rules 30-39

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RULE 30

TRIAL

A. Notice of trial

Section 1. Notice of trial. Upon entry of a case in the

trial calendar, the clerk shall notify the parties of thedate of its trial in such manner as shall ensure his

receipt of that notice at least five (5) days before such

date.

It is the duty of the clerk of court to send notices to the parties about the

date of the trial in such manner as shall insure his receipt of that notice at

least five (5) days before such date.

Trial is an examination before a competent tribunal of the facts or law put

in issue in a case, for the purpose of determining such issue.

B. Adjournment and postponement

Sec. 2. Adjournments and postponements. A court may

adjourn a trial from day to day, and to any stated time, as the

expeditious and convenient transaction of business may require,

but shall have no power to adjourn a trial for a longer period

than one month for each adjournment, nor more than three

months in all, except when authorized in writing by the Court

Administrator, Supreme Court.

“A court may adjourn a trial from day to day” means that if the trial is not

finished on the scheduled date, that will be postponed on another day.

That is how trials are being conducted. It is by staggered basis. That is what

you call adjournment.

As a GENERAL RULE: Not more than one (1) month for its

adjournment BUT a maximum of three (3) postponements. In effect, it will

be exactly 90 days.

The ONLY EXCEPTION is when authorized in writing by the court

administrator. Meaning, the judge can go to the court administrator to

allow the court to go beyond the period allowed by law.

C. Requisites of Motion for Postponement:

Sec. 3. Requisites of motion to postpone trial for absence of

evidence. A motion to postpone a trial on the ground of absence

of evidence can be granted only upon affidavit showing the

materiality or relevancy of such evidence, and that due diligencehas been used to procure it. But if the adverse party admits the

facts to be given in evidence, even if he objects or reserves the

right to their admissibility, the trial shall not be postponed.

Sec. 4. Requisites of motion to postpone trial for illness of

party or counsel. A motion to postpone a trial on the ground of

illness of a party or counsel may be granted if it appears upon

affidavit or sworn certification that the presence of such party or

counsel at the trial is indispensable and that the character of his

illness is such as to render his non-attendance excusable.

Two main reasons why parties ask for postponement:1. absence of evidence

-There must be a verified affidavit.

- Postponement will be denied if the adverse party will admit the

evidence although may object its admissibility

2. Illness of a party or counsel

-You have to prove that the presence of that person is

indispensable and the illness is such that it will prevent the person from

attending.

-Must be accompanied with a medical certificate and notarized so

that if it's false, both the person and the doctor will be liable for perjury.

Exception, when sickness is sudden and unexpected such as accident

So, a motion for postponement which is not verified upon the ground

of illness of a party or counsel without a medical certificate should be

granted if it appears that the claim of the movant is meritorious.

Motions for postponements is always addressed to the sound

discretion of the court

D. Order of trial

Sec. 5. Order of trial. Subject to the provisions of

section 2 of Rule 31, and unless the court for special

reasons otherwise directs, the trial shall be limited to

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the issues stated in the pre-trial order and shall proceed

as follows:

(a) The plaintiff shall adduce evidence in support of

his complaint;

(b) The defendant shall then adduce evidence in

support of his defense, counterclaim, cross-claim andthird-party complaint;

(c) The third-party defendant, if any, shall adduce

evidence of his defense, counterclaim, cross-claim and

fourth-party complaint;

(d) The fourth-party, and so forth, if any, shall

adduce evidence of the material facts pleaded by them;

(e) The parties against whom any counterclaim or

cross-claim has been pleaded, shall adduce evidence in

support of their defense, in the order to be prescribed

by the court;

(f) The parties may then respectively adducerebutting evidence only, unless the court, for good

reasons and in the furtherance of justice, permits them

to adduce evidence upon their original case; and

(g) Upon admission of the evidence, the case shall

be deemed submitted for decision, unless the court

directs the parties to argue or to submit their respective

memoranda or any further pleadings.

If several defendants or third-party defendants, and so forth,

having separate defenses appear by different counsel, the court

shall determine the relative order of presentation of their

evidence.

The pre-trial order shall limit the issues and shall control the

subsequent course of the action. We already emphasized that the pre-trial

order prevails over the pleadings. The pre-trial order has the effect of

superseding the complaint and the answer. Whatever issues are stated in

the pre-trial order shall be the issues to be tried during the hearing on the

case.

Basic Pattern:

1. Plaintiff to present evidence in chief/main evidence to prove his claim

or cause of action

2. Defendant shall then adduce evidence in chief to prove his defense-

affirmative or negative defense

3. The third party defendant, if any, shall adduce evidence4. The fourth defendant, if any, shall adduce evidence

5. Plaintiff to present rebuttal evidence

6. The parties may then adduce rebutting evidence

-defendant may present rebuttal to the rebuttal called as sur-rebuttal

7. Upon admission of the evidence, the case shall be deemed submitted

for decision, unless the court directs the parties to argue or to submit their

respective memoranda.

A MEMORANDUM is practically a thesis where you will summarize your

position and you argue why you should win. That is where you cite

evidence.

NOTA BENE: The foregoing order of trial applies only to regularly

controverted claim. ( Yu vs. Magpayo, L-29742, March 29, 1972).

The defendant may present his evidence first if he invokes an affirmative

defense.

In criminal law, we call it as REVERSE TRIAL (example: Self-defense)

General rule: Parties cannot present evidence in chief in a rebuttal stage

Exception: If the court permits them to adduce evidence in chief.

Instances wherein the court may allow:1.) When it is newly discovered;

2.) When the evidence was omitted through inadvertence or

mistake;

3.) When the purpose is to correct evidence previously offered;

4.) When the additional evidence offered is material and not

merely cumulative or impeaching

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E. Stipulation of facts:

Sec. 6. Agreed statement of facts. The parties to any

action may agree, in writing, upon the facts involved in

the litigation, and submit the case for judgment on the

facts agreed upon, without the introduction of

evidence.If the parties agree only on some of the facts in issue, the

trial shall be held as to the disputed facts in such order as the

court shall prescribe.

The parties agree in writing upon the facts involved in the litigation and

they will submit the agreed facts or the case for decision. That is what we

call JUDGEMENT ON AGREED STATEMENT OF FACTS or the more popular

term: JUDGEMENT BASED ON STIPULATION OF FACTS.

They can agree to some facts but cannot on others. The court is bound by

the stipulations made by the parties.

However, there are matters that cannot be the subject of compromise:

(1) The civil status of persons; (whether legitimate or

illegitimate)

(2) The validity of a marriage or a legal separation; (w/n a

marriage settlement exists)

(3) Any ground for legal separation;

(4) Future support; (always depends on the means of the party

giving support)

(5) The jurisdiction of courts;

(6) Future legitime.

F. Statement of Judge:

Sec. 7. Statement of judge. During the hearing or trial of a

case any statement made by the judge with reference to the

case, or to any of the parties, witnesses or counsel, shall be

made of record in the stenographic notes.

Any statement made by the judge with reference to the case or to any of

the parties, witnesses, or counsel shall be made of record in the

stenographic notes.

G. Suspension of Activities

Sec. 8. Suspension of actions. The suspension of actions shall

be governed by the provisions of the Civil Code.

Art. 2030. Every civil action or proceeding shall be

suspended:

1. If willingness to discuss a possible compromise isexpressed by one or both parties; or

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

commencement of the action or proceeding, offered to

discuss a possible compromise but the other party

refused the offer.

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

proceeding and similar matters shall be governed by such

provisions of the rules of court as the Supreme Court shall

promulgate. Said rules of court shall likewise provide for the

appointment and duties of amicable compounders.

Anytime while the case is going on, one of the parties would like to discuss

a POSSIBLE AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the

suspension of proceedings.

H. Delegation of reception of evidence to clerk of court:

Sec. 9. Judge to receive evidence; delegation to clerk of court.

The judge of the court where the case is pending shall personally

receive the evidence to be adduced by the parties. However, in

default or ex parte hearings, and in any case where the parties

agree in writing, the court may delegate the reception of

evidence to its clerk of court who is a member of the bar. The

clerk of court shall have no power to rule on objections to anyquestion or to the admission of exhibits, which objections shall

be resolved by the court upon submission of his report and the

transcripts within ten (10) days from termination of the hearing.

Requisites for a valid delegation:

1. Defendant is already in default or in ex-parte hearing;

2. The parties agree in writing

3. The clerk of court is lawyer

* National Housing Authority vs. CA L-50877 April 28, 1983

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RULE 31

CONSOLIDATION OR SEVERANCE

A. Consolidation

SECTION 1. Consolidation. - When actions involving a

common question of law or fact are pending before the court, itmay order a joint hearing or trial of any or all the matters in

issue in the actions; it may order all the actions consolidated;

and it may make such orders concerning proceedings therein as

may tend to avoid unnecessary costs or delay.

Consolidation of actions is proper when:

a. When two or more actions involve the same or a common

question of law or fact, AND

b. The said actions are pending the same court

The rule on consolidation of cases generally applies only to cases pendingbefore the same judge, not to cases pending in different branches of the

same court or in different courts (PAL, et al., vs. Teodoro, et al 97 Phil 461).

In consolidation cases, the case bearing the higher docket number is

consolidated with the case having the lower docket number.

Three ways of consolidating cases:

1. By recasting the cases already instituted, conducting only one hearing

and rendering only one decision;

2. By consolidating the existing cases and holding only one hearing and

rendering only one decision;

3. By hearing only the principal case and suspending the hearing on the

others until judgment has been rendered in the principal case.

Cases are consolidated because it will expedite their termination, thereby

economizing on the procedure. Cases are consolidated not only when the

cases are before the trial court. There are many times when cases are

consolidated or joined together even when they are already on appeal,

provided, there is a common question of law or fact.

So, even in the SC, cases are consolidated and decided together for the

first time. It is called as COMPANION CASES because the same issues are

being raised in the petitions.

Consolidation of a criminal and civil case is allowed provided the two

requisites concur. For purposes of decision, the court will now apply two(2) different criteria: Proof beyond reasonable doubt in the criminal case

and preponderance of evidence in the civil case.

B. SEPARATE TRIALS

SEC. 2. Separate trials. - The court, in furtherance of

convenience or to avoid prejudice, may order a separate

trial of any claim, cross-claim, counterclaim, or third-party

complaint, or of any separate issue or of any number of

claims, cross-claims, counterclaims, third-party complaints

or issues.

Section 2 is the exact opposite of Section 1. In Section 1, there are 2 or

more cases which shall be joined together for joint trial. In section 2, there

is one case with several claims, i.e. counterclaims, cross-claims and third-

party complaints. The rule states that they should be tried together, one

after the other, and then one decision.

The court may grant a separate trial for a 3rd-party claim or permissive

counterclaim especially when there is no connection between the

permissive counterclaim with the main action.

Rule 31, 32, 33, 33, 34 and 35 are motions you can avail of while the case is

pending.

Rule 32

TRIAL BY COMMISSIONER

Commissioner is the alter ego of the judge because he represents the

judge. He helps in rendering and enforcing the decision.

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When is required?

It involves issue that is beyond the competence of the judge and requires

some technical expertise.

Examples:

determining the psychological incapacity of one spouse

collection of sum of money and it requires studying of books ofaccounts

boundary disputes

A. Reference to a Commissioner:

Reference by consent of the parties

SEC. 1. Reference by consent – By written consent of

both parties, the court may order any or all of the issues

in a case to be referred to a commissioner to be agreed

upon by the parties or to be appointed by the court. As

used in these Rules, the word “commissioner” includes

a referee, an auditor and an examiner.Trial by commissioner is possible by mutual agreement of the

parties. The parties must agree.

Reference ordered on motion

SEC. 2. – Reference ordered on motion – When the

parties do not consent, the court may, upon the application

of either or of its own motion, direct a reference to a

commissioner in the following cases:

a.) When the trial of an issue of fact requires the

examination of a long account on either side, in which case

the commissioner may be directed to hear and report upon

the whole issue or any specific question involved therein;

b.) When the taking of an account is necessary for the

information of the court before judgment, or for carrying a

judgment or order into effect;

c.) When a question of fact, other than upon the

pleadings, arises upon motion or otherwise, in any stage of

a case, or for carrying a judgment or order into effect.

Trial by commissioner is allowed not only for the purpose of the court

rendering the judgment but also for the purpose of carrying a judgment or

order into effect.

B. Powers of the Commissioner

Report only upon particular issues, or to do or perform particular

acts, or to receive and report evidence only

Exercise the power to regulate the proceedings in every hearing

before him and to do all acts and take all measures necessary orproper for the efficient performance of his duties.

Issue subpoenas and subpoenas duces tecum

Swear witnesses

Unless otherwise provided in the order of reference, he may rule

upon the admissibility of evidence.

SEC. 3. Order of reference; powers of the commissioner . -

When a reference is made, the clerk shall forthwith furnish the

commissioner with a copy of the order of reference. The order

may specify or limit the powers of the commissioner, and may

direct him to report only upon particular issues, or to do orperform particular acts, or to receive and report evidence only,

and may fix the date for beginning and closing the hearings and

for the filing of his report. Subject to the specifications and

limitations stated in the order,the commissioner has and shall

exercise the power to regulate the proceedings in every hearing

before him and to do all acts and take all measures necessary or

proper for the efficient performance of his duties under the

order. He may issue subpoenas and subpoenas duces tecum,

swear witnesses, and unless otherwise provided in the order of

reference, he may rule upon the admissibility of evidence. The

trial or hearing before him shall proceed in all respects as it

would if held before the court.

Note: The commissioner doesn’ t have the power to cite the witness in

contempt. What he will do isto refer or tell the judge.

C. Oath of commissioner:

SEC. 4. Oath of commissioner . - Before entering upon his

duties the commissioner shall be sworn to a faithful and honest

performance thereof.

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D. Proceedings before the commissioner:

SEC. 5. Proceedings before commissioner . - Upon receipt of

the order of reference and unless otherwise provided therein,

the commissioner shall forthwith set a time and place for the

first meeting of the parties or their counsel to be held within ten

(10) days after the date of the order of reference and shall notifythe parties or their counsel.

SEC. 6. Failure of parties to appear before commissioner . - If a

party fails to appear at the time and place appointed, the

commissioner may proceed ex parte or, in his discretion,

adjourn the proceedings to a future day, giving notice to the

absent party or his counsel of the adjournment.

SEC. 7. Refusal of witness. - The refusal of a witness to obey a

subpoena issued by the commissioner or to give evidence

before him, shall be deemed a contempt of the court which

appointed the commissioner.

SEC. 8. Commissioner shall avoid delays. - It is the duty

of the commissioner to proceed with all reasonable diligence.

Either party, on notice to the parties and commissioner, may

apply to the court for an order requiring the commissioner to

expedite the proceedings and to make his report.

The commissioner must conduct a hearing. The requirement for him to

hold a hearing cannot be dispensed with as this is the essence of due

process.

When the commissioner did not hold a hearing in violation of Sec 3, it is an

error for the trial court to issue an order approving the said

commissioner's report over the objection of the aggrieved party.The commissioner shall expedite the proceedings.

E. Commissioner's Report

Sec. 9. Report of commissioner . - Upon the

completion of the trial or hearing or proceeding before

the commissioner, he shall file with the court his report

in writing upon the matters submitted to him by the

order of reference. When his powers are not specified

or limited, he shall set forth his findings of fact and

conclusions of law in his report. He shall attach thereto

all exhibits, affidavits, depositions, papers and the

transcript, if any, of the testimonial evidence presented

before him.

SEC. 10. Notice to parties of the filing of report . -

Upon the filing of the report, the parties shall benotified by the clerk, and they shall be allowed ten (10)

days within which to signify grounds of objections to

the findings of the report, if they so desire. Objections

to the report based upon grounds which were available

to the parties during the proceedings before the

commissioner, other than objections to the findings and

conclusions therein set forth, shall not be considered by

the court unless they were made before the

commissioner.

SEC. 11. Hearing upon report . - Upon the expiration

of the period of ten (10) days referred to in the

preceding section, the report shall be set for hearing,

after which the court shall issue an order adopting,

modifying, or rejecting the report in whole or in part, or

recommitting it with instructions, or requiring the

parties to present further evidence before the

commissioner or the court.

SEC. 12. Stipulations as to findings. - When the

parties stipulate that a commissioner's findings of fact

shall be final, only questions of law shall thereafter be

considered.

Upon completion of hearing, the commissioner must file his report in courtstating his findings of fact and conclusion of law.

The clerk shall notify the parties of the filing of the report and they are

given 10 days to file their comment.

After 10 days, the court will set the report for hearing and thereafter issue

an order adopting, modifying, rejecting the report, in whole or in part, or

recommitting it to the commissioner with instruction, or requiring the

parties to present further evidence.

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When the court approves a report, the findings of the commissioner

becomes the findings of the court.

General rule: The findings of the commissioner on question of fact can be

questioned by the parties.

Exception: The parties may stipulate that the commissioner's findings offact shall be final. Thus, only question of law shall thereafter be

considered.

F. Compensation of commissioner

SEC. 13. Compensation of commissioner . - The court shall

allow the commissioner such reasonable compensation as the

circumstances of the case warrant, to be taxed as costs against

the defeated party, or apportioned, as justice requires.

The commissioner’s compensation is taxed against the defeated party, or

apportioned (like 50-50).

Rule 33

DEMURRER TO EVIDENCE

In Rule 16, you can file motion to dismiss within the 15-day reglementary

period, hence no answer yet whereas in Rule 33, answer is already filed

and in fact, trial has already started.

In Rule 16, the ground of no cause of action is based on the complaint,

while under Rule 33, the ground of no cause of action is based on the

plaintiff’s evidence.

A. Definition of Demurrer to evidence

SEC. 1. Demurrer to evidence. - After the plaintiff has

completed the presentation of his evidence, the defendant may

move for dismissal on the ground that upon the facts and the

law the plaintiff has shown no right to relief. If his motion is

denied, he shall have the right to present evidence. If the

motion is granted but on appeal the order of dismissal is

reversed he shall be deemed to have waived the right to present

evidence.

This is a motion to dismiss filed after the plaintiff has finished presenting

his evidence on the ground of insufficiency of evidence.

B. Effects of the grant or denial of demurrer to evidence:

If granted, but reversed on appeal, the defendant loses his right

to present evidence. If denied, the defendant can still present his evidence.

The ground of no cause of action is now incorporated under Rule 33, such

that during the trial when there is really no cause of action, your remedy is

to file a demurrer to evidence.

Leave of court is NOT needed in civil cases as distinguished from criminal

cases.

C. Remedy of the parties:

If granted, the dismissal is considered an adjudication of themerit, hence, the remedy is APPEAL.

If denied, the order is merely interlocutory and appeal is not the

remedy. Certiorari maybe availed if there is abuse of discretion

on the court.

D. Difference of demurrer of evidence in civil and demurrer of evidence in

criminal case

CIVIL CASES CRIMINAL CASES

When the demurrer is denied,

the defendant will now present

his evidence to prove his

defense because the defendant

does not waive his right to

present in the event the

demurrer is denied

If the demurrer if the accused is

denied, the accused is no

longer allowed to present

evidence if he had no prior

leave of court

If the defendant’s demurrer is

granted and the case is

dismissed and the plaintiff

appeals to the appellate court

and on appeal the court

If the demurrer is granted,

there is no more appeal by the

prosecution because the

accused has already been

acquitted. Otherwise, there

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reverses the order of dismissal,

the appellate court renders

judgment immediately in favor

of the plaintiff. There is no

more remanding and the

defendant loses his right topresent evidence.

will be a case of double

jeopardy.

The court cannot on its own

initiative, dismiss the case after

the plaintiff rests without any

demurrer by the defendant.

There is no such thing as motu

propio demurrer.

The court may dismiss the

action on its own initiative

after giving the prosecution the

chance to present its evidence.

Rule 34

JUDGMENT ON THE PLEADING

A. When to file:

1. Where an answer fails to tender an issue, OR

a. when it neither admits nor denies the allegations in the

complaint;

b. when all the denials in the answer are general denials and

not specific

If an answer contains evasive allegations, denials which are general, it does

not also tender any issue aside from the fact that it also admits the law.

Consider it as an admission of the material allegations of the complaint.

Therefore plaintiff will now move for an immediate judgment in his favor.

2. Otherwise admits the material allegations of the adverse party's

pleading.

SEC. 1. Judgment on the pleadings.- Where an answer

fails to tender an issue, or otherwise admits the material

allegations of the adverse party's pleading, the court may, on

motion of that party, direct judgment on such pleading.

However, in actions for declaration of nullity or annulment of

marriage or for legal separation, the material facts alleged in the

complaint shall always be proved.

B. Effects of filing a motion for judgment on the pleading:

Plaintiff is deemed to have admitted all material and relevant allegations

of the opposing party.Exceptions:

1. Irrelevant allegations in the defendant's answer

2. Allegations of damages in the complaint

By moving for judgment on the pleading, plaintiff waives his claim for

unliquidated damages. Claims for such damages must be alleged and

proved.

C. How is it done:

1. By motion of the plaintiff

2. By the court's own volition or motu proprio, if the court during pre-trial

finds the same to be proper.

D. When not proper:

Judgment on the Pleading is not allowed in the following actions:

1. Declaration of nullity of marriage

2. Annulment of marriage

3. Legal separation

Because these cases are not subject to compromise. If allowed, then it

amounts to circumventing the law in effect allowing collusion.

E. (Ask Donna or James)

One who prays for judgment on the pleadings without offering proof as to

the truth of his own allegations and without giving the opposing party an

opportunity to introduce evidence, must be understood to admit all

material and relevant allegations of the opposing party and to rest his

motion for judgment on those allegations taken together with such of his

own as are admitted in the pleadings.

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Rule 35

SUMMARY JUDGMENT

Summary judgment procedure is a method for promptly disposing of

actions in which there is no genuine issue as to any material fact.

A. Summary judgment for claimant:

Sec. 1. Summary judgment for claimant . - A party

seeking to recover upon a claim, counterclaim, or cross-claim or

to obtain a declamatory relief may, at any time after the

pleading in answer thereto has been served, move with

supporting affidavits, depositions or admissions for a summary

judgment in his favor upon all or any part thereof.

Rule 35 is similar to judgment on pleadings under Rule 34 but the main

difference is: In judgment on the pleadings, the answer does not put up a

defense while in summary judgment, here it puts up a defense but the

defense is not genuine – it is a false defense which should easily be

exposed by way of affidavits for summary judgment.

Another name for Summary Judgment is Accelerated Judgment.

B. Summary judgment for defending party:

Sec. 2. Summary judgment for defending party . - A

party against whom a claim, counterclaim, or cross-claim is

asserted or a declaratory relief is sought may, at any time, move

with supporting affidavits, depositions or admissions for a

summary judgment in his favor as to all or any part thereof.

C. When applicable:

In most cases, summary judgment is applicable to all kinds of civil cases

except declaration of nullity of marriage, annulment of marriage, legal

separation.

Summary judgment is proper only when there is clearly no genuine issue as

to any material fact in the action, and if there is any question or

controversy upon any question of fact, there should be a trial on the

merits. (Agcanad vs. Nagum, L-20707, March 30, 1970)

D. How is it done:

SEC. 3. Motion and proceedings thereon. - The motion

shall be served at least ten (10) days before the time specified

for the hearing. The adverse party may serve opposing

affidavits, depositions, or admissions at least three (3) daysbefore the hearing. After the hearing, the judgment sought shall

be rendered forthwith if the pleadings, supporting affidavits,

depositions, and admissions on file, show that, except as to the

amount of damages, there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law.

How is it done?

By filing of a motion for summary judgment with supporting affidavits,

depositions or admissions. The motion shall be served at least 10 days

before the time specified for hearing.

The amount of damages to be recovered by the plaintiff cannot be

adjudicated through a motion for Summary Judgment because you still

have to present evidence as to how much really be the damages.

E. Partial Summary Judgment:

SEC. 4. Case not fully adjudicated on motion. - If on

motion under this Rule, judgment is not rendered upon the

whole case or for all the reliefs sought and a trial is necessary,

the court at the hearing of the motion, by examining the

pleadings and the evidence before it and by interrogating

counsel shall ascertain what material facts exist withoutsubstantial controversy and what are actually and in good faith

controverted. It shall thereupon make an order specifying the

facts that appear without substantial controversy, including the

extent to which the amount of damages or other relief is not in

controversy, and directing such further proceeding in the action

as are just. The facts so specified shall be deemed established,

and the trial shall be conducted on the controverted facts

accordingly.

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The Rule authorizes the rendition of partial summary judgment. Such

judgment is interlocutory and hence, not subject to appeal.

F. Affidavits and supporting papers

SEC. 5. Form of affidavits and supporting papers. -

Supporting and opposing affidavits shall be made on personalknowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein. Certified true

copies of all papers of parts thereof referred to in the affidavit

shall be attached thereto or served therewith.

Forms of affidavits:

1.) Supporting affidavits – to support the motion for Summary

Judgment;

2.) Opposing (counter-) affidavits – to oppose the motion for

Summary Judgment.

Requisites of supporting or opposing affidavits to a motion for Summary

Judgment:

1.) The affidavit shall be made based on personal knowledge;

2.) It shall set forth such facts as would be admissible in

evidence;

3.) The affiant is competent to testify to the matters stated

therein; and

4.) Certified true copies of all papers of parts thereof referred to

in the affidavit shall be attached thereto or served therewith.

SEC. 6. Affidavits in bad faith. - Should it appear to itssatisfaction at any time that any of the affidavits presented

pursuant to this Rule are presented in bad faith, or solely for the

purpose of delay, the court shall forthwith order the offending

party or counsel to pay to the other party the amount of the

reasonable expenses which the filing of the affidavits caused

him to incur, including attorney's fees. It may, after hearing,

further adjudge the offending party or counsel guilty of

contempt.

The court may order the defendant or his counsel to pay to the plaintiff the

amount of reasonable expense of filing of affidavits, including attorney’s

fees. The court may also, after hearing, adjudge the defendant or his

lawyer guilty and file a case of perjury for executing a false statement.

Filing a case of disbarment against the lawyer for assisting in the filing of

an affidavit in bad faith may also be done.

Difference between Summary Judgment and Judgment on Pleading

Summary Judgment Judgment on Pleading

As to the ground No genuine issue of

fact to be tried

No issue of fact at all

to be tried

As to how the

judgment is rendered

On the basis of facts

appearing in the

pleadings, affidavits,

depositions and

admissions on file

On the basis of

pleadings only

As to who can ask for judgmentAvailable to bothclaimant and defendant Available only toclaimant because the

answer fails to tender

an issue.

General rule:

A motion prays for relief other than through a pleading. The other way

of stating it is, a motion prays for relief other than through a judgment

because a judgment is prayed in a pleading and not in a motion. So a

motion as a rule, cannot pray for immediate judgment.

Exception:

1.) Rule 33 – Demurrer to evidence;

2.) Rule 34 – Judgment on the Pleadings; and

3.) Rule 35 – Summary Judgment.

RULE 36

JUDGMENT, FINAL ORDERS AND ENTRY THEREOF

5 Requisites for a Valid Judgment:

1.) the court rendering judgment must have jurisdiction over the

subject matter;

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person of the defendant, and in case the defendant is a non-

resident, the court rendering judgment must have jurisdiction

over the res;


issues, that is, the judgment shall decide only the issuesraised by the parties in their pleadings;

4.) the court rendering judgment must be validly constituted

court and the judge thereof, a judge de jure or de facto

5.) the judgment must be rendered after lawful hearing,

meaning that due process must be observed.

A. How final judgment is rendered:

Sec. 1. Rendition of judgments and final orders. - A

judgment or final order determining the merits of the case shall

be in writing personally and directly prepared by the judge,

stating clearly and distinctly the facts and the law on which it is

based, signed by him, and filed with the clerk of the court.

A final judgment on the merits if the case must be:

1. in writing (written decision must follow the 15 days)

Officially the decision is known to you on the date you received

the written judgment.

2. personally and directly prepared by the judge

3. stating clearly and distinctly the facts and the law on which it is

based

There must be a justification for the dispositive portion. Every

decision of every court must state the facts and the law on which

it is based. It must be in every court, no exceptions, whether SCor an MTC. However, the Judiciary Law allow the appellate court

to make a Memorandum Decision which means a decision by the

appellate court affirming that of the lower court to shorten the

period of waiting for the decision and in order to hasten it.

Furthermore, this is only applicable to simple cases.

4. signed by the judge

5. filed with the clerk of court

B. Decision and Fallo:

Decision refers to the entire document prepared by the judge who hears

the trial of the case which contains the judge's findings of facts and

conclusions of law and all to which it is based.

Judgment or fallo is the final consideration and determination by a courtof the rights of the parties as those rights presently exists, upon matters

submitted to it in an action or proceeding. It refers to the dispositive

portion that’s found in the last part of the decision which states

"Wherefore". The discussions, findings of facts, conclusion of law to justify

the fallo is called the reasoning or ratio decidendi.

If there's a conflict between the body of the decision and the dispositive

portion, general rule is that judgment shall prevail except if it's very clear

that the judgment is an error.

C. Judgment upon compromise:

The judgment that is immediately final and executory, except if there's

error, deceit, violence or forgery. You can file an action to set aside or

annul the judgment on any of these grounds to the Court of Appeals which

has the exclusive original jurisdiction.

D. Rendition of judgment, when:

The rendition of judgment is reckoned from the moment the signed

decision is filed in court, and not its pronouncement in open court.

The court must explain the basis of its decision. However, a minute

resolution can be issued by the Supreme Court in the dismissal of petitions

for review on certiorari.

Attack of judgment maybe direct or collateral.

Direct attack:

a. before finality

1. motion for new trial or reconsideration

2. appeal

b. after finality

1. relief from judgment

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2. annulment of judgment

E. Entry of Judgment and Final Orders:

Sec. 2. Entry of judgments and final orders. - If no appeal

or motion for new trial or reconsideration is filed within the time

provided in these Rules, the judgment or final order shallforthwith be entered by the clerk in the book of entries of

judgments. The date of finality of the judgment or final order

shall be deemed to be the date of its entry. The record shall

contain the dispositive part of the judgment or final order and

shall be signed by the clerk, with a certificate that such

judgment or final order has become final and executory.

The date of finality of judgment or final order shall be the date of entry.

F. Types of Judgment:

1. Judgment for or against one or more of several parties

2. Several judgments

3. Separate judgment

4. Judgment against entity without juridical personality

5. Judgment for specific act

6. Special judgment

7. Judgment non pro tunc

G. Judgment for or against one or more several parties

Sec. 3. Judgment for or against one or more of

several parties. - Judgment may be given for or against

one or more of several plaintiffs, and for or against one

or more of several defendants. When justice sodemands, the court may require the parties on each

side to file adversary pleadings as between themselves

and determine their ultimate rights and obligations.

It is possible that in one case, one defendant will win and the

other defendant will lose if there are different causes of action or

defenses.

H. Several Judgments

Sec. 4. Several judgments. - In an action against

several defendants, the court may, when a several

judgment is proper, render judgment against one or

more of them, leaving the action to proceed against the

others.

Several judgments is proper where liability of each party is clearly

separable and distinct from his co-parties such that the claims

against each of them could have been the subject of separate

suits, and the judgment for or against one of them will not

necessarily affect the other. It is not proper in actions against

solidary debtors.

I. Separate Judgments

Sec. 5. Separate judgments. - When more than one

claim for relief is presented in an action, the court, at

any stage, upon a determination of the issues material

to a particular claim and all counterclaims arising out of

the transaction or occurrence which is the subject

matter of the claim, may render a separate judgment

disposing of such claim. The judgment shall terminate

the action with respect to the claim so disposed of and

the action shall proceed as to the remaining claims. In

case a separate judgment is rendered, the court by

order may stay its enforcement until the rendition of a

subsequent judgment or judgments and may prescribe

such conditions as may be necessary to secure the

benefit thereof to the party in whose favor the judgment is rendered.

It is proper when more than one claim for relief is presented in an

action and a determination as to the issues material to the claim

has been made. The action shall proceed as to the remaining

claims.

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J. Judgment against entity without juridical personality

Sec. 6. Judgment against entity without

juridical personality . - When judgment is rendered against two or

more persons sued as an entity without juridical personality, the

judgment shall set out their individual or proper names, if

known.

Remedies against judgments or final orders:

a. Before finality of judgment or final order:

1. Motion for New Trial

2. Motion for Reconsideration; and Appeal

b. After finality of the judgment or final order:

1. Relief from judgment or final order

2. Annulment of judgment

3. Petition for certiorari

RULE 37

NEW TRIAL OR RECONSIDERATION

A Motion for New Trial is the other remedy aside from appeal. The effect

of filing this motion is the suspension of the period to appeal. So when

your motion is denied, you still have remaining balance of the period to

appeal, except if it is a Pro Forma Motion.

An aggrieved party may appeal within the appeal period or before the

judgment becomes final and executory.

A. Grounds for New Trial:

Section 1. Grounds of and period for filingmotion for new trial or reconsideration. Within the

period for taking an appeal, the aggrieved party may

move the trial court to set aside the judgment or final

order and grant a new trial for one or more of the

following causes materially affecting the substantial

rights of said party:

(a) Fraud, accident, mistake or excusable negligence

which ordinary prudence could not have guarded

against and by reason of which such aggrieved party has

probably been impaired in his rights; or

(b) Newly discovered evidence, which he could not,

with reasonable diligence, have discovered and

produced at the trial, and which if presented would

probably alter the result.Within the same period, the aggrieved party may also

move for reconsideration upon the grounds that the

damages awarded are excessive, that the evidence is

insufficient to justify the decision or final order, or that

the decision or final order is contrary to law.

1. Fraud, accident, mistake and excusable negligence

Fraud

Two Types of Fraud:

1. Extrinsic- prevented the party from having a trial or from

presenting his case in the court.

2. Intrinsic- based on the acts of the party during the trial which did

not affect the presentation of the case, but did prevent the fair

and just determination of the case.

Example: forged documents or perjured testimony

For fraud to be a valid ground, it has to EXTRINSIC.

Accident

It is something unforeseen, unexpected or unanticipated.

General rule: A client is bound by the mistakes of his lawyer and he

cannot file a motion for new trial on the ground of mistake of his lawyer.Exception: Based on the equity decision that the mistake is so great that

party’s right are prejudiced and he is prevented from presenting his cause

of action or defense.

Excusable Negligence

This depends upon the circumstances of the case.

2. Newly discovered evidence

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Evidence which was discovered after trial, or cannot be

discovered during the trial given the exercise of reasonable diligence, and

if admitted, such evidence would probably alter the result of the case.

Requisites for NDE (must concur):

1. That the evidence is discovered AFTER trial2. That it could not been discovered during trial even with exercise

of reasonable diligence, and

3. That if admitted, such evidence would probably alter the result

If the motion is filed AFTER the judgment is rendered, it is called as Motion

for New Trial. When the motion is filed BEFORE judgment is rendered, it is

called as Motion for Reopening of Trial.

The only ground for Motion for Reopening of Trial is interest of justice and

hence, subject to discretionary power to no rule other than the paramount

interest of justice and will not be reviewed on appeal unless the exercise

thereof is abused.

B. Grounds for Motion for Reconsideration

1. The damages awarded are excessive

2. The evidence is insufficient to justify the decision or final order

3. The decision or order is contrary to law.

C. Contents of Motion for New Trial or Reconsideration

Sec. 2. Contents of motion for new trial or

reconsideration and notice thereof. The motion shall be

made in writing stating the ground or grounds therefor,

a written notice of which shall be served by the movanton the adverse party.

A motion for new trial shall be proved in the

manner provided for proof of motions. A motion for the

cause mentioned in paragraph (a) of the preceding

section shall be supported by affidavits of merits which

may be rebutted by affidavits. A motion for the cause

mentioned in paragraph (b) shall be supported by

affidavits of the witnesses by whom such evidence is

expected to be given, or by duly authenticated

documents which are proposed to be introduced in

evidence.

A motion for reconsideration shall point out

specifically the findings or conclusions of the judgment

or final order which are not supported by the evidence

or which are contrary to law, making express referenceto the testimonial or documentary evidence or to the

provisions of law alleged to be contrary to such findings

or conclusions.

A pro forma motion for new trial or reconsideration shall not toll the

reglementary period of appeal.

Form of a motion for new trial:

1. It must be in writing.

2. State the ground or grounds for the motion, whether it is FAME or

NDE.

3. Serve a copy of motion to the adverse party.

When the ground is FAME, a motion for new trial must be accompanied by

facts surrounding FAME and affidavits of merits that you have a

meritorious cause of action or defense.

Affidavit of merits is one which recites the nature and character of FAME

on which the motion is based and stating the movant’s good and

substantial cause of action or defense and the evidence he intends to

present if the motion is granted, which evidence should be such as to

warrant reasonable belief that the result of the case would probably be

otherwise.

If the motion is filed without the affidavit of merits, it will be immediately

denied and considered as a Pro-Forma Motion.

Effects of a Pro-Forma Motion:

1. Immediately denied

2. Will not interrupt the running of the appeal period

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When the ground is NDE, a motion shall be supported by affidavits of the

newly discovered witness- or a copy of the newly discovered document;

otherwise it is a Pro-Forma Motion.

Note: The denial of the motion for reconsideration on the ground that the

decision or judgment is wrong does not automatically make a motion a pro-forma.

D. Effects when motion is granted:

Sec. 3. Action upon motion for new trial or

reconsideration. The trial court may set aside the

judgment or final order and grant a new trial, upon such

terms as may be just, or may deny the motion. If the

court finds that excessive damages have been awarded

or that the judgment or final order is contrary to the

evidence or law, it may amend such judgment or final

order accordingly.

Sec. 6. Effect of granting of motion for new trial. If a

new trial is granted in accordance with the provisions of

this Rule, the original judgment or final order shall be

vacated, and the action shall stand for trial de novo; but

the recorded evidence taken upon the former trial, in so

far as the same is material and competent to establish

the issues, shall be used at the new trial without

retaking the same.

If a new trial is granted, the original judgment or final order shall be

vacated, and the action shall stand for trial de novo. However, a trial de

novo would depend if:a. If the ground is FAME, there will be a trial de novo because the

proceeding will be set aside

b. If the ground is NDE, there is no trial de novo. The evidence

admitted which is based on the same decision will remain. The

case will be opened only for the purpose of admitting the new

evidence.

When the court grants the motion for reconsideration and finds that

excessive damages have been awarded or that the judgment or final order

is contrary to evidence or law, it may amend such judgment or final order

accordingly.

E. Resolution of Motion:

Sec. 4. Resolution of motion. A motion for new trial or

reconsideration shall be resolved within thirty (30) days fromthe time it is submitted for resolution.

F. Second Motion for New Trial or Reconsideration:

Sec. 5. Second motion for new trial. A motion for

new trial shall include all grounds then available and

those not so included shall be deemed waived. A

second motion for new trial, based on a ground not

existing nor available when the first motion was made,

may be filed within the time herein provided excluding

the time during which the first motion had been

pending.

No party shall be allowed a second motion for

reconsideration of a judgment or final order.

Either FAME, or NDE, or both grounds shall be included in the motion.

If a motion for new trial, which is based only on FAME, was denied, can

there be a second motion for new trial on the ground of NDE?

It depends,

a.) If the NDE is already existing when the first motion was filed ,

then the second motion for new trial will be denied

because of failure to raise it earlier – the second ground

is deemed waived for failure to raise the same; This isconsidered as a Pro-Forma

b.) However, if the ground for the second motion for new trial is

something not known or not existing or not available

when the party filed the first motion, then the second

motion is allowed. The second motion is not a pro forma

motion.

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Two Types of Pro-Forma Motion:

1.) A motion for new trial which is not supported by affidavits of

merits – one which does not comply in substance or in form

with Section 2; and

2.) A second motion for new trial on a ground available to the

party when the first motion was filed (Section 5).

G. Partial new trial or reconsideration

Sec. 7. Partial new trial or reconsideration. If the grounds for

a motion under this Rule appear to the court to affect the issues

as to only a part, or less than all of the matter in controversy, or

only one, or less than all, of the parties to it, the court may order

a new trial or grant reconsideration as to such issues if severable

without interfering with the judgment or final order upon the

rest.

Sec. 8. Effect of order for partial new trial. When less than all

of the issues are ordered retried, the court may either enter a

judgment or final order as to the rest, or stay the enforcement of

such judgment or final order until after the new trial.

When there is a partial new trial, the court will enter judgment on the

undisputed facts, or the court may stay the enforcement until after the

new trial.

H. Remedy Against Order Denying Motion for New Trial or

Reconsideration

Sec. 9. Remedy against order denying a motion for new trial

or reconsideration. An order denying a motion for new trial or

reconsideration is not appealable, the remedy being an appealfrom the judgment or final order.

Under Sec 9, an order denying a motion for new trial or reconsideration is

not appealable because it is an interlocutory order. (Sec 41, Sec1). The

remedy is an appeal from the judgment or final order. Certiorari under

Rule 65 is no longer a remedy pursuant to A.M. No. 07-7-12, dated

December 27, 2007.

RULE 38

RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

A. Petition for relief from judgment: (FAME)

Section 1. Petition for relief from judgment, order, or

other proceedings. When a judgment or final order is entered, orany other proceeding is thereafter taken against a party in any

court through fraud, accident, mistake, or excusable negligence,

he may file a petition in such court and in the same case praying

that the judgment, order or proceeding be set aside.

You can file a petition for relief from judgment where you lost and in the

same case number.

B. Petition for relief from denial of appeal

Sec. 2. Petition for relief from denial of appeal. When a

judgment or final order is rendered by any court in a case, and

a party thereto, by fraud, accident, mistake, or excusable

negligence, has been prevented from taking an appeal, he may

file a petition in such court and in the same case praying that

the appeal be given due course.

If there is an order denying an appeal because of FAME, you can file a

petition for relief not from the judgment but from the order denying such

appeal.

After the petition is filed, the court shall order the adverse parties to

answer within 15 days from receipt. After answer is filed or expiration of

the period therefore, the court shall hear the petition.

If granted, judgment shall set aside and court shall proceed as if timely

motion for new trial has been granted; if granted against denial of appeal,

court shall give due course to appeal.

New Trial/Reconsideration Relief from Judgment

Must be filed within the appeal

period.

Judgment is not yet final.

Judgment is final within 60 days

after petitioner learns of the

judgment to be set aside and within

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6 months after such judgment is

entered.

A legal right More on equity

FAME + NDE FAME only

Judgment on final order Relief from judgment/ order on

other proceeding

C. Time for filing the petition:

Sec. 3. Time for filing petition; contents and verification.

A petition provided for in either of the preceding sections of

this Rule must be verified, filed within sixty (60) days after the

petitioner learns of the judgment, final order, or other

proceeding to be set aside, and not more than six (6) months

after such judgment or final order was entered, or such

proceeding was taken; and must be accompanied with

affidavits showing the fraud, accident, mistake, or excusable

negligence relied upon, and the facts constituting thepetitioner's good and substantial cause of action or defense, as

the case may be.

Formal requisites for a petition for relief from judgment, or final order:

1. The petition must be verified.

2. The petition for relief must be accompanied with affidavits

showing FAME, relied upon and the facts constituting the

petitioner’s good and substantial case of action or defense as the

case may be.

Failure to comply with the above requirements would be fatal and petition

will be denied outright.

The petition must be filed once the judgment has become final and

executor but within 60 days from the time the petitioner learns from the

judgment, order or proceedings AND not more than 6 months after such

judgment or final was entered.

The period fixed by the law is non-extendible and is never interrupted.

E. Order of the Court Requiring Answer

Sec. 4. Order to file an answer. If the petition is sufficient in

form and substance to justify relief, the court in which it is filed,

shall issue an order requiring the adverse parties to answer the

same within fifteen (15) days from the receipt thereof. The

order shall be served in such manner as the court may direct,together with copies of the petition and the accompanying

affidavits.

F. Preliminary Injunction Pending Proceedings

Sec. 5. Preliminary injunction pending proceedings. The

court in which the petition is filed, may grant such preliminary

injunction as may be necessary for the preservation of the

rights of the parties, upon the filing by the petitioner of a bond

in favor of the adverse party all damages and costs that may be

awarded to him by reason of issuance of such injunction or the

other proceedings following the petition; but such injunction

shall not operate to discharge or extinguish any lien which the

adverse party may have acquired upon the property of the

petitioner.

You can ask the court a writ of preliminary injunction to stop the

enforcement of the judgment but a bond has to be put up to cover the

damages the other party might suffer because of the delay in the

execution.

G. Hearing of the Petition

Sec. 6. Proceedings after answer is filed. After the filing

of the answer or the expiration of the period therefor, thecourt shall hear the petition and if after such hearing, it finds

that the allegations thereof are not true, the petition shall be

dismissed; but if it finds said allegations to be true, it shall set

aside the judgment or final order or other proceedings

complained of upon such terms as may be just. Thereafter the

case shall stand as if such judgment, final order or other

proceeding had never been rendered, issued or taken. The

court shall then proceed to hear and determine the case as if a

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timely motion for a new trial or reconsideration had been

granted by it.

In proceedings for relief from judgment, there may be two (2) hearings:

1. hearing to determine whether the judgment or order complained

of should be set aside, and2. if the decision thereon is in the affirmative, a hearing on the

merits of the principal case

If the petition is granted, the judgment will be set aside as if it never

existed.

H. Procedure Where The Denial of An Appeal is Set Aside:

Sec. 7. Procedure where the denial of an appeal is set aside.

Where the denial of an appeal is set aside, the lower court shall

be required to give due course to the appeal and to elevate the

record of the appealed case as if a timely and proper appeal

had been made.

RULE 39

EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Longest and most important rule

Litigation ends from the moment the judgment is satisfied through

execution.

Execution is the enforcement of the final and executory judgment of thecourt. Otherwise, if not final and executory, it is only an interlocutory

judgment.

When does the judgment become final and executory?

After the lapse of appeal period and no appeal is made.

Remedy if the court will refuse?

MANDAMUS because execution is a ministerial duty of the court.

Who will enforce the judgment?

By the very same court which issued the judgment.

A. Kinds of Execution:

As to nature:1. Compulsory execution

2. Discretionary execution

As to enforcement:

1. By motion

2. By independent action

How is it done?

The prevailing party shall file a motion of execution before the very same

court which rendered judgment and then the court will issue an order of

execution followed by a writ of execution addressed to the sheriff.

Do you have to notify the losing party?

No, because the motion for execution is a matter of right. Besides, the

losing party is aware since he did not appeal from the judgment. The court

can grant such motion ex-parte.

If the judgment is appealed by the losing party to the CA and the CA

affirmed the decision of the RTC and the matter is not elevated to the SC,

the execution is still a matter of right.

Where do you now file the execution?

The execution of judgment shall be filed before the court of origin (RTC).Now, you don’t have to wait for the records from the CA to be delivered to

the RTC. You only need to get a certified true copy of the judgment and a

certified true copy of the final entry, and attached it to your motion of

execution.

You can file a motion for execution before CA if the RTC delays your writ

but the CA will not issue. The CA will only order the RTC to issue a writ of

execution. However, in this instance, you have to notify the losing party

and so the RTC cannot grant the writ without conducting a hearing

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because there might be supervening events from the time the RTC

rendered a judgment to the time the CA rendered an order.

B. When an execution a matter of right?

Section 1. Execution upon judgments or final orders.

– Execution shall issue as a matter of right, on motion,upon a judgment or order that disposes of the action or

proceeding upon the expiration of the period to appeal

therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally

resolved, the execution may forthwith be applied for in

the court of origin, on motion of the judgment obligee,

submitting therewith certified true copies of the

judgment or judgments or final order or orders sought

to be enforced and of the entry thereof, with notice to

the adverse party.

The appellate court may, on motion in the same

case, when the interest of justice so requires, direct the

court of origin to issue the writ of examination.

Two Conditions for Compulsory Execution:

1. The judgment has been disposed already.

2. The period to appeal has expired and no appeal has been filed.

Where to file a motion for issuance of a writ of execution?

1. Court of origin

2. Appealed case

C. When the court may refuse to issue the writ of execution despite thefinality of the judgment:

General rule: Judgment is enforceable by execution once it becomes final

and executory, except:

1. When subsequent facts and circumstances (supervening events)

transpire which render such execution unjust or impossible;

Note: The supervening events must occur AFTER the judgment has become

final and executory.

2. When the judgment has been novated by the parties;

It could be a change of the parties or change of the terms of the contract.

3. When a petition for relief from judgment is filed and a writ of

preliminary injunction is issued;

4. When the judgment has already become dormant, the five year period

to enforce it by mere motion having expired;

5. When the judgment is incomplete.

The court can still amend a final and executory judgment if:

1. To make corrections of clerical errors;

2. To clarify ambiguity;

3. In judgment for support because it can be amended anytime

Can one court by injunction or restraining order stop the execution of a

judgment of another court?

General Rule: No, because it will amount to interference, except

a. There is a pending petition for relief from judgment.

b. There is an action for annulment of the RTC filed in the CA.

D. Discretionary Execution

Section 2. Discretionary execution. –

(a) Execution of a judgment or final order pending

appeal . – On motion of the prevailing party with notice

to the adverse party filed in the trial court while it has

jurisdiction over the case and is in the possession of

either the original record or the record on appeal, as the

case may be, at the time of the filing of such motion,

said court may, in its discretion, order the execution of

a judgment or final order even before the expiration of

the period to appeal.After the trial court has lost jurisdiction, the motion

for execution pending appeal may be filed in the

appellate court.

Discretionary execution may only issue upon good

reasons to be stated in a special order after due

hearing.

(b) Execution of several, separate or partial

judgments. - A several, separate or partial judgment

may be executed under the same terms and conditions

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as execution of a judgment or final order pending

appeal.

Discretionary execution refers to the execution of a judgment that has not

yet attained finality if there are good reasons for its execution also known

as execution pending appeal.

Requisites for discretionary execution:

1. There must be a motion filed by the prevailing party.

2. There must be a notice of the motion given to the adverse party.

3. There must be a good reason to execute to be stated in a special

order after due hearing.

What will happen if there are no good reasons?

The writ of execution is void.

Where will you file?

In the very same court which rendered judgment.

When does the trial court lose jurisdiction?

1. When the appeal has been perfected, and

2. The period to appeal has expired

However, the trial court can still entertain the motion if the records have

not yet been transferred by virtue of RESIDUAL JURISDICTION.

After trial court has lost jurisdiction, the motion for execution pending

appeal may be filed in the appellate court.

The CA has no authority to issue immediate execution pending appeal of

its own decision therein. Discretionary execution is allowed in enforcing

the collection of actual or compensatory damages because the amount is

based on evidence like receipts.

Good reasons for execution pending appeal

1. Where the lapse of time will make the judgment ineffective

2. Where the appeal is clearly dilatory

Who determines if the appeal is dilatory?

The CA but there was cases in the past where the SC allowed the RTC.

However, later on, it ruled that RTC should not determine whether the

appeal is dilatory or not. To play safe, if you're the prevailing party and

you believed it is dilatory, file it in the CA.

3. Where the judgment is for support

4. Where the article subject of the case would deteriorate

5. Where the defendants are exhausting their income

6. Where the judgment debtor is in imminent danger of insolvency

7. Where the prevailing party is of advanced age

Note: The mere filing of the bond would not entitle the prevailing party to

an execution pending appeal. The posting of the bond should be an

additional good reason.

Remedy: Certiorari if granted without basis

Sec. 3. Stay of discretionary execution. - Discretionary

execution issued under the preceding section may be stayed

upon approval by the proper court of a sufficient supersedeas

bond filed by the party against whom it is directed, conditioned

upon the performance of the judgment or order allowed to be

executed in case it shall be finally sustained in whole or in part.

The bond thus given may be proceeded against on motion with

notice to the surety.

How to prevent execution pending appeal?

Supersedeas bond which refers to the money deposited in the court by themovant to answer for whatever damages the other party might suffer by

reason of immediate or discretionary execution.

How much?

It's up to the court.

However, the filing of supersedeas bond does not entitle the judgment

debtor to the suspension of execution as a matter of right. Hence, where

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the needs of the prevailing party are urgent, the court can order

immediate execution despite such supersedeas bond.

General Rule: When a defendant puts up a supersedeas bond, the court

shall recall the execution pending appeal, except if there are special and

compelling reasons like the judgment for support.

E. Judgment not stayed by appeal:

1. Injunction

2. Receivership

3. Accounting

4. Support

Sec. 4. Judgments not stayed b y appeal . - Judgments

in action for injunction, receivership, accounting and

support, and such other judgments as are now or may

hereafter be declared to be immediately executory,

shall be enforceable after their rendition and shall not

be stayed by an appeal taken therefrom, unless

otherwise ordered by the trial court. On appeal

therefrom, the appellate court in its discretion may

make an order suspending, modifying, restoring or

granting the injunction, receivership, accounting, or

award of support.

The stay of execution shall be upon such terms as to

bond or otherwise as may be considered proper for the

security or protection of the rights of the adverse party.

These are actions that are immediately executory.

F. Effect of Reversal of executed judgment

Section 5. Effect of reversal of executed judgment . - Where

the executed judgment is reversed totally or partially, or

annulled, on appeal or otherwise, the trial court, may, on

motion, issue such orders and justice may warrant under the

circumstances.

What will happen if judgment pending appeal is executed and the appeal

will proceed then it will be reversed?

Mutual restitution

G. Execution by motion or independent action

Sec. 6. Execution by motion or by independent action. - A finaland executory judgment or order may be executed on motion

within five (5) years from the date of its entry. After the lapse of

such time, and before it is barred by the statute of limitations, a

judgment may be enforced by action. The revived judgment may

also be enforced by motion within five (5) years from the date of

its entry and thereafter by action before it is barred by the

statute of limitations.

Execution by motion means that the prevailing party shall ask the court to

issue a writ of execution by simply filing a motion in the case within 5 years

from the date of entry, otherwise the judgment will become dormant.

What is the remedy for a dormant judgment?

File another civil action for revival of judgment execution by

independent action, wherein defendant can still invoke defenses such as

lack of jurisdiction or fraud, but you cannot question the correctness of the

original judgment because it is already res judicata.

Nature of the action for enforcement of a dormant judgment:

1. To revive the dormant judgment

2. To execute the judgment reviving it

Exceptions to the rule on dormant judgment:1. Judgment for support

2. Special proceedings like land registration proceedings

The period of 10 years applies all over again from the finality of the revived

judgment. In other words, you have another 10 years. (PNB vs. BONDOC)

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Illustration:

The purpose of the action for revival of a judgment is not to modify the

original judgment subject of the action but is merely to give a creditor a

new right of enforcement from the date of revival.

H. Execution in case of death of a party:

Sec. 7. Execution in case of death of party . - In case

of the death of a party, execution may issue or be

enforced in the following manner:

(a) In case of the death of the judgment obligee,

upon the application of his executor or administrator,

or successor in interest;(b) In case of the death of the judgment obligor,

against his executor or administrator or successor in

interest, if the judgment be for the recovery of real or

personal property, or the enforcement of a lien

thereon;

(c) In case of the death of the judgment obligor,

after execution is actually levied upon any of his

property, the same may be sold for the satisfaction of

the judgment obligation, and the officer making the sale

shall account to the corresponding executor or

administrator for any surplus in his hands.

You have to determine first whether death occurred before or after

judgment:

If before judgment, there will be substitution. If there is a judgment but not yet final , substitution may take

place and the executor or administrator of the deceased party will

represent. If judgment obligor dies, judgment shall be enforced

against the executor or administrator of the estate of the obligor.

On the other hand, if judgment obligee dies, the administrator or

executor of the estate will be the one to file a motion for

execution of judgment once the judgment becomes final and

executory.

If judgment is final and executory but no levy yet and judgment

obligor dies, the judgment shall be enforced against the estate

during the settlement of the estate. Judgment obligee need not

file another case and instead present the decision against the

administrator or executor. However, if there is a levy already,

execution sale shall continue and if there is excess, it shall be

given to estate. If deficient, he can ask additional payment from

the estate.

Note: An appeal is the remedy for an order denying the issuance of a writ

of execution.

I. Forms and contents of a writ of execution

Sec. 8. Issuance, form and contents of a writ of

execution. - The writ of execution shall:(1) issue in the name of the Republic of the

Philippines from the court which granted the motion;

(2) state the name of the court, the case number

and title, the dispositive part of the subject judgment or

order; and (3) require the sheriff or other proper officer

to whom it is directed to enforce the writ according to

its terms, in the manner hereinafter provided:

(a) If the execution be against the property of the

judgment obligor, to satisfy the judgment, with interest,

5 years

by motion

5 years

by

independent

action

5 years

by motion

5 years

by

independent

action

10 years

Article 1144, Civil Code

10 years

last sentence of Section 6

1990 20001995 20102005

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out of the real or personal property of such judgment

obligor;

(b) If it be against real or personal property in the

hands of personal representatives, heirs, devisees,

legatees, tenants, or trustees of the judgment obligor,

to satisfy the judgment, with interest, out of suchproperty;

(c) If it be for the sale of real or personal property,

to sell such property, describing it, and apply the

proceeds in conformity with the judgment, the material

parts of which shall be recited in the writ of execution.

(d) If it be for the delivery of the possession of real

or personal property, to deliver the possession of the

same, describing it, to the party entitled thereto, and to

satisfy any costs, damages, rents, or profits covered by

the judgment out of the personal property of the

person against whom it was rendered, and if sufficient

personal property cannot be found, then out of the real

property; and

(e) In all cases, the writ of execution shall

specifically state the amount of the interest, costs,

damages, rents, or profits due as of the date of the

issuance of the writ, aside from the principal obligation

under the judgment. For this purpose, the motion for

execution shall specify the amounts of the foregoing

reliefs sought by the movant.

A writ of execution is a written order from the court directing the sheriff

to enforce the judgment.

The important amendment now is that the writ shall state the exact

amount to be collected.

J. How to execute money judgment

1. Sheriff to demand payment

2. Satisfaction by levy

3. Garnishment of debts and credits

Sec. 9. Execution of judgments for money, how

enforced . -

(a) Immediate payment on demand. - The officer

shall enforce an execution of a judgment for money by

demanding from the judgment obligor the immediate

payment of the full amount stated in the writ ofexecution and all lawful fees. The judgment obligor

shall pay in cash, certified bank check payable to the

judgment obligee, or any other form of payment

acceptable to the latter, the amount of the judgment

debt under proper receipt directly to the judgment

obligee or his authorized representative if present at

the time of payment. The lawful fees shall be handed

under proper receipt to the executing sheriff who shall

turn over the said amount within the same day to the

clerk of court of the court that issued the writ.

(b) Satisfaction by levy . - If the judgment obligor

cannot pay all or part of the obligation in cash, certified

bank check or other mode of payment acceptable to the

judgment obligee, the officer shall levy upon the

properties of the judgment obligor of every kind and

nature whatsoever which may be disposed of for value

and not otherwise exempt from execution giving the

latter the option to immediately choose which property

or part thereof may be levied upon, sufficient to satisfy

the judgment. If the judgment obligor does not exercise

the option, the officer shall first levy on the personal

properties, if any, and then on the real properties if the

personal properties are sufficient to answer for the judgment.

(c) Garnishment of debts and credits. - The officer

may levy on debts due the judgment obligor and other

credits, including bank deposits, financial interests,

royalties, commissions and other personal property not

capable of manual delivery in the possession or control

of third parties. Levy shall be made by serving notice

upon the person owing such debts or having in his

possession or control such credits to which the

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judgment obligor is entitled. The garnishment shall

cover only such amount as will satisfy the judgment and

all lawful fees.

The garnishee shall make a written report to the

court within five (5) days from service of the notice of

garnishment stating whether or not the judgmentobligor has sufficient funds or credits to satisfy the

amount of the judgment. If not, the report shall state

how much funds or credits the garnishee holds for the

judgment obligor. The garnished amount in cash, or

certified bank check issued in the name of the judgment

obligee, shall be delivered directly to the judgment

obligee within ten (10) working days from service of

notice on said garnishee requiring such delivery, except

the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees

holding deposits or credits sufficient to satisfy the

judgment, the judgment obligor, if available, shall have

the right to indicate the garnishee or garnishees who

shall be required to deliver the amount due; otherwise,

the choice shall be made by the judgment obligee.

The executing sheriff shall observe the same

procedure under paragraph (a) with respect to delivery

of payment to the judgment obligee.

If the plaintiff is not there, the payment is may be made to the sheriff and

he is supposed to endorse it to the clerk of court.

If payment be made on check, it has to be payable to the obligee and notto the sheriff.

Garnishment is an act of appropriation by the court when intangible

property of debtor is in the hands of the third persons, except:

a. Usufruct

b. Ascertainable interest by the court as mortgagor, mortgagee, or

otherwise

c. Unused balance of an overdraft account

Garnishee- refers to the debtor of the judgment obligor.

If the judgment obligor will not determine which among his intangibles

shall be garnished, the judgment obligee will determine.

K. Execution of other judgmentSec. 10. Execution of judgments of specific act . -

Conveyance, delivery of deeds, or other specific acts;

vesting title. - If a judgment directs a party to execute a

conveyance of land or personal property, or to deliver

deeds or other documents, or to perform any other

specific act in connection therewith, and the party fails

to comply within the time specified, the court may

direct the act to be done at the cost of the disobedient

party by some other person appointed by the court and

the act when so done shall have like effect as if done by

the party. If real or personal property is situated within

the Philippines, the court in lieu of directing a

conveyance thereof may by an order divest the title of

any party and vest it in others, which shall have the

force and effect of a conveyance executed in due form

of law.

(b) Sale of real or personal property . - If the

judgment be for the sale of real or personal property, to

sell such property, describing it, and apply the proceeds

in conformity with the judgment.

(c) Delivery or restitution of real property . - The

officer shall demand of the person against whom the

judgment for the delivery or restitution of real propertyis rendered and all persons claiming rights under him to

peaceably vacate the property within three (3) working

days, and restore possession thereof to the judgment

obligee; otherwise, the officer shall oust all such

persons therefrom with the assistance, if necessary, or

appropriate peace officers, and employing such means

as may be reasonably necessary to retake possession,

and place the judgment obligee in possession of such

property. Any costs, damages, rents or profits awarded

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by the judgment shall be satisfied in the same manner

as a judgment for money.

(d) Removal of improvements on property subject of

execution. - When the property subject of the execution

contains improvements constructed or planted by the

judgment obligor or his agent, the officer shall notdestroy, demolish or remove said improvements except

upon special order of the court, issued upon motion of

the judgment obligee after due hearing and after the

former has failed to remove the same within a

reasonable time fixed by the court.

(e) Delivery of personal property . - In judgments for

the delivery of personal property, the officer shall take

possession of the same and forthwith deliver it to the

party entitled thereto and satisfy any judgment for

money as therein provided.

The writ of execution is not a sufficient basis for the removal of

improvements of the property. Judgment obligee has to get a

special order from the court.

Sec. 11. Execution of special judgments. - When

a judgment requires the performance of any act other

than those mentioned in the two preceding sections, a

certified copy of the judgment shall be attached to the

writ of execution and shall be served by the officer

upon the party against whom the same is rendered, or

upon any other person required thereby, or by law, to

obey the same, and such party or person may bepunished for contempt if he disobeys such judgment.

Two types of judgment:

a. Ordinary judgment- orders the defendant to pay money or to deliver

a real or personal property.

b. Special judgment- requires the defendant to perform an act

other than payment of money or deliver the property.

Difference between ordinary and special judgment:

A special judgment may be enforced by contempt if the defendant

refuses to comply but if in an ordinary judgment, not a ground for

contempt.

1. Execution for judgment for specific act -If defendant refuses, he cannot be cited in contempt because it can be

done by somebody else.

2. Execution of special judgment

-If defendant refuses, he can be cited in contempt.

L. Effects of levy on execution

Sec. 12. Effect of levy on execution as to third persons. -

The levy on execution shall create a lien in favor of the judgment

obligee over the right, title and interest of the judgment obligor

in such property at the time of the levy, subject to liens and

encumbrances then existing.

The levy on execution shall create a lien in favor of the judgment obligee

over the right, title and interest of the judgment obligor in such property at

the time of the levy, subject to liens and encumbrances then existing.

Levy means the act or acts by which an officer sets apart or appropriates a

part or the while of the property of the judgment debtor for purposes of

the prospective execution sale.

Levy is a pre-requisite to the auction sale and so if an auction sale is done

without levy, it is void. Any kind of property can be levied except for thoseproperties exempt from execution.

The law gives the debtor the option to choose which property shall be

levied but if he does not exercise such, then the sheriff shall go after the

personal properties first and then the real properties if the former is not

sufficient.

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M. Property exempt from execution

Sec. 13. Property exempt from execution. - Except as

otherwise expressly provided by law, the following

property, and no other, shall be exempt from

execution:

(a) The judgment obligor's family home as providedby law, or the homestead in which he resides, and land

necessarily used in connection therewith;

(b) Ordinary tools and implements personally used

by him in his trade, employment, or livelihood;

(c) Three horses, or three cows, or three carabaos,

or other beasts of burden, such as the judgment obligor

may select necessarily used by him in his ordinary

occupation;

(d) His necessary clothing and articles for ordinary

personal use, excluding jewelry;

(e) Household furniture and utensils necessary for

housekeeping, and used for that purpose by the

judgment obligor and his family, such as the judgment

obligor may select, of a value not exceeding one

hundred thousand pesos;

(f) Provisions for individual or family use sufficient

for four months;

(g) The professional libraries and equipment of

judges, lawyers, physicians, pharmacists, dentists,

engineers, surveyors, clergymen, teachers, and other

professional, not exceeding three hundred thousand

(P300,000.00) pesos in value;

(h) One fishing boat and accessories not exceedingthe total value of one hundred thousand (P100,000.00)

pesos owned by a fisherman and by the lawful use of

which he earns his livelihood;

(i) So much of the salaries, wages, or earnings of

the judgment obligor for his personal services within

the four months preceding the levy as are necessary for

the support of his family;

(k) Monies, benefits, privileges, or annuities

accruing or in any manner growing out of any life

insurance;

(l) The right to receive legal support, or money or

property obtained as such support, or any pension or

gratuity from the Government;(m) Properties specially exempted by law.

Examples of letter (m):

1. Property obtained pursuant to a free patent application

homestead

2. SSS benefits pursuant to Social Legislation

3. Property acquired by a tenant pursuant to CARP law.

Note: If the properties mentioned above is the subject from which

the debt arose, not exempted.

N. Return of the writ of execution

Sec. 14. Return of writ of execution. - The writ of execution

shall be returnable to the court issuing it immediately after the

judgment has been satisfied in part or in full. If the judgment

cannot be satisfied in full within thirty (30) days after his receipt

of the writ, the officer shall report to the court and state the

reason therefor. Such writ shall continue in effect during the

period within which the judgment may be enforced by motion.

The officer shall make a report to the court every thirty (30) days

on the proceedings taken thereon until the judgment is satisfied

in full, or its effectivity expires. The returns or periodic reports

shall set forth the whole of the proceedings taken, and shall befiled with the court and copies thereof promptly furnished the

parties.

The writ of execution must be returned to issuing judge within 5 years but

the sheriff has to periodically report to the court every 30 days. If after

the lapse of 5 years, judgment is not satisfied yet, ask the court an issuance

of alias of writ of execution.

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O. Execution sale

Sec. 15. Notice of sale of property on execution.

- Before the sale of property on execution, notice

thereof must be given as follows:

(a) In case of perishable property, by posting

written notice of the time and place of the sale in three(3) public places, preferably in conspicuous areas of the

municipal or city hall, post office and public market in

the municipality or city where the sale is to take place,

for such time as may be reasonable, considering the

character and condition of the property;

(b) In case of other personal property, by posting a

similar notice in the three (3) public places above-

mentioned for not less that five (5) days;

(c) In case of real property, by posting for twenty

(20) days in the three (3) public places above-

mentioned a similar notice particularly describing the

property and stating where the property is to be sold,

and if the assessed value of the property exceeds fifty

thousand (P50,000.00) pesos, by publishing a copy of

the notice once a week for two (2) consecutive weeks in

one newspaper selected by raffle, whether in English,

Filipino, or any major regional language published,

edited and circulated or, in the absence thereof, having

general circulation in the province or city;

(d) In all case, written notice of the sale shall be

given to the judgment obligor, at least three (3) days

before the sale, except as provided in paragraph (a)

hereof where notice shall be given at any time beforethe sale, in the same manner as personal service of

pleadings and other papers as provided by section 6 of

Rule 13.

The notice shall specify the place, date and exact time

of the sale which should not be earlier than nine o'clock

in the morning and not later than two o'clock in the

afternoon. The place of the sale may be agreed upon by

the parties. In the absence of such agreement, the sale

of real property or personal property not capable of

manual delivery shall be held in the office of the clerk of

court of the Regional Trial Court or the Municipal Trial

Court which issued the writ or which was designated by

the appellate court. In the case of personal property

capable of manual delivery, the sale shall be held in the

place where the property is located.

SECTION 16. Proceedings where property claimed by

third person. – If the property levied on is claimed by

any person other than the judgment obligor or his

agent, and such person makes an affidavit of his title

thereto or right to the possession thereof, stating the

grounds of such right or title, and serves the same upon

the officer making the levy and a copy thereof upon the

judgment obligee, the officer shall not be bound to keep

the property, unless such judgment obligee, on demand

of the officer, files a bond approved by the court to

indemnify the third-party claimant in a sum not less

than the value of the property levied on. In case of

disagreement as to such value, the same shall be

determined by the court issuing the writ of execution.

No claim for damages for the taking or keeping of the

property may be enforced against the bond unless the

action therefor is filed within one hundred twenty days

from the date of the filing of the bond.

The officer shall not be liable for damages for the

taking or keeping of the property, to any third-party

claimant if such bond is filed. Nothing herein contained

shall prevent such claimant or any third person fromvindicating his claim to the property in a separate

action, or prevent the judgment obligee from claiming

damages in the same or a separate action against a

third-party claimant who filed a frivolous or plainly

spurious claim.

When the writ of execution is issued in favor of the

Republic of the Philippines, or any officer duly

representing it, the filing of such bond shall not be

required, and in case the sheriff or levying officer is sued

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for damages as a result of the levy, he shall be

represented by the Solicitor General and if held liable

therefore, the actual damages adjudged by the court

shall be paid by the National Treasurer out of such funds

as may be appropriated for the purpose.

Sec. 17. Penalty for selling without notice, orremoving or defacing notice. - An officer selling without

the notice prescribed by section 15 of this Rule shall be

liable to pay punitive damages in the amount of five

thousand (P5,000.00) pesos to any person injured

thereby, in addition to his actual damages, both to be

recovered by motion in the same action; and a person

willfully removing or defacing the notice posted, if done

before the sale, or before the satisfaction of the

judgment if it be satisfied before the sale, shall be liable

to pay five thousand (P5,000.00) pesos to any person

injured by reason thereof, in addition to his actual

damages, to be recovered by motion in the same action.

Sec. 18. No sale if judgment and costs paid . - At

any time before the sale of property on execution, the

judgment obligor may prevent the sale by paying the

amount required by the execution and the costs that

have been incurred therein.

Sec. 19. How property sold on execution; who may

direct manner and order of sale. All sales of property

under execution must be made at public auction, to the

highest bidder, to start at the exact time fixed in the

notice. After sufficient property has been sold to satisfy

the execution, no more shall be sold and any excessproperty or proceeds of the sale shall be promptly

delivered to the judgment obligor or his authorized

representative, unless otherwise directed by the

judgment or order of the court. When the sale is of real

property, consisting of several known lots, they must be

sold separately; or, when a portion of such real property

is claimed by a third person, he may require it to be sold

separately. When the sale is of personal property

capable of manual delivery, it must be sold within view

of those attending the same and in such parcels as are

likely to bring the highest price. The judgment obligor, if

present at the sale, may direct the order in which

property, real or personal, shall be sold, when such

property consists of several known lots or parcels which

can be sold to advantage separately. Neither the officerconducting the execution sale, nor his deputies, can

become a purchaser, nor be interested directly or

indirectly in any purchase at such sale.

Sec. 20. Refusal of purchaser to pay. If a purchaser

refuses to pay the amount bid by him for property struck

off to him at a sale under execution, the officer may

again sell the property to the highest bidder and shall

not be responsible for any loss occasioned thereby; but

the court may order the refusing purchaser to pay into

the court the amount of such loss, with costs, and may

punish him for contempt if he disobeys the order. The

amount of such payment shall be for the benefit of the

person entitled to the proceeds of the execution, unless

the execution has been fully satisfied, in which event

such proceeds shall be for the benefit of the judgment

obligor. The officer may thereafter reject any subsequent

bid of such purchaser who refuses to pay.

Sec. 21. Judgment obligee as purchaser. When the

purchaser is the judgment obligee, and no third-party

claim has been filed, he need not pay the amount of the

bid if it does not exceed the amount of his judgment. If it

does, he shall pay only the excess.

Sec. 22. Adjournment of sale. By written consent ofthe judgment obligor and obligee, or their duly

authorized representatives, the officer may adjourn the

sale to any date and time agreed upon by them. Without

such agreement, he may adjourn the sale from day to

day if it becomes necessary to do so for lack of time to

complete the sale on the day fixed in the notice or the

day to which it was adjourned.

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REQUISITES FOR NOTICE OF SALE

OF PERSONAL PROPERTY

REQUISITES FOR NOTICE OF SALE

OF REAL PROPERTY

Perishable property: notice

posted in 3 public places for

such time as may be reasonable

considering the character andcondition of the property.

Other personal property: notice

posted in 3 public places not

less than 5 days

If ≤ 50,000: notice posted in 3

public places for 20 days.

If > 50,000: Publication once a

week for 2 consecutive weeksand notice posted in 3 public

places for 20 days

In all cases, written notice of the sale shall be given to the judgment

obligor, at least 3 days before the sale, except as provided in paragraph (a)

hereof where notice shall be given at any time.

Who will decide on the third-party claim?

The very same court which rendered the judgment but it will not entertain

the issue of who is the owner of the property. It will only be limited on the

issue of whether the sheriff acted rightfully or wrongfully.

Prevailing party has the right to claim damages against the third party

claimant for filing frivolous claims. He can claim damages in the same

action or in a separate action.

Third party claimant cannot file an intervention because intervention can

only be done at any time BEFORE judgment. In this scenario, there is

already a judgment and in fact it is already in the execution stage.

Remedies of a third person who property was seized by the sheriff:

1. Seek relief from the very same court2. Third-party claim

3. Separate civil action

Execution sale shall be done at public auction.

If there are many properties levied, you sell the properties one by one.

Persons not allowed to participate in the execution sale:

1. sheriff

2. judge

3. lawyer

The refusal of the purchaser to pay can amount to contempt and he ca n’tbe allowed to bid again.

The judgment obligee can participate in the auction sale and if he is the

highest bidder, he need not pay the judgment obligor by virtue of

compensation, except:

a. when his bid is higher than the judgment

b. when the property which is to be sold is subject of a third party

claim

If both the obligee and obligor agree in writing, sale may be adjourned to

any date and time agreed upon.

Without such agreement, sale may be adjourned from day to day if it

becomes necessary because of lack of time.

P. Conveyance to purchaser of property sold

Sec. 22. Adjournment of sale. By written consent of the

judgment obligor and obligee, or their duly authorized

representatives, the officer may adjourn the sale to any date and

time agreed upon by them. Without such agreement, he may

adjourn the sale from day to day if it becomes necessary to do so

for lack of time to complete the sale on the day fixed in the

notice or the day to which it was adjourned.Sec. 24. Conveyance to purchaser of personal property not

capable of manual delivery. When the purchaser of any personal

property, not capable of manual delivery, pays the purchase

price, the officer making the sale must execute and deliver to

the purchaser a certificate of sale. Such certificate conveys to

the purchaser all the rights which the judgment obligor had in

such property as of the date of the levy on execution or

preliminary attachment.

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Sec. 25. Conveyance of real property; certificate

thereof given to purchaser and filed with registry of

deeds. Upon a sale of real property, the officer must

give to the purchaser a certificate of sale containing:

(a) A particular description of the real property

sold;(b) The price paid for each distinct lot or parcel;

(c) The whole price paid by him;

(d) A statement that the right of redemption

expires one (1) year from the date of the registration of

the certificate of sale.

Such certificate must be registered in the registry of

deeds of the place where the property is situated.

Sec. 26. Certificate of sale where property claimed by

third person. When a property sold by virtue of a writ of

execution has been claimed by a third person, the

certificate of sale to be issued by the sheriff pursuant to

sections 23, 24 and 25 of this Rule shall make expressmention of the existence of such third-party claim.

1. Personal property- the sale conveys to the purchaser all the rights

which the judgment obligor had in such property as of the date of the levy

on execution or preliminary attachment.

2. Real property- the officer must give to the purchaser a certificate of

sale containing:

Particular description of the property sold

The price paid for each distinct lot or parcel

The whole price paid by him

A statement that the right of redemption expires one year fromthe date of registration of the certificate of sale.

Such certificate must be registered in the Registry of Property of the place

where the property is situated.

Is gross adequacy a valid ground for annulment of auction sale?

Yes if it is a personal property.

No if it is a real property because it would even be beneficial to the

judgment obligor to redeem.

Note: The sheriff does not warrant the ownership of the property. The law

only warrants the guarantee that you will acquire whatever interest he

has.

When does the higher bidder acquire ownership of the property sold inan auction sale?

a. If it is personal property, the title is transferred after payment of

the purchase price and delivery upon the purchase.

b. If it is real property, the title is transferred after the expiration of

the right to redeem.

Can you attack the validity of an auction sale?

General Rule: No, because of the presumptions that every fair sale is final

and regularity of the performance of the sheriff.

Exception:

a. There are serious irregularities like no notice, no publication

b. The price obtained is shockingly inadequate

Note: Letter b is only applicable to personal properties because there is no

right of redemption.

Q. Redemption

Sec. 27. Who may redeem real property so sold. Real

property sold as provided in the last preceding section,

or any part thereof sold separately, may be redeemed

in the manner hereinafter provided, by the following

persons:

(a) The judgment obligor, or his successor ininterest in the whole or any part of the property;

(b) A creditor having a lien by virtue of an attachment,

judgment or mortgage on the property sold, or on some part

thereof, subsequent to the lien under which the property was

sold. Such redeeming creditor is termed a re demptioner.

Sec. 28. Time and manner of, and amounts payable

on, successive redemptions; notice to be given and filed.

The judgment obligor, or redemptioner, may redeem

the property from the purchaser, at any time within one

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(1) year from the date of the registration of the

certificate of sale, by paying the purchaser the amount

of his purchase, with one per centum per month

interest thereon in addition, up to the time of

redemption, together with the amount of any

assessments or taxes which the purchaser may havepaid thereon after purchase, and interest on such last

named amount at the same rate; and if the purchaser

be also a creditor having a prior lien to that of the

redemptioner, other than the judgment under which

such purchase was made, the amount of such other

lien, with interest.

Property so redeemed may again be redeemed

within sixty (60) days after the last redemption upon

payment of the sum paid on the last redemption, with

two per centum thereon in addition, and the amount of

any assessments or taxes which the last redemptioner

may have paid thereon after redemption by him, withinterest on such last-named amount, and in addition,

the amount of any liens held by said last redemptioner

prior to his own, with interest. The property may be

again, and as often as a redemptioner is so disposed,

redeemed from any previous redemptioner within sixty

(60) days after the last redemption, on paying the sum

paid on the last previous redemption, with two per

centum thereon in addition, and the amounts of any

assessments or taxes which the last previous

redemptioner paid after the redemption thereon, with

interest thereon, and the amount of any liens held bythe last redemptioner prior to his own, with interest.

Written notice of any redemption must be given to

the officer who made the sale and a duplicate filed with

the registry of deeds of the place, and if any

assessments or taxes are paid by the redemptioner or if

he has or acquires any lien other than that upon which

the redemption was made, notice thereof must in like

manner be given to the officer and filed with the

registry of deeds; if such notice be not filed, the

property may be redeemed without paying such

assessments, taxes, or liens.

Sec. 29. Effect of redemption by judgment obligor,

and a certificate to be delivered and recorded thereupon;

to whom payments on redemption made. If the

judgment obligor redeems, he must make the samepayments as are required to effect a redemption by a

redemptioner, whereupon, no further redemption shall

be allowed and he is restored to his estate. The person

to whom the redemption payment is made must

execute and deliver to him a certificate of redemption

acknowledged before a notary public or other officer

authorized to take acknowledgments of conveyances of

real property. Such certificate must be filed and

recorded in the registry of deeds of the place in which

the property is situated, and the registrar of deeds must

note the record thereof on the margin of the record of

the certificate of sale. The payments mentioned in thisand the last preceding sections may be made to the

purchaser or redemptioner, or for him to the officer

who made the sale.

Sec. 30. Proof required of redemptioner. A

redemptioner must produce to the officer, or person

from whom he seeks to redeem, and serve with his

notice to the officer a copy of the judgment or final

order under which he claims the right to redeem,

certified by the clerk of the court wherein the judgment

or final order is entered; or, if he redeems upon a

mortgage or other lien, a memorandum of the recordthereof, certified by the registrar of deeds; or an

original or certified copy of any assignment necessary to

establish his claim; and an affidavit executed by him or

his agent, showing the amount then actually due on the

lien.

Sec. 31. Manner of using premises pending

redemption; waste restrained . Until the expiration of the

time allowed for redemption, the court may, as in other

proper cases, restrain the commission of waste on the

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property by injunction, on the application of the

purchaser or the judgment obligee, with or without

notice; but it is not waste for a person in possession of

the property at the time of the sale, or entitled to

possession afterwards, during the period allowed for

redemption, to continue to use it in the same manner inwhich it was previously used; or to use it in the ordinary

course of husbandry; or to make the necessary repairs

to buildings thereon while he occupies the property.

Sec. 32. Rents, earnings and income of property

pending redemption. The purchaser or a redemptioner

shall not be entitled to receive the rents, earnings and

income of the property sold on execution, or the value

of the use and occupation thereof when such property

is in the possession of a tenant. All rents, earnings and

income derived from the property pending redemption

shall belong to the judgment obligor until the expiration

of his period of redemption.Sec. 33. Deed and possession to be given at

expiration of redemption period; by whom executed or

given. If no redemption be made within one (1) year

from the date of the registration of the certificate of

sale, the purchaser is entitled to a conveyance and

possession of the property; or, if so redeemed

whenever sixty (60) days have elapsed and no other

redemption has been made, and notice thereof given,

and the time for redemption has expired, the last

redemptioner is entitled to the conveyance and

possession; but in all cases the judgment obligor shallhave the entire period of one (1) year from the date of

the registration of the sale to redeem the property. The

deed shall be executed by the officer making the sale or

by his successor in office, and in the latter case shall

have the same validity as though the officer making the

sale had continued in office and executed it.

Upon the expiration of the right of redemption, the

purchaser or redemptioner shall be substituted to and

acquire all the rights, title, interest and claim of the

judgment obligor to the property as of the time of the

levy. The possession of the property shall be given to

the purchaser or last redemptioner by the same officer

unless a third party is actually holding the property

adversely to the judgment obligor.

Sec. 34. Recovery of price if sale not effective; revivalof judgment. If the purchaser of real property sold on

execution, or his successor in interest, fails to recover

the possession thereof, or is evicted therefrom, in

consequence of irregularities in the proceedings

concerning the sale, or because the judgment has been

reversed or set aside, or because the property sold was

exempt from execution, or because a third person has

vindicated his claim to the property, he may on motion

in the same action or in a separate action recover from

the judgment obligee the price paid, with interest, or so

much thereof as has not been delivered to the

judgment obligor; or he may, on motion, have theoriginal judgment revived in his name for the whole

price with interest, or so much thereof as has been

delivered to the judgment obligor. The judgment so

revived shall have the same force and effect as an

original judgment would have as of the date of the

revival and no more.

Sec. 35. Right to contribution or reimbursement.

When property liable to an execution against several

persons is sold thereon, and more than a due

proportion of the judgment is satisfied out of the

proceeds of the sale of the property of one of them, orone of them pays, without a sale, more than his

proportion, he may compel a contribution from the

others; and when a judgment is upon an obligation of

one of them, as security for another, and the surety

pays the amount, or any part thereof, either by sale of

his property or before sale, he may compel repayment

from the principal.

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Who can redeem?

JUDGMENT DEBTOR REDEMPTIONER

Judgment obligor, or his successor

in interest

One who has lien by virtue of

another attachment, judgment or

mortgage on property SUBSEQUENT

to the lien under which theproperty was sold.

When?

Within 1 year from the date of

registration of the certificate of sale

When?

1. Within 1 year from the

date of registration of the

certificate of sale; or

2. Within 60 days from the

last redemption by another

redemptioner. (This has to

be done within the 1 year

period.- Dean)

Note: The redemptioner cannot validly refuse the judgment debtor from

exercising the latter’s right of redemption. The 60-day period doesn’t apply

to a judgment obligor.

Can the defendant sell his right of redemption to another person?

Yes, because the right of redemption is a property by itself.

Note: Redemptioners cannot redeem if the judgment debtor redeems.

Period of redemption

JUDGMENT OBLIGOR REDEMPTIONER

Judgment obligor has 1 year from

the registration of certificate ofsale.

1st

redemptioner has 1 year to

redeem.2

nd redemptioner has 60 days to

redeem after the 1st

redemption.

3rd

redemptioner has 60 days to

redeem after the 2nd

redemption,

etc.

Once he redeems, no further

redemption can be allowed.

Further redemption is allowed even

after the lapse of 1 year, as long as

each redemption is made within 60

days after the last. (Ateneo rev.)

But according to dean, subsequent

redemption(s) has to be done

within 1 year.

Tender of redemption money may be made to purchaser or sheriff. If it is

tendered to the sheriff, the latter has the duty to accept.

Medium of payment is cash although certified bank checks are allowed. If

the check is dishonored, redemption is invalid.

Amounts Payable on Redemption:

JUDGMENT OBLIGOR REDEMPTIONER

If he redeems from the purchaser:

-Purchase price + 1% interest +

assessment or taxes

If he redeems from a redemptioner:

-Redemption price + 2% interest +

assessment or taxes

If he redeems from the purchaser:

-Same as judgment obligor

-Amount of lien, if purchaser is

also a creditor with prior lien

If he redeems from a redemptioner:

-Same as judgment obligor

-Amount of liens held by last

redemptioner prior to his own, with

interest

If based on mortgage or other lien,

must serve:

-memorandum of record, or any

assignment, AND

-affidavit showing amount due on

lien

The judgment obligor has the automatic right to redeem and so he neednot prove his right, while the redemptioner must prove his status but this

can be waived when the person to whom redemption is made accepts

without requiring proof.

The judgment obligor continues to be the owner of the real property

within the redemption period.

The purchaser can ask the court to issue a writ of injunction to restrain the

commission of waste on the property.

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All rents, expenses, income and fruits derived during the period of

redemption belong to the debtor.

During the period of redemption, the purchaser is NOT entitled to:

1. Possession

2. Receive rents, earnings and income of the property

3. Reimbursements for improvements

Upon expiration, when no redemption is made, purchaser is entitled to

conveyance and possession of the property.

Upon expiration when no redemption has been made within 6 months,

the last redemptioner is entitled to conveyance and possession of

property.

Within 1 year purchaser acquires only the rights, title interest and claim of

judgment obligor to the property.

Two documents which the sheriff executes in favor of the purchaser :

1. Certificate of sale- issued after the auction sale

2. Deed of conveyance/ Final Deed of Sale- transfer the title of the

property to the purchaser.

If the debtor refused to vacate, the purchaser can ask the court to issue a

writ of possession to take over the property.

If a third person occupies the property, there will be a hearing to

resolve the issue of whom between the purchaser and the thirdperson has superior right over the property.

If the purchaser fails to recover possession, evicted, judgment reversed,

property exempt from execution, or 3rd

party vindicated claim, purchaser

may, on motion or in a separate action:

1. Recover the money from the obligee with interest

2. Have the judgment revived and look for other properties of the

obligor to execute.

If property is executed against several persons, and more than due

proportion has been satisfied, one who pays may compel contribution

from the others.

If surety pays, he may compel payment from the principal.

R. Remedies in Aid of Execution

The sheriff has to return the writ and make a report of whether the

writ is partially or fully satisfied. In the event the sheriff returns

with the writ unsatisfied, the judgment obligee may aid the ff

remedies:

Sec. 36. Examination of judgment obligor when

judgment unsatisfied. When the return of a writ of

execution issued against property of a judgment

obligor, or any one of several obligors in the same

judgment, shows that the judgment remains

unsatisfied, in whole or in part, the judgment obligee,at any time after such return is made, shall be entitled

to an order from the court which rendered the said

judgment, requiring such judgment obligor to appear

and be examined concerning his property and income

before such court or before a commissioner appointed

by it, at a specified time and place; and proceedings

may thereupon be had for the application of the

property and income of the judgment obligor towards

the satisfaction of the judgment. But no judgment

obligor shall be so required to appear before a court or

commissioner outside the province or city in which suchobligor resides or is found.

Sec. 37. Examination of obligor of judgment obligor.

When the return of a writ of execution against the

property of a judgment obligor shows that the

judgment remains unsatisfied, in whole or in part, and

upon proof to the satisfaction of the court which issued

the writ, that a person, corporation, or other juridical

entity has property of such judgment obligor or is

indebted to him, the court may, by an order, require

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such person, corporation, or other juridical entity, or

any officer or member thereof, to appear before the

court or a commissioner appointed by it, at a time and

place within the province or city where such debtor

resides or is found, and be examined concerning the

same. The service of the order shall bind all credits due

the judgment obligor and all money and property of the

judgment obligor in the possession or in the control of

such person, corporation, or juridical entity from the

time of service; and the court may also require notice of

such proceedings to be given to any party to the action

in such manner as it may deem proper.

Sec. 38. Enforcement of attendance and conduct of

examination. A party or other person may be compelled,

by an order or subpoena, to attend before the court or

commissioner to testify as provided in the two

preceding sections, and upon failure to obey such order

or subpoena or to be sworn, or to answer as a witnessor to subscribe his deposition, may be punished for

contempt as in other cases. Examinations shall not be

unduly prolonged, but the proceedings may be

adjourned from time to time, until they are completed.

If the examination is before a commissioner, he must

take it in writing and certify it to the court. All

examinations and answers before a court or

commissioner must be under oath, and when a

corporation or other juridical entity answers, it must be

on the oath of an authorized officer or agent thereof.

Sec. 39. Obligor may pay execution against obligee.After a writ of execution against property has been

issued, a person indebted to the judgment obligor may

pay to the sheriff holding the writ of execution the

amount of his debt or so much thereof as may be

necessary to satisfy the judgment, in the manner

prescribed in section 9 of this Rule, and the sheriff's

receipt shall be a sufficient discharge for the amount so

paid or directed to be credited by the judgment obligee

on the execution.

Sec. 40. Order for application of property and income

to satisfaction of judgment. The court may order any

property of the judgment obligor, or money due him,

not exempt from execution, in the hands of either

himself or another person, or of a corporation or other

juridical entity, to be applied to the satisfaction of the

judgment, subject to any prior rights over such

property.

If, upon investigation of his current income and

expenses, it appears that the earnings of the judgment

obligor for his personal services are more than

necessary for the support of his family, the court may

order that he pay the judgment in fixed monthly

installments, and upon his failure to pay any such

installment when due without good excuse, may punish

him for indirect contempt.

Sec. 41. Appointment of receiver. The court may

appoint a receiver of the property of the judgmentobligor; and it may also forbid a transfer or other

disposition of, or any interference with, the property of

the judgment obligor not exempt from execution.

Sec. 42. Sale of ascertainable interest of judgment

obligor in real estate. If it appears that the judgment

obligor has an interest in real estate in the place in

which proceedings are had, as mortgagor or mortgagee

or otherwise, and his interest therein can be

ascertained without controversy, the receiver may be

ordered to sell and convey such real estate or the

interest of the obligor therein; and such sale shall beconducted in all respects in the same manner as is

provided for the sale of real estate upon execution, and

the proceedings thereon shall be approved by the court

before the execution of the deed.

Sec. 43. Proceedings when indebtedness denied or

another person claims the property. If it appears that a

person or corporation, alleged to have property of the

judgment obligor or to be indebted to him, claims an

interest in the property adverse to him or denies the

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debt, the court may authorize, by an order made to that

effect, the judgment obligee to institute an action

against such person or corporation for the recovery of

such interest or debt, forbid a transfer or other

disposition of such interest or debt within one hundred

twenty (120) days from notice of the order, and may

punish disobedience of such order as for contempt.

Such order may be modified or vacated at any time by

the court which issued it, or by the court in which the

action is brought, upon such terms as may be just.

If the judgment obligee believes that the judgment obligor has

properties, the former may file a motion in court to require the

latter to appear in the court and answer the questions regarding

the allegedly hidden properties.

Upon return of writ of execution, and judgment is still unsatisfied,

the creditor may ask the court to require the debtor to appearand his property or income be examined.

Any person or corporation who has property of the debtor, or is

indebted to the debtor, the court may order such person to be

examined to bind the credits due to debtor. If they don’t appear,

they can be cited in contempt of the court.

You can ask the court to summon the obligors of the judgment

obligor to appear in court and they will be asked questions

pertaining to the payables due to the judgment obligor. If it really

is found, the court may order to freeze the payment and insteadpay to the sheriff to answer for the judgment.

The garnishee becomes a forced intervenor, requiring him to pay

his debt not to the judgment debtor but to the creditor. Refusal

to comply can be a ground for contempt.

Persons indebted to the judgment obligor may pay the sheriff and

the latter’s receipt shall mean a discharge for the amount paid

and shall be credited by the obligee on execution.

Court may order property of judgment obligor, or money due him,

in the hands of either himself or another, to be applied to the

satisfaction of the judgment.

If it appears that earnings are more than the necessary for

support of family, the court may order that he pay judgment in

fixed monthly installments, otherwise, he can be held for indirect

contempt.

A receiver is an officer of the court who will manage the property

of the litigants pending litigation. The purpose of receivership is

to preserve the property by placing it in the hands of the court to

remove it from the control of a party.

If judgment obligor has interest in real estate, receiver may be

ordered to sell and convey real estate or interest therein.

Person or corporation having property of obligor or indebted to

him, claims an interest in property adverse to him or denies debt.

Court may:

1. Authorize judgment oblige to institute action against

person or corporation for recovery of such interest or

debt

2. Forbid transfer or other disposition such interest or debt

within 120 days from notice of order; or

3. May punish disobedience of such order as for contempt

Court cannot make a finding that 3rd

person has in his possession

property belonging to judgment debtor or is indebted to him and

to order said person to pay amount to judgment creditor.

Execution may issue only upon an incontrovertible showing that

3rd

party holds property of judgment obligor or is indebted to him.

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S. Satisfaction of Judgment

Sec. 44. Entry of satisfaction of judgment by clerk of

court. Satisfaction of a judgment shall be entered by the

clerk of court in the court docket, and in the execution

book, upon the return of a writ of execution showing

the full satisfaction of the judgment, or upon the filing

of an admission to the satisfaction of the judgment

executed and acknowledged in the same manner as a

conveyance of real property by the judgment obligee or

by his counsel unless a revocation of his authority is

filed, or upon the endorsement of such admission by

the judgment obligee or his counsel on the face of the

record of the judgment.

Sec. 45. Entry of satisfaction with or without

admission. Whenever a judgment is satisfied in fact, or

otherwise than upon an execution, on demand of the

judgment obligor, the judgment obligee or his counsel

must execute and acknowledge, or indorse, anadmission of the satisfaction as provided in the last

preceding section, and after notice and upon motion

the court may order either the judgment obligee or his

counsel to do so, or may order the entry of satisfaction

to be made without such admission.

Sec. 46. When principal bound by judgment against

surety. When a judgment is rendered against a party

who stands as surety for another, the latter is also

bound from the time that he has notice of the action or

proceeding, and an opportunity at the surety's request

to join in the defense.

Satisfaction of Judgment is the compliance with or fulfillment of

the mandate thereof. It is not the same as execution as the

former refers to compliance with or fulfillment of the mandate of

judgment while the latter refers to the method of enforcement of

a judgment.

Judgment oblige is obliged to execute and acknowledge admission

or satisfaction of judgment only if judgment obligor demands.

Who may compel satisfaction of judgment?

1. By the judgment-creditor by means of execution, or

2. By the judgment-debtor by voluntary payment

Entry of satisfaction-when made?

a. Upon return of execution satisfied

b. Upon filing of admission of satisfaction by creditor

c. Upon indorsement of such admission

d. Upon order of the court

Creditor who compels satisfaction of judgment loses right of

appeal.

Debtor who voluntary satisfies judgment loses right to appeal, but

if he is compelled to pay, he does not lose the right to appeal.

Can the plaintiff appeal from a judgment and at the same timemove for its execution?

It depends upon the nature of the judgment,

a. If it is indivisible, you cannot

b. If it is divisible, you can

Tender of payment of

judgment

Tender of payment of

contractual debt

If tender is refused,

not necessary to make

consignation.Court may direct

payment to be paid to

the court, and order

entry of satisfaction of

judgment

If tender is refused,

must consign

payment with thecourt

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Surety sued alone Principal and surety

jointly sued

Principal sued alone

Principal also

bound by

judgment

Surety shouldnotify the

principal and

request him to

join in defense;

surety must still

file separate

action for

reimbursement

but principal can

no longer set up

defenses which he

could have set up

in the original

action

Judgment may be

rendered against

them jointly and

severally Surety should file a

cross-claim for

reimbursement

Principal has no

cause of action

against surety

The principal is bound by the same judgment from the time he has notice

of the action or proceeding and has been given an opportunity at the

surety’s request to join the defense.

T. Res Judicata

Sec. 47. Effect of judgments or final orders. The

effect of a judgment or final order rendered by a court

of the Philippines, having jurisdiction to pronounce the

judgment or final order, may be as follows:

(a) In case of a judgment or final order against a

specific thing, or in respect to the probate of a will, or

the administration of the estate of a deceased person,

or in respect to the personal, political, or legal condition

or status of a particular person or his relationship to

another, the judgment or final order is conclusive upon

the title to the thing, the will or administration, or the

condition, status or relationship of the person;

however, the probate of a will or granting of letters of

administration shall only be prima facie evidence of the

death of the testator or intestate;

(b) In other cases, the judgment or final order is,

with respect to the matter directly adjudged or as to

any other matter that could have been raised in relation

thereto, conclusive between the parties and their

successors in interest by title subsequent to the

commencement of the action or special proceeding,

litigating for the same thing and under the same title

and in the same capacity; and

(c) In any other litigation between the

same parties or their successors in interest, that only is

deemed to have been adjudged in a former judgment or

final order which appears upon its face to have been so

adjudged, or which was actually and necessarily

included therein or necessary thereto.

Note: Paragraph a refers to rule on Res Judicata in judgments in rem while

paragraph b refers to rule on Res Judicata in judgments in personam.

Sec. 48. Effect of foreign judgments or final orders. -

The effect of a judgment or final order of a tribunal or a

foreign country, having jurisdiction to render the

judgment or final order is as follows:

(a) In case of a judgment or final order upon a

specific thing, the judgment or final order is conclusive

upon the title to the thing; and

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(b) In case of a judgment or final order against a

person, the judgment or final order is presumptive

evidence of a right as between the parties and their

successors in interest by a subsequent title.

In either case, the judgment or final order may berepelled by evidence of a want of jurisdiction, want of

notice to the party, collusion, fraud, or clear mistake of

law or fact.

Res judicata is a matter adjudged; an existing final judgment or

decree rendered on the merits is conclusive upon the rights of the

parties or their privies, in all other actions or suits in the same or

any other judicial tribunal, on the points and matters in issue in the

first suit.

Effects if judgments or final order?

Conclusive upon the thing or title to the thing. It also binding upon

the parties to the action.

Requisites for a res judicata (must concur)

1. Judgment must be final (final and executory)

2. Court must have jurisdiction (RP VS. MOLINA)

3. Judgment must be upon the merits

4. There must be, between the two cases, identity of parties,

identity of subject matter, and identity of causes of action.

A voidable judgment may be invoked as res judicata.

Note: The requisites are same with litis pendentia, only here, the

first action is still pending.

When there is identity of parties for the purpose of res judicata?

1. When parties in the second action are the same as the

parties in the first action; or

2. When the parties in the second action are successors-in-

interest of the parties in the first action, such as heirs or

purchasers who acquired title after the commencement of

the first action.

The doctrine of res judicata applies not only to the decisions of

regular courts but can be invoked even in administrative cases.

When is there identity of subject matter?

If in the second case the same thing is involved or included in the

first case.

When is there identity of causes of action for the purpose of res

judicata?

When two actions are based on the same delict or wrong

committed by the defendant, even if the remedies be different.

Tests to determine whether or not the causes of action are the

same:

1. Same evidence test2. Inconsistency test

3. Cause of action arose only after the judgment of the other

Note: However, SC may allow res judicata despite its existence on

EQUITY CASES.

Res judicata applies only between adverse parties in a former suit,

NOT between co-parties.

Conclusiveness of judgment

Issues are actually and directly resolved in a former suit cannotagain be raised in any future case between the same parties

involving a different cause of action.

Res Judicata or bar by

former judgment

Estoppel by judgment or

conclusiveness by

judgment

Refers to same action, claim

or demand

Refers to another action

between same parties but

involves different claim

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Absolute bar to subsequent

action.

There is finality as to the

claim or demand in

controversy, not only to

matters presented, but also

to any other admissible

matter which might have

been presented.

Judgment merely an

estoppel only as to those

matters in issue or

controverted.

Identity of parties, subject

matter, cause of action

Identity of parties, subject

matter only

Res judicata operates between two actions involving the same

parties and the same cause of action while Stare decisis refers to

cases with different parties.

Res Judicata Stare Decisis

Operates between two

parties and the same cause

of action

Refers to cases with

different parties

Refers to decisions of all

court

Refers only to decisions of

Supreme Court

Effect of foreign judgments or final order:

In case of a judgment upon a specific thing, the judgment

is conclusive upon the title to the thing; and

In case of a judgment against a person, the judgment ispresumptive evidence of a right as between the parties

and their successors in interest by a subsequent title.

In either case, the judgment or final order maybe repelled

by evidence of a want of jurisdiction, want of notice to the

party,

If you want to enforce a foreign judgment, how do you do it?

You must have to file a petition for the recognition of the foreign

judgment by our court here in the Phil. This is not automatic.

Even if there is reciprocity, our court is not bound to the foreign

judgment. If it is found out that the foreign judgment is not in

accord to the basic requirements of due process, like want of

notice, etc., our court has the right not to admit or follow such

judgment.

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