Civil Procedure – Rules 51 – 60

Rule 51  Judgment

  1. Memorandum decisions are permitted in the CA.
  2. After judgment or final resolution of the CA and dissenting or separate opinions if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies to be served upon parties or counsel.
  3. Date when judgment or final resolution becomes executory shall be deemed as date of entry.

RULE 56  Procedure in the Supreme Court

  1. 1.    Original cases cognizable – exclusive list:
  1. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;
  2. Disciplinary proceedings against judges and attorneys;
  3. Cases affecting ambassadors, other public ministers, and consuls.

2.   An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.

3.   Grounds for dismissal of appeal by SC

  1. Failure to take appeal within the reglementary period;
  2. Lack of merit in the petition;
  3. Failure to pay the requisite docket fee and other lawful fees or to make deposit for costs;
  4. Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition;
  5. Failure to comply with any circular, directive or order of the SC without justifiable cause;
  6. Error in choice or mode of appeal
  7. Case is not appealable to the SC.
  1. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.
  2. General Rule: Appeal to SC by notice of appeal shall be dismissed.

Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Section 3, Rule 122)

  1. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision or appropriate action, without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 45.

 

Provisional Remedies

Provisional remedies (ancillary/auxiliary)

à  Writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect rights and interests therein pending rendition, and for the purpose of ultimately affecting a final judgment in the case.

à PROVISIONAL – constituting temporary measures availed of during the pendency of the action.

à ANCILLIARY – incidents in and dependent on the result of the main action.

Rule 57  Preliminary Attachment

  1. 1.    Preliminary Attachment
  1. Available even if the recovery of personal property is only an incidental relief sought in the action;
  2. May be resorted to even if the personal property is in the custody of a third person;
  3. Extends to all kinds of property, real or personal or incorporeal;
  4. To recover possession of personal property unjustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant;
  5. Can still be resorted to even if the property is in custodia legis, as long as the property belongs to the defendant, or is one in which he has proprietary interests, AND with permission of the court

2.   Grounds

  1. Recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the Phils with intent to defraud creditors;
  2. Action for money or property embezzled or for willful violation of duty by public officers, officers of corporation, agent, or fiduciary;
  3. Recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or disposed of to prevent is being found or taken;
  4. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;
  5. Action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;
  6. Action against party who is not a resident of the Phils and cannot be found therein or upon who service by publication can be made.

3.   PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem.

  1. 4.    When preliminary attachment is discharged
    1.         a.    Debtor posts a counterbond or makes requisite cash deposit- if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court; in all other cases, amount of counterbond should be equal to the amount fixed in the order of attachment.

à  CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER

  1.         b.    Applicant’s bond is insufficient or sureties fail to justify;
  2.         c.    Attachment was improperly or irregularly issued;
  3.         d.    Property attached is exempt from execution;
  4.         e.    Judgment is rendered against attaching party;
  5.          f.    Attachment is excessive – discharge is with respect to the excess

5.   Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment.

6.  When to apply for damages against the attachment bond

  1. Before trial;
  2. Before appeal perfected;
  3. Before judgment becomes executory;
  4. In the appellate court for damages pending appeal, before judgment becomes executory.
  1. 7.    When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing.  There is no need to first execute judgment against the judgment obligor before proceeding against sureties.
  2. 8.    Claims for damages cannot be subject of independent action except:
    1.         a.    When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages;
    2.         b.    When damages sustained by a third person not a party to the action.

Rule 58  Preliminary Injunction

  1. 1.    Preliminary injunction distinguished from Prohibition
Preliminary Injunction

Prohibition

Generally directed against party to the action but may be against any person Directed against a court, tribunal, or person exercising judicial powers
Does NOT involve the jurisdiction of the court May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction;
May be main action itself or just a provisional remedy in the main action Always a main action

 

2.  Grounds for Preliminary Injunction

  1. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction);
  2. The commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff;
  3. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual.

3.   Injunction may be refused or dissolved when:

  1. Complaint is insufficient;
  2. Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated;
  3. Plaintiff’s bond is insufficient or defective

4.  No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse party and hearing.

5.  PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

à  When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined.  In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant’s affidavit and bond, upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of summons shall NOT apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils

à  Difference with principle in preliminary attachment – In attachment, the principle applies only in the implementation of the writ, while in applications for injunction or TRO, this principle applies before the raffle and issuance of the writs or TRO.

6.  TRO good for only 20 days from service; 60 days for CA; until further orders from SC.

7.  TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury.  Good for 72 hours from issuance, within which judge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether TRO should be extended for 20 days.  In no case can TRO be longer than 20 days including 72 hours.

8.   No TRO, preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving implementation of government infrastructure projects. (Garcia vs. Burgos, reiterated in Administrative Circular no. 7-99, promulgated June 25,1999)

Rule 59  Receivership

  1. 1.    When receiver may be appointed:
  2. 2.    When receivership may be denied/lifted
  1. Party has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or materially injured;
  2. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in the contract of mortgage;
  3. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment.
  4. When appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation.
  1. Appointment sought is without sufficient cause;
  2. Adverse party files sufficient bond for damages;
  3. Applicant or receiver’s bond is insufficient.

3.   Both the applicant for the receivership and the receiver appointed must file separate bonds.

4.   In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether is be damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the latter case, no longer need to file a separate action).

 

Rule 60  Replevin

  1. 1.    Replevin
  2. 2.    Defendant entitled to return of property taken under writ if:
  1. Available only where the principal relief sought in the action is the recovery of possession of personal property;
  2. Can be sought only where the defendant is in the actual or constructive possession of the personal property involved.
  3. Extends only to personal property capable of manual delivery;
  4. Available to recover personal property even if the same is NOT being concealed, removed, or disposed of;
  5. Cannot be availed of if property is in custodia legis, as where is it under attachment, or was seized under a search warrant or distrained for tax assessment.
  1. He seasonably posts redelivery bond
  2. Plaintiff’s bond is insufficient or defective
  3. Property is not delivered to plaintiff for any reason.

à Replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action.  Thus, surety not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaintiff.

Special Civil Actions

1.   Types of Special Civil Actions

  1. Mandamus
  2. Interpleader
  3. Certiorari
  4. Contempt
  5. Prohibition
  6. Eminent Domain
  7. Declaratory Relief
  8. Quo warranto
  9. Partition of real estate
  10. Foreclosure of mortgage
  11. Unlawful detainer
  12. Forcible Entry

 

Reference:

Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001

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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. Leave a comment.

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