. $, #ule &%).(*) There are some proceedings the filing of which is rec$oned from the date of the entr!of judgment+ (a) the e"ecution of a judgment b! motion is within five (') !ears from theentr! of the judgment ( ec. %, #ule &9) , (b) the filing of a petition for relief has as one ofits periods not more than si" ( ) months from the entr! of the judgment or finalorder ( ec. &, #ule &8) .

Rules on evidence

rule 1 -rules of court

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