Civil Procedure – Rules 31 – 40

Rule 31  Consolidation or Severance

  1. 1.    CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue when actions involving a common question of law or fact are pending before the court.
  2. 2.    BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, in furtherance of convenience or in the interest of justice.

Rule 32  Trial by Commissioner

Trial by commissioner:

  1. 1.    Reference by consent of both parties
  2. 2.    Reference by motion of one of the parties or motu proprio:
  1. Trial requires examination of a long account of either side
  2. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect
  3. Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case.

Rule 33  Demurrer to Evidence

Demurrer to evidence is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.

  1. 1.    If motion denied – defendant has the right to present evidence

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

Rule 34  Judgment on the Pleadings

1.  Judgment on the Pleadings is proper:

  1. If answer fails to tender an issue; or
  2. If answer otherwise admits the material allegations of the adverse party’s pleading

à  Then court may, on motion of that party, direct judgment on the pleadings

2.  However, the material facts alleged in the complaint shall always be proved in actions for:

  1. Declaration of nullity of marriage
  2. Annulment of marriage
  3. Legal separation

Rule 35  Summary Judgments

Summary judgment:

  1. 1.    Proper if no genuine issue as to any material fact (except as to damages recoverable) and if moving party is entitled to a judgment as a matter of law
  2. 2.    Based not only on pleadings but also on affidavits, deposition, and admissions of the parties showing that, except as to the amount of damages, there is no genuine issue.
  3. 3.    Motion shall be served at least 10 days before the time specified for the hearing.
    1. 4.    May be asked for by a party seeking to recover upon a claim, counterclaim, cross-claim or to obtain a declaratory relief.

5.  Although Rule does not specifically provide, also unavailable in actions for annulment of and declaration of nullity of marriage, and for legal separation since Sec. 1 refers to actions “to recover upon a claim”, or to recover a debt or a liquidated demand for money, or “to obtain declaratory relief.”

6.  Judgment on the pleadings and summary judgment distinguished:

Judgment on the Pleadings Summary judgment
Proper when there is no genuine issue between the parties Proper even if there is an issue as to the damages recoverable
Based exclusively on the pleadings without introduction of evidence Based not only on pleadings but also on affidavits, depositions and admissions of the parties
Available in any action, except the 3 exceptions Proper only in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

à Motions for summary judgment may be filed by the claimant or by the defending party.  The defending party may file such motion, pursuant to Rule 35, §2“at any time”, as distinguished from §1 where the claimant may file the motion at any time after the answer is filed.

Rule 36  Judgments, Final Orders and Entry Thereof

  1. 1.    The date of the finality of the judgment or final order shall be deemed to be the date of its entry.  The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or consideration is filed within 15 days
  2. 2.    Several Judgments

In action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others.

  1. 3.    Separate judgments

Judgment rendered to dispose of one of the several claims for relief presented in an action, made at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, which terminates such claim.  Action shall proceed as to other claims

Rule 37  New Trial or Reconsideration

  1. 1.    Motion for new trial or reconsideration filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution.
  2. 2.    Grounds: Motion for New Trial
  1. Fraud, accident, mistake, or excusable negligence;
  2. Newly discovered evidence

à Requisites:

  1. Discovered after trial
  2. Could not have been discovered and produced at trial despite the exercise of reasonable diligence
  3. If presented, could probably alter the result of the action

3.   Grounds: Motion for Reconsideration

  1. Damages awarded are excessive
  2. Evidence is insufficient to justify the decision or final order
  3. Decision is contrary to law

4.   Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is expected to be given, or by duly authenticated documents to be introduced.

Motion for reconsideration shall specifically point out the findings or conclusions of the judgment which are unsupported by evidence or contrary to law, with express reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings.

5.   Pro forma motion for new trial or reconsideration shall not toll the period for appeal.

6.   No second motion for reconsideration allowed.  Second motion for new trial must be based on a ground not existing or available when the first motion was made, which may be filed during the remainder of the 15-day period.

Rule 38  Relief From Judgments, Orders, or Other Proceedings

  1. 1.    Petition for relief from judgment filed within 60 days after learning of judgment and not more than 6 months after such judgment

à Must be supported by affidavit showing the FAME and the facts constituting the petitioner’s good or substantial cause of action or defense

  1. 2.    Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied.  The two remedies are exclusive of one another.
  2. 3.    Grounds:
    1. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal
  1. Judgment or final order entered against a party by FAME; or

à For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse party’s evidence.

à Uniform procedure for relief from judgments of MTC and RTC

  1. 4.    After petition is filed, court shall order adverse parties to answer within 15 days from receipt.  After answer is filed or expiration of period therefor, court shall hear the petition.
  2. 5.    If granted, judgment set aside and court shall proceed as if timely motion for new trial has been granted; if granted against denial of appeal, court shall give due course to appeal.

Rule 39  Execution, Satisfaction and Effect of Judgments

  1. 1.    Execution as a matter of right

On motion with notice, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.

à  For so long as there is a certificate of entry of judgment, execution may already be issued by the court of origin or directed to do so by the CA.

  1. 2.    Discretionary execution – pending period to appeal or during appeal; may issue only upon good reasons to be stated in a special order after hearing.
  1. By trial court – even after the perfection of the appeal for so long as the motion for execution was filed while the TC has jurisdiction over the case and is in possession or the records, upon motion of the prevailing party with notice to the adverse party
  2. Appellate court – after the TC has lost jurisdiction

à Example:

P receives judgment: June 3

D receives judgment: June 1

D files notice of appeal: June 5

When does trial court lose jurisdiction? June 18

BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.

à  Execution with respect to appealed cases- there is no need to await remand of the records.

à Execution with respect to consequential and exemplary damages should be postponed until such time as the merits of the case have been finally determined in the regular appeal, as the amounts remain uncertain and indefinite pending resolution.

3.  a.   Motion for execution of final and executory judgment should be served on adverse party and set for hearing;

b.   In case of appeal, motion is filed with court of origin supported by certified true copies of final judgment of appellate court.

  1. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No. 24-94, 4/18/94)

4.  Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)

  1. Actions for injunction
  2. Receivership
  3. Accounting
  4. Support
  5. Judgments declared immediately executory

5.  A final and executory judgment may be executed on motion within 5 years from entry.  May be revived and enforced by action after lapse of 5 years but before 10 years from entry.  Revived judgment may be enforced by motion within 5 years from entry and thereafter by action before barred by statute of limitations – file motion within 10 years from the finality of the revived judgment.

6.   Execution in case of party’s death:

  1. Death of judgment obligee – application of his executor or administrator or successor-in-interest
  2. Death of judgment obligor –
  1. Against his executor, etc. if the judgment be for recovery of real or personal property or the enforcement of a lien thereon.
  2. If death after execution is actually levied upon his property, it may be sold for satisfaction of the obligation.

à If the judgment obligor dies after the entry but before levy, execution will issue if it be for the recovery of real or personal property.  However, if judgment is for a sum of money, and the judgment obligor dies before levy, such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate.

7.   Writ of execution:

  1. Shall issue in the name of the Republic of the Phils from court which granted the motion
  2. State the name of the court, case number and title, dispositive portion of the judgment order
  3. Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms

8.   Manner of executing writ:

  1. If judgment against property of the judgment obligor – out of real or personal property with interest
  2. If against his real or personal property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor – out of that property, with interest
  3. If for sale of real or personal property – to sell property, describing it and apply the proceeds in conformity with judgment.
  4. If for delivery of possession of property – deliver possession of the same to the party entitled to it, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and out of real property if sufficient personal property cannot be found.
  5. In all cases, writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of date of issuance of writ, aside from principal obligation.

à  Judgment obligor is given option to choose which property may be levied on sufficient to satisfy the judgment.

9.   Property exempt from execution

  1. Family home as provided by law, homestead in which he resides, and land necessarily used in connection therewith;
  2. Tools and implements used in trade, employment, or livelihood;
  3. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;
  4. Necessary clothing and articles for ordinary personal use, excluding jewelry;
  5. Household furniture and utensils necessary for housekeeping not exceeding P3,000;
  6. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding P300,000;
  7. One fishing boat and accessories not more than P100,000 owned by a fisherman and by which he earns his living;
  8. Salaries, wages, or earnings for personal services within the 4 months preceding the levy which are necessary for the support of the family;
  9. Lettered gravestones;
  10. Money, benefits, annuities accruing or in any manner growing out of any life insurance;
  11. Right to receive legal support or any pension or gratuity from the government;
  12. Properties especially exempted by law.

à  Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure of mortgage.

à  Right of Exemption is a personal right granted to the judgment creditor.  The sheriff may thus not claim it.

10. Third party claims:

  1. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not the sheriff or officer;
  2. Amount of bond not less than value of property levied on;
  3. Sheriff not liable for damages if bond is filed;
  4. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a separate action.
  5. 3rd Party claimant may vindicate his claim to property levied in a separate action because intervention is no longer allowed since judgment already executory; in preliminary attachment and replevin, 3rd party claimant may vindicate his claim to the property by intervention since the action is still pending.

11. Who may redeem real property sold:

  1. Judgment obligor or his successor in interest in the whole or any part of the property;
  2. Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold subsequent to the lien under which the property was sold. (Redeeming creditor is termed a redemptioner).

12. Judgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase, with 1% per month interest plus any assessments or taxes which he may have paid thereon after purchase with interest on said amount at 1% per month.

Redemptioners have one year to redeem from the date of registration of the certificate of sale.  They may also redeem beyond one-year period within 60 days after the last redemption, with 2 % interest on the sum to be paid on the last redemption.  The judgment obligor’s right to redeem within 60 days from last redemption is limited to the one-year period, beyond which he can no longer redeem.

à  Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch as these belong to the judgment obligor until the expiration of the period of redemption.

13. Effect of judgment or final orders

  1. In case of judgment against a specified thing, probate of will, or administration of estate or legal condition or status, it is conclusive on the title or condition, status, relationship, will or administration.
  2. In other cases/matters directly adjudged, or matters relating thereto that could have been raised subsequent to commencement of action, judgment is conclusive between parties and their successors in interest.
  3. In any other litigation, that only is deemed to have been adjudged in a former judgment or which was actually and necessarily included therein.

14. Effect of foreign judgment

  1. Judgment upon a specific thing, conclusive upon title to the thing;
  2. If against a person, judgment is presumptive evidence of a right as between the parties and their successors in interest;

15. When foreign judgment may be repelled

  1. Evidence of want of jurisdiction
  2. Want of notice to party
  3. Collusion
  4. Fraud
  5. Clear mistake of law.

16. Requisites for res judicata

  1. Final former judgment
  2. Judgment is on the merits
  3. Rendered by a court of competent jurisdiction
  4. Between first and second actions, identity of subject matter, parties and cause of action.

17. When quashal of writ of execution proper

  1. Improperly issued
  2. Defective in substance
  3. Issued against the wrong party
  4. Judgment was already satisfied
  5. Issued without authority
  6. Change of the situation of the parties renders execution inequitable
  7. Controversy was never validly submitted to the court
  8. Writ varies the terms of the judgment
  9. Writ sought to be enforced against property exempt from execution
  10. Ambiguity in the terms of the judgment

18. SPECIAL JUDGMENT – requires the performance of any other act than the payment of money or the sale or delivery of real or personal property.


19. Remedies against executory judgments or orders:

  1. Petition for relief
  2. Direct attack
  3. Collateral attack – judgment is null on its face or court had no jurisdiction

20. When court may order execution even before an executory judgment and pending an appeal

  1.         a.    Lapse of time would make the ultimate judgment ineffective;
  2.         b.    Appeal is clearly dilatory;
  3.         c.    Judgment is for support and the beneficiary is in need thereof;
  4.         d.    Articles subject of the case are perishable;
  5.         e.    Defendants are exhausting their income and have no other property aside from the proceeds from the subdivision of lots subject of the action;
  6.          f.    Movants were in extreme need of the premises subject of the suit and the bond to answer for damages in case of reversal on appeal (supersedeas bond) was posted by them;
  7.         g.    Judgment debtor is in imminent danger of insolvency;
  8.         h.    Prevailing party is of advanced age and in a precarious state of health and the right in the judgment is non-transmissible being for support;
  9.           i.    Prevailing party posts sufficient bond to answer for damages in case of reversal of judgment

à  But in most cases, the mere filing of a bond is not sufficient justification for discretionary execution.

21. Order granting writ of execution ONLY appealable when:

  1. Order varies terms of the judgment
  2. When vague and court renders what is believed to be wrong interpretation.

22. Garnishment – act of appropriation by the sheriff if the property involved is money, stocks, or other incorporeal property in the hands of third persons; merely sets apart such funds but does not constitute the creditor the owner of the garnished property.

23. Persons disqualified from participating in the execution sale:

  1. Officer conducting the execution sale or his deputy;
  2. Guardian with respect to the property under his guardianship;
  3. Agents, the property entrusted to them, unless with principal’s consent;
  4. Executors and administrators, the property of the estate under administration;
  5. Public officers and employees, the property of the State or any subdivision thereof, or any GOCC, the administration of which has been entrusted to them;
  6. Justices, judges, prosecuting attorneys, clerks of courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions;
  7. Lawyers, the property and rights which may be the subject of litigation in which they take part by virtue of their profession;
  8. Others specifically disqualified by law. (e.g. seller of goods who exercise right of resale of goods).

Rule 40  Appeal from MTC to RTC

  1. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to which MTC pertains.  File notice of appeal with the MTC which rendered decision appealed from within 15 days after notice of such judgment.
  2. Record on appeal is filed within 30 days and required only for special proceedings
  3. Appellate docket fees paid to clerk of court of MTC – payment not a condition precedent for perfection of appeal but must nonetheless be paid within the period for taking appeal;
  4. Procedure for appeal from cases dismissed without trial for lack of jurisdiction:
  1. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it has original jurisdiction;
  2. If reversed, the case shall be remanded to the MTC;
  3. If the first level court tried the case on the merits without jurisdiction, the RTC should not dismiss the case but shall decide it in the exercise of original jurisdiction.



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About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on December 19, 2011, in Civil Procedure and tagged . Bookmark the permalink. 2 Comments.

  1. I believe what you said was actually very logical.
    But, think on this, what if you added a little information?
    I mean, I don’t wish to tell you how to run your website, however suppose you added
    a title that grabbed a person’s attention? I mean Civil Procedure – Rules
    31 – 40 | Philippine Law Reviewers is a little plain.
    You ought to glance at Yahoo’s front page and see how they create post titles to get people to open the links.
    You might add a video or a related picture or two
    to grab people excited about everything’ve got to say.

    Just my opinion, it could make your website a little bit more interesting.

    • Hello there, best email marketing.
      Thanks for the nice piece of advice but as you can see, the title of this post is Civil Procedure – Rules
      31 – 40. Philippine Law Reviewers is the name of the website 🙂

      Still looking forward to making this website more popular though. A piece of advice is greatly appreciated.

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