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1997 RULES OF CIVIL PROCEDURE

(AS AMENDED)

EFFECTIVE JULY 1, 1997

RULES OF COURT

Pursuant to the provisions of section 5 (5) of Article VIIIof the Constitution, the Supreme Court hereby adopts and promulgates thefollowing rules concerning the protection and enforcement of constitutionalrights, pleading, practice and procedure in all courts, the admission to thepractice of law, the Integrated Bar, and legal assistance to theunderprivileged:

RULE 1

General Provisions

Section 1. Titleof the Rules . These Rule shall beknown and cited as the Rules of Court. (1)

Section 2. In what courtsapplicable . These Rules shall apply in all the courts, except as otherwise provided bythe Supreme Court. (n)

Section 3. Cases governed . These Rules shallgovern the procedure to be observed in actions, civil or criminal and specialproceedings.

(a) A civil action is one by which a party sues another for theenforcement or protection of a right, or the prevention or redress of a wrong,

A civil action may either be ordinary or special. Both aregoverned by the rules for ordinary civil actions, subject to the specific rulesprescribed for a special civil action. (n)

(b) A criminal action is one by which the State prosecutesa person for an act or omission punishable by law. (n)

(c) A special proceeding is a remedy by which a party seeksto establish a status, a right, or a particular fact.

Section 4. In what case notapplicable . These Rules shall not apply to election cases, land registration, cadastral,naturalization and insolvency proceedings, and other cases not herein providedfor, except by analogy or in a suppletory characterand whenever practicable and convenient.

Section 5. Commencementof action . A civil action iscommenced by the filing of the original complaint in court. If an additionaldefendant is impleaded in a later pleading, the action is commenced with regardto him on the dated of the filing of such later pleading, irrespective ofwhether the motion for its admission, if necessary, is denied by the court.(6a)

Section 6. Construction . These Rules shall beliberally construed in order to promote their objective of securing a just,speedy and inexpensive disposition of every action and proceeding. (2a)

Civil Actions

Ordinary Civil Actions

 

RULE 2

Cause of Action

Section 1. Ordinarycivil actions ,basis of. Every ordinary civil action must be based on a cause of action. (n)

Section 2. Cause of action , defined . Acause of action is the act or omission by which a party violates a right ofanother. (n)

Section 3. Onesuit for a single cause of action . A party may not institute more than one suitfor a single cause of action. (3a)

Section 4. Splittinga single cause of action ; effect of. If two or more suits are instituted on thebasis of the same cause of action, the filing of one or a judgment upon themerits in any one is available as a ground for the dismissal of the others.(4a)

Section 5. Joinderof causes of action . A party may in onepleading assert, in the alternative or otherwise, as many causes of action ashe may have against an opposing party, subject to the following conditions:

(a) The party joining the causes of action shall complywith the rules on joinder of parties;

(b) The joinder shall not include special civil actions oractions governed by special rules;

(c) Where the causes of action are between the same partiesbut pertain to different venues or jurisdictions, the joinder may be allowed inthe Regional Trial Court provided one of the causes of action falls within thejurisdiction of said court and the venue lies therein; and

(d) Where the claims in all the causes action areprincipally for recovery of money, the aggregate amount claimed shall be thetest of jurisdiction. (5a)

Section 6. Misjoinderof causes of action . Misjoinder of causesof action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, besevered and proceeded with separately. (n)

RULE 3

Parties to CivilActions

Section 1. Who may be parties ; plaintiff and defendant. Onlynatural or juridical persons, or entities authorized by law may be parties in acivil action. The term "plaintiff" may refer to the claiming party,the counter-claimant, the cross-claimant, or the third (fourth, etc.) partyplaintiff. The term "defendant" may refer to the original defendingparty, the defendant in a counter-claim, the cross-defendant, or the third(fourth, etc.) party defendant. (1a)

Section 2. Partiesin interest . A real party ininterest is the party who stands to be benefited or injured by the judgment inthe suit, or the party entitled to the avails of the suit. Unless otherwiseauthorized by law or these Rules, every action must be prosecuted or defendedin the name of the real party in interest. (2a)

Section 3. Representativesas parties . Where the action isallowed to be prosecuted and defended by a representative or someone acting ina fiduciary capacity, the beneficiary shall be included in the title of thecase and shall be deemed to be the real property in interest. A representativemay be a trustee of an expert trust, a guardian, an executor or administrator,or a party authorized by law or these Rules. An agent acting in his own nameand for the benefit of an undisclosed principal may sue or be sued withoutjoining the principal except when the contract involves things belonging to theprincipal. (3a)

Section 4. Spousesas parties . Husband and wifeshall sue or be sued jointly, except as provided by law. (4a)

Section 5. Minoror incompetent persons . A minor or a person alleged to be incompetent, may sueor be sued with the assistance of his father, mother, guardian, or if he hasnone, a guardian ad litem . (5a)

Section 6. Permissivejoinder of parties . All persons in whomor against whom any right to relief in respect to or arising out of the same transactionor series of transactions is alleged to exist, whether jointly, severally, orin the alternative, may, except as otherwise provided in these Rules, join asplaintiffs or be joined as defendants in one complaint, where any question oflaw or fact common to all such plaintiffs or to all such defendants may arisein the action; but the court may make such orders as may be just to prevent anyplaintiff or defendant from being embarrassed or put to expense in connectionwith any proceedings in which he may have no interest. (6n)

Section 7. Compulsoryjoinder of indispensable parties . Parties in interest without whom no finaldetermination can be had of an action shall be joined either as plaintiffs ordefendants. (7)

Section 8. Necessaryparty . A necessary party isone who is not indispensable but who ought to be joined as a party if completerelief is to be accorded as to those already parties, or for a completedetermination or settlement of the claim subject of the action. (8a)

Section 9. Non-joinderof necessary parties to be pleaded . Whenever in any pleading in which a claim isasserted a necessary party is not joined, the pleader shall set forth his name,if known, and shall state why he is omitted. Should the court find the reasonfor the omission unmeritorious, it may order the inclusion of the omittednecessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion,without justifiable cause, shall be deemed a waiver of the claim against suchparty.

The non-inclusion of a necessary party does not prevent thecourt from proceeding in the action, and the judgment rendered therein shall bewithout prejudice to the rights of such necessary party. (8a, 9a)

Section 10. Unwillingco-plaintiff. If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and thereason therefor shall be stated in the complaint. (10)

Section 11. Misjoinderand non-joinder of parties . Neither misjoinder nor non-joinder of parties is groundfor dismissal of an action. Parties may be dropped or added by order of thecourt on motion of any party or on its own initiative at any stage the actionand on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (11a)

Section 12. Classsuit . When the subjectmatter of the controversy is one of common or general interest to many personsso numerous that it is impracticable to join all as parties, a number of themwhich the court finds to be sufficiently numerous and representative as tofully protect the interests of all concerned may sue or defend for the benefitof all. Any party in interest shall have the right to intervene to protect hisindividual interest. (12a)

Section 13. Alternativedefendants . Where the plaintiffis uncertain against who of several persons he is entitled to relief, he mayjoin any or all of them as defendants in the alternative, although a right torelief against one may be inconsistent with a right of relief against theother. (13a)

Section 14. Unknownidentity or name of defendant . Whenever the identity or name of a defendantis unknown, he may be sued as the unknown owner heir devisee, or by such otherdesignation as the case may require, when his identity or true name isdiscovered, the pleading must be amended accordingly. (14)

Section 15. Entitywithout juridical personality as defendant . When two or more persons notorganized as an entity with juridical personality enter into a transaction,they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the name and addresses ofthe persons composing said entity must all be revealed. (15a)

Section 16. Deathof party ;duty of counsel . Whenever a party to a pending action dies, and the claimis not thereby extinguished, it shall be the duty of his counsel to inform thecourt within thirty (30) days after such death of the fact thereof, and to givethe name and address of his legal representative or representatives. Failure ofcounsel to comply with his duty shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substitutedfor the deceased, without requiring the appointment of an executor oradministrator and the court may appoint a guardian ad litem for theminor heirs.

The court shall forthwith order said legal representativeor representatives to appear and be substituted within a period of thirty (30)days from notice.

If no legal representative is named by the counsel for thedeceased party, or if the one so named shall fail to appear within thespecified period, the court may order the opposing party, within a specifiedtime to procure the appointment of an executor or administrator for the estateof the deceased and the latter shall immediately appear for and on behalf ofthe deceased. The court charges in procuring such appointment, if defrayed bythe opposing party, may be recovered as costs.

Section 17. Deathor separation of a party who is a public officer . When a publicofficer is a party in an action in his official capacity and during itspendency dies, resigns, or otherwise ceases to hold office, the action may becontinued and maintained by or against his successor if, within thirty (30)days after the successor takes office or such time as may be granted by thecourt, it is satisfactorily shown to the court by any party that there is asubstantial need for continuing or maintaining it and that the successor adoptsor continues or threatens to adopt or continue to adopt or continue the actionof his predecessor. Before a substitution is made, the party or officer to beaffected, unless expressly assenting thereto, shall be given reasonable noticeof the application therefor and accorded an opportunity to be heard. (18a)

Section 18. Incompetencyor incapacity . If a party becomesincompetent or incapacitated, the court, upon motion with notice, may allow theaction to be continued by or against the incompetent or incapacitated personassisted by his legal guardian or guardian ad litem . (19a)

Section 19. Transfer of interest . In case of anytransfer of interest, the action may be continued by or against the originalparty, unless the court upon motion directs the person to whom the interest istransferred to be substituted in the action or joined with the original party.(20)

Section 20. Action and contractualmoney claims . When the action is for recovery of money arising from contract, express or implied,and the defendant dies before entry of final judgment in the court in which theaction was pending at the time of such death, it shall not be dismissed butshall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shallbe enforced in the manner especially provided in these Rules for prosecutingclaims against the estate of a deceased person.

Section 21. Indigentparty . A party may beauthorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing,is satisfied that the party is one who has no money or property sufficient andavailable for food, shelter and basic necessities for himself and his family.

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

Any adverse party may contest the grant of such authorityat any time before judgment is rendered by the trial court. If the court shoulddetermine after hearing that the party declared as an indigent is in fact aperson with sufficient income or property, the proper docket and other lawfulfees shall be assessed and collected by the clerk of court. If payment is notmade within the time fixed by the court, execution shall issue or the paymentthereof, without prejudice to such other sanctions as the court may impose.

Section 22. Notice to the SolicitorGeneral . In any action involving the validity of any treaty, law, ordinance, executiveorder, presidential decree, rules or regulations, the court, in its discretion,may require the appearance of the Solicitor General who may be heard in personor a representative duly designated by him.

RULE 4

Venue of Actions

Section 1. Venueof real actions . Actions affectingtitle to or possession of real property, or interest therein, shall becommenced and tried in the proper court which has jurisdiction over the areawherein the real property involved, or a portion thereof, is situated.

Forcible entry and detainer actions shall be commenced andtried in the municipal trial court of the municipality or city wherein the realproperty involved, or a portion thereof, is situated.

Section 2. Venueof personal actions . All other actionsmay be commenced and tried where the plaintiff or any of the principalplaintiffs resides, or where the defendant or any of the principal defendantsresides, or in the case of a non-resident defendant where he may be found, atthe election of the plaintiff.

Section 3. Venueof actions against nonresidents . If any of thedefendants does not reside and is not found in the Philippines, and the actionaffects the personal status of the plaintiff, or any property of said defendantlocated in the Philippines, the action may be commenced and tried in the courtof the place where the plaintiff resides, or where the property or any portionthereof is situated or found.

Section 4. When Rule notapplicable . This Rule shall not apply.

(a) In those cases where a specific rule or law providesotherwise; or

(b) Where the parties have validly agreed in writing beforethe filing of the action on the exclusive venue thereof.

RULE 5

Uniform Procedure In Trial Courts

Section 1. Uniformprocedure . The procedure in theMunicipal Trial Courts shall be the same as in the Regional Trial Courts,except (a) where a particular provision expressly or impliedly applies only toeither of said courts, or (b) in civil cases governed by the Rule on SummaryProcedure. (n)

Section 2. Meaningof terms . The term"Municipal Trial Courts" as used in these Rules shall includeMetropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal TrialCourts, and Municipal Circuit Trial Courts. (1a)

Procedure In Regional Trial Courts

 

RULE 6

Kinds Of Pleadings

Section 1. Pleadings defined . Pleadings are thewritten statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a)

Section 2. Pleadings allowed . The claims of aparty are asserted in a complaint, counterclaim, cross-claim, third (fourth,etc.)-party complaint, or complaint-in-intervention.

The defenses of a party arealleged in the answer to the pleading asserting a claim against him.

An answer may be responded to by a reply. (n)

Section 3. Complaint . The complaint is thepleading alleging the plaintiff's cause or causes of action. The names andresidences of the plaintiff and defendant must be stated in the complaint. (3a)

Section 4. Answer . An answer is apleading in which a defending party sets forth his defenses .(4a)

Section 5. Defenses . Defenses may either be negative or affirmative.

(a) A negative defense is thespecific denial of the material fact or facts alleged in the pleading of theclaimant essential to his cause or causes of action.

(b) An affirmative defense is anallegation of a new matter which, while hypothetically admitting the materialallegations in the pleading of the claimant, would nevertheless prevent or barrecovery by him. The affirmative defenses includefraud, statute of limitations, release, payment, illegality, statute of frauds,estoppel, former recovery, discharge in bankruptcy, and any other matter by wayof confession and avoidance. (5a)

Section 6. Counterclaim . A counterclaim isany claim which a defending party may have against an opposing party. (6a)

Section 7. Compulsorycounterclaim . A compulsorycounterclaim is one which, being cognizable by the regular courts of justice,arises out of or is connected with the transaction or occurrence constitutingthe subject matter of the opposing party's claim and does not require for itsadjudication the presence of third parties of whom the court cannot acquirejurisdiction. Such a counterclaim must be within the jurisdiction of the courtboth as to the amount and the nature thereof, except that in an original actionbefore the Regional Trial Court, the counter-claim may be considered compulsoryregardless of the amount. (n)

Section 8. Cross-claim . A cross-claim is anyclaim by one party against a co-party arising out of the transaction oroccurrence that is the subject matter either of the original action or of acounterclaim therein. Such cross-claim may include a claim that the partyagainst whom it is asserted is or may be liable to the cross-claimant for allor part of a claim asserted in the action against the cross-claimant. (7)

Section 9. Counter-counterclaimsand counter-crossclaims . A counter-claim may be asserted against an originalcounter-claimant.

A cross-claim may also be filed against an originalcross-claimant. (n)

Section 10. Reply . A reply is apleading, the office or function of which is to deny, or allege facts in denialor avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a partydoes not file such reply, all the new matters alleged in the answer are deemed controverted.

If the plaintiff wishes to interpose any claims arising outof the new matters so alleged, such claims shall be set forth in an amended orsupplemental complaint. (11)

Section 11. Third,(fourth, etc.) party complaint . A third (fourth, etc.) party complaint isa claim that a defending party may, with leave of court, file against a personnot a party to the action, called the third (fourth, etc.) party defendantfor contribution, indemnity, subrogation or any other relief, in respect of hisopponent's claim. (12a)

Section 12. Bringingnew parties . When the presence ofparties other than those to the original action is required for the granting ofcomplete relief in the determination of a counterclaim or cross-claim, the courtshall order them to be brought in as defendants, if jurisdiction over them canbe obtained. (14)

Section 13. Answer to third(fourth, etc.)party complaint . A third (fourth, etc.) party defendantmay allege in his answer his defenses , counterclaimsor cross-claims, including such defenses that thethird (fourth, etc.) party plaintiff may have against the originalplaintiff's claim. In proper cases, he may also assert a counterclaim againstthe original plaintiff in respect of the latter's claim against the third-partyplaintiff. (n)

RULE 7

Parts of a Pleading

Section 1. Caption . The caption setsforth the name of the court, the title of the action, and the docket number ifassigned.

The title of the action indicates the names of the parties.They shall all be named in the original complaint or petition; but insubsequent pleadings, it shall be sufficient if the name of the first party oneach side be stated with an appropriate indication when there are otherparties.

Their respective participation in the case shall beindicated.

Section 2. Thebody . The body of thepleading sets fourth its designation, the allegations of the party's claims or defenses , the relief prayed for, and the date of thepleading. (n)

(a) Paragraphs . The allegations in the body of apleading shall be divided into paragraphs so numbered to be readily identified,each of which shall contain a statement of a single set of circumstances so faras that can be done with convenience. A paragraph may be referred to by itsnumber in all succeeding pleadings. (3a)

(b) Headings . When two or more causes of actionare joined the statement of the first shall be prefaced by the words"first cause of action,'' of the second by "second cause ofaction", and so on for the others.

When one or more paragraphs in the answer are addressed toone of several causes of action in the complaint, they shall be prefaced by thewords "answer to the first cause of action" or "answer to thesecond cause of action" and so on; and when one or more paragraphs of theanswer are addressed to several causes of action, they shall be prefaced bywords to that effect. (4)

(c) Relief. The pleading shall specify the reliefsought, but it may add a general prayer for such further or other relief as maybe deemed just or equitable.

(d) Date . Every pleading shall be dated. (n)

Section 3. Signatureand address . Every pleading mustbe signed by the party or counsel representing him, stating in either case hisaddress which should not be a post office box.

The signature of counsel constitutes a certificate by himthat he has read the pleading; that to the best of his knowledge, information,and belief there is good ground to support it; and that it is not interposedfor delay.

An unsigned pleading produces no legal effect. However, thecourt may, in its discretion, allow such deficiency to be remedied if it shallappear that the same was due to mere inadvertence and not intended for delay.Counsel who deliberately files an unsigned pleading, or signs a pleading inviolation of this Rule, or alleges scandalous or indecent matter therein, orfails promptly report to the court a change of his address, shall be subject toappropriate disciplinary action. (5a)

Section 4. Verification . Except whenotherwise specifically required by law or rule, pleadings need not be underoath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant hasread the pleading and that the allegations therein are true and correct of hispersonal knowledge or based on authentic records.

A pleading required to be verified which contains averification based on "information and belief, or upon "knowledge,information and belief," or lacks a proper verification, shall be treatedas an unsigned pleading.

Section 5. Certificationagainst forum shopping . The plaintiff or principal party shall certify underoath in the complaint or other initiatory pleading asserting a claim forrelief, or in a sworn certification annexed thereto and simultaneously filedtherewith: (a) that he has not theretofore commenced any action or filed anyclaim involving the same issues in any court, tribunal or quasi-judicial agencyand, to the best of his knowledge, no such other action or claim is pendingtherein; (b) if there is such other pending action or claim, a completestatement of the present status thereof; and (c) if he should thereafter learnthat the same or similar action or claim has been filed or is pending, he shallreport that fact within five (5) days therefrom to the court wherein hisaforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall notbe curable by mere amendment of the complaint or other initiatory pleading butshall be cause for the dismissal of the case without prejudice, unlessotherwise provided, upon motion and after hearing. The submission of a falsecertification or non-compliance with any of the undertakings therein shallconstitute indirect contempt of court, without prejudice to the correspondingadministrative and criminal actions. If the acts of the party or his counselclearly constitute willful and deliberate forumshopping, the same shall be ground for summary dismissal with prejudice andshall constitute direct contempt, as well as a cause for administrativesanctions. (n)

RULE 8

Manner of MakingAllegations in Pleadings

Section 1. Ingeneral . Every pleading shallcontain in a methodical and logical form, a plain, concise and direct statementof the ultimate facts on which the party pleading relies for his claim or defense , as the case may be, omitting the statement of mereevidentiary facts. (1)

If a defense relied on is basedon law, the pertinent provisions thereof and their applicability to him shallbe clearly and concisely stated. (n)

Section 2. Alternative causes ofaction or defenses . A party may set forth two or morestatements of a claim or defense alternatively orhypothetically, either in one cause of action or defense or in separate causes of action or defenses . When twoor more statements are made in the alternative and one of them if madeindependently would be sufficient, the pleading is not made insufficient by theinsufficiency of one or more of the alternative statements. (2)

Section 3. Conditionsprecedent . In any pleading ageneral averment of the performance or occurrence of all conditions precedentshall be sufficient. (3)

Section 4. Capacity . Facts showing thecapacity of a party to sue or be sued or the authority of a party to sue or besued in a representative capacity or the legal existence of an organizedassociation of person that is made a party, must beaverred. A party desiring to raise an issue as to the legal existence of anyparty or the capacity of any party to sue or be sued in a representativecapacity, shall do so by specific denial, which shall include such supportingparticulars as are peculiarly within the pleader's knowledge. (4)

Section 5. Fraud,mistake, condition of the mind . In all averments of fraud or mistake thecircumstances constituting fraud or mistake must be stated with particularity.Malice, intent, knowledge, or other condition of the mind of a person may beaverred generally.( 5a)

Section 6. Judgment . In pleading ajudgment or decision of a domestic or foreign court, judicial or quasi-judicialtribunal, or of a board or officer, it is sufficient to aver the judgment ordecision without setting forth matter showing jurisdiction to render it. (6)

Section 7. Action or defense based on document . Whenever an action or defense is based upon a written instrument or document, thesubstance of such instrument or document shall be set forth in the pleading,and the original or a copy thereof shall be attached to the pleading as anexhibit, which shall be deemed to be a part of the pleading, or said copy maywith like effect be set forth in the pleading. (7)

Section 8. Howto contest such documents . When an action or defense isfounded upon a written instrument, copied in or attached to the correspondingpleading as provided in the preceding section, the genuineness and dueexecution of the instrument shall be deemed admitted unless the adverse party,under oath specifically denies them, and sets forth what he claims to be thefacts, but the requirement of an oath does not apply when the adverse partydoes not appear to be a party to the instrument or when compliance with anorder for an inspection of the original instrument is refused. (8a)

Section 9. Officialdocument or act . In pleading an official document or official act, it is sufficient to aver thatthe document was issued or the act done in compliance with law. (9)

Section 10. Specificdenial . A defendant mustspecify each material allegation of fact the truth of which he does not admitand, whenever practicable, shall set forth the substance of the matters uponwhich he relies to support his denial. Where a defendant desires to deny only apart of an averment, he shall specify so much of it as is true and material andshall deny only the remainder. Where a defendant is without knowledge orinformation sufficient to form a belief as to the truth of a material avermentmade to the complaint, he shall so state, and thisshall have the effect of a denial. (10a)

Section 11. Allegations notspecifically denied deemed admitted . Material averment in the complaint, otherthan those as to the amount of unliquidated damages, shall be deemed admittedwhen not specifically denied. Allegations of usury in a complaint to recoverusurious interest are deemed admitted if not denied under oath.

Section 12. Striking out ofpleading or matter contained therein . Upon motion made by a party beforeresponding to a pleading or, if no responsive pleading is permitted by theseRules, upon motion made by a party within twenty (20) days after the service ofthe pleading upon him, or upon the court's own initiative at any time, thecourt may order any pleading to be stricken out or that any sham or false,redundant, immaterial, impertinent, or scandalous matter be stricken outtherefrom. (5, R9)

RULE 9

Effect of Failure toPlead

Section 1. Defenses and objections notpleaded . Defenses and objections not pleaded either in amotion to dismiss or in the answer are deemed waived. However, when it appearsfrom the pleadings or the evidence on record that the court has no jurisdictionover the subject matter, that there is another action pending between the sameparties for the same cause, or that the action is barred by a prior judgment orby statute of limitations, the court shall dismiss the claim. (2a)

Section 2. Compulsory counterclaim , or cross-claim ,not set up barred . A compulsory counterclaim, or a cross-claim, notset up shall be barred. (4a)

Section 3. Default ; declaration of. If the defendingparty fails to answer within the time allowed therefor, the court shall, uponmotion of the claiming party with notice to the defending party, and proof ofsuch failure, declare the defending party in default. Thereupon, the courtshall proceed to render judgment granting the claimant such relief as hispleading may warrant, unless the court in its discretion requires the claimantto submit evidence. Such reception of evidence may be delegated to the clerk ofcourt. (1a, R18)

(a) Effect of order of default . A party in defaultshall be entitled to notice of subsequent proceedings but not to take part inthe trial.

(b) Relief from order of default . A party declaredin default may at any time after notice thereof and before judgment file amotion under oath to set aside the order of default upon proper showing thathis failure to answer was due to fraud, accident, mistake or excusablenegligence and that he has a meritorious defense . Insuch case, the order of default may be set aside on such terms and conditionsas the judge may impose in the interest of justice.

(c) Effect of partial default . When a pleadingasserting a claim states a common cause of action against several defendingparties, some of whom answer and the others fail to doso, the court shall try the case against all upon the answers thus filed andrender judgment upon the evidence presented.

(d) Extent of relief to be awarded . A judgmentrendered against a party in default shall not exceed the amount or be differentin kind from that prayed for nor award unliquidated damages.

(e) Where no defaults allowed . If the defendingparty in an action for annulment or declaration of nullity of marriage or forlegal separation fails to answer, the court shall order the prosecutingattorney to investigate whether or not a collusion between the parties exists,and if there is no collusion, to intervene for the State in order to see to itthat the evidence submitted is not fabricated.

RULE 10

Amended andSupplemental Pleadings

Section 1. Amendmentsin general . Pleadings may beamended by adding or striking out an allegation or the name of any party, or bycorrecting a mistake in the name of a party or a mistaken or inadequateallegation or description in any other respect, so that the actual merits ofthe controversy may speedily be determined, without regard to technicalities,and in the most expeditious and inexpensive manner. (1)

Section 2. Amendmentsas a matter of right . A party may amendhis pleading once as a matter of right at any time before a responsive pleadingis served or, in the case of a reply, at any time within ten (10) days after itis served. (2a)

Section 3. Amendmentsby leave of court . Except as providedin the next preceding section, substantial amendments may be made only uponleave of court. But such leave may be refused if it appears to the court thatthe motion was made with intent to delay. Orders of the court upon the matters providedin this section shall be made upon motion filed in court, and after notice tothe adverse party, and an opportunity to be heard. (3a)

Section 4. Formalamendments . A defect in thedesignation of the parties and other clearly clerical or typographical errorsmay be summarily corrected by the court at any stage of the action, at itsinitiative or on motion, provided no prejudice is caused thereby to the adverseparty. (4a)

Section 5. Amendmentto conform to or authorize presentation of evidence . When issues notraised by the pleadings are tried with the express or implied consent of theparties they shall be treated in all respects as if they had been raised in thepleadings. Such amendment of the pleadings as may be necessary to cause them toconform to the evidence and to raise these issues may be made upon motion ofany party at any time, even after judgment; but failure to amend does not affectthe result of the trial of these issues. If evidence is objected to at thetrial on the ground that it is not within the issues made by the pleadings, thecourt may allow the pleadings to be amended and shall do so with liberality ifthe presentation of the merits of the action and the ends of substantialjustice will be subserved thereby. The court maygrant a continuance to enable the amendment to be made. (5a)

Section 6. Supplementalpleadings . Upon motion of aparty the court may, upon reasonable notice and upon such terms as are just,permit him to serve a supplemental pleading setting forth transactions,occurrences or events which have happened since the date of the pleading soughtto be supplemented. The adverse party may plead thereto within ten (10) daysfrom notice of the order admitting the supplemental pleading. (6a)

Section 7. Filingof amended pleadings . When any pleading isamended, a new copy of the entire pleading, incorporating the amendments, whichshall be indicated by appropriate marks, shall be filed. (7a)

Section 8. Effectof amended pleadings . An amended pleadingsupersedes the pleading that it amends. However, admissions in supersededpleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amendedpleading shall be deemed waived. (n)

RULE 11

When to File ResponsivePleadings

Section 1. Answer to the complaint . The defendant shallfile his answer to the complaint within fifteen (15) days after service ofsummons, unless a different period is fixed by the court. (la )

Section 2. Answer of a defendantforeign private juridical entity . Where the defendant is a foreign privatejuridical entity and service of summons is made on the government officialdesignated by law to receive the same, the answer shall be filed within thirty(30) days after receipt of summons by such entity. (2a)

Section 3. Answer to amendedcomplaint . When the plaintiff files an amended complaint as a matter of right, thedefendant shall answer the same within fifteen (15) days after being servedwith a copy thereof.

Where its filing is not a matter of right, the defendantshall answer the amended complaint within ten (l0) days from notice of theorder admitting the same. An answer earlier filed may serve as the answer tothe amended complaint if no new answer is filed.

This Rule shall apply to the answer to an amendedcounterclaim, amended cross-claim, amended third(fourth, etc.)party complaint, and amended complaint-in-intervention. (3a)

Section 4. Answer to counterclaimor cross-claim . A counterclaim or cross-claim must be answered within ten (10) days fromservice. (4)

Section 5. Answer to third(fourth, etc.)-party complaint. The time to answer athird (fourth, etc.)party complaint shall be governed by the same rule as theanswer to the complaint. (5a)

Section 6. Reply . A reply may be filedwithin ten (10) days from service of the pleading responded to. (6)

Section 7. Answerto supplemental complain . A supplemental complaint may be answeredwithin ten (10) days from notice of the order admitting the same, unless a differentperiod is fixed by the court. The answer to the complaint shall serve as theanswer to the supplemental complaint if no new or supplemental answer is filed.(n)

Section 8. Existingcounterclaim or cross-claim . A compulsory counterclaim or a cross-claim that adefending party has at the time he files his answer shall be contained therein.

Section 9. Counterclaimor cross-claim arising after answer . A counterclaim or a cross-claim which eithermatured or was acquired by a party after serving his pleading may, with thepermission of the court, be presented as acounterclaim or a cross-claim by supplemental pleading before judgment.

Section 10. Omittedcounterclaim or cross-claim . When a pleader fails to set up a counterclaim or across-claim through oversight, inadvertence, or excusable neglect, or whenjustice requires, he may, by leave of court, set up the counterclaim orcross-claim by amendment before judgment.

Section 11. Extensionof time to plead . Upon motion and onsuch terms as may be just, the court may extend the time to plead provided inthese Rules.

The court may also, upon like terms, allow an answer orother pleading to be filed after the time fixed by these Rules. (7)

RULE 12

Bill of Particulars

Section 1. When applied for ; purpose . Before responding to a pleading, a party may move for a definite statement orfor a bill of particulars of any matter which is not averted with sufficientdefiniteness or particularity to enable him properly to prepare his responsivepleading. If the pleading is a reply, the motion must be filed within ten (10)days from service thereof. Such motion shall point out the defects complainedof, the paragraphs wherein they are contained, and the details desired. (1a)

Section 2. Actionby the court . Upon the filing ofthe motion, the clerk of court must immediately bring it to the attention ofthe court which may either deny or grant it outright, or allow the parties theopportunity to be heard. (n)

Section 3. Compliancewith order . If the motion isgranted, either in whole or in part, the compliance therewith must be effectedwithin ten (10) days from notice of the order, unless a different period isfixed by the court. The bill of particulars or a more definite statementordered by the court may be filed either in a separate or in an amendedpleading, serving a copy thereof on the adverse party. (n)

Section 4. Effectof non-compliance . If the order is notobeyed, or in case of insufficient compliance therewith, the court may orderthe striking out of the pleading or the portions thereof to which the order wasdirected or make such other order as it deems just.

Section 5. Stay of period to fileresponsive pleading . After service of the bill of particulars or of a more definite pleading, or afternotice of denial of his motion, the moving party may file his responsivepleading within the period to which he was entitled at the time of filing hismotion, which shall not be less than five (5) days in any event.

Section 6. Bill a part of pleading . A bill ofparticulars becomes part of the pleading for which it is intended.

RULE 13

Filing and Service ofPleadings, Judgments and Other Papers

Section 1. Coverage . This Rule shallgovern the filing of all pleadings and other papers, as well as the servicethereof, except those for which a different mode of service is prescribed. (n)

Section 2. Filing and service , defined . Filing is the act of presenting the pleading or other paper to the clerk ofcourt.

Service is the act of providing a party with a copy of thepleading or paper concerned. If any party has appeared by counsel, service uponhim shall be made upon his counsel or one of them, unless service upon theparty himself is ordered by the court. Where one counsel appears for severalparties, he shall only be entitled to one copy of any paper served upon him bythe opposite side. (2a)

Section 3. Mannerof filing . The filing ofpleadings, appearances, motions, notices, orders, judgments and all otherpapers shall be made by presenting the original copies thereof, plainlyindicated as such, personally to the clerk of court or by sending them byregistered mail. In the first case, the clerk of court shall endorse on thepleading the date and hour of filing. In the second case, the date of themailing of motions, pleadings, or any other papers or payments or deposits, asshown by the post office stamp on the envelope or the registry receipt, shallbe considered as the date of their filing, payment, or deposit in court. Theenvelope shall be attached to the record of the case. (1a)

Section 4. Papers required to be filed and served . Every judgment, resolution, order,pleading subsequent to the complaint, written motion, notice, appearance,demand, offer of judgment or similar papers shall befiled with the court, and served upon the parties affected. (2a)

Section 5. Modesof service . Service of pleadingsmotions, notices, orders, judgments and other papers shall be made eitherpersonally or by mail. (3a)

Section 6. Personalservice . Service of thepapers may be made by delivering personally a copy to the party or his counsel,or by leaving it in his office with his clerk or with a person having chargethereof. If no person is found in his office, or his office is not known, or hehas no office, then by leaving the copy, between the hours of eight in themorning and six in the evening, at the party's or counsel's residence, ifknown, with a person of sufficient age and discretion then residing therein.(4a)

Section 7. Serviceby mail . Service byregistered mail shall be made by depositing the copy in the post office in asealed envelope, plainly addressed to the party or his counsel at his office,if known, otherwise at his residence, if known, with postage fully prepaid, andwith instructions to the postmaster to return the mail to the sender after ten(10) days if undelivered. If no registry service is available in the localityof either the senders or the addressee, service may be done by ordinary mail.

Section 8. Substitutedservice . If service ofpleadings, motions, notices, resolutions, orders and other papers cannot bemade under the two preceding sections, the office and place of residence of theparty or his counsel being unknown, service may be made by delivering the copyto the clerk of court, with proof of failure of both personal service andservice by mail. The service is complete at the time of such delivery. (6a)

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

Section 10. Completenessof service . Personal service iscomplete upon actual delivery. Service by ordinary mail is complete upon theexpiration of ten (10) days after mailing, unless the court otherwise provides.Service by registered mail is complete upon actual receipt by the addressee, orafter five (5) days from the date he received the first notice of thepostmaster, whichever date is earlier. (8a)

Section 11. Prioritiesin modes of service and filing . Whenever practicable, the service and filingof pleadings and other papers shall be done personally. Except with respect topapers emanating from the court, a resort to other modes must be accompanied bya written explanation why the service or filing was not done personally. Aviolation of this Rule may be cause to consider the paper as not filed. (n)

Section 12. Proofof filing . The filing of apleading or paper shall be proved by its existence in the record of the case.If it is not in the record, but is claimed to have been filed personally, thefiling shall be proved by the written or stamped acknowledgment of its filingby the clerk of court on a copy of the same; if filed by registered mail, bythe registry receipt and by the affidavit of the person who did the mailing,containing a full statement of the date and place of depositing the mail in thepost office in a sealed envelope addressed to the court, with postage fullyprepaid, and with instructions to the postmaster to return the mail to thesender after ten (10) days if not delivered. (n)

Section 13. Proofof Service . Proof of personalservice shall consist of a written admission of the party served, or theofficial return of the server, or the affidavit of the party serving,containing a full statement of the date, place and manner of service. If theservice is by ordinary mail, proof thereof shall consist of an affidavit of theperson mailing of facts showing compliance with section 7 of this Rule. Ifservice is made by registered mail, proof shall be made by such affidavit andthe registry receipt issued by the mailing office. The registry return cardshall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copyof the notice given by the postmaster to the addressee. (10a)

Section 14. Noticeof lis pendens . In an actionaffecting the title or the right of possession of real property, the plaintiffand the defendant, when affirmative relief is claimed in his answer, may recordin the office of the registry of deeds of the province in which the property issituated notice of the pendency of the action. Said notice shall contain thenames of the parties and the object of the action or defense ,and a description of the property in that province affected thereby. Only fromthe time of filing such notice for record shall a purchaser, or encumbrancer ofthe property affected thereby, be deemed to have constructive notice of thependency of the action, and only of its pendency against the parties designatedby their real names.

The notice of lis pendens hereinabove mentioned may be cancelled onlyupon order of the court, after proper showing that the notice is for thepurpose of molesting the adverse party, or that it is not necessary to protectthe rights of the rights of the party who caused it to be recorded.

RULE 14

Summons

Section 1. Clerk to issue summons . Upon the filing ofthe complaint and the payment of the requisite legal fees, the clerk of courtshall forthwith issue the corresponding summons to the defendants. (1a)

Section 2. Contents . The summons shall bedirected to the defendant, signed by the clerk of court under seal and contain(a) the name of the court and the names of the parties to the action; (b) adirection that the defendant answer within the time fixed by these Rules; (c) anotice that unless the defendant so answers plaintiff will take judgment bydefault and may be granted the relief applied for.

A copy of the complaint and order for appointment ofguardian ad litem if any, shall be attached tothe original and each copy of the summons. (3a)

Section 3. By whom served . The summons may be served by the sheriff, his deputy, or other proper courtofficer, or for justifiable reasons by any suitable person authorized by thecourt issuing the summons. (5a)

Section 4. Return . When the servicehas been completed, the server shall, within five (5) days therefrom, serve acopy of the return, personally or by registered mail, to the plaintiff'scounsel, and shall return the summons to the clerk, who issued it, accompaniedby proof of service. (6a)

Section 5. Issuance of aliassummons . If a summons is returned without being served on any or all of thedefendants, the server shall also serve a copy of the return on the plaintiff'scounsel, stating the reasons for the failure of service, within five (5) daystherefrom. In such a case, or if the summons has been lost, the clerk, ondemand of the plaintiff, may issue an alias summons. (4a)

Section 6. Servicein person on defendant . Whenever practicable, the summons shall be served byhandling a copy thereof to the defendant in person, or, if he refuses toreceive and sign for it, by tendering it to him. (7a)

Section 7. Substitutedservice . If, for justifiablecauses, the defendant cannot be served within a reasonable time as provided inthe preceding section, service may be effected (a) by leaving copies of thesummons at the defendant's residence with some person of suitable age anddiscretion then residing therein, or (b) by leaving the copies at defendant'soffice or regular place of business with some competent person in chargethereof. (8a)

Section 8. Serviceupon entity without juridical personality . When persons associated in an entitywithout juridical personality are sued under the name by which they aregenerally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person incharge of the office or place of business maintained in such name. But suchservice shall not bind individually any person whose connection with the entityhas, upon due notice, been severed before the action was brought. (9a)

Section 9. Serviceupon prisoners . When the defendantis a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management ofsuch jail or institution who is deemed deputized as a special sheriff for saidpurpose. (12a)

Section 10. Serviceupon minors and incompetents . When the defendant is a minor, insane orotherwise an incompetent, service shall be made upon him personally and on hislegal guardian if he has one, or if none his guardian ad litem whoseappointment shall be applied for by the plaintiff. In the case of a minor,service may also be made on his father or mother.

Section 11. Serviceupon domestic private juridical entity . When the defendant is a corporation,partnership or association organized under the laws of the Philippines with ajuridical personality, service may be made on the president, managing partner,general manager, corporate secretary, treasurer, or in-house counsel. (13a)

Section 12. Serviceupon foreign private juridical entities . When the defendant is a foreign privatejuridical entity which has transacted business in the Philippines, service maybe made on its resident agent designated in accordance with law for thatpurpose, or, if there be no such agent, on the government official designatedby law to that effect, or on any of its officers or agents within thePhilippines. (14a)

Section 13. Serviceupon public corporations . When the defendant is the Republic of the Philippines,service may be effected on the Solicitor General; incase of a province, city or municipality, or like public corporations, servicemay be effected on its executive head, or on such other officer or officers asthe law or the court may direct. (15)

Section 14. Service upon defendantwhose identity or whereabouts are unknown . In any action where the defendant isdesignated as an unknown owner, or the like, or whenever his whereabouts areunknown and cannot be ascertained by diligent inquiry, service may, by leave ofcourt, be effected upon him by publication in a newspaper of generalcirculation and in such places and for such time as the court may order. (16a)

Section 15. Extraterritorialservice . When the defendantdoes not reside and is not found in the Philippines, and the action affects thepersonal status of the plaintiff or relates to, or the subject of which is,property within the Philippines, in which the defendant has or claims a lien orinterest, actual or contingent, or in which the relief demanded consists,wholly or in part, in excluding the defendant from any interest therein, or theproperty of the defendant has been attached within the Philippines, servicemay, by leave of court, be effected out of the Philippines by personal serviceas under section 6; or by publication in a newspaper of general circulation insuch places and for such time as the court may order, in which case a copy ofthe summons and order of the court shall be sent by registered mail to the lastknown address of the defendant, or in any other manner the court may deemsufficient. Any order granting such leave shall specify a reasonable time,which shall not be less than sixty (60) days after notice, within which thedefendant must answer. (17a)

Section 16. Residents temporarilyout of the Philippines . When any action is commenced against a defendant whoordinarily resides within the Philippines, but who is temporarily out of it,service may, by leave of court, be also effected out of the Philippines, asunder the preceding section. (18a)

Section 17. Leave of court . Any application tothe court under this Rule for leave to effect service in any manner for whichleave of court is necessary shall be made by motion in writing, supported byaffidavit of the plaintiff or some person on his behalf, setting forth thegrounds for the application. (19)

Section 18. Proofof service . The proof of serviceof a summons shall be made in writing by the server and shall set forth themanner, place, and date of service; shall specify any papers which have beenserved with the process and the name of the person who received the same; andshall be sworn to when made by a person other than a sheriff or his deputy.(20)

Section 19. Proofof service by publication . If the service has been made by publication, service maybe proved by the affidavit of the printer, his foreman or principal clerk, orof the editor, business or advertising manager, to which affidavit a copy ofthe publication shall be attached and by an affidavit showing the deposit of acopy of the summons and order for publication in the post office, postageprepaid, directed to the defendant by registered mail to his last knownaddress. (21)

Section 20. Voluntaryappearance . The defendant'svoluntary appearance in the action shall be equivalent to service of summons.The inclusion in a motion to dismiss of other grounds aside from lack ofjurisdiction over the person of the defendant shall not be deemed a voluntaryappearance. (23a)

RULE 15

Motions

Section 1. Motion defined . A motion is anapplication for relief other than by a pleading. (1a)

Section 2. Motions must be inwritings . All motions shall be in writing except those made in open court or in thecourse of a hearing or trial. (2a)

Section 3. Contents . A motion shall statethe relief sought to be obtained and the grounds upon which it is based, and ifrequired by these Rules or necessary to prove facts alleged therein, shall beaccompanied by supporting affidavits and other papers. (3a)

Section 4. Hearingof motion . Except for motionswhich the court may act upon without prejudicing the rights of the adverseparty, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice ofthe hearing thereof shall be served in such a manner as to ensure its receiptby the other party at least three (3) days before the date of hearing, unlessthe court for good cause sets the hearing on shorter notice. (4a)

Section 5. Noticeof hearing . The notice ofhearing shall be addressed to all parties concerned, and shall specify the timeand date of the hearing which must not be later than ten (10) days after thefiling of the motion. (5a)

Section 6. Proofof service necessary . No written motionset for hearing shall be acted upon by the court without proof of servicethereof. (6a)

Section 7. Motionday . Except for motions requiring immediate action, all motions shall be scheduled forhearing on Friday afternoons, or if Friday is a non-working day, in theafternoon of the next working day. (7a)

Section 8. Omnibusmotion . Subject to theprovisions of section 1 of Rule 9, a motion attacking a pleading, order,judgment, or proceeding shall include all objections then available, and allobjections not so included shall be deemed waived. (8a)

Section 9. Motionfor leave . A motion for leaveto file a pleading or motion shall be accompanied by the pleading or motionsought to be admitted. (n)

Section 10. Form . The Rules applicableto pleadings shall apply to written motions so far as concerns caption,designation, signature, and other matters of form. (9a)

RULE 16

Motion to Dismiss

Section 1. Grounds . Within the time forbut before filing the answer to the complaint or pleading asserting a claim, amotion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person ofthe defending party;

(b) That the court has no jurisdiction over the subjectmatter of the claim;

(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the sameparties for the same cause;

(f) That the cause of action is barred by a prior judgmentor by the statute of limitations;

(g) That the pleading asserting the claim states no causeof action;

(h) That the claim or demand set forth in the plaintiff'spleading has been paid, waived, abandoned, or otherwise extinguished;

(i ) That the claim on which theaction is founded is enforceable under the provisions of the statute of frauds;and

(j) That a condition precedent for filing the claim has notbeen complied with. (1a)

Section 2. Hearingof motion . At the hearing ofthe motion, the parties shall submit their arguments on the questions of lawand their evidence on the questions of fact involved except those not availableat that time. Should the case go to trial, the evidence presented during the hearingshall automatically be part of the evidence of the party presenting the same.(n)

Section 3. Resolutionof Motion . After the hearing,the court may dismiss the action or claim, deny the motion, or order theamendment of the pleading.

The court shall not defer the resolution of the motion forthe reason that the ground relied upon is not indubitable.

In every case, the resolution shall state clearly anddistinctly the reasons therefor. (3a)

Section 4. Timeto plead . If the motion isdenied, the movant shall file his answer within the balance of the periodprescribed by Rule 11 to which he was entitled at the time of serving hismotion, but not less than five (5) days in any event, computed from his receiptof the notice of the denial. If the pleading is ordered to be amended, he shallfile his answer within the period prescribed by Rule 11 counted from service ofthe amended pleading, unless the court provides a longer period. (4a)

Section 5. Effectof dismissal . Subject to the rightof appeal, an order granting a motion to dismiss based on paragraphs (f), (h)and (i ) of section 1 hereof shall bar the refiling ofthe same action or claim. (n)

Section 6. Pleading grounds asaffirmative defenses . If no motion todismiss has been filed, any of the grounds for dismissal provided for in thisRule may be pleaded as an affirmative defense in theanswer and, in the discretion of the court, a preliminary hearing may be hadthereon as if a motion to dismiss had been filed. (5a)

The dismissal of the complaint under this section shall bewithout prejudice to the prosecution in the same or separate action of acounterclaim pleaded in the answer. (n)

RULE 17

Dismissal of Actions

Section 1. Dismissalupon notice by plaintiff. A complaint may be dismissed by the plaintiffby filing a notice of dismissal at any time before service of the answer or ofa motion for summary judgment. Upon such notice being filed, the court shallissue an order confirming the dismissal. Unless otherwise stated in the notice,the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiffwho has once dismissed in a competent court an action based on or including thesame claim. (1a)

Section 2. Dismissalupon motion of plaintiff. Except as provided in the preceding section,a complaint shall not be dismissed at the plaintiff's instance save uponapproval of the court and upon such terms and conditions as the court deemsproper. If a counterclaim has been pleaded by a defendant prior to the serviceupon him of the plaintiffs motion for dismissal, thedismissal shall be limited to the complaint. The dismissal shall be withoutprejudice to the right of the defendant to prosecute his counterclaim in aseparate action unless within fifteen (15) days from notice of the motion hemanifests his preference to have his counterclaim resolved in the same action.Unless otherwise specified in the order, a dismissal under this paragraph shallbe without prejudice. A class suit shall not be dismissed or compromisedwithout the approval of the court. (2a)

Section 3. Dismissaldue to fault of plaintiff. If, for no justifiable cause, the plaintifffails to appear on the date of the presentation of his evidence in chief on thecomplaint, or to prosecute his action for an unreasonable length of time, or tocomply with these Rules or any order of the court, the complaint may bedismissed upon motion of the defendant or upon the court's own motion, without prejudiceto the right of the defendant to prosecute his counterclaim in the same or in aseparate action. This dismissal shall have the effect of anadjudication upon the merits, unless otherwise declared by the court.(3a)

Section 4. Dismissalof counterclaim ,cross-claim , or third-party complaint . The provisions ofthis Rule shall apply to the dismissal of any counterclaim, cross-claim, orthird-party complaint. A voluntary dismissal by the claimant by notice as insection 1 of this Rule, shall be made before aresponsive pleading or a motion for summary judgment is served or, if there isnone, before the introduction of evidence at the trial or hearing. (4a)

RULE 18

Pre-Trial

Section 1. When conducted . After the lastpleading has been served and filed, it shall be the duty of the plaintiff topromptly move ex parte that the case be set for pre-trial (5a, R20)

Section 2. Natureand purpose . The pre-trial ismandatory. The court shall consider:

(a) The possibility of an amicable settlement or of asubmission to alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to thepleadings;

(d) The possibility of obtaining stipulations or admissionsof facts and of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issuesto a commissioner;

(g) The propriety of rendering judgment on the pleadings,or summary judgment, or of dismissing the action should a valid ground thereforbe found to exist;

(h) The advisability or necessity of suspending theproceedings; and

(i ) Such other matters as may aidin the prompt disposition of the action. (1a, R20)

Section 3. Noticeof pre-trial . The notice ofpre-trial shall be served on counsel, or on the party who has no counsel. Thecounsel served with such notice is charged with the duty of notifying the partyrepresented by him. (n)

Section 4. Appearanceof parties . It shall be the dutyof the parties and their counsel to appear at the pre-trial. The non-appearanceof a party may be excused only if a valid cause is shown therefor or if arepresentative shall appear in his behalf fully authorized in writing to enterinto an amicable settlement, to submit to alternative modes of disputeresolution, and to enter into stipulations or admissions of facts and ofdocuments. (n)

Section 5. Effectof failure to appear . The failure of theplaintiff to appear when so required pursuant to the next preceding sectionshall be cause for dismissal of the action. The dismissal shall be withprejudice, unless other-wise ordered by the court. A similar failure on thepart of the defendant shall be cause to allow the plaintiff to present hisevidence ex parte and the court to render judgment on the basis thereof.

Section 6. Pre-trialbrief. Theparties shall file with the court and serve on the adverse party, in suchmanner as shall ensure their receipt thereof at least three (3) days before thedate of the pre-trial, their respective pre-trial briefs which shall contain,among others:

(a) A statement of their willingness to enter into amicablesettlement or alternative modes of dispute resolution, indicating the desiredterms thereof;

(b) A summary of admitted facts and proposed stipulation offacts;

(c) The issues to be tried or resolved;

(d) The documents or exhibits to be presented stating thepurpose thereof;

(e) A manifestation of their having availed or theirintention to avail themselves of discovery procedures or referral tocommissioners; and

(f) The number and names of the witnesses, and thesubstance of their respective testimonies.

Failure to file the pre-trial brief shall have the sameeffect as failure to appear at the pre-trial. (n)

Section 7. Recordof pre-trial . The proceedings inthe pre-trial shall be recorded. Upon the termination thereof, the court shallissue an order which shall recite in detail the matters taken up in theconference, the action taken thereon, the amendments allowed to the pleadings,and the agreements or admissions made by the parties as to any of the mattersconsidered. Should the action proceed to trial, the order shall, explicitlydefine and limit the issues to be tried. The contents of the order shall controlthe subsequent course of the action, unless modified before trial to preventmanifest injustice.

RULE 19

Intervention

 

Section 1. Who may intervene. A person who has alegal interest in the matter in litigation, or in the success of either of theparties, or an interest against both, or is so situated as to be adverselyaffected by a distribution or other disposition of property in the custody ofthe court or of an officer thereof may, with leave of court, be allowed tointervene in the action. The court shall consider whether or not theintervention will unduly delay or prejudice the adjudication of the rights ofthe original parties, and whether or not the intervenor's rights may be fullyprotected in a separate proceeding.

Section 2. Timeto intervene . The motion tointervene may be filed at any time before rendition of judgment by the trialcourt. A copy of the pleading-in-intervention shall be attached to the motionand served on the original parties. (n)

Section 3. Pleadings-in-intervention . The intervenor shallfile a complaint-in-intervention if he asserts a claim against either or all ofthe original parties, or an answer-in-intervention ifhe unites with the defending party in resisting a claim against the latter.

Section 4. Answer tocomplaint-in-intervention . The answer to the complaint-in-intervention shall befiled within fifteen (15) days from notice of the order admitting the same,unless a different period is fixed by the court.

RULE 20

Calendar of Cases

Section 1. Calendarof cases . The clerk of court,under the direct supervision of the judge, shall keep a calendar of cases forpre-trial, for trial, those whose trials were adjourned or postponed, and thosewith motions to set for hearing. Preference shall be given to habeas corpus cases,election cases, special civil actions, and those so required by law.

Section 2. Assignmentof cases . The assignment ofcases to the different branches of a court shall be done exclusively by raffle.The assignment shall be done in open session of which adequate notice shall begiven so as to afford interested parties the opportunity to be present.

RULE 21

Subpoena

Section 1. Subpoena and subpoena duces tecum . Subpoena is aprocess directed to a person requiring him to attend and to testify at thehearing or the trial of an action, or at any investigation conducted bycompetent authority, or for the taking of his deposition. It may also requirehim to bring with him any books, documents, or other things under his control,in which case it is called a subpoena duces tecum .

Section 2. By whom issued . The subpoena may be issued by

(a) the court before whom thewitness is required to attend;

(b) the court of the place wherethe deposition is to be taken;

(c) the officer or body authorized by law to do so inconnection with investigations conducted by said officer or body; or

(d) any Justice of the SupremeCourt or of the Court of Appeals in any case or investigation pending withinthe Philippines.

When application for a subpoena to a prisoner is made, thejudge or officer shall examine and study carefully such application todetermine whether the same is made for a valid purpose.

No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined inany penal institution shall be brought outside the said penal institution forappearance or attendance in any court unless authorized by the Supreme Court.

Section 3. Formand contents . A subpoena shallstate the name of the court and the title of the action or investigation, shallbe directed to the person whose attendance is required, and in the case of asubpoena duces tecum ,it shall also contain a reasonable description of the books, documents orthings demanded which must appear to the court prima facie relevant.

Section 4. Quashinga subpoena . The court may quasha subpoena duces tecum upon motion promptly made and, in any event, at or before the timespecified therein if it is unreasonable and oppressive, or the relevancy of thebooks, documents or things does not appear, or if the person in whose behalfthe subpoena is issued fails to advance the reasonable cost of the productionthereof.

The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, thesubpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered whenthe subpoena was served.

Section 5. Subpoena fordepositions . Proof of service of a notice to take a deposition, as provided in sections 15and 25 of Rule 23, shall constitute sufficient authorization for the issuanceof subpoenas for the persons named in said notice by the clerk of the court ofthe place in which the deposition is to be taken. The clerk shall not, however,issue a subpoena duces tecum to any such person without an order of the court.

Section 6. Service . Service of asubpoena shall be made in the same manner as personal or substituted service ofsummons. The original shall be exhibited and a copy thereof delivered to theperson on whom it is served, tendering to him the fees for one day's attendanceand the kilometrage allowed by these Rules, exceptthat, when a subpoena is issued by or on behalf of the Republic of thePhilippines or an officer or agency thereof, the tender need not be made. Theservice must be made so as to allow the witness a reasonable time forpreparation and travel to the place of attendance. If the subpoena is duces tecum , thereasonable cost of producing the books, documents or things demanded shall alsobe tendered.

Section 7. Personalappearance in court . A person present incourt before a judicial officer may be required to testify as if he were inattendance upon a subpoena is sued by such court orofficer.

Section 8. Compellingattendance . In case of failureof a witness to attend, the court or judge issuing the subpoena, upon proof ofthe service thereof and of the failure of the witness, may issue a warrant tothe sheriff of the province, or his deputy, to arrest the witness and bring himbefore the court or officer where his attendance is required, and the cost ofsuch warrant and seizure of such witness shall be paid by the witness if thecourt issuing it shall determine that his failure to answer the subpoena was willful and without just excuse.

Section 9. Contempt . Failure by anyperson without adequate cause to obey a subpoena served upon him shall bedeemed a contempt of the court from which the subpoenais issued. If the subpoena was not issued by a court, the disobedience theretoshall be punished in accordance with the applicable law or Rule.

Section 10. Exceptions . The provisions ofsections 8 and 9 of this Rule shall not apply to a witness who resides morethan one hundred (100) kilometers from his residenceto the place where he is to testify by the ordinary course of travel, or to adetention prisoner if no permission of the court in which his case is pendingwas obtained.

RULE 22

Computation of Time

Section 1. Howto compute time . In computing anyperiod of time prescribed or allowed by these Rules, or by order of the court,or by any applicable statute, the day of the act or event from which thedesignated period of time begins to run is to be excluded and the date ofperformance included. If the last day of the period, as thus computed, falls ona Saturday a Sunday, or a legal holiday in the place where the court sits, thetime shall not run until the next working day. (a)

Section 2. Effectof interruption . Should an act bedone which effectively interrupts the running of the period, the allowableperiod after such interruption shall start to run on the day after notice ofthe cessation of the cause thereof.

The day of the act that caused the interruption shall beexcluded in the computation of the period. (n)

RULE 23

Depositions PendingAction

Section 1. Depositions pendingaction ,when may be taken . By leave of court after jurisdiction has beenobtained over any defendant or over property which is the subject of theaction, or without such leave after an answer has been served, the testimony ofany person, whether a party or not, may be taken, at the instance of any party,by deposition upon oral examination or written interrogatories. The attendanceof witnesses may be compelled by the use of a subpoena as provided in Rule 21.Depositions shall be taken only in accordance with these Rules. The depositionof a person confined in prison may be taken only by leave of court on suchterms as the court prescribes.

Section 2. Scopeof examination . Unless otherwiseordered by the court as provided by section 16 or 18 of this Rule, the deponentmay be examined regarding any matter, not privileged, which is relevant to thesubject of the pending action, whether relating to the claim or defense of any other party, including the existence,description, nature, custody, condition, and location of any books, documents,or other tangible things and the identity and location of persons having knowledgeof relevant facts.

Section 3. Examinationand cross-examination . Examination andcross-examination of deponents may proceed as permitted at the trial undersections 3 to 18 of Rule 132.

Section 4. Useof depositions . At the trial or uponthe hearing of a motion or an interlocutory proceeding, any part or all of adeposition, so far as admissible under the rules of evidence, may be usedagainst any party who was present or represented at the taking of thedeposition or who had due notice thereof, in accordance with any one of thefollowing provisions;

(a) Any deposition may be used by any party for the purposeof contradicting or impeaching the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the timeof taking the deposition was an officer, director, or managing agent of apublic or private corporation, partnership, or association which is a party maybe used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party,may be used by any party for any purpose if the court finds: (1) that thewitness is dead, or (2) that the witness resides at a distance more than onehundred (100) kilometers from the place of trial orhearing, or is out of the Philippines, unless it appears that his absence wasprocured by the party offering the deposition, or (3) that the witness isunable to attend or testify because of age, sickness, infirmity, orimprisonment, or (4) that the party offering the deposition has been unable toprocure the attendance of the witness by subpoena; or (5) upon application andnotice, that such exceptional circumstances exist as to make it desirable, in theinterest of justice and with due regard to the importance of presenting thetestimony of witnesses orally in open court, to allow the deposition to beused; and

(d) If only part of a deposition is offered in evidence bya party, the adverse party may require him to introduce all of it which isrelevant to the part introduced, and any party may introduce any other parts.

Section 5. Effectof substitution of parties . Substitution of parties does not affect the right to usedepositions previously taken; and, when an action has been dismissed andanother action involving the same subject is afterward brought between the sameparties or their representatives or successors in interest, all depositionslawfully taken and duly filed in the former action may be used in the latter asif originally taken therefor.

Section 6. Objectionsto admissibility . Subject to theprovisions of section 29 of this Rule, objection may be made at the trial orhearing, to receiving in evidence any deposition or part thereof for any reasonwhich would require the exclusion of the evidence if the witness were thenpresent and testifying.

Section 7. Effectof taking depositions . A party shall not bedeemed to make a person his own witness for any purpose by taking hisdeposition.

Section 8. Effectof using depositions . The introduction inevidence of the deposition or any part thereof for any purpose other than thatof contradicting or impeaching the deponent makes the deponent the witness ofthe party introducing the deposition, but this shall not apply to the use by anadverse party of a deposition as described in paragraph (b) of section 4 ofthis Rule.

Section 9. Rebuttingdeposition . At the trial orhearing any party may rebut any relevant evidence contained in a depositionwhether introduced by him or by any other party.

Section 10. Personsbefore whom depositions may be taken within the Philippines . Within thePhilippines depositions may be taken before any judge, notary public, or theperson referred to in section 14 hereof.

Section 11. Personsbefore whom depositions may be taken in foreign countries . In a foreign stateor country, depositions may be taken (a) on notice before a secretary ofembassy or legation, consul general, consul, vice-consul, or consular agent ofthe Republic of the Philippines, (b) before such person or officer as may beappointed by commission or under letters rogatory ; or(c) the person referred to in section 14 hereof.

Section 12. Commissionor letters rogatory . A commission or letters rogatory shall be issued only when necessary or convenient,on application and notice, and on such terms, and with such direction as arejust and appropriate. Officers may be designated in notices or commissionseither by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country.

Section 13. Disqualificationby interest . No deposition shallbe taken before a person who is a relative within the sixth degree ofconsanguinity or affinity, or employee or counsel of any of the parties, or whois a relative within the same degree, or employee of such counsel; or who isfinancially interested in the action.

Section 14. Stipulationsregarding taking of depositions . If the parties so stipulate in writing,depositions may be taken before any person authorized to administer oaths, atany time or place, in accordance with these Rules and when so taken may be usedlike other depositions.

Section 15. Depositionupon oral examination ;notice ; time and place . A party desiring to take the deposition ofany person upon oral examination shall give reasonable notice in writing, toevery other party to the action. The notice shall state the time and place fortaking the deposition and the name and address of each person to be examined,if known, and if the name is not known, a general description sufficient toidentify him or the particular class or group to which he belongs. On motion ofany party upon whom the notice is served, the court may for cause shown enlargeor shorten the time.

Section 16. Ordersfor the protection of parties and deponents . After notice is served for taking adeposition by oral examination, upon motion seasonably made by any party or bythe person to be examined and for good cause shown, the court in which theaction is pending may make an order that the deposition shall not be taken, orthat it may be taken only at some designated place other than that stated inthe notice, or that it may be taken only on written interrogatories, or thatcertain matters shall not be inquired into, or that the scope of theexamination shall be held with no one present except the parties to the actionand their officers or counsel, or that after being sealed the deposition shallbe opened only by order of the court, or that secret processes, developments,or research need not be disclosed, or that the parties shall simultaneouslyfile specified documents or information enclosed in sealed envelopes to beopened as directed by the court or the court may make any other order whichjustice requires to protect the party or witness from annoyance, embarrassment,or oppression.

Section 17. Recordof examination ,oath ; objections . The officer before whom the deposition is tobe taken shall put the witness on oath and shall personally, or by someoneacting under his direction and in his presence, record the testimony of thewitness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of theexamination to the qualifications of the officer taking the deposition, or tothe manner of talking it, or to the evidence presented, or to the conduct ofany party, and any other objection to the proceedings, shall be noted by theofficer upon the deposition. Evidence objected to shall be taken subject to theobjections. In lieu of participating in the oral examination, parties servedwith notice of taking a deposition may transmit written interrogatories to theofficers, who shall propound them to the witness and record the answers verbatim .

Section 18. Motionto terminate or limit examination . At any time during the taking of thedeposition, on motion or petition of any party or of the deponent, and upon ashowing that the examination is being conducted in bad faith or in such manneras unreasonably to annoy, embarrass, or oppress the deponent or party, thecourt in which the action is pending or the Regional Trial Court of the placewhere the deposition is being taken may order the officer conducting theexamination to cease forthwith from taking the deposition, or may limit thescope and manner of the taking of the deposition, as provided in section 16 ofthis Rule. If the order made terminates the examination, it shall be resumedthereafter only upon the order of the court in which the action is pending.Upon demand of the objecting party or deponent, the taking of the depositionshall be suspended for the time necessary to make a notice for an order. Ingranting or refusing such order, the court may impose upon either party or uponthe witness the requirement to pay such costs or expenses as the court may deemreasonable.

Section 19. Submissionto witness ;changes ; signing . When the testimony is fully transcribed, thedeposition shall be submitted to the witness for examination and shall be readto or by him, unless such examination and reading are waived by the witness andby the parties. Any changes in form or substance which the witness desires tomake shall be entered upon the deposition by the officer with a statement ofthe reasons given by the witness for making them. The deposition shall then besigned by the witness, unless the parties by stipulation waive the signing orthe witness is ill or cannot be found or refuses to sign. If the deposition isnot signed by the witness, the officer shall sign it and state on the recordthe fact of the waiver or of the illness or absence of the witness or the factof the refusal to sign together with the reason be given therefor, if any, andthe deposition may then be used as fully as though signed, unless on a motionto suppress under section 29 (f) of this Rule, the court holds that the reasonsgiven for the refusal to sign require rejection of the deposition in whole orin part.

Section 20. Certification , and filing byofficer . The officer shall certify on the deposition that the witness wasduly sworn to by him and that the deposition is a true record of the testimonygiven by the witness. He shall then securely seal the deposition in an envelopeindorsed with the title of the action and marked "Deposition of (hereinsert the name of witness)" and shall promptly file it with the court inwhich the action is pending or send it by registered mail to the clerk thereoffor filing.

Section 21. Noticeof filing . The officer takingthe deposition shall give prompt notice of its filing to all the parties. (

Section 22. Furnishingcopies . Upon payment ofreasonable charges therefor, the officer shall furnish a copy of the depositionto any party or to the deponent.

Section 23. Failureto attend of party giving notice . If the party giving the notice of the takingof a deposition fails to attend and proceed therewith and another attends inperson or by counsel pursuant to the notice, the court may order the partygiving the notice to pay such other party the amount of the reasonable expensesincurred by him and his counsel in so attending, including reasonableattorney's fees.

Section 24. Failureof party giving notice to serve subpoena . If the party giving the notice of the takingof a deposition of a witness fails to serve a subpoena upon him and the witnessbecause of such failure does not attend, and if another party attends in personor by counsel because he expects the deposition of that witness to be taken,the court may order the party giving the notice to pay to such other party the amountof the reasonable expenses incurred by him and his counsel in so attending,including reasonable attorney's fees.

Section 25. Depositionupon written interrogatories ; service of notice and of interrogatories . A party desiring totake the deposition of any person upon written interrogatories shall serve themupon every other party with a notice stating the name and address of the personwho is to answer them and the name or descriptive title and address of theofficer before whom the deposition is to be taken. Within ten (10) daysthereafter, a party so served may serve cross-interrogatories upon the partyproposing to take the deposition. Within five (5) days thereafter, the lattermay serve re-direct interrogatories upon a party who has served cross-interrogatories.Within three (3) days after being served with re-direct interrogatories, aparty may serve recross -interrogatories upon theparty proposing to take the deposition.

Section 26. Officersto take responses and prepare record . A copy of the notice and copies of allinterrogatories served shall be delivered by the party taking the deposition tothe officer designated in the notice, who shall proceed promptly, in the mannerprovided by sections 17, 19 and 20 of this Rule, to take the testimony of thewitness in response to the interrogatories and to prepare, certify, and file ormail the deposition, attaching thereto the copy of the notice and theinterrogatories received by him.

Section 27. Noticeof filing and furnishing copies . When a deposition upon interrogatories isfiled, the officer taking it shall promptly give notice thereof to all theparties, and may furnish copies to them or to the deponent upon payment ofreasonable charges therefor.

Section 28. Orderfor the protection of parties and deponents . After the service of theinterrogatories and prior to the taking of the testimony of the deponent, thecourt in which the action is pending, on motion promptly made by a party or adeponent, and for good cause shown, may make any order specified in sections15, 16 and 18 of this Rule which is appropriate and just or an order that thedeposition shall not be taken before the officer designated in the notice orthat it shall not be taken except upon oral examination.

Section 29. Effectof errors and irregularities in depositions .

(a) As to notice . All errors and irregularities inthe notice for taking a deposition are waived unless written objection ispromptly served upon the party giving the notice.

(b) As to disqualification of officer . Objectionto taking a deposition because of disqualification of the officer before whomit is to be taken is waived unless made before the taking of the depositionbegins or as soon thereafter as the disqualification becomes known or could bediscovered with reasonable diligence.

(c) As to competency or relevancy of evidence . Objections to the competency of witness or the competency, relevancy, ormateriality of testimony are not waived by failure to make them before orduring the taking of the deposition, unless the ground, of the objection is onewhich might have been obviated or removed if presented at that time.

(d) As to oral examination and other particulars . Errors and irregularities occurring at the oral examination in the manner oftaking the deposition in the form of the questions or answers, in the oath oraffirmation, or in the conduct of the parties and errors of any kind whichmight be obviated, removed, or cured if promptly prosecuted, are waived unlessreasonable objection thereto is made at the taking of the deposition.

(e) As to form of written interrogatories . Objections to the form of written interrogatories submitted under sections 25and 26 of this Rule are waived unless served in writing upon the partypropounding them within the time allowed for serving succeeding cross or otherinterrogatories and within three (3) days after service of the lastinterrogatories authorized.

(f) As to manner of preparation . Errors andirregularities in the manner in which the testimony is transcribed or thedeposition is prepared, signed, certified, sealed, indorsed, transmitted,filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26of this Rule are waived unless a motion to suppress the deposition or some partthereof is made with reasonable promptness after such defect is, or with duediligence might have been, ascertained.

RULE 24

Depositions Before Action or Pending Appeal

Section 1. Depositionsbefore action ;petition . A person who desires to perpetuate his own testimony or that of anotherperson regarding any matter that may be cognizable in any court of thePhilippines may file a verified petition in the court of the place of theresidence of any expected adverse party.

Section 2. Contentsof petition . The petition shallbe entitled in the name of the petitioner and shall show: (a) that thepetitioner expects to be a party to an action in a court of the Philippines butis presently unable to bring it or cause it to be brought; (b) the subject matterof the expected action and his interest therein; (c) the facts which he desiresto establish by the proposed testimony and his reasons for desiring toperpetuate it; (d) the names or a description of the persons he expects will beadverse parties and their addresses so far as known; and (e) the names andaddresses of the persons to be examined and the substance of the testimonywhich he expects to elicit from each, and shall ask for an order authorizingthe petitioner to take the depositions of the persons to be examined named inthe petition for the purpose of perpetuating their testimony.

Section 3. Noticeand service . The petitioner shallserve a notice upon each person named in the petition as an expected adverseparty, together with a copy of the petition, stating that the petitioner willapply to the court, at a time and place named therein, for the order describedin the petition. At least twenty (20) days before the date of the hearing, thecourt shall cause notice thereof to be served on the parties and prospectivedeponents in the manner provided for service of summons.

Section 4. Orderand examination . If the court issatisfied that the perpetuation of the testimony may prevent a failure or delayof justice, it shall make an order designating or describing the persons whosedeposition may be taken and specifying the subject matter of the examinationand whether the depositions shall be taken upon oral examination or writteninterrogatories. The depositions may be taken in accordance with Rule 23 beforethe hearing.

Section 5. Referenceto court . For the purpose ofapplying Rule 23 to depositions for perpetuating testimony, each referencetherein to the court in which the action is pending shall be deemed to refer tothe court in which the petition for such deposition was filed.

Section 6. Useof deposition . If a deposition toperpetuate testimony is taken under this Rule, or if, although not so taken, itwould be admissible in evidence, it may be used in any action involving thesame subject matter sub-sequently brought inaccordance with the provisions of sections 4 and 5 of Rule 23.

Section 7. Depositions pendingappeal . If an appeal has been taken from a judgment of a court, including the Courtof Appeals in proper cases, or before the taking of an appeal if the timetherefor has not expired, the court in which the judgment was rendered mayallow the taking of depositions of witnesses to perpetuate their testimony forin the event of further proceedings in the said court. In such case the partywho desires to perpetuate the testimony may make a motion in the said court forleave to take the depositions, upon the same notice and service thereof as ifthe action was pending therein. The motion shall state (a) the names andaddresses of the persons to be examined and the substance of the testimonywhich he expects to elicit from each, and (b) the reason for perpetuating theirtestimony. If the court finds that the perpetuation of the testimony is properto avoid a failure or delay of justice, it may make an order allowing thedeposition to be taken, and thereupon the depositions may be taken and used inthe same manner and under the same conditions as are prescribed in these Rulesfor depositions taken in pending actions.

RULE 25

Interrogatories toParties

Section 1. Interrogatoriesto parties ;service thereof. Under the same conditions specified insection 1 of Rule 23, any party desiring to elicit material and relevant factsfrom any adverse parties shall file and serve upon the latter writteninterrogatories to be answered by the party served or, if the party served is apublic or private corporation or a partnership or association, by any officerthereof competent to testify in its behalf. (1a)

Section 2. Answer tointerrogatories . The interrogatories shall be answered fully in writing and shall be signedand sworn to by the person making them. The party upon whom the interrogatorieshave been served shall file and serve a copy of the answers on the partysubmitting the interrogatories within fifteen (15) days after service thereofunless the court on motion and for good cause shown, extends or shortens the time. (2a)

Section 3. Objectionsto interrogatories . Objections to anyinterrogatories may be presented to the court within ten (10) days afterservice thereof, with notice as in case of a motion; and answers shall bedeferred until the objections are resolved, which shall be at as early a timeas is practicable. (3a)

Section 4. Numberof interrogatories . No party may,without leave of court, serve more than one set of interrogatories to beanswered by the same party. (4)

Section 5. Scopeand use of interrogatories . Interrogatories may relate to any matters that can beinquired into under section 2 of Rule 23, and the answers may be used for thesame purposes provided in section 4 of the same Rule. (5a)

Section 6. Effectof failure to serve written interrogatories . Unless thereafter allowed by thecourt for good cause shown and to prevent a failure of justice, a party notserved with written interrogatories may not be compelled by the adverse partyto give testimony in open court, or to give a deposition pending appeal. (n)

RULE 26

Admission by AdverseParty

Section 1. Requestfor admission . At any time afterissues have been joined, a party may file and serve upon any other party mayfile and serve upon any other party a written request for the admission by thelatter of the genuineness of any material and relevant document described inand exhibited with the request or of the truth of any material and relevantmatter of fact set forth in the request. Copies of the documents shall bedelivered with the request unless copy have alreadybeen furnished. (1a)

Section 2. Impliedadmission . Each of the mattersof which an admission is requested shall be deemed admitted unless, within aperiod designated in the request, which shall not be less than fifteen (15)days after service thereof, or within such further time as the court may allowon motion, the party to whom the request is directed files and serves upon theparty requesting the admission a sworn statement either denying specificallythe matters of which an admission is requested or setting forth in detail thereasons why he cannot truthfully either admit or deny those matters.

Objections to any request for admission shall be submittedto the court by the party requested within the period for and prior to thefiling of his sworn statement as contemplated in the preceding paragraph andhis compliance therewith shall be deferred until such objections are resolved,which resolution shall be made as early as practicable. (2a)

Section 3. Effectof admission . Any admission madeby a party pursuant to such request is for the purpose of the pending actiononly and shall not constitute an admission by him for any other purpose nor maythe same be used against him in any other proceeding. (3)

Section 4. Withdrawal . The court may allowthe party making an admission under the Rule, whether express or implied, to withdraw or amend it upon such terms as may be just.(4)

Section 5. Effectof failure to file and serve request for admission . Unless otherwiseallowed by the court for good cause shown and to prevent a failure of justice aparty who fails to file and serve a request for admission on the adverse partyof material and relevant facts at issue which are, or ought to be, within thepersonal knowledge of the latter, shall not be permitted to present evidence onsuch facts. (n)

RULE 27

Production orInspection of Documents or Things

Section 1. Motionfor production or inspection ; order . Upon motion of anyparty showing good cause therefor, the court in which an action is pending may(a) order any party to produce and permit the inspection and copying orphotographing, by or on behalf of the moving party, of any designateddocuments, papers, books, accounts, letters, photographs, objects or tangiblethings, not privileged, which constitute or contain evidence material to anymatter involved in the action and which are in his possession, custody orcontrol, or (b) order any party to permit entry upon designated land or otherproperty in his possession or control for the purpose of inspecting, measuring,surveying, or photographing the property or any designated relevant object oroperation thereon. The order shall specify the time, place and manner of makingthe inspection and taking copies and photographs, and may prescribe such termsand conditions as are just. (1a)

RULE 28

Physical and MentalExamination of Persons

Section 1. Whenexamination may be ordered . In an action in which the mental or physical conditionof a party is in controversy, the court in which the action is pending may inits discretion order him to submit to a physical or mental examination by aphysician. (1)

Section 2. Orderfor examination . The order forexamination may be made only on motion for good cause shown and upon notice tothe party to be examined and to all other parties, and shall specify the time,place, manner, conditions and scope of the examination and the person or personsby whom it is to be made. (2)

Section 3. Reportof findings . If requested by theparty examined, the party causing the examination to be made shall deliver tohim a copy of a detailed written report of the examining physician setting outhis findings and conclusions. After such request anddelivery, the party causing the examination to be made shall be entitled uponrequest to receive from the party examined a like report of any examination,previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion andnotice may make an order requiring delivery on such terms as are just, and if aphysician fails or refuses to make such a report the court may exclude histestimony if offered at the trial. (3a)

Section 4. Waiverof privilege . By requesting andobtaining a report of the examination so ordered or by taking the deposition ofthe examiner, the party examined waives any privilege he may have in thataction or any other involving the same controversy, regarding the testimony ofevery other person who has examined or may thereafter examine him in respect ofthe same mental or physical examination. (4)

RULE 29

Refusal to Comply withModes of Discovery

Section 1. Refusalto answer . If a party or otherdeponent refuses to answer any question upon oral examination, the examinationmay be completed on other matters or adjourned as the proponent of the questionmay prefer. The proponent may thereafter apply to the proper court of the placewhere the deposition is being taken, for an order to compel an answer. The sameprocedure may be availed of when a party or a witness refuses to answer anyinterrogatory submitted under Rules 23 or 25.

If the application is granted, the court shall require therefusing party or deponent to answer the question or interrogatory and if italso finds that the refusal to answer was without substantial justification, itmay require the refusing party or deponent or the counsel advising the refusal,or both of them, to pay the proponent the amount of the reasonable expensesincurred in obtaining the order, including attorney's fees.

If the application is denied and the court finds that itwas filed without substantial justification, the court may require theproponent or the counsel advising the filing of the application, or both ofthem, to pay to the refusing party or deponent the amount of the reasonableexpenses incurred in opposing the application, including attorney's fees. (1a)

Section 2. Contemptof court . If a party or otherwitness refuses to be sworn or refuses to answer any question after beingdirected to do so by the court of the place in which the deposition is beingtaken, the refusal may be considered a contempt ofthat court. (2a)

Section 3. Otherconsequences . If any party or anofficer or managing agent of a party refuses to obey an order made undersection 1 of this Rule requiring him to answer designated questions, or anorder under Rule 27 to produce any document or other thing for inspection,copying, or photographing or to permit it to be done, or to permit entry uponland or other property or an order made under Rule 28 requiring him to submitto a physical or mental examination, the court may make such orders in regardto the refusal as are just, and among others the following:

(a) An order that the matters regarding which the questionswere asked, or the character or description of the thing or land, or thecontents of the paper, or the physical or mental condition of the party, or anyother designated facts shall be taken to be established for the purposes of theaction in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party tosupport or oppose designated claims or defenses orprohibiting him from introducing in evidence designated documents or things oritems of testimony, or from introducing evidence of physical or mentalcondition;

(c) An order striking out pleadings or parts thereof, orstaying further proceedings until the order is obeyed, or dismissing the actionor proceeding or any part thereof, or rendering a judgment by default againstthe disobedient party; and

(d) In lieu of any of the foregoing orders or in additionthereto, an order directing the arrest of any party or agent of a party fordisobeying any of such orders except an order to submit to a physical or mentalexamination. (3a)

Section 4. Expenseson refusal to admit . If a party afterbeing served with a request under Rule 26 to admit the genuineness of anydocument or the truth of any matter of fact serves a sworn denial thereof andif the party requesting the admissions thereafter proves the genuineness ofsuch document or the truth of any such matter of fact, he may apply to thecourt for an order requiring the other party to pay him the reasonable expensesincurred in making such proof, including attorney's fees. Unless the courtfinds that there were good reasons for the denial or that admissions soughtwere of no substantial importance, such order shall be issued. (4a)

Section 5. Failureof party to attend or serve answers . If a party or an officer or managing agentof a party wilfully fails to appear before the officer who is to take hisdeposition, after being served with a proper notice, or fails to serve answersto interrogatories submitted under Rule 25 after proper service of suchinterrogatories, the court on motion and notice, may strike out all or any partof any pleading of that party, or dismiss the action or proceeding or any partthereof, or enter a judgment by default against that party, and in itsdiscretion, order him to pay reasonable expenses incurred by the other,including attorney's fees. (5)

Section 6. Expensesagainst the Republic of the Philippines . Expenses and attorney's fees are not to beimposed upon the Republic of the Philippines under this Rule. (6)

RULE 30

Trial

Section 1. Noticeof Trial . Upon entry of a casein the trial calendar, the clerk shall notify the parties of the date of itstrial in such manner as shall ensure his receipt of that notice at least five(5) days before such date.

Section 2. Adjournmentsand postponements . A court may adjourna trial from day to day, and to any stated time, as the expeditious andconvenient transaction of business may require, but shall have no power toadjourn a trial for a longer period than one month for each adjournment normore than three months in all, except when authorized in writing by the CourtAdministrator, Supreme Court.

Section 3. Requisitesof motion to postpone trial for absence of evidence . A motion to postponea trial on the ground of absence of evidence can be granted only upon affidavitshowing 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 begiven in evidence, even if he objects or reserves the right to object to theiradmissibility, the trial shall not be postponed.

Section 4. Requisitesof motion to postpone trial for illness of party or counsel . A motion to postponea trial on the ground of illness of a party or counsel may be granted if itappears upon affidavit or sworn certification that the presence of such partyor counsel at the trial is indispensable and that the character of his illnessis such as to render his non-attendance excusable.

Section 5. Orderof trial . Subject to theprovisions of section 2 of Rule 31, and unless the court for special reasonsotherwise directs, the trial shall be limited to the issues stated in thepre-trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of hiscomplaint;

(b) The defendant shall then adduce evidence in support ofhis defense , counterclaim, cross-claim andthird-party complaints;

(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 adduceevidence of the material facts pleaded by them;

(e) The parties against whom any counterclaim orcross-claim has been pleaded, shall adduce evidence insupport of their defense , in the order to beprescribed by the court;

(f) The parties may then respectively adduce rebuttingevidence only, unless the court, for good reasons and in the furtherance ofjustice, permits them to adduce evidence upon their original case; and

(g) Upon admission of the evidence, the case shall bedeemed submitted for decision, unless the court directs the parties to argue orto submit their respective memoranda or any further pleadings.

If several defendants or third-party defendants, and soforth, having separate defenses appear by differentcounsel, the court shall determine the relative order of presentation of theirevidence.

Section 6. Agreedstatement of facts . The parties to anyaction may agree, in writing, upon the facts involved in the litigation, andsubmit the case for judgment on the facts agreed upon, without the introductionof 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 courtshall prescribe.

Section 7. Statementof judge . During the hearingor trial of a case any statement made by the judge with reference to the case, orto any of the parties, witnesses or counsel, shall be made of record in thestenographic notes.

Section 8. Suspensionof actions . The suspension ofactions shall be governed by the provisions of the Civil Code. (n)

Section 9. Judgeto receive evidence ;delegation to clerk of court . The judge of the court where the case ispending shall personally receive the evidence to be adduced by the parties.However, in default or ex parte hearings, and in any case where theparties agree in writing, the court may delegate the reception of evidence toits clerk of court who is a member of the bar. The clerk of court shall have nopower to rule on objections to any question or to the admission of exhibits,which objections shall be resolved by the court upon submission of his reportand the transcripts within ten (10) days from termination of the hearing. (n)

RULE 31

Consolidation orSeverance

Section 1. Consolidation . When actionsinvolving a common question of law or fact are pending before the court, it mayorder a joint hearing or trial of any or all the matters in issue in theactions; it may order all the actions consolidated, and it may make such ordersconcerning proceedings therein as may tend to avoid unnecessary costs or delay.(1)

Section 2. Separate trials . The court, infurtherance of convenience or to avoid prejudice, may order a separate trial ofany claim, cross-claim, counterclaim, or third-party complaint, or of anyseparate issue or of any number of claims, cross-claims, counterclaims,third-party complaints or issues. (2a)

RULE 32

Trial by Commissioner

Section 1. Referenceby consent . By written consentof both parties, the court may order any or all of the issues in a case to bereferred to a commissioner to be agreed upon by the parties or to be appointedby the court. As used in these Rules, the word "commissioner"includes a referee, an auditor and an examiner.

Section 2. Reference ordered onmotion . When the parties do not consent, the court may, upon the application ofeither or of its own motion, direct a reference to a commissioner in thefollowing cases:

(a) When the trial of an issue of fact requires theexamination of a long account on either side, in which case the commissionermay be directed to hear and report upon the whole issue or any specificquestion involved therein;

(b) When the taking of an account is necessary for theinformation of the court before judgment, or for carrying a judgment or orderinto 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 ajudgment or order into effect.

Section 3. Orderof reference ;powers of the commissioner . When a reference is made, the clerk shallforthwith furnish the commissioner with a copy of the order of reference. Theorder may specify or limit the powers of the commissioner, and may direct himto report only upon particular issues, or to do or perform particular acts, orto receive and report evidence only and may fix the date for beginning andclosing the hearings and for the filing of his report. Subject to otherspecifications and limitations stated in the order, the commissioner has andshall exercise the power to regulate the proceedings in every hearing beforehim and to do all acts and take all measures necessary or proper for theefficient performance of his duties under the order. He may issue subpoenas andsubpoenas duces tecum ,swear witnesses, and unless otherwise provided in the order of reference, hemay rule upon the admissibility of evidence. The trial or hearing before himshall proceed in all respects as it would if held before the court.

Section 4. Oathof commissioner . Before entering uponhis duties the commissioner shall be sworn to a faithful and honest performancethereof.

Section 5. Proceedingsbefore commissioner . Upon receipt of theorder of reference and unless otherwise provided therein, the commissioner shallforthwith set a time and place for the first meeting of the parties or theircounsel to be held within ten (10) days after the date of the order ofreference and shall notify the parties or their counsel.

Section 6. Failureof parties to appear before commissioner . If a party fails to appear at the time andplace appointed, the commissioner may proceed ex parte or, in hisdiscretion, adjourn the proceedings to a future day, giving notice to theabsent party or his counsel of the adjournment.

Section 7. Refusalof witness . The refusal of awitness to obey a subpoena issued by the commissioner or to give evidencebefore him, shall be deemed a contempt of the courtwhich appointed the commissioner.

Section 8. Commissioner shallavoid 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 courtfor an order requiring the commissioner to expedite the proceedings and to makehis report.

Section 9. Reportof commissioner . Upon the completionof the trial or hearing or proceeding before the commissioner, he shall filewith the court his report in writing upon the matters submitted to him by theorder of reference. When his powers are not specified or limited, he shall setforth his findings of fact and conclusions of law in his report. He shallattach thereto all exhibits, affidavits, depositions, papers and thetranscript, if any, of the testimonial evidence presented before him.

Section 10. Notice to parties ofthe filing of report . Upon the filing of the report, the parties shall be notified by the clerk,and they shall be allowed ten (10) days within which to signify grounds ofobjections to the findings of the report, if they so desire. Objections to thereport based upon grounds which were available to the parties during theproceedings before the commissioner, other than objections to the findings andconclusions therein, set forth, shall not be considered by the court unlessthey were made before the commissioner.

Section 11. Hearingupon report . Upon the expirationof the period of ten (10) days referred to in the preceding section, the reportshall 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 withinstructions, or requiring the parties to present further evidence before thecommissioner or the court.

Section 12. Stipulationsas to findings . When the partiesstipulate that a commissioner's findings of fact shall be final, only questionsof law shall thereafter be considered.

Section 13. Compensationof commissioner . The court shallallow the commissioner such reasonable compensation as the circumstances of thecase warrant, to be taxed as costs against the defeated party, or apportioned,as justice requires.

RULE 33

Demurrer to Evidence

Section 1. Demurrerto evidence . After the plaintiffhas completed the presentation of his evidence, the defendant may move fordismissal on the ground that upon the facts and the law the plaintiff has shownno right to relief. If his motion is denied he shall have the right to presentevidence. If the motion is granted but on appeal the order of dismissal isreversed he shall be deemed to have waived the right to present evidence.

RULE 34

Judgment on thePleadings

Section 1. Judgmenton the pleadings . Where an answerfails to tender an issue, or otherwise admits the material allegations of theadverse party's pleading, the court may; on motion of that party, directjudgment on such pleading. However, in actions for declaration of nullity orannulment of marriage or for legal separation, the material facts alleged inthe complaint shall always be proved.

RULE 35

Summary Judgments

Section 1. Summaryjudgment for claimant . A party seeking torecover upon a claim, counterclaim, or cross-claim or to obtain a declaratoryrelief may, at any time after the pleading in answer thereto has been served,move with supporting affidavits, depositions or admissions for a summaryjudgment in his favor upon all or any part thereof.

Section 2. Summaryjudgment 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 asummary judgment in his favor as to all or any partthereof.

Section 3. Motionand proceedings thereon . The motion shall be served at least ten (10) days beforethe time specified for the hearing. The adverse party may serve opposingaffidavits, depositions, or admissions at least three (3) days before thehearing. After the hearing, the judgment sought shall be rendered forthwith ifthe pleadings, supporting affidavits, depositions, and admissions on file, showthat, except as to the amount of damages, there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as a matterof law.

Section 4. Case not fully adjudicatedon motion . If on motion under this Rule, judgment is not rendered upon the whole case orfor all the reliefs sought and a trial is necessary, the court at the hearingof the motion, by examining the pleadings and the evidence before it and byinterrogating 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 withoutsubstantial controversy, including the extent to which the amount of damages orother relief is not in controversy, and directing such further proceedings inthe action as are just. The facts so specified shall be deemed established, andthe trial shall be conducted on the controverted facts accordingly.

Section 5. Form of affidavits andsupporting papers . Supporting and opposing affidavits shall be made on personal knowledge, shallset forth such facts as would be admissible in evidence, and shall showaffirmatively that the affiant is competent to testify to the matters statedtherein. Certified true copies of all papers or parts thereof referred to inthe affidavit shall be attached thereto or served therewith.

Section 6. Affidavitsin bad faith . Should it appear toits satisfaction at any time that any of the affidavits presented pursuant tothis Rule are presented in bad faith, or solely for the purpose of delay, thecourt shall forthwith order the offending party or counsel to pay to the otherparty the amount of the reasonable expenses which the filing of the affidavitscaused him to incur including attorney's fees, it may, after hearing furtheradjudge the offending party or counsel guilty of contempt.

RULE 36

Judgments, Final Ordersand Entry Thereof

Section 1. Renditionof judgments and final orders . A judgment or final order determining themerits of the case shall be in writing personally and directly prepared by thejudge, stating clearly and distinctly the facts and the law on which it isbased, signed by him, and filed with the clerk of the court. (1a)

Section 2. Entryof judgments and final orders . If no appeal or motion for new trial orreconsideration is filed within the time provided in these Rules, the judgmentor final order shall forthwith be entered by the clerk in the book of entriesof judgments. The date of finality of the judgment or final order shall bedeemed to be the date of its entry. The record shall contain the dispositivepart of the judgment or final order and shall be signed by the clerk, within a certificatethat such judgment or final order has become final and executory.

Section 3. Judgmentfor or against one or more of several parties . Judgment may be given for or againstone or more of several plaintiffs and for or against one or more of severaldefendants. When justice so demands, the court may require the parties on eachside to file adversary pleadings as between themselves and determine theirultimate rights and obligations. (3)

Section 4. Severaljudgments . In an action againstseveral defendants, the court may, when a several judgment is proper, renderjudgment against one or more of them, leaving the action to proceed against theothers. (4)

Section 5. Separate judgments . When more than oneclaim for relief is presented in an action, the court, at any stage, upon adetermination of the issues material to a particular claim and allcounterclaims arising out of the transaction or occurrence which is the subjectmatter of the claim, may render a separate judgment disposing of such claim.The judgment shall terminate the action with respect to the claim so disposedof and the action shall proceed as to the remaining claims. In case a separatejudgment is rendered the court by order may stay its enforcement until therendition of a subsequent judgment or judgments and may prescribe suchconditions as may be necessary to secure the benefit thereof to the party inwhose favor the judgment is rendered. (5a)

Section 6. Judgmentagainst entity without juridical personality . When judgment is rendered against twoor more persons sued as an entity without juridical personality, the judgmentshall set out their individual or proper names, if known. (6a)

RULE 37

New Trial orReconsiderations

Section 1. Groundsof and period for filing motion for new trial or reconsideration . Within the periodfor taking an appeal, the aggrieved party may move the trial court to set asidethe judgment or final order and grant a new trial for one or more of thefollowing causes materially affecting the substantial rights of said party:

(a) Fraud, accident, mistake or excusable negligence whichordinary prudence could not have guarded against and by reason of which suchaggrieved party has probably been impaired in his rights; or

(b) Newly discovered evidence, which he could not, with reasonablediligence, have discovered and produced at the trial, and which if presentedwould probably alter the result.

Within the same period, the aggrieved party may also movefor reconsideration upon the grounds that the damages awarded are excessive, thatthe evidence is insufficient to justify the decision or final order, or thatthe decision or final order is contrary to law.

Section 2. Contentsof motion for new trial or reconsideration and notice thereof. The motion shall bemade in writing stating the ground or grounds therefor, a written notice ofwhich shall be served by the movant on the adverse party.

A motion for new trial shall be proved in the mannerprovided for proof of motion. A motion for the cause mentioned in paragraph (a)of the preceding section shall be supported by affidavits of merits which maybe rebutted by affidavits. A motion for the cause mentioned in paragraph (b)shall be supported by affidavits of the witnesses by whom such evidence isexpected to be given, or by duly authenticated documents which are proposed tobe introduced in evidence.

A motion for reconsideration shall point out a specificallythe findings or conclusions of the judgment or final order which are notsupported by the evidence or which are contrary to law making express referenceto the testimonial or documentary evidence or to the provisions of law allegedto be contrary to such findings or conclusions.

A pro forma motion for new trial or reconsiderationshall not toll the reglementary period of appeal.

Section 3. Actionupon motion for new trial or reconsideration . The trial court may set aside thejudgment 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 beenawarded or that the judgment or final order is contrary to the evidence or law,it may amend such judgment or final order accordingly.

Section 4. Resolutionof motion . A motion for newtrial or reconsideration shall be resolved within thirty (30) days from thetime it is submitted for resolution. (n)

Section 5. Secondmotion for new trial . A motion for newtrial shall include all grounds then available and those not so included shallbe 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 whichthe first motion had been pending.

No party shall be allowed a second motion forreconsideration of a judgment or final order.

Section 6. Effectof granting of motion for new trial . If a new trial is granted in accordance withthe provisions of this Rules the original judgment or final order shall bevacated, and the action shall stand for trial de novo ; but the recordedevidence taken upon the former trial, insofar as the same is material andcompetent to establish the issues, shall be used at the new trial withoutretaking the same.

Section 7. Partialnew trial or reconsideration . If the grounds for a motion under this Ruleappear to the court to affect the issues as to only a part, or less than an ofthe 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 ifseverable without interfering with the judgment or final order upon the rest.(6a)

Section 8. Effectof order for partial new trial . When less than all of the issues are orderedretried, 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 newtrial. (7a)

Section 9. Remedy against orderdenying a motion for new trial or reconsideration . An order denying amotion for new trial or reconsideration is not appealed, the remedy being anappeal from the judgment or final order. (n)

RULE 38

Relief from Judgments,Orders, or Other Proceedings

Section 1. Petitionfor relief from judgment , order , or other proceedings . When a judgment orfinal order is entered, or any other proceeding is thereafter taken against aparty 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 thejudgment, order or proceeding be set aside. (2a)

Section 2. Petitionfor relief from denial of appeal . When a judgment or final order is renderedby any court in a case, and a party thereto, by fraud, accident, mistake, orexcusable negligence, has been prevented from taking an appeal, he may file apetition in such court and in the same case praying that the appeal be givendue course. (1a)

Section 3. Timefor filing petition ;contents and verification . A petition provided for in either of thepreceding sections of this Rule must be verified, filed within sixty (60) daysafter the petitioner learns of the judgment, final order, or other proceedingto be set aside, and not more than six (6) months after such judgment or finalorder was entered, or such proceeding was taken, and must be accompanied withaffidavits showing the fraud, accident, mistake, or excusable negligence reliedupon, and the facts constituting the petitioner's good and substantial cause ofaction or defense , as the case may be. (3)

Section 4. Orderto file an answer . If the petition issufficient in form and substance to justify relief, the court in which it isfiled, shall issue an order requiring the adverse parties to answer the samewithin fifteen (15) days from the receipt thereof. The order shall be served insuch manner as the court may direct, together with copies of the petition andthe accompanying affidavits. (4a)

Section 5. Preliminaryinjunction pending proceedings . The court in which the petition is filed maygrant such preliminary injunction as may be necessary for the preservation ofthe rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party, conditioned that if thepetition is dismissed or the petitioner fails on the trial of the case upon itsmerits, he will pay the adverse party all damages and costs that may be awardedto him by reason of the issuance of such injunction or the other proceedingsfollowing the petition, but such injunction shall not operate to discharge orextinguish any lien which the adverse party may have acquired upon, theproperty, of the petitioner. (5a)

Section 6. Proceedingsafter answer is filed . After the filing of the answer or the expiration of theperiod therefor, the court shall hear the petition and if after such hearing,it finds that the allegations thereof are not true, the petition shall bedismissed; but if it finds said allegations to be true, it shall set aside thejudgment or final order or other proceeding complained of upon such terms asmay be just. Thereafter the case shall stand as if such judgment, final orderor other proceeding had never been rendered, issued or taken. The court shallthen proceed to hear and determine the case as if a timely motion for a newtrial or reconsideration had been granted by it. (6a)

Section 7. Procedurewhere the denial of an appeal is set aside . Where the denial of an appeal is setaside, the lower court shall be required to give due course to the appeal andto elevate the record of the appealed case as if a timely and proper appeal hadbeen made. (7a)

RULE 39

Execution, Satisfactionand Effect of Judgments

Section 1. Executionupon judgments or final orders . Execution shall issue as a matter of right,or motion, upon a judgment or order that disposes of the action or proceedingupon the expiration of the period to appeal therefrom if no appeal has beenduly perfected. (1a)

If the appeal has been duly perfected and finally resolved,the execution may forthwith be applied for in the court of origin, on motion ofthe judgment obligee , submitting therewith certifiedtrue copies of the judgment or judgments or final order or orders sought to beenforced and of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, whenthe interest of justice so requires, direct the court of origin to issue thewrit of execution. (n)

Section 2. Discretionaryexecution .

(a) Execution of a judgment or final order pendingappeal . On motion of the prevailing party with notice to the adverseparty filed in the trial court while it has jurisdiction over the case and isin possession of either the original record or the record on appeal, as thecase may be, at the time of the filing of such motion, said court may, in itsdiscretion, order execution of a judgment or final order even before theexpiration of the period to appeal.

After the trial court has lost jurisdiction the motion forexecution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons tobe stated in a special order after due hearing.

(b ) Execution of several , separateor partial judgments . A several, separate or partial judgment may beexecuted under the same terms and conditions as execution of a judgment orfinal order pending appeal. (2a)

Section 3. Stay of discretionaryexecution . Discretionary execution issued under the preceding section may be stayed uponapproval by the proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon theperformance of the judgment or order allowed to be executed in case it shall befinally sustained in whole or in part. The bond thus given may be proceededagainst on motion with notice to the surety. (3a )

Section 4. Judgments not stayed byappeal . Judgments in actions for injunction, receivership, accounting and support,and such other judgments as are now or may hereafter be declared to beimmediately executory, shall be enforceable after their rendition and shallnot, be stayed by an appeal taken therefrom, unless otherwise ordered by the trialcourt. On appeal therefrom, the appellate court in its discretion may make anorder suspending, modifying, restoring or granting the injunction,receivership, accounting, or award of support.

The stay of execution shall be upon such terms as to bondor otherwise as may be considered proper for the security or protection of therights of the adverse party. (4a)

Section 5. Effect of reversal ofexecuted judgment . Where the executed judgment is reversed totally or partially, or annulled, onappeal or otherwise, the trial court may, on motion, issue such orders ofrestitution or reparation of damages as equity and justice may warrant underthe circumstances. (5a)

Section 6. Executionby motion or by independent action . A final and executory judgment or order maybe executed on motion within five (5) years from the date of its entry. Afterthe 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 enforcedby motion within five (5) years from the date of its entry and thereafter byaction before it is barred by the statute of limitations. (6a)

Section 7. Executionin case of death of party . In case of the death of a party, execution may issue orbe enforced in the following manner:

(a ) In case of the death of thejudgment obligee , upon the application of hisexecutor or administrator, or successor in interest;

(b) In case of the death of the judgment obligor, againsthis executor or administrator or successor in interest, if the judgment be forthe recovery of real or personal property, or the enforcement of a lienthereon;

(c) In case of the death of the judgment obligor, afterexecution is actually levied upon any of his property, the same may be sold forthe satisfaction of the judgment obligation, and the officer making the saleshall account to the corresponding executor or administrator for any surplus inhis hands. (7a)

Section 8. Issuance , form and contentsof a writ of execution . The writ of execution shall: (1) issue inthe name of the Republic of the Philippines from the court which granted themotion; (2) state the name of the court, the case number and title, thedispositive part of the subject judgment or order; and (3) require the sheriffor other proper officer to whom it is directed to enforce the writ according toits terms, in the manner hereinafter provided:

(a) If the execution be against the property of thejudgment obligor, to satisfy the judgment, with interest, out of the real orpersonal property of such judgment obligor;

(b) If it be against real or personal property in the handsof personal representatives, heirs, devisees, legatees, tenants, or trustees ofthe judgment obligor, to satisfy the judgment, with interest, out of such property;

(c) If it be for the sale of real or personal property tosell such property describing it, and apply the proceeds in conformity with thejudgment, the material parts of which shall be recited in the writ ofexecution;

(d) If it be for the delivery of the possession of real orpersonal property, to deliver the possession of the same, describing it, to theparty entitled thereto, and to satisfy any costs, damages, rents, or profitscovered by the judgment out of the personal property of the person against whomit was rendered, and if sufficient personal property cannot be found, then outof the real property; and

(e) In all cases, the writ of execution shall specificallystate the amount of the interest, costs, damages, rents, or profits due as of thedate of the issuance of the writ, aside from the principal obligation under thejudgment. For this purpose, the motion for execution shall specify the amountsof the foregoing reliefs sought by the movant.( 8a)

Section 9. Execution of judgmentsfor money ,how enforced .

(a) Immediate payment on demand . The officer shallenforce an execution of a judgment for money by demanding from the judgmentobligor 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 thejudgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawfulfees shall be handed under proper receipt to the executing sheriff who shallturn over the said amount within the same day to the clerk of court of thecourt that issued the writ.

If the judgment obligee or hisauthorized representative is not present to receive payment, the judgmentobligor shall deliver the aforesaid payment to the executing sheriff. Thelatter shall turn over all the amounts coming into his possession within thesame day to the clerk of court of the court that issued the writ, or if thesame is not practicable, deposit said amounts to a fiduciary account in thenearest government depository bank of the Regional Trial Court of the locality.

The clerk of said court shall thereafter arrange for theremittance of the deposit to the account of the court that issued the writwhose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. The excess, ifany, shall be delivered to the judgment obligor while the lawful fees shall beretained by the clerk of court for disposition as provided by law. In no caseshall the executing sheriff demand that any payment by check be made payable tohim.

(b) Satisfaction by levy . If the judgment obligorcannot pay all or part of the obligation in cash, certified bank check or othermode of payment acceptable to the judgment obligee ,the officer shall levy upon the properties of the judgment obligor of everykind and nature whatsoever which may be disposed, of for value and nototherwise exempt from execution giving the latter the option to immediatelychoose which property or part thereof may be levied upon, sufficient to satisfythe judgment. If the judgment obligor does not exercise the option, the officershall first levy on the personal properties, if any, and then on the realproperties if the personal properties are insufficient to answer for thejudgment.

The sheriff shall sell only a sufficient portion of thepersonal or real property of the judgment obligor which has been levied upon.

When there is more property of the judgment obligor than issufficient to satisfy the judgment and lawful fees, he must sell only so muchof the personal or real property as is sufficient to satisfy the judgment andlawful fees.

Real property, stocks, shares, debts, credits, and otherpersonal property, or any interest in either real or personal property, may belevied upon in like manner and with like effect as under a writ of attachment.

(c) Garnishment of debts and credits . The officermay levy on debts due the judgment obligor and other credits, including bankdeposits, financial interests, royalties, commissions and other personal propertynot 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 havingin his possession or control such credits to which the judgment obligor isentitled. The garnishment shall cover only such amount as will satisfy thejudgment and all lawful fees.

The garnishee shall make a written report to the courtwithin five (5) days from service of the notice of garnishment stating whetheror not the judgment obligor has sufficient funds or credits to satisfy theamount of the judgment. If not, the report shall state how much funds orcredits the garnishee holds for the judgment obligor. The garnished amount incash, 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 noticeon said garnishee requiring such delivery, except the lawful fees which shallbe paid directly to the court.

In the event there are two or more garnishees holdingdeposits 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 procedureunder paragraph (a) with respect to delivery of payment to the judgment obligee .

Section 10. Executionof judgments for specific act .

(a) Conveyance , delivery of deeds , orother specific acts ; vesting title . If a judgment directs a partyto execute a conveyance of land or personal property, or to deliver deeds orother documents, or to perform, any other specific act in connection therewith,and the party fails to comply within the time specified, the court may directthe act to be done at the cost of the disobedient party by some other personappointed by the court and the act when so done shall have like effect as ifdone by the party. If real or personal property is situated within thePhilippines, the court in lieu of directing a conveyance thereof may by anorder divest the title of any party and vest it in others, which shall have theforce and effect of a conveyance executed in due form of law.

(b) Sale of real or personal property . If thejudgment 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 . Theofficer shall demand of the person against whom the judgment for the deliveryor restitution of real property is rendered and all persons claiming rightsunder him to peaceably vacate the property within three (3) working days, andrestore possession thereof to the judgment obligee ,otherwise, the officer shall oust all such persons therefrom with theassistance, if necessary, of appropriate peace officers, and employing suchmeans as may be reasonably necessary to retake possession, and place the judgmentobligee in possession of such property. Any costs,damages, rents or profits awarded by the judgment shall be satisfied in thesame manner as a judgment for money. (13a)

(d) Removal of improvements on property subject ofexecution . When the property subject of the execution containsimprovements constructed or planted by the judgment obligor or his agent, theofficer shall not destroy, demolish or remove said improvements except uponspecial order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failedto remove the same within a reasonable time fixed by the court. (14a)

(e) Delivery of personal property . In judgment forthe delivery of personal property, the officer shall take possession of thesame and forthwith deliver it to the party entitled thereto and satisfy anyjudgment for money as therein provided. (8a)

Section 11. Executionof special judgments . When a judgmentrequires the performance of any act other than those mentioned in the twopreceding sections, a certified copy of the judgment shall be attached to thewrit of execution and shall be served by the officer upon the party againstwhom the same is rendered, or upon any other person required thereby, or bylaw, to obey the same, and such party or person may be punished for contempt ifhe disobeys such judgment. (9a)

Section 12. Effectof levy on execution as to third person . The levy on execution shall create a lien infavor of the judgment obligee over the right, title and interest of the judgment obligor in such property atthe time of the levy, subject to liens and encumbrances then existing. (16a)

Section 13. Propertyexempt from execution . Except as otherwiseexpressly provided by law, the following property, and no other, shall beexempt from execution:

(a) The judgment obligor's family home as provided by law,or the homestead in which he resides, and land necessarily used in connectiontherewith;

(b) Ordinary tools and implements personally used by him inhis trade, employment, or livelihood;

(c) Three horses, or three cows, or three carabaos , or other beasts of burden, such as the judgmentobligor may select necessarily used by him in his ordinary occupation;

(d) His necessary clothing and articles for ordinary personaluse, excluding jewelry ;

(e) Household furniture and utensils necessary forhousekeeping, 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 hundredthousand pesos;

(f) Provisions for individual or family use sufficient forfour months;

(g) The professional libraries and equipment of judges,lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen,teachers, and other professionals, not exceeding three hundred thousand pesosin value;

(h) One fishing boat and accessories not exceeding thetotal value of one hundred thousand pesos owned by a fisherman and by thelawful 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 thefour months preceding the levy as are necessary for the support of his family;

(j) Lettered gravestones;

(k) Monies, benefits, privileges, or annuities accruing orin any manner growing out of any life insurance;

(l) The right to receive legal support, or money orproperty obtained as such support, or any pension or gratuity from theGovernment;

(m) Properties specially exempted by law.

But no article or species of property mentioned in thissection shall be exempt from execution issued upon a judgment recovered for itsprice or upon a judgment of foreclosure of a mortgage thereon. (12a)

Section 14. Return of writ ofexecution . The writ of execution shall be returnable to the court issuing it immediatelyafter the judgment has been satisfied in part or in full. If the judgmentcannot be satisfied in full within thirty (30) days after his receipt of thewrit, the officer shall report to the court and state the reason therefor. Suchwrit shall continue in effect during the period within which the judgment maybe enforced by motion. The officer shall make a report to the court everythirty (30) days on the proceedings taken thereon until the judgment issatisfied in full, or its effectivity expires. The returns or periodic reportsshall set forth the whole of the proceedings taken, and shall be filed with thecourt and copies thereof promptly furnished the parties. (11a)

Section 15. Noticeof 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 writtennotice of the time and place of the sale in three (3) public places, preferablyin conspicuous areas of the municipal or city hall, post office and publicmarket in the municipality or city where the sale is to take place, for suchtime as may be reasonable, considering the character and condition of theproperty;

(b) In case of other personal property, by posting asimilar notice in the three (3) public places above-mentioned for not less thanfive (5) days;

(c) In case of real property, by posting for twenty (20)days in the three (3) public places abovementioned a similar notice particularlydescribing the property and stating where the property is to be sold, and ifthe 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 inone newspaper selected by raffle, whether in English, Filipino, or any majorregional language published, edited and circulated or, in the absence thereof,having general circulation in the province or city;

(d) In all cases, written notice of the sale shall be givento the judgment obligor, at least three (3) days before the sale, except asprovided in paragraph (a) hereof where notice shall be given the same manner aspersonal service of pleadings and other papers as provided by section 6 of Rule13.

The notice shall specify the place, date and exact time ofthe sale which should not be earlier than nine o'clock in the morning and notlater than two o'clock in the afternoon. The place of the sale may be agreedupon by the parties. In the absence of such agreement, the sale of the propertyor personal property not capable of manual delivery shall be held in the officeof the clerk of court of the Regional Trial Court or the Municipal Trial Courtwhich issued the writ of or which was designated by the appellate court. In thecase of personal property capable of manual delivery, the sale shall be held inthe place where the property is located. (18a)

Section 16. Proceedingswhere property claimed by third person . If the property levied on is claimed by anyperson other than the judgment obligor or his agent, and such person makes anaffidavit of his title thereto or right to the possession thereof, stating thegrounds of such right or title, and serves the same upon the officer making thelevy and copy thereof, stating the grounds of such right or tittle, and aserves the same upon the officer making the levy and a copy thereof upon thejudgment obligee , the officer shall not be bound tokeep the property, unless such judgment obligee , ondemand of the officer, files a bond approved by the court to indemnity thethird-party claimant in a sum not less than the value of the property leviedon. In case of disagreement as to such value, the same shall be determined bythe court issuing the writ of execution. No claim for damages for the taking orkeeping of the property may be enforced against the bond unless the actiontherefor is filed within one hundred twenty (120) days from the date of thefiling of the bond.

The officer shall not be liable for damages for the takingor 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 thejudgment obligee from claiming damages in the same ora separate action against a third-party claimant who filed a frivolous orplainly spurious claim.

When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, thefiling of such bond shall not be required, and in case the sheriff or levyingofficer is sued for damages as a result of the levy, he shall be represented bythe Solicitor General and if held liable therefor, the actual damages adjudgedby the court shall be paid by the National Treasurer out of such funds as maybe appropriated for the purpose. (17a)

Section 17. Penaltyfor selling without notice , or removing or defacing notice . An officer sellingwithout the notice prescribed by section 15 of this Rule shall be liable to paypunitive damages in the amount of five thousand (P5,000.00) pesos to any personinjured thereby, in addition to his actual damages, both to be recovered bymotion in the same action; and a person willfully removing or defacing the notice posted, if done before the sale, or before thesatisfaction of the judgment if it be satisfied before the sale, shall beliable to pay five thousand (P5,000.00) pesos to any person injured by reasonthereof, in addition to his actual damages, to be recovered by motion in thesame action. (19a)

Section 18. No sale if judgment andcosts paid . At any time before the sale of property on execution, the judgment obligormay prevent the sale by paying the amount required by the execution and thecosts that have been incurred therein. (20a)

Section 19. How property sold onexecution ;who may direct manner and order of sale . All sales of property underexecution must be made at public auction, to the highest bidder, to start atthe exact time fixed in the notice. After sufficient property has been sold tosatisfy the execution, no more shall be sold and any excess property orproceeds of the sale shall be promptly delivered to the judgment obligor or hisauthorized representative, unless otherwise directed by the judgment or orderof the court. When the sale is of real property, consisting of several knownlots, they must be sold separately; or, when a portion of such real property isclaimed by a third person, he may require it to be sold separately. When the saleis of personal property capable of manual delivery, it must be sold within viewof those attending the same and in such parcels as are likely to bring thehighest price. The judgment obligor, if present at the sale, may direct theorder in which property, real or personal shall be sold, when such propertyconsists of several known lots or parcels which can be sold to advantageseparately. Neither the officer conducting the execution sale, nor hisdeputies, can become a purchaser, nor be interested directly or indirectly inany purchase at such sale.

Section 20. Refusalof purchaser to pay . If a purchaserrefuses to pay the amount bid by him for property struck off to him at a saleunder execution, the officer may again sell the property to the highest bidderand shall not be responsible for any loss occasioned thereby; but the court mayorder 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. Theamount of such payment shall be for the benefit of the person entitled to theproceeds of the execution, unless the execution has been fully satisfied, inwhich event such proceeds shall be for the benefit of the judgment obligor. Theofficer may thereafter reject any subsequent bid of such purchaser who refusesto pay. (22a)

Section 21. Judgmentobligee as purchaser . When the purchaseris the judgment obligee , and no third-party claim hasbeen filed, he need not pay the amount of the bid if it does not exceed theamount of his judgment. If it does, he shall pay only the excess. (23a)

Section 22. Adjournmentof sale . By written consentof the judgment obligor and obligee , or their dulyauthorized representatives, the officer may adjourn the sale to any date andtime agreed upon by them. Without such agreement, he may adjourn the sale fromday to day if it becomes necessary to do so for lack of time to complete thesale on the day fixed in the notice or the day to which it was adjourned. (24a)

Section 23. Conveyanceto purchaser of personal property capable of manual delivery . When the purchaserof any personal property, capable of manual delivery, pays the purchase price,the officer making the sale must deliver the property to the purchaser and, ifdesired, execute and deliver to him a certificate of sale. The sale conveys tothe purchaser all the rights which the judgment obligor had in such property asof the date of the levy on execution or preliminary attachment. (25a)

Section 24. Conveyanceto purchaser of personal property not capable of manual delivery . When the purchaserof any personal property, not capable of manual delivery, pays the purchaseprice, the officer making the sale must execute and deliver to the purchaser acertificate of sale. Such certificate conveys to the purchaser all the rightswhich the judgment obligor had in such property as of the date of the levy onexecution or preliminary attachment. (26a)

Section 25. Conveyanceof real property ;certificate thereof given to purchaser and filed with registry of deeds . Upon a sale of realproperty, the officer must give to the purchaser a certificate of salecontaining:

(a) A particular description of the realproperty 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 ofdeeds of the place where the property is situated. (27 a)

Section 26. Certificateof sale where property claimed by third person . When a property soldby virtue of a writ of execution has been claimed by a third person, thecertificate of sale to be issued by the sheriff pursuant to sections 23, 24 and25 of this Rule shall make express mention of the existence of such third-partyclaim. (28a)

Section 27. Who may redeem realproperty so sold. Real property soldas 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 in interest inthe 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, subsequentto the lien under which the property was sold. Such redeeming creditor istermed a redemptioner . (29a)

Section 28. Timeand manner of, and amounts payable on , successive redemptions ; notice tobe given and filed . The judgment obligor, or redemptioner ,may redeem the property from the purchaser, at any time within one (1) yearfrom the date of the registration of the certificate of sale, by paying thepurchaser the amount of his purchase, with the per centum per monthinterest thereon in addition, up to the time of redemption, together with theamount of any assessments or taxes which the purchaser may have paid thereonafter purchase, and interest on such last named amount at the same rate; and ifthe purchaser be also a creditor having a prior lien to that of the redemptioner , other than the judgment under which suchpurchase 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 lastredemption, with two per centum thereon in addition and the amount ofany assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last namedamount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The propertymay be again, and as often as a redemptioner is sodisposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on thelast previous redemption, with two per centum thereon in addition, andthe amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interestthereon, and the amount of any liens held by the last redemptioner prior to his own, with interest.

Written notice of any redemption must be given to theofficer who made the sale and a duplicate filed with the registry of deeds ofthe 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 wasmade, notice thereof must in like manner be given to the officer and filed withthe registry of deeds; if such notice be not filed, the property may beredeemed without paying such assessments, taxes, or liens. (30a)

Section 29. Effect of redemption byjudgment obligor ,and a certificate to be delivered and recorded thereupon ; to whom payments on redemption made . If the judgmentobligor redeems he must make the same payments as are required to effect aredemption by a redemptioner , whereupon, no furtherredemption shall be allowed and he is restored to his estate. The person towhom the redemption payment is made must execute and deliver to him acertificate of redemption acknowledged before a notary public or other officerauthorized to take acknowledgments of conveyances of real property. Suchcertificate must be filed and recorded in the registry of deeds of the place inwhich the property is situated and the registrar of deeds must note the recordthereof on the margin of the record of the certificate of sale. The paymentsmentioned in this and the last preceding sections may be made to the purchaseror redemptioner , or for him to the officer who madethe sale. (31a)

Section 30. Proof required of redemptioner . A redemptioner must produce to the officer, or person from whom he seeks to redeem, and servewith his notice to the officer a copy of the judgment or final order underwhich he claims the right to redeem, certified by the clerk of the courtwherein the judgment or final order is entered, or, if he redeems upon amortgage or other lien, a memorandum of the record thereof, certified by theregistrar of deeds, or an original or certified copy of any assignmentnecessary to establish his claim; and an affidavit executed by him or hisagent, showing the amount then actually due on the lien. (32a)

Section 31. Manner of usingpremises pending redemption ; waste restrained . Until the expiration of thetime allowed for redemption, the court may, as in other proper cases, restrainthe commission of waste on the property by injunction, on the application ofthe purchaser or the judgment obligee , with orwithout notice; but it is not waste for a person in possession of the propertyat the time of the sale, or entitled to possession afterwards, during theperiod 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 theproperty. (33a)

Section 32. Rents , earnings andincome 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 useand occupation thereof when such property is in the possession of a tenant. Allrents, earnings and income derived from the property pending redemption shall belongto the judgment obligor until the expiration of his period of redemption. (34a)

Section 33. Deedand possession to be given at expiration of redemption period ; by whom executedor given . If no redemption be made within one (1) year from the date of theregistration of the certificate of sale, the purchaser is entitled to aconveyance and possession of the property; or, if so redeemed whenever sixty(60) days have elapsed and no other redemption has been made, and noticethereof 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 shall have the entire period of one (1)year from the date of the registration of the sale to redeem the property. Thedeed shall be executed by the officer making the sale or by his successor inoffice, and in the latter case shall have the same validity as though theofficer making the sale had continued in office and executed it.

Upon the expiration of the right of redemption, thepurchaser or redemptioner shall be substituted to andacquire all the rights, title, interest and claim of the judgment obligor tothe property as of the time of the levy. The possession of the property shallbe given to the purchaser or last redemptioner by thesame officer unless a third party adversely to the judgment obligor. (35a)

Section 34. Recoveryof price if sale not effective ; revival of judgment . If the purchaser ofreal property sold on execution, or his successor in interest, fails to recoverthe possession thereof, or is evicted therefrom, in consequence ofirregularities in the proceedings concerning the sale, or because the judgmenthas been reversed or set aside, or because the property sold was exempt fromexecution, 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 thejudgment obligee the price paid, with interest, or somuch thereof as has not been delivered to the judgment obligor, or he may, onmotion, have the original judgment revived in his name for the whole price withinterest, or so much thereof as has been delivered to the judgment obligor. Thejudgment so revived shall have the same force and effect as an originaljudgment would have as of the date of the revival and no more. (36a)

Section 35. Rightto contribution or reimbursement . When property liable to an execution againstseveral persons is sold thereon, and more than a due proportion of the judgmentis 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 acontribution from the others; and when a judgment is upon an obligation of oneof them, as security for another, and the surety pays the amount, or any partthereof, either by sale of his property or before sale, he may compel repaymentfrom the principal. (37a)

Section 36. Examinationof judgment obligor when judgment unsatisfied . When the return of a writ ofexecution issued against property of a judgment obligor, or any one of severalobligors in the same judgment, shows that the judgment remains unsatisfied, inwhole or in part, the judgment obligee , at any timeafter such return is made, shall be entitled to an order from the court whichrendered the said judgment, requiring such judgment obligor to appear and beexamined concerning his property and income before such court or before acommissioner appointed by it at a specified time and place; and proceedings maythereupon be had for the application of the property and income of the judgmentobligor towards the satisfaction of the judgment. But no judgment obligor shallbe so required to appear before a court or commissioner outside the province orcity in which such obligor resides or is found. (38a)

Section 37. Examinationof obligor of judgment obligor . When the return of a writ of executionagainst the property of a judgment obligor shows that the judgment remainunsatisfied, in whole or in part, and upon proof to the satisfaction of thecourt which issued the writ, that a person, corporation, or other juridicalentity has property of such judgment obligor or is indebted to him, the courtmay, by an order, require such person, corporation, or other juridical entity,or any officer, or member thereof, to appear before the court or a commissionerappointed by it, at a time and place within the province or city where suchdebtor resides or is found, and be examined concerning the same. The service ofthe order shall bind all credits due the judgment obligor and all money andproperty of the judgment obligor in the possession or in the control of suchperson corporation, or juridical entity from the time of service; and the courtmay also require notice of such proceedings to be given to any party to theaction in such manner as it may deem proper. (39a)

Section 38. Enforcementof attendance and conduct of examination . A party or other person may be compelled, byan order or subpoena, to attend before the court or commissioner to testify asprovided in the two preceding sections, and upon failure to obey such order orsubpoena or to be sworn, or to answer as a witness or to subscribe hisdeposition, may be punished for contempt as in other cases. Examinations shallnot be unduly prolonged, but the proceedings may be adjourned from time totime, until they are completed. If the examination is before a commissioner, hemust take it in writing and certify it to the court. All examinations andanswers before a court commissioner must be under oath, and when a corporationor other juridical entity answers, it must be on the oath of an authorizedofficer or agent thereof. (40a)

Section 39. Obligor may payexecution against obligee . After a writ ofexecution against property has been issued, a person indebted to the judgmentobligor may pay to the sheriff holding the writ of execution the amount of hisdebt or so much thereof as may be necessary to satisfy the judgment, in themanner prescribed in section 9 of this Rule, and the sheriff's receipt shall bea sufficient discharge for the amount so paid or directed to be credited by thejudgment obligee on the execution. (41a)

Section 40. Orderfor application of property and income to satisfaction of judgment . The court may orderany property of the judgment obligor, or money due him, not exempt fromexecution, in the hands of either himself or another person, or of acorporation or other juridical entity, to be applied to the satisfaction of thejudgment, 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 servicesare more than necessary for the support of his family, the court may order thathe pay the judgment in fixed monthly installments ,and upon his failure to pay any such installment whendue without good excuse, may punish him for indirect contempt. (42a)

Section 41. Appointmentof receiver . The court mayappoint a receiver of the property of the judgment obligor; and it may alsoforbid a transfer or other disposition of, or any interference with, theproperty of the judgment obligor not exempt from execution. (43a)

Section 42. Saleof ascertainable interest of judgment obligor in real estate . If it appears thatthe judgment obligor has an interest in real estate in the place in whichproceedings are had, as mortgagor or mortgagee or other- wise, and his interesttherein can be ascertained without controversy the receiver may be ordered tosell and convey such real estate or the interest of the obligor therein; andsuch sale shall be conducted in all respects in the same manner as is providedfor the sale of real state upon execution, and the proceedings thereon shall beapproved by the court before the execution of the deed. (34a)

Section 43. Proceedings whenindebtedness denied or another person claims the property . If it appears thata person or corporation, alleged to have property of the judgment obligor or tobe indebted to him, claims an interest in the property adverse to him or deniedthe debt, the court may authorize, by an order made to that effect, thejudgment obligee to institute an action against suchperson or corporation for the recovery of such interest or debt, forbid atransfer or other disposition of such interest or debt within one hundredtwenty (120) days from notice of the order, and may punish disobedience of suchorder as for contempt. Such order may be modified or vacated at any time by thecourt which issued it, or by the court in which theaction is brought, upon such terms as may be just. (45a)

Section 44. Entryof satisfaction of judgment by clerk of court . Satisfaction of a judgment shall beentered 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 executedand acknowledged in the same manner as a conveyance of real property by thejudgment obligee or by his counsel unless arevocation of his authority is filed, or upon the endorsement of such admissionby the judgment obligee or his counsel, on the faceof the record of the judgment. (46a)

Section 45. Entryof satisfaction with or without admission . Whenever a judgment is satisfied infact, or otherwise than upon an execution on demand of the judgment obligor,the judgment obligee or his counsel must execute andacknowledge, or indorse an admission of the satisfaction as provided in thelast preceding section, and after notice and upon motion the court may ordereither the judgment obligee or his counsel to do so,or may order the entry of satisfaction to be made without such admission. (47a)

Section 46. Whenprincipal bound by judgment against surety . When a judgment is rendered against aparty who stands as surety for another, the latter is also bound from the timethat he has notice of the action or proceeding, and an opportunity at thesurety's request to join in the defense . (48a)

Section 47. Effectof judgments or final orders . The effect of a judgment or final orderrendered by a court of the Philippines, having jurisdiction to pronounce thejudgment or final order, may be as follows:

(a) In case of a judgment or final order against a specificthing, or in respect to the probate of a will, or the administration of theestate of a deceased person, or in respect to the personal, political, or legalcondition or status of a particular person or his relationship to another, thejudgment or final order is conclusive upon the title to the thing, the will oradministration or the condition, status or relationship of the person, however,the probate of a will or granting of letters of administration shall only be primafacie evidence of the death of the testator or intestate;

(b) In other cases, the judgment or final order is, withrespect to the matter directly adjudged or as to any other matter that couldhave been missed in relation thereto, conclusive between the parties and theirsuccessors in interest, by title subsequent to the commencement of the actionor special proceeding, litigating for the same thing and under the same titleand in the same capacity; and

(c) In any other litigation between the same parties ortheir successors in interest, that only is deemed to have been adjudged in aformer judgment or final order which appears upon its face to have been soadjudged, or which was actually and necessarily included therein or necessarythereto. (49a)

Section 48. Effectof foreign judgments or final orders . The effect of a judgment or final order of atribunal of a foreign country, having jurisdiction to render the judgment orfinal order is as follows:

(a) In case of a judgment or final order upon a specificthing, the judgment or final order, is conclusive upon the title to the thing,and

(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 theparties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelledby evidence of a want of jurisdiction, want of notice to the party, collusion,fraud, or clear mistake of law or fact. (50a)

APPEALS

RULE 40

Appeal From Municipal Trial Courts to the Regional Trial Courts

Section 1. Whereto appeal . An appeal from ajudgment or final order of a Municipal Trial Court may be taken to the RegionalTrial Court exercising jurisdiction over the area to which the former pertains.The title of the case shall remain as it was in the court of origin, but theparty appealing the case shall be further referred to as the appellant and theadverse party as the appellee . (a)

Section 2. Whento appeal . An appeal may betaken within fifteen (15) days after notice to the appellant of the judgment orfinal order appealed from. Where a record on appeal is required, the appellantshall file a notice of appeal and a record on appeal within thirty (30) daysafter notice of the judgment or final order.

The period of appeal shall be interrupted by a timelymotion for new trial or reconsideration. No motion for extension of time tofile a motion for new trial or reconsideration shall be allowed. (n)

Section 3. Howto appeal . The appeal is takenby filing a notice of appeal with the court that rendered the judgment or finalorder appealed from. The notice of appeal shall indicate the parties to theappeal, the judgment or final order or part thereof appealed from, and statethe material dates showing the timeliness of the appeal.

A record on appeal shall be required only in specialproceedings and in other cases of multiple or separate appeals.

The form and contents of the record on appeal shall be asprovided in section 6, Rule 41.

Copies of the notice of appeal, and the record on appeal where required, shall be served on the adverse party.(n)

Section 4. Perfectionof appeal ;effect thereof. The perfection of the appeal and the effectthereof shall be governed by the provisions of section 9, Rule 41. (n)

Section 5. Appellatecourt docket and other lawful fees . Within the period for taking an appeal, theappellant shall pay to the clerk of the court which rendered the judgment orfinal order appealed from the full amount of the appellate court docket andother lawful fees. Proof of payment thereof shall be transmitted to theappellate court together with the original record or the record on appeal, asthe case may be. (n)

Section 6. Dutyof the clerk of court . Within fifteen (15)days from the perfection of the appeal, the clerk of court or the branch clerkof court of the lower court shall transmit the original record or the record onappeal, together with the transcripts and exhibits, which he shall certify ascomplete, to the proper Regional Trial Court. A copy of his letter oftransmittal of the records to the appellate court shall be furnished theparties. (n)

Section 7. Procedurein the Regional Trial Court .

(a) Upon receipt of the complete record or the record onappeal, the clerk of court of the Regional Trial Court shall notify the partiesof such fact.

(b) Within fifteen (15) days from such notice, it shall bethe duty of the appellant to submit a memorandum which shall briefly discuss theerrors imputed to the lower court, a copy of which shall be furnished by him tothe adverse party. Within fifteen (15) days from receipt of the appellant'smemorandum, the appellee may file his memorandum.Failure of the appellant to file a memorandum shall be a ground for dismissalof the appeal.

(c) Upon the filing of the memorandum of the appellee , or the expiration of the period to do so, thecase shall be considered submitted for decision. The Regional Trial Court shalldecide the case on the basis of the entire record of the proceedings had in thecourt of original and such memoranda as are filed. (n)

Section 8. Appeal from ordersdismissing case without trial ; lack of jurisdiction . If an appealis taken from an order of the lower court dismissing the case without a trialon the merits, the Regional Trial Court may affirm or reverse it, as the casemay be. In case of affirmance and the ground of dismissal is lack ofjurisdiction over the subject matter, the Regional Trial Court, if it hasjurisdiction thereover , shall try the case on themerits as if the case was originally filed with it. In case of reversal, thecase shall be remanded for further proceedings.

If the case was tried on the merits by the lower courtwithout jurisdiction over the subject matter, the Regional Trial Court onappeal shall not dismiss the case if it has original jurisdiction thereof, butshall decide the case in accordance with the preceding section, withoutprejudice to the admission of amended pleadings and additional evidence in theinterest of justice. (n)

Section 9. Applicabilityof Rule 41 . The other provisionsof Rule 41 shall apply to appeals provided for herein insofar as they are notinconsistent with or may serve to supplement the provisions of this Rule. (n)

RULE 41

Appeal From The Regional Trial Courts

Section 1. Subjectof appeal . Anappeal may be taken from a judgment or final order that completely disposes ofthe case, or of a particular matter therein whendeclared by these Rules to be appealable.

No appeal may be taken from:

1.      Anorder denying a petition for relief or any similar motion seeking relief fromjudgment;

2.      Aninterlocutory order;

3.      Anorder disallowing or dismissing an appeal;

4.      Anorder denying a motion to set aside a judgment by consent, confession orcompromise on the ground of fraud, mistake or duress, or any other groundvitiating consent;

5.      Anorder of execution;

6.      Ajudgment or final order for or against one or more of several parties or inseparate claims, counterclaims, cross-claims and third-party complaints, whilethe main case is pending, unless the court allows an appeal therefrom; and

7.      Anorder dismissing an action without prejudice.

In any of the foregoing circumstances, the aggrievedparty may file an appropriate special civil action as provided in Rule 65.

Section 2. Modesof appeal .

(a) Ordinary appeal . The appeal to the Court ofAppeals in cases decided by the Regional Trial Court in the exercise of itsoriginal jurisdiction shall be taken by filing a notice of appeal with thecourt which rendered the judgment or final order appealed from and serving acopy thereof upon the adverse party. No record on appeal shall be requiredexcept in special proceedings and other cases of multiple or separate appealswhere law on these Rules so require. In such cases, the record on appeal shallbe filed and served in like manner.

(b) Petition for review . The appeal to the Courtof Appeals in cases decided by the Regional Trial Court in the exercise of itsappellate jurisdiction shall be by petition for review in accordance with Rule42.

(c) Appeal by certiorari . In all cases where onlyquestions of law are raised or involved, the appeal shall be to the SupremeCourt by petition for review on certiorari in accordance with the Rule45. (n)

Section 3. Periodof ordinary appeal . The appeal shall betaken within fifteen (15) days from notice of the judgment or final orderappealed from. Where a record on appeal is required, the appellant shall file anotice of appeal and a record on appeal within thirty (30) days from notice ofthe judgment or final order.

The period of appeal shall be interrupted by a timelymotion for new trial or reconsideration. No motion for extension of time tofile a motion for new trial or reconsideration shall be allowed. (n)

Section 4. Appellatecourt docket and other lawful fees . Within the period for taking an appeal, theappellant shall pay to the clerk of the court which rendered the judgment orfinal order appealed from, the full amount of the appellate court docket andother lawful fees. Proof of payment of said fees shall be transmitted to theappellate court together with the original record or the record on appeal. (n)

Section 5. Noticeof appeal . The notice of appealshall indicate the parties to the appeal, specify the judgment or final orderor part thereof appealed from, specify the court to which the appeal is beingtaken, and state the material dates showing the timeliness of the appeal. (4a)

Section 6. Recordon appeal ;form and contents thereof. The full names of all the parties to theproceedings shall be stated in the caption of the record on appeal and it shallinclude the judgment or final order from which the appeal is taken and, inchronological order, copies of only such pleadings, petitions, motions and allinterlocutory orders as are related to the appealed judgment or final order forthe proper understanding of the issue involved, together with such data as willshow that the appeal was perfected on time. If an issue of fact is to be raisedon appeal, the record on appeal shall include by reference all the evidence,testimonial and documentary, taken upon the issue involved. The reference shallspecify the documentary evidence by the exhibit numbers or letters by which itwas identified when admitted or offered at the hearing, and the testimonial evidence by the names of the corresponding witnesses. Ifthe whole testimonial and documentary evidence in the case is to be included, astatement to that effect will be sufficient without mentioning the names of thewitnesses or the numbers or letters of exhibits. Every record on appealexceeding twenty (20) pages must contain a subject index. (6a)

Section 7. Approvalof record on appeal . Upon the filing ofthe record on appeal for approval and if no objection is filed by the appellee within five (5) days from receipt of a copythereof, the trial court may approve it as presented or upon its own motion orat the instance of the appellee , may direct itsamendment by the inclusion of any omitted matters which are deemed essential tothe determination of the issue of law or fact involved in the appeal. If thetrial court orders the amendment of the record, the appellant, within the timelimited in the order, or such extension thereof as may be granted, or if notime is fixed by the order within ten (10) days from receipt thereof, shallredraft the record by including therein, in their proper chronologicalsequence, such additional matters as the court may have directed him toincorporate, and shall thereupon submit the redrafted record for approval, uponnotice to the appellee , in like manner as theoriginal draft. (7a)

Section 8. Jointrecord on appeal . Where both partiesare appellants, they may file a joint record on appeal within the time fixed bysection 3 of this Rule, or that fixed by the court. (8a)

Section 9. Perfectionof appeal ;effect thereof. A party's appeal by notice of appeal isdeemed perfected as to him upon the filing of the notice of appeal in due time.

A party's appeal by record on appeal is deemed perfected asto him with respect to the subject matter thereof upon the approval of therecord on appeal filed in due time.

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

In appeals by record on appeal, the court losesjurisdiction only over the subject matter thereof upon the approval of therecords on appeal filed in due time and the expiration of the appeal of theother parties.

In either case, prior to the transmittal of the originalrecord or the record on appeal, the court may issue orders for the protectionand preservation of the rights of the parties which do not involve any matterlitigated by the appeal, approve compromises, permit appeals of indigentlitigants, order execution pending appeal in accordance with 2 of Rule 39, andallow withdrawal of the appeal. (9a)

Section 10. Dutyof clerk of court of the lower court upon perfection of appeal . Within thirty (30)days after perfection of all the appeals in accordance with the precedingsection, it shall be the duty of the clerk of court of the lower court:

(a) To verify the correctness of the original record or therecord on appeal, as the case may be aid to make certification of itscorrectness;

(b) To verify the completeness of the records that will be,transmitted to the appellate court;

(c) If found to be incomplete, to take such measures as maybe required to complete the records, availing of the authority that he or thecourt may exercise for this purpose; and

(d) To transmit the records to the appellate court.

If the efforts to complete the records fail, he shallindicate in his letter of transmittal the exhibits or transcripts not includedin the records being transmitted to the appellate court, the reasons for theirnon-transmittal, and the steps taken or that could be taken to have themavailable.

The clerk of court shall furnish the parties with copies ofhis letter of transmittal of the records to the appellate court. (10a)

Section 11. Transcript . Upon the perfectionof the appeal, the clerk shall immediately direct the stenographers concernedto attach to the record of the case five (5) copies of the transcripts of thetestimonial evidence referred to in the record on appeal. The stenographers concernedshall transcribe such testimonial evidence and shall prepare and affix to theirtranscripts an index containing the names of the witnesses and the pageswherein their testimonies are found, and a list of the exhibits and the pageswherein each of them appears to have been offered and admitted or rejected bythe trial court. The transcripts shall be transmitted to the clerk of the trialcourt who shall thereupon arrange the same in the order in which the witnessestestified at the trial, and shall cause the pages to be numbered consecutively.(12a)

Section 12. Transmittal . The clerk of thetrial court shall transmit to the appellate court the original record or theapproved record on appeal within thirty (30) days from the perfection of theappeal, together with the proof of payment of the appellate court docket andother lawful fees, a certified true copy of the minutes of the proceedings, theorder of approval, the certificate of correctness, the original documentaryevidence referred to therein, and the original and three (3) copies of thetranscripts. Copies of the transcripts and certified true copies of thedocumentary evidence shall remain in the lower court for the examination of theparties. (11a)

Section 13. Dismissalof appeal . Prior to thetransmittal of the original record or the record on appeal to the appellatecourt, the trial court may, motu proprio or on motion, dismiss the appeal for havingbeen taken out of time or non-payment of the docket and other lawful feeswithin the reglementary period.

RULE 42

Petition for Review From the Regional Trial Courts to the Court of Appeals

Section 1. How appeal taken ; time for filing . A party desiring to appeal from a decision of the Regional Trial Courtrendered in the exercise of its appellate jurisdiction may file a verifiedpetition for review with the Court of Appeals, paying at the same time to theclerk of said court the corresponding docket and other lawful fees, depositingthe amount of P500.00 for costs, and furnishing the Regional Trial Court andthe adverse party with a copy of the petition. The petition shall be filed andserved within fifteen (15) days from notice of the decision sought to bereviewed or of the denial of petitioner's motion for new trial orreconsideration filed in due time after judgment. Upon proper motion and thepayment of the full amount of the docket and other lawful fees and the depositfor costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15)days only within which to file the petition for review. No further extensionshall be granted except for the most compelling reason and in no case to exceedfifteen (15) days. (n)

Section 2. Formand contents . The petition shallbe filed in seven (7) legible copies, with the original copy intended for thecourt being indicated as such by the petitioner, and shall (a) state the fullnames of the parties to the case, without impleading the lower courts or judgesthereof either as petitioners or respondents; (b) indicate the specificmaterial dates showing that it was filed on time; (c) set forth concisely astatement of the matters involved, the issues raised, the specification oferrors of fact or law, or both, allegedly committed by the Regional TrialCourt, and the reasons or arguments relied upon for the allowance of theappeal; (d) be accompanied by clearly legible duplicate originals or truecopies of the judgments or final orders of both lower courts, certified correctby the clerk of court of the Regional Trial Court, the requisite number ofplain copies thereof and of the pleadings and other material portions of therecord as would support the allegations of the petition.

The petitioner shall also submit together with the petitiona certification under oath that he has not theretofore commenced any otheraction involving the same issues in the Supreme Court, the Court of Appeals ordifferent divisions thereof, or any other tribunal or agency; if there is suchother action or proceeding, he must state the status of the same; and if heshould thereafter learn that a similar action or proceeding has been filed oris pending before the Supreme Court, the Court of Appeals, or differentdivisions thereof, or any other tribunal or agency, he undertakes to promptlyinform the aforesaid courts and other tribunal or agency thereof within five(5) days therefrom. (n)

Section 3. Effectof failure to comply with requirements . The failure of the petitioner to comply withany of the foregoing requirements regarding the payment of the docket and otherlawful fees, the deposit for costs, proof of service of the petition, and thecontents of and the documents which should accompany the petition shall besufficient ground for the dismissal thereof. (n)

Section 4. Actionon the petition . The Court of Appealsmay require the respondent to file a comment on the petition, not a motion todismiss, within ten (10) days from notice, or dismiss the petition if it findsthe same to be patently without merit, prosecuted manifestly for delay, or thatthe questions raised therein are too insubstantial to require consideration.(n)

Section 5. Contentsof comment . The comment of therespondent shall be filed in seven (7) legible copies, accompanied by certifiedtrue copies of such material portions of the record referred to thereintogether with other supporting papers and shall (a) state whether or not heaccepts the statement of matters involved in the petition; (b) point out suchinsufficiencies or inaccuracies as he believes exist in petitioner's statementof matters involved but without repetition; and (c) state the reasons why thepetition should not be given due course. A copy thereof shall be served on thepetitioner. (a)

Section 6. Duecourse . If upon the filingof the comment or such other pleadings as the court may allow or require, orafter the expiration of the period for the filing thereof without such commentor pleading having been submitted, the Court of Appeals finds prima facie thatthe lower court has committed an error of fact or law that will warrant areversal or modification of the appealed decision, it may accordingly give duecourse to the petition. (n)

Section 7. Elevationof record . Whenever the Courtof Appeals deems it necessary, it may order the clerk of court of the RegionalTrial Court to elevate the original record of the case including the oral anddocumentary evidence within fifteen (15) days from notice. (n)

Section 8. Perfectionof appeal ;effect thereof. (a) Upon the timely filing of a petition forreview and the payment of the corresponding docket and other lawful fees, theappeal is deemed perfected as to the petitioner.

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

However, before the Court of Appeals gives due course tothe petition, the Regional Trial Court may issue orders for the protection andpreservation of the rights of the parties which do not involve any matterlitigated by the appeal, approve compromises, permit appeals of indigentlitigants, order execution pending appeal in accordance with section 2 of Rule39, and allow withdrawal of the appeal. (9a, R41)

(b) Except in civilcases decided under the Rule on Summary Procedure, the appeal shall stay thejudgment or final order unless the Court of Appeals, the law, or these Rulesshall provide otherwise. (a)

Section 9. Submissionfor decision . If the petition isgiven due course, the Court of Appeals may set the case for oral argument orrequire the parties to submit memoranda within a period of fifteen (15) daysfrom notice. The case shall be deemed submitted for decision upon the filing ofthe last pleading or memorandum required by these Rules or by the court itself . (n)

RULE 43

Appeals From the Court of Tax Appeals and Quasi-Judicial Agencies tothe Court of Appeals

Section 1. Scope . This Rule shallapply to appeals from judgments or final orders of the Court of Tax Appeals andfrom awards, judgments, final orders or resolutions of or authorized by anyquasi-judicial agency in the exercise of its quasi-judicial functions. Amongthese agencies are the Civil Service Commission, Central Board of AssessmentAppeals, Securities and Exchange Commission, Office of the President, LandRegistration Authority, Social Security Commission, Civil Aeronautics Board,Bureau of Patents, Trademarks and Technology Transfer, National ElectrificationAdministration, Energy Regulatory Board, National TelecommunicationsCommission, Department of Agrarian Reform under Republic Act No. 6657,Government Service Insurance System, Employees Compensation Commission,Agricultural Invention Board, Insurance Commission, Philippine Atomic EnergyCommission, Board of Investments, Construction Industry Arbitration Commission,and voluntary arbitrators authorized by law. (n)

Section 2. Cases not covered . This Rule shall notapply to judgments or final orders issued under the Labor Code of the Philippines. (n)

Section 3. Whereto appeal . An appeal under thisRule may be taken to the Court of Appeals within the period and in the mannerherein provided, whether the appeal involves questions of fact, of law, ormixed questions of fact and law. (n)

Section 4. Periodof appeal . The appeal shall betaken within fifteen (15) days from notice of the award, judgment, final orderor resolution, or from the date of its last publication, if publication isrequired by law for its effectivity, or of the denial of petitioner's motionfor new trial or reconsideration duly filed in accordance with the governinglaw of the court or agency a quo . Only one (1) motion forreconsideration shall be allowed. Upon proper motion and the payment of thefull amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15)days only within which to file the petition for review. No further extensionshall be granted except for the most compelling reason and in no case to exceedfifteen (15) days. (n)

Section 5. How appeal taken . Appeal shall betaken by filing a verified petition for review in seven (7) legible copies withthe Court of Appeals, with proof of service of a copy thereof on the adverseparty and on the court or agency a quo . The original copy of thepetition intended for the Court of Appeals shall be indicated as such by thepetitioner.

Upon the filing of the petition, the petitioner shall payto the clerk of court of the Court of Appeals the docketing and other lawfulfees and deposit the sum of P500.00 for costs. Exemption from payment ofdocketing and other lawful fees and the deposit for costs may be granted by theCourt of Appeals upon a verified motion setting forth valid grounds therefor.If the Court of Appeals denies the motion, the petitioner shall pay thedocketing and other lawful fees and deposit for costs within fifteen (15) daysfrom notice of the denial. (n)

Section 6. Contentsof the petition . The petition forreview shall (a) state the full names of the parties to the case, withoutimpleading the court or agencies either as petitioners or respondents; (b)contain a concise statement of the facts and issues involved and the groundsrelied upon for the review; (c) be accompanied by a clearly legible duplicateoriginal or a certified true copy of the award, judgment, final order orresolution appealed from, together with certified true copies of such materialportions of the record referred to therein and other supporting papers; and (d)contain a sworn certification against forum shopping as provided in the lastparagraph of section 2, Rule 42. The petition shall state the specific materialdates showing that it was filed within the period fixed herein. (2a)

Section 7. Effectof failure to comply with requirements . The failure of the petitioner to comply withany of the foregoing requirements regarding the payment of the docket and otherlawful fees, the deposit for costs, proof of service of the petition, and thecontents of and the documents which should accompany the petition shall besufficient ground for the dismissal thereof. (n)

Section 8. Actionon the petition . The Court of Appealsmay require the respondent to file a comment on the petition not a motion todismiss, within ten (10) days from notice, or dismiss the petition if it findsthe same to be patently without merit, prosecuted manifestly for delay, or thatthe questions raised therein are too unsubstantial to require consideration.(6a)

Section 9. Contentsof comment . The comment shall befiled within ten (10) days from notice in seven (7) legible copies andaccompanied by clearly legible certified true copies of such material portionsof the record referred to therein together with other supporting papers. Thecomment shall (a) point out insufficiencies or inaccuracies in petitioner'sstatement of facts and issues; and (b) state the reasons why the petitionshould be denied or dismissed. A copy thereof shall be served on thepetitioner, and proof of such service shall be filed with the Court of Appeals.(9a)

Section 10. Duecourse . If upon the filingof the comment or such other pleadings or documents as may be required orallowed by the Court of Appeals or upon the expiration of the period for thefiling thereof, and on the records the Court of Appeals finds prima facie thatthe court or agency concerned has committed errors of fact or law that wouldwarrant reversal or modification of the award, judgment, final order or resolutionsought to be reviewed, it may give due course to the petition; otherwise, itshall dismiss the same. The findings of fact of the court or agency concerned,when supported by substantial evidence, shall be binding on the Court ofAppeals. (n)

Section 11. Transmittalof record . Within fifteen (15)days from notice that the petition has been given due course, the Court ofAppeals may require the court or agency concerned to transmit the original or alegible certified true copy of the entire record of the proceeding underreview. The record to be transmitted may be abridged by agreement of allparties to the proceeding. The Court of Appeals may require or permitsubsequent correction of or addition to the record. (8a)

Section 12. Effectof appeal . The appeal shall notstay the award, judgment, final order or resolution sought to be reviewedunless the Court of Appeals shall direct otherwise upon such terms as it maydeem just. (10a)

Section 13. Submissionfor decision . If the petition isgiven due course, the Court of Appeals may set the case for oral argument orrequire the parties to submit memoranda within a period of fifteen (15) daysfrom notice. The case shall be deemed submitted for decision upon the filing ofthe last pleading or memorandum required by these Rules or by the court ofAppeals. (n)

Procedurein the Court of Appeals

RULE 44

Ordinary Appealed Cases

Section 1. Titleof cases . In all casesappealed to the Court of Appeals under Rule 41, the title of the case shallremain as it was in the court of origin, but the party appealing the case shallbe further referred to as the appellant and the adverse party as the appellee .

Section 2. Counseland guardians . The counsel andguardians ad litem of the parties in the court of origin shall berespectively considered as their counsel and guardians ad litem in theCourt of Appeals. When others appear or are appointed, notice thereof shall beserved immediately on the adverse party and filed with the court.

Section 3. Orderof transmittal of record . If the original record or the record on appeal is nottransmitted to the Court of Appeals within thirty (30) days after theperfection of the appeal, either party may file a motion with the trial court,with notice to the other, for the transmittal of such record or record onappeal.

Section 4. Docketingof case . Upon receiving theoriginal record or the record on appeal and the accompanying documents andexhibits transmitted by the lower court, as well as the proof of payment of thedocket and other lawful fees, the clerk of court of the Court of Appeals shalldocket the case and notify the parties thereof.

Within ten (10) days from receipt of said notice, theappellant, in appeals by record on appeal, shall file with the clerk of courtseven (7) clearly legible copies of the approved record on appeal, togetherwith the proof of service of two (2) copies thereof upon the appellee .

Any unauthorized alteration, omission or addition in theapproved record on appeal shall be a ground for dismissal of the appeal. (n)

Section 5. Completionof record . Where the record ofthe docketed case is incomplete, the clerk of court of the Court of Appealsshall so inform said court and recommend to it measures necessary to completethe record. It shall be the duty of said court to take appropriate actiontowards the completion of the record within the shortest possible time. (n)

Section 6. Dispensingwith complete record . Where the completionof the record could not be accomplished within a sufficient period allotted forsaid purpose due to insuperable or extremely difficult causes, the court, onits own motion or on motion of any of the parties, may declare that the recordand its accompanying transcripts and exhibits so far available are sufficientto decide the issues raised in the appeal, and shall issue an order explainingthe reasons for such declaration. (n)

Section 7. Appellant's brief. It shall be the dutyof the appellant to file with the court, within forty-five (45) days fromreceipt of the notice of the clerk that all the evidence, oral and documentary,are attached to the record, seven (7) copies of his legibly typewritten,mimeographed or printed brief, with proof of service of two (2) copies thereofupon the appellee .

Section 8. Appellee's brief. Within forty-five(45) days from receipt of the appellant's brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographedor printed brief, with proof of service of two (2) copies thereof upon theappellant.

Section 9. Appellant's replybrief. Within twenty (20) days from receipt of the appellee's brief, the appellant may file a reply brief answering points in the appellee's brief not covered in his main brief.

Section 10. Timeof filing memoranda in special cases . In certiorari , prohibition, mandamus,quo warranto and habeas corpus cases,the parties shall file in lieu of briefs, their respective memoranda within anon-extendible period of thirty (30) days from receipt of the notice issued bythe clerk that all the evidence, oral and documentary, is already attached tothe record.

The failure of the appellant to file his memorandum withinthe period therefor may be a ground for dismissal of the appeal. (n)

Section 11. Several appellants or appellees or several counsel for each party . Where there areseveral appellants or appellees , each counselrepresenting one or more but not all of them shall be served with only one copyof the briefs. When several counsel represent oneappellant or appellee , copies of the brief may beserved upon any of them.

Section 12. Extension of time forfiling briefs . Extension of time for the filing of briefs will not be allowed, except forgood and sufficient cause, and only if the motion for extension is filed beforethe expiration of the time sought to be extended.

Section 13. Contentsof appellant's brief. The appellant's brief shall contain, in theorder herein indicated, the following:

(a) A subject index of the matter in the brief with adigest of the arguments and page references, and a table of casesalphabetically arranged, textbooks and statutes cited with references to thepages where they are cited;

(b) An assignment of errors intended to be urged, whicherrors shall be separately, distinctly and concisely stated without repetitionand numbered consecutively;

(c) Under the heading "Statement of the Case," aclear and concise statement of the nature of the action, a summary of theproceedings, the appealed rulings and orders of the court, the nature of thejudgment and any other matters necessary to an understanding of the nature ofthe controversy with page references to the record;

(d) Under the heading "Statement of Facts," aclear and concise statement in a narrative form of the facts admitted by bothparties and of those in controversy, together with the substance of the proofrelating thereto in sufficient detail to make it clearly intelligible, with pagereferences to the record;

(e) A clear and concise statement of the issues of fact orlaw to be submitted, to the court for its judgment;

(f) Under the heading "Argument," the appellant'sarguments on each assignment of error with page references to the record. Theauthorities relied upon shall be cited by the page of the report at which thecase begins and the page of the report on which the citation is found;

(g) Under the heading "Relief," a specificationof the order or judgment which the appellant seeks; and

(h) In cases not brought up by record on appeal, theappellant's brief shall contain, as an appendix, a copy of the judgment orfinal order appealed from. (16a, R46)

Section 14. Contentsof appellee's brief. The appellee's brief shall contain, in the order hereinindicated the following:

(a) A subject index of the matter in the brief with adigest of the arguments and page references, and a table of casesalphabetically arranged, textbooks and statutes cited with references to thepages where they are cited;

(b) Under the heading "Statement of Facts," the appellee shall state that he accepts the statement of factsin the appellant's brief, or under the heading "Counter-Statement ofFacts," he shall point out such insufficiencies or inaccuracies as hebelieves exist in the appellant's statement of facts with references to thepages of the record in support thereof, but without repetition of matters inthe appellant's statement of facts; and

(c) Under the heading "Argument," the appellee shall set forth his arguments in the case on eachassignment of error with page references to the record. The authorities reliedon shall be cited by the page of the report at which the case begins and thepage of the report on which the citation is found.

Section 15. Questionsthat may be raised on appeal . Whether or not the appellant has filed amotion for new trial in the court below he may include in his assignment oferrors any question of law or fact that has been raised in the court below andwhich is within the issues framed by the parties.

RULE 45

Appeal by Certiorari to the Supreme Court

Section 1. Filingof petition with Supreme Court . A party desiring to appeal by certiorarifrom a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan , the Court of Tax Appeals, the Regional TrialCourt or other courts, whenever authorized by law, may file with the SupremeCourt a verified petition for review on certiorari .The petition may include an application for a writ of preliminary injunction orother provisional remedies and shall raise only questions of law, which must bedistinctly set forth. The petitioner may seek the same provisional remedies byverified motion filed in the same action or proceeding at any time during itspendency.

Section 2. Timefor filing ;extension . The petition shall be filed within fifteen (15) days from notice of thejudgment or final order or resolution appealed from, or of the denial of thepetitioner's motion for new trial or reconsideration filed in due time afternotice of the judgment. On motion duly filed and served, with full payment ofthe docket and other lawful fees and the deposit for costs before theexpiration of the reglementary period, the SupremeCourt may for justifiable reasons grant an extension of thirty (30) days onlywithin which to file the petition.

Section 3. Docketand other lawful fees ;proof of service of petition . Unless he has theretofore done so, thepetitioner shall pay the corresponding docket and other lawful fees to theclerk of court of the Supreme Court and deposit the amount of P500.00 for costsat the time of the filing of the petition. Proof of service of a copy, thereofon the lower court concerned and on the adverse party shall be submittedtogether with the petition. (1a)

Section 4. Contentsof petition . The petition shallbe filed in eighteen (18) copies, with the original copy intended for the courtbeing indicated as such by the petitioner and shall (a) state the full name ofthe appealing party as the petitioner and the adverse party as respondent,without impleading the lower courts or judges thereof either as petitioners orrespondents; (b) indicate the material dates showing when notice of thejudgment or final order or resolution subject thereof was received, when amotion for new trial or reconsideration, if any, was filed and when notice ofthe denial thereof was received; (c) set forth concisely a statement of thematters involved, and the reasons or arguments relied on for the allowance ofthe petition; (d) be accompanied by a clearly legible duplicate original, or acertified true copy of the judgment or final order or resolution certified bythe clerk of court of the court a quo and the requisite number of plaincopies thereof, and such material portions of the record as would support thepetition; and (e) contain a sworn certification against forum shopping asprovided in the last paragraph of section 2, Rule 42.

Section 5. Dismissalor denial of petition . The failure of thepetitioner to comply with any of the foregoing requirements regarding thepayment of the docket and other lawful fees, deposit for costs, proof ofservice of the petition, and the contents of and the documents which shouldaccompany the petition shall be sufficient ground for the dismissal thereof.

The Supreme Court may on its own initiative deny thepetition on the ground that the appeal is without merit, or is prosecutedmanifestly for delay, or that the questions raised therein are toounsubstantial to require consideration. (3a)

Section 6. Reviewdiscretionary . A review is not amatter of right, but of sound judicial discretion, and will be granted only whenthere are special and important reasons thereof. The following, while neithercontrolling nor fully measuring the court's discretion, indicate the characterof the reasons which will be considered:

(a) When the court a quo has decided a question ofsubstance, not theretofore determined by the Supreme Court, or has decided itin a way probably not in accord with law or with the applicable decisions ofthe Supreme Court; or

(b) When the court a quo has so far departed fromthe accepted and usual course of judicial proceedings, or so far sanctionedsuch departure by a lower court, as to call for an exercise of the power ofsupervision. (4a)

Section 7. Pleadingsand documents that may be required ; sanctions . For purposes ofdetermining whether the petition should be dismissed or denied pursuant tosection 5 of this Rule, or where the petition is given due course under section8 hereof, the Supreme Court may require or allow the filing of such pleadings,briefs, memoranda or documents as it may deem necessary within such periods andunder such conditions as it may consider appropriate, and impose thecorresponding sanctions in case of non-filing or unauthorized filing of suchpleadings and documents or non-compliance with the conditions therefor. (n)

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

Section 9. Rule applicable to bothcivil and criminal cases . The mode of appeal prescribed in this Rule shall beapplicable to both civil and criminal cases, except in criminal cases where thepenalty imposed is death, reclusion perpetua orlife imprisonment. (n)

RULE 46

Original Cases

Section 1. Titleof cases . In all casesoriginally filed in the Court of Appeals, the party instituting the actionshall be called the petitioner and the opposing party the respondent. (1a)

Section 2. Towhat actions applicable . This Rule shall apply to original actions for certiorari ,prohibition, mandamus and quo warranto .

Except as otherwise provided, theactions for annulment of judgment shall be governed by Rule 47, for certiorari ,prohibition and mandamus by Rule 65, and for quo warranto by Rule 66. (n)

Section 3. Contents and filing ofpetition ;effect of noncompliance with requirements . The petition shall containthe full names and actual addresses of all the petitioners and respondents, aconcise statement of the matters involved, the factual background of the case,and the grounds relied upon for the relief prayed for.

In actions filed under Rule 65, the petition shall furtherindicate the material dates showing when notice of the judgment or final orderor resolution subject thereof was received, when a motion for new trial orreconsideration, if any, was filed and when notice of the denial thereof wasreceived.

It shall be filed in seven (7) clearly legible copiestogether with proof of service thereof on the respondent with the original copyintended for the court indicated as such by the petitioner, and shall beaccompanied by a clearly legible duplicate original or certified true copy ofthe judgment, order, resolution, or ruling subject thereof, such materialportions of the record as are referred to therein, and other documents relevantor pertinent thereto. The certification shall be accomplished by the properclerk of court or by his duly authorized representative, or by the properofficer of the court, tribunal, agency or office involved or by his dulyauthorized representative. The other requisite number of copies of the petitionshall be accompanied by clearly legible plain copies of all documents attachedto the original.

The petitioner shall also submit together with the petitiona sworn certification that he has not theretofore commenced any other actioninvolving the same issues in the Supreme Court, the Court of Appeals ordifferent divisions thereof, or any other tribunal or agency; if there is suchother action or proceeding, he must state the status of the same; and if heshould thereafter learn that a similar action or proceeding has been filed oris pending before the Supreme Court, the Court of Appeals, or differentdivisions thereof, or any other tribunal or agency, he undertakes to promptlyinform the aforesaid courts and other tribunal or agency thereof within five(5) days therefrom.

The petitioner shall pay the corresponding docket and otherlawful fees to the clerk of court and deposit the amount of P500.00 for costsat the time of the filing of the petition.

The failure of the petitioner to comply any of therequirements shall be sufficient ground for the dismissal of the petition.

Section 4. Jurisdiction overperson of respondent ,how acquired . The court shall acquire jurisdiction over the person ofthe respondent by the service on him of its order or resolution indicating itsinitial action on the petition or by his voluntary submission to suchjurisdiction. (n)

Section 5. Actionby the court . The court maydismiss the petition outright with specific reasons for such dismissal orrequire the respondent to file a comment on the same within ten (10) days fromnotice. Only pleadings required by the court shall be allowed. All otherpleadings and papers, may be filed only with leave ofcourt. (n)

Section 6. Determinationof factual issues . Whenever necessaryto resolve factual issues, the court itself may conduct hearings thereon ordelegate the reception of the evidence on such issue to any of its members orto an appropriate court, agency or office. (n)

Section 7. Effectof failure to file comment . When no comment is filed by any of the respondents, thecase may be decided on the basis of the record, without prejudice to anydisciplinary action which the court may take against the disobedient party. (n)

RULE 47

Annulment of Judgmentsof Final Orders and Resolutions

Section 1. Coverage . This Rule shallgovern the annulment by the Court of Appeals of judgments or final orders andresolutions in civil actions of Regional Trial Courts for which the ordinaryremedies of new trial, appeal, petition for relief or other appropriateremedies are no longer available through no fault ofthe petitioner. (n)

Section 2. Groundsfor annulment . The annulment may bebased only on the grounds of extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it wasavailed of, or could have been availed of, in a motion for new trial orpetition for relief. (n)

Section 3. Periodfor filing action . If based onextrinsic fraud, the action must be filed within four (4) years from its discovery;and if based on lack of jurisdiction, before it is barred by laches orestoppel. (n)

Section 4. Filingand contents of petition . The action shall be commenced by filing a verifiedpetition alleging therein with particularity the facts and the law relied uponfor annulment, as well as those supporting the petitioner's good andsubstantial cause of action or defense , as the casemay be.

The petition shall be filed in seven (7) clearly legiblecopies, together with sufficient copies corresponding to the number ofrespondents. A certified true copy of the judgment or final order or resolutionshall be attached to the original copy of the petition intended for the courtand indicated as such by the petitioner.

The petitioner shall also submit together with the petitionaffidavits of witnesses or documents supporting the cause of action or defense and a sworn certification that he has nottheretofore commenced any other action involving the same issues in the SupremeCourt, the Court of Appeals or different divisions thereof, or any othertribunal or agency if there is such other action or proceeding, he must statethe status of the same, and if he should thereafter learn that a similar actionor proceeding has been filed or is pending before the Supreme Court, the Courtof Appeals, or different divisions thereof, or any other tribunal or agency, heundertakes to promptly inform the aforesaid courts and other tribunal or agencythereof within five (5) days therefrom. (n)

Section 5. Actionby the court . Should the courtfind no substantial merit in the petition, the same may be dismissed outrightwith specific reasons for such dismissal.

Should prima facie merit be found in the petition,the same shall be given due course and summons shall be served on therespondent. (n)

Section 6. Procedure . The procedure inordinary civil cases shall be observed. Should trial be necessary, thereception of the evidence may be referred to a member of the court or a judgeof a Regional Trial Court. (n)

Section 7. Effectof judgment . A judgment ofannulment shall set aside the questioned judgment or final order or resolutionand render the same null and void, without prejudice to the original actionbeing refiled in the proper court. However, where the judgment or final orderor resolution is set aside on the ground of extrinsic fraud, the court may onmotion order the trial court to try the case as if a timely motion for newtrial had been granted therein. (n)

Section 8. Suspensionprescriptive period . The prescriptiveperiod for the refiling of the aforesaid original action shall be deemedsuspended from the filing of such original action until the finality of thejudgment of annulment. However, the prescriptive period shall not be suspendedwhere the extrinsic-fraud is attributable to the plaintiff in the originalaction. (n)

Section 9. Reliefavailable . The judgment ofannulment may include the award of damages, attorney's fees and other relief.

If the questioned judgment or final order or resolution hadalready been executed the court may issue such orders of restitution or otherrelief as justice and equity may warrant under the circumstances. (n)

Section 10. Annulmentof judgments or final orders of Municipal Trial Courts . An action to annul ajudgment or final order of a Municipal Trial Court shall be filed in theRegional Trial Court having jurisdiction over the former. It shall be treatedas an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shallbe applicable thereto. (n)

RULE 48

Preliminary Conference

Section 1. Preliminaryconference . At any time duringthe pendency of a case, the court may call the parties and their counsel to apreliminary conference.

(a) To consider the possibility of an amicable settlement,except when the case is not allowed by law to be compromised

(b) To define, simplify and clarify the issues fordetermination;

(c) To formulate stipulations of facts and admissions ofdocumentary exhibits, limit the number of witnesses to be presented in casesfalling within the original jurisdiction of the court, or those within itsappellate jurisdiction where a motion for new trial is granted on the ground ofnewly discovered evidence; and

(d) To take up such other matters which may aid the courtin the prompt disposition of the case. (Rule 7, CA Internal Rules) (n)

Section 2. Recordof the conference . The proceedings atsuch conference shall be recorded and, upon the conclusion thereof, aresolution shall be issued embodying all the actions taken therein, thestipulations and admissions made and the issues defined. (n)

Section 3. Bindingeffect of the results of the conference . Subject to such modifications which may bemade to prevent manifest injustice, the resolution in the preceding sectionshall control the subsequent proceedings in the case unless, within five (5)days from notice thereof, any party shall satisfactorily show valid cause whythe same should not be followed. (n)

 

RULE 49

Oral Argument

Section 1. When allowed . At its own instanceor upon motion of a party, the court may hear the parties in oral argument onthe merits of a case, or on any material incident in connection therewith. (n)

The oral argument shall be limited to such matters as thecourt may specify in its order or resolution.

Section 2. Conduct of oralargument . Unless authorized by the court, only one counsel may argue for a party. Theduration allowed for each party, the sequence of the argumentation, and allother related matters shall be as directed by the court. (n)

Section 3. No hearing or oralargument for motions . Motions shall not be set for hearing and, unless the court otherwise directs,no hearing or oral argument shall be allowed in support thereof. The adverseparty may file objections to the motion within five (5) days from service, uponthe expiration of which such motion shall be deemed submitted for resolution.

RULE 50

Dismissal of Appeal

Section 1. Groundsfor dismissal of appeal . An appeal may be dismissed by the Court of Appeals, onits own motion or on that of the appellee , on thefollowing grounds:

(a) Failure of the record on appeal to show on its facethat the appeal was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record onappeal within the period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and otherlawful fees as provided in section 5, Rule 40 and section 4 of Rule 41;

(d) Unauthorized alterations, omissions or additions in theapproved record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the requirednumber of copies of his brief or memorandum within the time provided by theseRules;

(f) Absence of specific assignment of errors in theappellant's brief, or of page references to the record as required in section13, paragraphs (a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary stepsfor the correction or completion of the record within the time limited by thecourt in its order;

(h) Failure of the appellant to appear at the preliminaryconference under Rule 48 or to comply with orders, circulars, or directives ofthe court without justifiable cause; and

(i ) The fact that the order orjudgment appealed from is not appealable. (1a)

Section 2. Dismissalof improper appeal to the Court of Appeals . An appeal under Rule 41 taken fromthe Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not beingreviewable by said court. Similarly, an appeal by notice of appeal instead ofby petition for review from the appellate judgment of a Regional Trial Courtshall be dismissed. (n)

An appeal erroneously taken to the Court of Appeals shallnot be transferred to the appropriate court but shall be dismissed outright.(3a)

Section 3. Withdrawalof appeal . An appeal may bewithdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of thecourt. (4a)

RULE 51

Judgment

Section 1. When case deemedsubmitted for judgment . A case shall be deemed submitted for judgment:

A. In ordinary appeals.

1) Where no hearing on the merits of the main case is held, uponthe filing of the last pleading, brief, or memorandum required by the Rules orby the court itself, or the expiration of the period for its filing.

2) Where such a hearing is held, upon its termination orupon the filing of the last pleading or memorandum as may be required orpermitted to be filed by the court, or the expiration of the period for itsfiling.

B. In original actions and petitions for review.

1) Where no comment is filed, upon the expiration of theperiod to comment.

2) Where no hearing is held, upon the filing of the lastpleading required or permitted to be filed by the court, or the expiration ofthe period for its filing.

3) Where a hearing on the merits of the main case is held,upon its termination or upon the filing of the last pleading or memorandum asmay be required or permitted to be filed by the court, or the expiration of theperiod for its filing. (n)

Section 2. By whom rendered . The judgment shall be rendered by the members of the court who participatedin the deliberation on the merits of the case before its assignment to a memberfor the writing of the decision. (n)

Section 3. Quorumand voting in the court . The participation of all three Justices of a divisionshall be necessary at the deliberation and the unanimous vote of the threeJustices shall be required for the pronouncement of a judgment or finalresolution. If the three justices do not reach a unanimous vote, the clerkshall enter the votes of the dissenting Justices in the record. Thereafter, theChairman of the division shall refer the case, together with the minutes of thedeliberation, to the Presiding Justice who shall designate two Justices chosenby raffle from among all the other members of the court to sit temporarily withthem, forming a special division of five Justices. The participation of all thefive members of the special division shall be necessary for the deliberationrequired in section 2 of this Rule and the concurrence of a majority of suchdivision shall be required for the pronouncement of a judgment or finalresolution. (2a)

Section 4. Dispositionof a case . The Court ofAppeals, in the exercise of its appellate jurisdiction, may affirm, reverse, ormodify the judgment or final order appealed from, and may direct a new trial orfurther proceedings to be had. (3a)

Section 5. Form of decision . Every decision orfinal resolution of the court in appealed cases shall clearly and distinctly statethe findings of fact and the conclusions of law on which it is based, which maybe contained in the decision or final resolution itself, or adopted from thoseset forth in the decision, order, or resolution appealed from.

Section 6. Harmlesserror . No error in eitherthe admission or the exclusion of evidence and no error or defect in any rulingor order or in anything done or omitted by the trial court or by any of theparties is ground for granting a new trial or for setting aside, modifying, or otherwisedisturbing a judgment or order, unless refusal to take such action appears tothe court inconsistent with substantial justice. The court at every stage ofthe proceeding must disregard any error or defect which does not affect thesubstantial rights of the parties. (5a)

Section 7. Judgment where thereare several parties . In all actions or proceedings, an appealed judgment may be affirmed as tosome of the appellants, and reversed as to others, and the case shallthereafter be proceeded with, so far as necessary, as if separate actions hadbeen begun and prosecuted, and execution of the judgment of affirmance may behad accordingly, and costs may be adjudged in such cases, as the court shalldeem proper. (6)

Section 8. Questionsthat may be decided . No error which doesnot affect the jurisdiction over the subject matter or the validity of thejudgment appealed from or the proceedings therein will be considered unlessstated in the assignment of errors, or closely related to or dependent on an assignederror and properly argued in the brief, save as the court may pass upon plainerrors and clerical errors. (7a)

Section 9. Promulgationand notice of judgment . After the judgment or final resolution and dissenting orseparate opinions, if any, are signed by the Justices taking part, they shallbe delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon theparties or their counsel. (n)

Section 10. Entryof judgments and final resolutions . If no appeal or motion for new trial orreconsideration is filed within the time provided in these Rules, the judgmentor final resolution shall forthwith be entered by the clerk in the book ofentries of judgments. The date when the judgment or final resolution becomesexecutory shall be deemed as the date of its entry. The record shall containthe dispositive part of the judgment or final resolution and shall be signed bythe clerk, with a certificate that such judgment or final resolution has becomefinal and executory. (2a, R36)

Section 11. Executionof judgment . Except where thejudgment or final order or resolution, or a portion thereof, is ordered to beimmediately executory, the motion for its execution may only be filed in theproper court after its entry.

In original actions in the Court of Appeals, its writ ofexecution shall be accompanied by a certified true copy of the entry ofjudgment or final resolution and addressed to any appropriate officer for itsenforcement.

In appealed cases, where the motion for execution pendingappeal is filed in the Court of Appeals at a time that it is in possession ofthe original record or the record on appeal, the resolution granting suchmotion shall be transmitted to the lower court from which the case originated,together with a certified true copy of the judgment or final order to beexecuted, with a directive for such court of origin to issue the proper writfor its enforcement. (n)

RULE 52

Motion forReconsideration

Section 1. Periodfor filing . A party may file amotion for reconsideration of a judgment or final resolution within fifteen(15) days from notice thereof, with proof of service on the adverse party. (n)

Section 2. Secondmotion for reconsideration . No second motion for reconsideration of a judgment orfinal resolution by the same party shall be entertained. (n)

Section 3. Resolutionof motion . In the Court ofAppeals, a motion for reconsideration shall be resolved within ninety (90) daysfrom the date when the court declares it submitted for resolution. (n)

Section 4. Stay of execution . The pendency of amotion for reconsideration filed on time and by the proper party shall stay theexecution of the judgment or final resolution sought to be reconsidered unlessthe court, for good reasons, shall otherwise direct. (n)

RULE 53

New Trial

Section 1. Periodfor filing ;ground . At any time after the appeal from the lower court has been perfected andbefore the Court of Appeals loses jurisdiction over the case, a party may filea motion for a new trial on the ground of newly discovered evidence which couldnot have been discovered prior to the trial in the court below by the exerciseof due diligence and which is of such a character as would probably change theresult. The motion shall be accompanied by affidavits showing the factsconstituting the grounds therefor and the newly discovered evidence. (1a)

Section 2. Hearingand order . The Court of Appealsshall consider the new evidence together with that adduced at the trial below,and may grant or refuse a new trial, or may make such order, with notice toboth parties, as to the taking of further testimony, either orally in court, orby depositions, or render such other judgment as ought to be rendered upon suchterms as it may deem just. (2a)

Section 3. Resolutionof motion . In the Court ofAppeals, a motion for new trial shall be resolved within ninety (90) days fromthe date when the court declares it submitted for resolution. (n)

Section 4. Procedurein new trial . Unless the courtotherwise directs, the procedure in the new trial shall be the same as thatgranted by a Regional Trial Court. (3a)

RULE 54

Internal Business

Section 1. Distributionof cases among divisions . All the cases of the Court of Appeals shall be allottedamong the different divisions thereof for hearing and decision. The Court ofAppeals, sitting en banc , shall makeproper orders or rules to govern the allotment of cases among the differentdivisions, the constitution of such divisions, the regular rotation of Justicesamong them, the filing of vacancies occurring therein, and other matters relatingto the business of the court; and such rules shall continue in force untilrepealed or altered by the Supreme Court. (1a)

Section 2. Quorumof the court . A majority of theactual members of the court shall constitute a quorum for its sessions en banc .Three members shall constitute a quorum for the sessions of a division.The affirmative votes of the majority of the members present shall be necessaryto pass a resolution of the court en banc .The affirmative votes of three members of a division shall be necessary for thepronouncement of a judgment or final resolution, which shall be reached inconsultation before the writing of the opinion by any member of the division.

RULE 55

Publications ofJudgments and Final Resolutions

Section 1. Publication . The judgments andfinal resolutions of the court shall be published in the Official Gazette andin the Reports officially authorized by the court in the language in which theyhave been originally written, together with the syllabi therefor prepared by thereporter in consultation with the writers thereof. Memoranda of all otherjudgments and final resolutions not so published shall be made by the reporterand published in the Official Gazette and the authorized reports. (1a)

Section 2. Preparationof opinions for publication . The reporter shall prepare and publish with eachreported judgment and final resolution a concise synopsis of the factsnecessary for a clear understanding of the case, the names of counsel, thematerial and controverted points involved, the authorities cited therein, and asyllabus which shall be confined to points of law.

Section 3. Generalmake-up of volumes . The publisheddecisions and final resolutions of the Supreme Court shall be called"Philippine Reports," while those of the Court of Appeals shall beknown as the "Court of Appeals Reports." Each volume thereof shallcontain a table of the cases reported and the cases cited in the opinions, witha complete alphabetical index of the subject matters of the volume. It shall consistof not less than seven hundred pages printed upon good paper, well bound andnumbered consecutively in the order of the volumes published.

Procedure In The Supreme Court

RULE 56

A. Original Cases

Section 1. Originalcases cognizable . Only petitions for certiorari ,prohibition, mandamus , quo warranto , habeas corpus , disciplinary proceedingsagainst members of the judiciary and attorneys, and cases affectingambassadors, other public ministers and consuls may be filed originally in theSupreme Court. (n)

Section 2. Rulesapplicable . The procedure inoriginal cases for certiorari , prohibition, mandamus , quo warranto and habeas corpus shall be inaccordance with the applicable provisions of the Constitution, laws, and Rules46, 48, 49, 51, 52 and this Rule, subject to the following provisions:

a) All references in said Rules to the Court of Appealsshall be understood to also apply to the Supreme Court;

b) The portions of said Rules dealing strictly with andspecifically intended for appealed cases in the Court of Appeals shall not beapplicable; and

c ) Eighteen (18) clearly legible copiesof the petition shall be filed, together with proof of service on all adverseparties.

The proceedings for disciplinary action against members ofthe judiciary shall be governed by the laws and Rules prescribed therefor, andthose against attorneys by Rules 139-B, as amended. (n)

B. Appealed Cases

Section 3. Modeof appeal . An appeal to theSupreme Court may be taken only by a petition for review on certiorari ,except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (n)

Section 4. Procedure . The appeal shall begoverned by and disposed of in accordance with the applicable provisions of theConstitution, laws, Rules 45, 48, sections 1, 2, and 5 to 11 of Rule 51, 52 andthis Rule. (n)

Section 5. Groundsfor dismissal of appeal . The appeal may be dismissed motu proprio or on motion of the respondent on thefollowing grounds:

(a) Failure to take the appeal within the reglementary period;

(b) Lack of merit in the petition;

(c) Failure to pay the requisite docket fee and otherlawful fees or to make a deposit for costs;

(d) Failure to comply with the requirements regarding proofof service and contents of and the documents which should accompany thepetition;

(e) Failure to comply with any circular, directive or orderof the Supreme Court without justifiable cause;

(f) Error in the choice or mode of appeal; and

(g) The fact that the case is not appealable to the SupremeCourt. (n)

Section 6. Dispositionof improper appeal . Except as providedin section 3, Rule 122 regarding appeals in criminal cases where the penaltyimposed is death, reclusion perpetua or lifeimprisonment, an appeal taken to the Supreme Court by notice of appeal shall bedismissed.

An appeal by certiorari taken to the Supreme Courtfrom the Regional Trial Court submitting issues of fact may be referred to theCourt of Appeals for decision or appropriate action. The determination of theSupreme Court on whether or not issues of fact are involved shall be final. (n)

Section 7. Procedure if opinion isequally divided . Where the court en banc is equallydivided in opinion, or the necessary majority cannot be had, the case shallagain be deliberated on, and if after such deliberation no decision is reached,the original action commenced in the court shall be dismissed, in appealedcases, the judgment or order appealed from shall stand affirmed; and on allincidental matters, the petition or motion shall be denied.

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